SUIT NOS: HAM/53/2021 -1.CHIEF BISHOP CHINEDU NWACHUKWU 2. CHIEF JEREMIAH ONWULIRI (For themselves and as representing the Executive Committee of Okoro-Na-Okazi Family Meeting, Amuzi Ahiara in the Ahiazu Mbaise L.G.A) Vs. 1. LINUS UZOMA NJOKU 2. PETER ANUMUDU 3. COLUMBUS MGBEMERE – BEFORE HIS LORDSHIP: – HON. JUSTICE INNOCENT M. NJAKA- delivered ON FRIDAY THE 25TH DAY OF APRIL 2023 – whether a written deposition should be treated as an affidavit and whether a witness should be subjected to another oath to adopt their written deposition if it has become an affidavit–distinction between an affidavit and a statement on oath- a deposition on oath must be signed in the presence of the person authorized to administer oaths- presumption of regularity in official acts- courts should not be unduly tied down by technical procedural irregularities if they do not result in a miscarriage of justice – legal status of unincorporated associations -they must act through appointed representatives, unlike incorporated associations with legal personality. Democracy which thrives on egalitarianism must be allowed to trickle down and permeate to the lowest stratum of human conglomeration- leadership should be devoid of whimsical or capricious conduct, ego-centrism, nepotism, and should instead focus on selflessness, sincerity, and dedication to serving the overall objective of the community or organization.

IN THE HIGH COURT OF IMO STATE OF NIGERIA

IN THE HIGH COURT OF MBAISE JUDICIAL DIVISION

HOLDEN AT HIGH COURT OF JUSTICE, AHIAZU MBAISE

ON FRIDAY THE 25^TH DAY OF APRIL 2023

BEFORE HIS LORDSHIP: – HON. JUSTICE I. M. NJAKA

 SUIT NOS: HAM/53/2021

BETWEEN

1. CHIEF BISHOP CHINEDU NWACHUKWU
2. CHIEF JEREMIAH ONWULIRI                PLAINTIFFS

(For themselves and as representing

the Executive Committee of Okoro-Na-Okazi

Family Meeting, Amuzi Ahiara

in the Ahiazu Mbaise L.G.A) 

AND

1. LINUS UZOMA NJOKU
2. PETER ANUMUDU
3. COLUMBUS MGBEMERE
4. JUDE OPARA                                     DEFENDANTS
5. JOACHIM ETOH
6. CHIEF JOHN IGBOKWE
7. CHIEF PATRICK CHIEMENEM
8. COSMAS OHIAGBAJI
9. VITUS ELEDO

JUDGMENT

The Plaintiffs, by their Writ of Summons and Statement of Claim, dated and filed 27^th January, 20221, claimed jointly and severally as follows:-

a. A DECLARATION that by virtue of the Constitution of Okoro-Na-Okazi Community/Family Meeting, our tenure of office and that of our executive is still extant, subsisting and will expire on the 8^th of October, 2022.

b. A DECLARATION that the purported election of 30/12/2020 returning the Defendants as executive officers of Okoro­ Na-Okazi Community/Family Meeting is null and void and of no effect.

c. AN ORDER OF THE HONOURABLE COURT invalidating, nullifying and setting aside the purported election of the Defendants.

d. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants from holding themselves out as executive officers of Okoro-Na-Okazi Community/Family Meeting, or from performing or carrying out any acts, functions or duties as elected officers of the Okoro-Na-Okazi Community/Family Meeting.

The Defendants counter-claimed against the Plaintiffs as follows:

a. A DECLARATION that by a combined reading of the arbitration report of Rev. Fr. Kyrian Chilaka dated 9/10/2019, the Constitution of Okoro­ na-Okazi dated 5^th December 2012, and the amended portion of it dated 26^th July 2019, the Executive Committee of Okoro-na-Okazi led by the 1^st Defendant is the one duly elected to lead the Association.

b. A DECLARATION that by the provision of Article 4 of Okoro-na-Okazi Constitution 2012 (as amended), the Plaintiffs are not eligible to sue in a representative capacity.

c. A DECLARATION that the Executive Committee of Okoro-na-Okazi ably led by the 1^st Defendant is the one duly elected to lead the Family Meeting.

d. A PERPETUAL INJUNCTION restraining the Plaintiffs, their agents or followers from continuing to parade themselves as Executive officers of Okoro-na-Okazi Family Meeting, or carrying out functions in that capacity; after the election of 30^th December 2020.

One witness each testified on both sides.

CHIEF BISHOP CHINEDU NWACHUKWU, testified as PW1, he said:

“I am the 1^st Plaintiff in this suit and I make this deposition for myself and the 2^nd Plaintiff and as representing the Executive Committee of Okoro-Na-Okazi Family Meeting, and I do so on our behalf. I hail from Umuokoro village in Amuzi while the 2^nd Plaintiff hails from Umuokazi, Amuzi, Ahiara in the Ahiazu Mbaise Local Government Area of Imo State. The 2^nd Plaintiff and I also, by virtue of a duly conducted election, the Chairman of Okoro-Na­ Okazi Community/Family Meeting in Amuzi, Ahiara in the Ahiazu Mbaise Local Government Area of Imo State.

 

I am also known as and referred to as Chief B.C. Nwachukwu. Any reference, to the name Chief B.C. Nwachukwu, wherever it appears on any document in this suit, refers me (Chief Bishop Chinedu Nwachukwu). We (2^nd Plaintiff and I) shall prosecute this suit for ourselves and as representing the elected officers of the community, hereinafter referred to as the Executive Committee.

 

The 1^st Defendant hails from Umuokazi, Amuzi, Ahiara in the Ahiazu Mbaise Local Government Area of Imo State. 1^st Defendant claims to be the new Chairman of Okoro-Na-Okazi Community, pursuant to a fraudulently contrived election held on the 30^th of December, 2020. The 2^nd Defendant claims to be the new Vice Chairman, being the by-product of the same ill-contrived election of 30^th December, 2020. The 3^rd and 4^th Defendants claim to be the Secretary and Treasurer, respectively, from the same illegally conducted election, while the 5^th, 6^th, 7^th, – 8^th and 9^th Defendants were instrumental to, and helped to organize the so­ called election of 30^th December, 2020. Indeed, the 9^th Defendant is a town-crier who was rewarded with the position of provost merely for beating the gong round the community and announcing that an illegal election is imminent. The 7^th Defendant (Chief Patrick Chiemenem) is the former Chairman of Okoro-Na-Okazi Community who held office for over nine (9) years against the provisions of the constitution, and later refused to formally handover to me, notwithstanding an agreement to that effect.

 

The Okoro-Na-Okazi Community/Family Meeting has a constitution. That constitution which governs the affairs of the community created offices, officers and our functions. It also donates and delimits power and its exercise in the community. I will identify and tender the said Constitution enacted and dated the 5th day of December, 2012 at the trial. By the provisions of the said Constitution, particularly at Article Seven, the tenure of office of elected officers is three (3) years. The current executive officers of Okoro-Na-Okazi Community led by us (2^nd Plaintiff and I) was elected into office on the 8^th of October, 2019. By the provisions of the Constitution of Okoro­ Na-Okazi Gommunity, our tenure of office will expire on the 8^th day of October, 2022, subject to re-election for a second term, and subject also to good performance, as provided by the said Constitution.

 

The election of 8^th October, 2019 which brought us and other executive officers into office was organized by the Okoro­ Na-Okazi Community/Family Meeting under the direct supervision and superintendence of Reverend Father Kyrian Chilaka, the well-known, widely respected charismatic priest reputed to have brought peace among families, kindred, villages and communities in Mbaise and environs through his mediation and ministration activities. Before the intervention of Reverend Father Kyrian Chilaka, the Okoro-Na-Okazi Community/Family Meeting had two parallel governments/executive officers. One of the parallel governments or factions had one Chief Patrick Onyeananam as Chairman, whereas the other government had me as Chairman. The existence of two parallel governments led to permanent tension, rancor and at times, violence in the community. On one occasion, one faction challenged the other faction for the use and occupation of the Okoro-Na-Okazi meeting hall, and this occasioned some violence.

 

Subsequently, the faction led by the said Chief Patrick Onyeananam caused a charge to be preferred against me and others in the Magistrate’s Court, Ahiazu Mbaise, for “conduct likely to cause a breach of the peace”. That was in Charge Number MAH/54C/2016: Commissioner of Police VS Sabinus Odu & Four Others. In that charge, I was the 3^rd Defendant (formerly I accused person). I will identify and tender the arraignment notice and a certified true copy of that charge sheet at the trial. The charge and the factionalisation of Okoro-Na-Okazi administration remained until the intervention and mediation of Reverend Father Kyrian Chilaka, as stated above. He properly sought for and was granted permission by the Magistrate’s Court, Ahiazu Mbaise to intervene in the matter. Before the actual mediation of the Reverend Father, both factional Chairmen and our followers agreed in writing to settle our differences and to submit/surrender to the authority and arbitration/mediation of the priest. Both factional leaders and our followers further agreed in the same written document to accept the verdict of Reverend Father Kyrian Chilaka, and promised not to re-activate the case(s) ever again. I will identify and tender at the trial, a certified true copy 13 of the written Agreement to Settle Differences between the factions, dated 22/8/2019, which was tendered in the Magistrate’s Court proceedings in MAH/54C/2016.

 

After the factions had submitted to the authority of Reverend Father Kyrian Chilaka, the priest first proceeded to collapse and dissolve the parallel government in Okoro-Na-Okazi. The entire community was happy. Then he commenced his mediation by hearing both and all sides and our witnesses. Finally, he scheduled a new election in which leaders and the officers of the former factions were to participate, if they liked. At that election which was held on the 8^th of October, 2019, the entire community turned out, including youths, Chiefs, Nzes and other distinguished men and women. I was elected by an overwhelming majority as the Chairman. The 2^nd Plaintiff was also elected as the Vice Chairman. Other officers were also elected into the other offices as established by the Constitution of the community.

 

As part of the reconciliation process, it was also agreed that all former officers elected under the old dispensation (when the community had factional governments) should hand over to the new Executive on or before the 20^th of March, 2020, to enable a smooth transition. Till date, the 7^th Defendant has refused to handover to me who is the elected Chairman. Reverend Father Kyrian Chilaka subsequently approached the Magistrate’s Court, Ahiazu Mbaise by a letter, apprising that Honourable Court of the successful outcome of his intervention. I will identify and tender a certified true copy of that letter, headed Letter of Information, dated 9/10/2019 which was tendered in the proceedings in the Magistrates Court at the trial.

 

Consequent upon the foregoing, on the 4^th of November, 2019, the Magistrate’s Court directed the 7^th Defendant, who was the Complainant in that charge to confirm on oath the information conveyed by the priest in his letter to the Court. The 7^th Defendant did so on oath and, since the charge was part-heard, the Magistrate’s Court, Ahiazu Mbaise dismissed Charge Number MAH/54C/2016. I will identify and tender a certified true copy of the proceedings of that court on 4/11/2019 at the trial.

 

After that, relative peace and unity reigned in Okoro-Na-Okazi Community, and our administration started off smoothly, despite the refusal of 7^th Defendant to handover to the executive duly elected on 8/10/2019. As already stated, our tenure of office will expire on the 8^th of October, 2022. Surprisingly, on the 28^th of December, 2020, the 2nd Defendant and one Nzenwa Eto, a retired policeman, wrote and circulated around the community a document which they described as a Notice of Election. More surprisingly, still, the said document referred to and relied on the mediation of October, 2019 by Rev. Father Kyrian Chllaka, and went forward to fix an “election” for the community on 30^th of December, 2020, two days from the dubious notice. Although the said document was addressed to me (the 1^st Plaintiff) as Chairman of Okoro-Na-Okazi, only a very dirty photocopy was served on me. I will identify and tender at the trial, a copy of the said notice. Two days later, specifically on the 30^th of December, 2020, the Defendants proceeded to organize and elect themselves as purported officers of Okoro-Na-Okazi, despite the outstanding tenure of office of my executive and myself. This action of the Defendants has banished peace and order in the community. Tension and threatened violence has returned as the youths have become restive. The Plaintiffs have been holding back the youths from taking laws in their own hands.

He went on to state

The election of Okoro-na-Okazi Family Meeting took place at the meeting hall. Umuokoro is not kindred, as alleged, but a village. I did not contest the 2019 election against the said Chief Patrick Chiemenem (7^th Defendant), but against one Chief Patrick Onyeananam. That even in that election of 2016, I did not contest against the 7^th Defendant but against one Chinedu Anuforo. However, Chief Patrick Chiemenem (7^th Defendant) who was the incumbent chairman, refused to hand over to me after I won that (2016) election. Till date, he never handed over to me. That election of 2016 was held on 20/3/2016. Eight (8) days later, being 28/3/2016, he (7^th Defendant) conducted a parallel election which purported to produce his stooge, Chief Patrick Onyeananam as the chairman.

 

When Chief Patrick Onyeananam emerged as chairman in the phantom election of 28/3/2016, the 7^th Defendant (Chief Patrick Chiemenem) used him to challenge my election/victory of 20/3/2016. They challenged me in court and out of court, a situation which resulted in a stalemate, with two parallel executives, until Rev. Father Kyrian Chilaka intervened in 2019 to organize another election which produced me as Chairman. In that 2019 election organised by Rev. Father Kyrian Chilaka, my opponent was the same Chief Patrick Onyeananam who was used by Chief Patrick Chiemenem (7^th Defendant) to scuttle my election/victory in 2016.

 

We have the “locus standi” to bring this suit as elected executive members of Okoro-na-Okazi Family/Community Meeting. The Defendants breached all constitutional provisions of the Family/Community in conducting the so-called election of December, 2020. It is not true that 7^th Defendant handed over to me in 2016. Although I won the 20/3/2016 election, the 7^th Defendant refused to hand over to me. Instead, he organised a parallel election eight (8) days later where Chief Patrick Onyeananam allegedly emerged as chairman.

 

I did not contest the parallel election of 28/3/2016 with Chief Patrick Onyeananam, because I had already been elected on 20/3/2016. The 7^th Defendant, who was the Chairman before 2016 and who was supposed to hand over to me after the election of 28/3/2016, challenged my victory in that election and instituted actions in the Magistrates Court, Ahiazu against me, in his capacity as the former Chairman, all in the bid to frustrate me from performing my duty as elected Chairman. Rather, he sought to install his stooge, Chief Patrick Onyeananam, thus creating the parallel executive already referred to. The so-called amendment to the constitution as claimed in paragraph 8 of the Defence is unconstitutional. There were two parallel executives in place when the alleged amendment took place. Also the cases in court which arose following the challenge of my election and victory as Chairman were still pending by then.  The election of 2019 organised and supervised by Rev. Father Kyrian Chilaka created a new tenure, a new mandate, starting from 8/10/2019. Based on the subsisting constitution of Okoro-na-Okazi, the tenure of the executive that was elected on 8/10/2019 will expire in 8/10/2022. The so-called election of 30/12/2020 is a sham and is premature, having been conducted when the tenure of an elected executive was still running. There was no such compromise, as claimed. The factions from the two executives of the parallel governments were not collapsed to become one executive, as claimed. What happened was that the two parallel executives were collapsed or abrogated by Rev. Father Kyrian Chilaka and a new election conducted on 28/10/2019 to produce an entirely new executive. There was no agreement about duration of tenure contrary to the constitutional provision; or that the tenure of the executive will be terminated on 20/3/2020. The 7^th Defendant did not hand over to me in 2016, as claimed. During the proceedings in MAH/54C/2016, already stated, 7^th Defendant informed the Court that he handed over to one Chief Patrick Onyeananam, his stooge who ran a parallel executive and was the head of one of the factional governments that was collapsed by the intervener/arbitrator, Rev. Father Kyrian Chilaka before the 28/10/2019 election that produced me as the chairman. No joint meeting can be summoned or held without the Chairman’s assent. The so-called signatories to the notice are impostors who have no authority under the constitution of the Family/Community Meeting to convene any meeting. The Defendants are not entitled to their counter-claim.

He tendered:

1. The constitution of Okoro na okazi is marked exhibit 1.
2. Arraignment notice is exhibit 2 and
3. charge sheet is exhibit 3
4. Agreement is marked exhibit 4.
5. letter of information by Rev Father Chilaka that he has successfully settled the matter in MAH/54C/206. exhibit 5 and 5a
6. Proceeding of Magistrate Court Ahiazu is marked exhibit 6
7. Notice of election dated 28-12-2020 marked exhibit 7

Cross examination

According to my elder brother I am 54 years. I attended secondary school and took WAEC and taking other exams. I sat for the exam. I am Chief BC Nwachukwu. I derived my chieftaincy titles from Eze Dona Eke Late, Eze Unnaka and others. There are many and uncountable local arbitration where disputes are settled. It is true that kindreds make up villages

 

The name of my autonomous community is Amuzi Autonomous Community. We have two autonomous communities in Amuzi- Amuzi Autonomous Community, Oduna Izuoha Autonomous community. My own Eze’s name is Eze Francis Ikechukwu Eze Ntuala 3 of Amuzi Autonomous Community now late and yet to be buried. Umu Okoro and Okazi are villages each but because they have the same parent, they now answer Okoro na Okazi. In my community is there a community called Okoro na Okazi. Okoro na Okazi is not kindred; it is a village made up of two villages. I told the court that kindreds make up a village. The kindreds that made up Okoro na Okazi are 5: Okorobinaoba, Umuanyaoha made up Umokoro village and Umuorioku Umuoparaenyi Umuejaa made up Umu Okazi. Okoro na Okazi has Constitution guiding it since it started having meeting

 

This constitution does provide in any part that nobody should bring any matter to court. The matter that brought about the dispute between me and the defendant, the basis of that dispute at the magistrate court is on 10-10-2016, one of the defendants, Patrick Chinemerem took me to Magistrate Court and prayed the court that I want to cause confusion in the village and also told the court that my gang stole handset owned by Peter Anumudu. Also, saying that election that brough me as the community leader should be cancelled by the court. It ended on 11-4-2019, the complainant through the intervention of Rev Father Kerian Chilaka. It ended in arbitration. That magistrate court granted me leave to settle the matter out of court

 

I and the Defendants settle out of court. That settlement was written but not everything was written it spent over 8 months when the Rev father was looking into it. I as one of the parties signed the document -exhibit 4. He was asked that: When you signed exhibit 4 you intended it will bind you and your executive. And he responded: This is concerned my being taking to Magistrate court, none of my executive members was taken to the Magistrate along with me.

 

I signed for myself because I was the one that was taken to court. This agreement gave rise to Father Kiran Letter which is exhibit 5. Last paragraph of Exhibit 5 was read to me

 

On 13-5-2022 DW1, Chief Patrick Chiemenem testified. He said:

I am the 7^th Defendant/Counter-claimant in this suit and I make this deposition on my behalf and on behalf of the other Defendants with their consent. Paragraph 1 of the Claim is admitted, save to add that the duly conducted election took place in 2016 among Umuokoro Kindred which saw the 1^st Plaintiff emerge as Chairman. In further answer to paragraph 1 of the Claim, the contest was among the two Umuokoro candidates, namely: Chief B.C. Nwachukwu (1^st Plaintiff) and Chief Patrick Onyeananam; in that contest the 1^st Plaintiff emerged as the Chairman of Okoro-na-Okazi Family Meeting in 2016 and he has been in office since then. The said duly conducted election elapsed in March 2019 election which ended in dispute, this time between Umuokoro Kindred and Umuokazi Kindred, which resulted to the arbitration conducted by Rev. Fr. Kyrian Chilaka. Paragraph 2 of the Claim is admitted. Paragraph 3 of the Claim is untrue and is hereby denied. The Plaintiffs, following Article 4 of the Constitution of Okoro-na-Okazi (as amended) lack the capacity to institute this action in their capacity as representing the Executive Committee of Okoro-na-Okazi Family Meeting.

 

Paragraph 4 of the Claim is only true to an extent that the 1^st Defendant hails from Umuokazi Amuzi Ahiara in Ahiazu Mbaise L.G.A of Imo State; but contrary to the derogations of the Plaintiffs, the 1^st Defendant is a newly and duly elected Chairman of Okoro-na-Okazi Family Meeting, he emerged pursuant to a transparent and duly conducted election held on the 30^th day of December, 2020. If shown the report and result of the said election, I should be able to identify it.

 

Paragraph 5 of the Claim is denied; contrary to the derogations of the Plaintiffs, the following persons emerged as the duly elected officers of Okoro-na-Okazi Family Meeting held on 30/12/2020:

(i) Linus Uzoma Njoku -Chairman (From Umuokazi) (ii)         Hon Peter Anumudu -Vice-Chairman (From Umuokoro) (iii) Columbus Mgbemere -Secretary (From Umuokoro) (iv) Hon Jude Opara -Treasurer (From Umuokoro) (v) Cosmos Ohiagbaji – Financial Secretary (From Umuokazi)

 

Names of the other duly elected officers are contained in the report/result sheet earlier pleaded; the result announced by the 9^th Defendant was constitutional and lawful. Paragraph 6 of the Claim is only true to an extent that the 7^th Defendant was the former Chairman of Okoro-na-Okazi Family Meeting who handed over to the incumbent in 2016 when he took over with his cabinet. Paragraph 7 of the Claim is admitted. Paragraph 8 of the Claim is admitted, save to state that the amended constitution of 2019 made it a 4-year term; if shown the said Constitution dated 26^th July, 2019 I should be able to identify same. Paragraph 9 of the Claim is untrue and denied; the tenure of the Plaintiffs expired since March 2020 in accordance with both the arbitration of Rev. Fr. Kyrian Chilaka dated 9^th October, 2019 and the Constitution of Okoro-na­ Okazi Family Meeting. In further answer to paragraph 9 of the Claim, the Plaintiffs failed to submit to the election of new officers duly conducted on 30/12/2020 and thereby dashed their dream of a second term. Save for the misrepresented date of 8^th October, 2019, we admit paragraph 10 of the Claim; only to add that Rev. Fr. Kyrian Chilaka duly considered the election of March 2016 to arrive at the verdict of March 2020 of which the parties to this suit agreed to, signed and sealed. It was on this basis that the Constitution was amended to accommodate the additional one year. Paragraph 11 of the Claim is only true to an extent that prior to Rev. Fr. Kyrian Chilaka’s intervention, there was what seemed to be a faction of Okoro-na-Okazi Family Meeting and the Chairman of both factions were from the same kindred of Umuokoro. What Rev. Fr. Kyrian Chilaka did was to simply collapse the parallel administrations into the one headed by the Plaintiff whose tenure elapsed in March 2019 but was extended by a quasi­ election of 8^th October, 2019; expressly stated to terminate on 20^th March, 2020. Paragraphs 12, 13 and 14 of the Claim are true only to the extent that there were leadership contests and disputes which culminated to Court cases, and which were resolved by Rev. Fr. Kyrian Chilaka’s Arbitration Panel. Paragraph 15 of the Claim is admitted. Paragraph 16 of the Claim is only true to an extent that Rev. Fr. Kyrian Chilaka collapsed that of the parallel government of Chief Patrick Onyeananam into that of Chief B.C. Nwachukwu; the arbitration report expressly stated the terminal date of the emergent Executive which is 20th March, 2020. Paragraph 17 is untrue and denied, the election of 8th October, 2019 was a quasi-election whereby the Chief Patrick Onyeananam faction compromised and allowed that his faction be collapsed into that of the 1^st Plaintiff with an express agreement that the regime will terminate on 20th March, 2020. Paragraph 18 is completely false and denied; there is no such provision in the arbitration report which of course speaks for itself. Paragraph 19 of the Claim is only true to an extent that Rev. Fr. Kyrian Chilaka submitted an arbitration report which contents speak for itself. Paragraph 20 of the Claim is only true to the extent that the documents mentioned in the paragraph are true; any other insinuations therein are denied. Paragraph 21 of the Claim is true to an extent that cordiality returned to the Community till date; I as the 7^th Defendant never contested any election with the 1^st Plaintiff in 2019, I rather handed over to his Cabinet of 2016. Paragraph 22 of the Claim is completely false, we had been giving notices to the Plaintiffs since October 2020, reminding them that their tenure had elapsed since March 2020, but they remained adamant, if shown the said notices I shall be able to identify them. Paragraph 23 of the Claim is not only false but mischievous; we never served any notice on the Plaintiffs in the month of December 2020, where any such notice is produced, it must be forged. Paragraph 24 of the Claim is untrue and denied. Okoro-na-Okazi Family Meeting duly organized election on 30th December, 2020 in accordance with the constitution of the village, and guided by the arbitration of Rev. Fr. Kyrian Chilaka.

The Plaintiffs are now threatening and instigating few misguided youths into violence in a desperate move to cling on the power; they should be stopped from resorting to unnecessary violence.

The Plaintiffs have no cause of action, and no locus standi to sue in the first instance, and therefore are not entitled to their claim.

He tendered:

1. Minutes of meeting dated 30-12-2020 is admitted and marked as exhibit 8
2. letter dated 20-10-2020 exhibit 9
3. Letter dated 20-11-2020 marked exhibit 10.
4. Amended Constitution of Okoro na Okazi Amuzi is admitted and marked exhibit 11

Cross examination

My signature appeared in exhibits 9, 10, 11. I am sure I signed these documents. They are my signature. A signature on my statement on oath adopted on 24-6-2022 is also mine. This signature in my deposition I signed it in my lawyer’s chamber. I am former chairman of Okoro na okazi. At the end of my tenure an election was conducted to replace me

 

I refused to accept the result of the election but with reasons. As the person is the chairmen I dissolved the house for another village and the village started having a problem of where it will come from so I postponed the election and they went ahead and conducted the lection in my absence and that of the executives. That is what they said that election I refused to accept produced the 1^st plaintiff as chairman because I was not there that day. They said he was the one they elected in my absence.

 

I handed over because the time I rescheduled the election the election held and I handed over to the person who won the election. The election that produced the plaintiff was kangaroo, the villages to who I wrote a letter postponing the election were not there and the executives were not there. I am familiar with the provisions of the constitution of Okoro na Okazi as the former chairman. By the provision, the tenure of the office of an elected officer is 3 years. Because of my rejection of the 1^st plaintiff as chairman I held a parallel election which produced another person other the 1^st plaintiff

 

That parallel election it is correct to say that the 1^st plaintiff did not participate. It is also correct to say that because the election of the 1^st Plaintiff and the person I supported to be the chairman there was a parallel government in Okoro na Okazi. Because of the confusion caused by the existence of two parallel governments, Rev Father Kyrian Chilaka had to intervene to settle the dispute. It is not correct that in other to resolve the dispute, Rev Kyrian Chilaka organized an election which involved all the parties. He did not conduct an election. He organized a settlement between the two factions of the same village. Rev Kyrie Chilaka did not organize an election on 8-10-2019, he organized settlement between two persons of the same family. In exhibit 4- that is my name and signature. I signed exhibit 5 but the last paragraph made me to sign. That was the ground on which the agreement was reached. I remembered charge No. MAH/45c/2016 CP v Sabinus Odu & 4 ors. I can’t remember if I was the nominal complainant in that charge unless I see it. The last paragraph of the front page of exhibit 6 read to the hearing of the court. I testified as PW1 in that charge. I do not know what the complaint of the 1^st plaintiff before the arbitration of Rev Chilaka was.

 

It is not true that I refused to hand over to the 1^st plaintiff because I believed that he will audit my tenure. In the parallel election it was Chief Patrick Onyemenam who emerged as the winner. He was the 1^st to go to the police. I cannot remember the date he conducted the settlement. It can be true it was 4-11-2019. We do not have constitution before. It was in my tenure that I set up committee that prepared the constitution. I was not the one that amended it. It was Okoro na Okazi that amended it

 

I cannot remember if as at the 26-7-2019 when the purported amendment to the Okoro na Okazi constitution was made that charge was still pending but I know I was the one that set up the committee that produce the constitution. Father Kyrian made the amendment and not me. It was not true that the so called amendment was made while the charge was still pending. During the proceeding at the charge what was tender was exhibit 1. There is no provision in exhibit 1 as leader or elder. I am not the cause of the problem in Okoro na Okazi.

 

At the end of evidence, the counsel exchanged final written addresses

The Defendants’ counsel raised issues for determination as:

1. Whether the Plaintiffs have Locus standi or have disclosed any reasonable cause of action.
2. Whether the tenure of the Plaintiffs did not terminate on 20th March 2020 as stipulated in Exhibit 5.

 

On issue 1, it is submitted that the Defendants/Counter-Claimants at paragraph 5 of their Statement’ of Defence, expressly stated the names of the Executive Committee of Okoro­ Na-Okazi Family Meeting. These officers are the make-up of the Community; they are the ones who have the locus standi to sue in compliance with Article 4 of the Constitution of Okoro-Na-Okazi Community. The Plaintiffs are only two in number and do not have the mandate of anybody in the Community to sue. The Plaintiffs do not have any authority to sue on behalf of the Executive Committee, and did not state anywhere in their pleading the m of such Committee. The position of the law is that parties are bound by their pleadings.

 

According to counsel, locus standi and reasonable cause of action may apply to divest a trial Court of jurisdiction but they cannot be equated with each other. Thus, a cause of action and standing to sue are linked to the issue of jurisdiction of a Court. If a plaintiff does not have a cause of action or the standing to sue, the Court cannot properly assume jurisdiction to entertain the matter. Relied on ODIMEGWA VS. IBEZIM (2019)9 NWLR (PT.1677)244 @ 246. Reasonable cause of action is a cause of action with a chance of success.

 

According to the counsel, locus standi on the other hand is the right to bring an action or to be heard in a given forum. The concept of locus standi is predicated on the assumption that no Court is obliged to provide remedy for a claim in which the applicant has a remote, hypothetical or no interest. Relied on A-G, KADUNA STATE VS. HASSAN (1985)2 NWLR (PT.8)483.

 

It is submitted that in the instant case, a situation where two persons only, without any authority to sue, turn around to sue the Executive Committee which ought to have given him the standing to sue, is a huge joke and preposterous indeed. The situation here is not redeemable in the entire pleading and statement on Oath where the plaintiffs did not indicate anywhere who gave them the standing to sue. If one may ask, what is the grievance of the plaintiffs? Their grievance is found in their Claim One: that as at 27^th January 2021, the tenure of office of the plaintiffs and their executive is still extant, subsisting and will expire on the 8^th of October 2022. This claim can best be described as bogus, and riotous with the contents of Exhibit 5.

 

The court is urged to resolve issue one in favour of the Defendants/Counter-Claimants, and to hold that this Suit has not disclosed any reasonable cause of action, and that the plaintiffs lack the locus standi to bring up this action.

 

On issue 2, the counsel stated that exhibit 5 is an arbitration report dated 9^th October 2019. It is addressed to the Chief Magistrate Ahiazu Mbaise. The document was executed by the 1^st Plaintiff, the 7^th Defendant, and the Arbitrator – Rev. Fr. Kyrian Chilaka. Exhibit 5 is a Certified True Copy of the original which was submitted to the trial Court. Exhibit 5 was tendered in evidence by the Plaintiffs who essentially rely on same.

 

According to the counsel, in his sworn deposition dated 27^th January 2021, the 1^st Plaintiff, as PW1 stated at paragraph 20: Reverend Father Kyrian Chilaka subsequently approached the Magistrate Court, Ahiazu Mbaise by a letter, apprising that Honourable Court of the successful outcome of his intervention. I will identify and tender a certified true copy of that letter; headed letter of Information, dated 9/10/2019 which was tendered in the proceedings in the Magistrate Court at the trial.

 

The counsel reproduced what he captures transpired under cross-examination of the Plaintiff as PW1 on 4^th February 2022 thus:

Question:    But how did you end up at the Magistrate Court?

Answer:       On 4/11/2019, Rev. Fr. Kyrian Chilaka arbitrated into the matter.

Answer:       Did the Magistrate Court grant you leave to settle the matter out of Court?

Answer:       Yes.

Question:    Did you settle the matter out of Court?

Answer:       Yes, we also reported back to the Court.

Question:    Was the settlement reduced to writing?

Answer:         Yes, not all was written.

Question:  Did you sign that arbitration document?

Answer:        Yes.

Question:    When you signed Exhibit 4, you intended that the contents are binding on you and your Executive?

Answer:       Yes.

Question:    It is Exhibit 4 that gave rise to Exhibit 5?

Answer:       Yes.

 

According to the counsel, the above brings us to the ingredients of a valid Customary Arbitration. Customary arbitration is one of the modes of settlement of disputes recognized under the Nigerian Law, particularly where the object of dispute is such that falls within the domain of customary Law. In submissions to arbitration, the general rule is that as the parties chose their own arbitrator to be the Judge in the dispute between them, they cannot when the award is good on its face, object to its decision, either upon the law or the facts. See: OKALA VS. UDAH (2019) 9 NWLR (PT.1678)562 @ PP.576-577, PARAS. C – E, H – A.

 

It is submitted that the decision of a Customary Arbitration applies as ‘estoppel per rem judcatam’ amidst the following ingredients precedent for establishing native arbitration namely:

1. a) the parties voluntarily submitted their dispute to the native arbitration panel for determination; b) it was agreed by the parties either expressly or by implication that the decision of the arbitrators would be accepted as final and binding; c)          the said arbitration was in accordance with the customs of the parties or their trade or business; d)          the arbitration reached a decision;
2. e) the decision or award was accepted at the time it was made

Anything short of these conditions will award risky to enforce. See: – OKALA VS. UDAH (SUPRA) @ P.565 R 4. – OKOYE VS. OBIASO (2010)8 NWLR (PT. ~ 5)145. – AGU VS. IKEWIBE (1991)3 NWLR (PT.18 385. – EZEANIOKWA VS. MUONEKE (2005) ALL – VLR (PT.256)1327 @ 1336.

 

It is submitted that the Exhibit 5 met all the requirements for a valid arbitration in this case. Exhibit 4 shows that parties voluntarily submitted to the arbitral panel in writing. The said arbitration was in accordance with the customs or trade of the parties, because in Mbaise today, most communities with native dispute resort to Rev. Fr. Kyrian Chilaka rather than resort to juju priests. The arbitrators reached a decision which both parties gladly accepted, but the plaintiffs became funny at the last implementation of the arbitral decision. The counsel reproduced the arbitral decision of the arbitrators as contained in Exhibit 5:

The officers elected, it was agreed by Okoro/Okazi executives that their tenure expires on 20^th of March 2020. Within this period, they should endeavour to put everything in order and make proper account/handover.

 

The court is urged to give judicial effect to the plain language in this arbitral decision by resolving same in favour of the Defendants/Counter-Claimants whose Counter-Claim is hinged on this judicial interpretation.

 

On his part, the counsel submitted that FACTS RELEVANT FOR THE DETERMINATION OF THIS SUIT:are:

1. BOTH PARTIES ADMITTED that there was an election on 20/3/2016 which produced 1^st Plaintiff as Chairman.
2. BOTH PARTIES ADMITTED that the DW1 refused to hand over to the 1^st Plaintiff after the 20/3/2016 elections. (Paragraphs 6 and 21 of the Statement of Claim). DW1 himself said during his cross­ examination on 14/10/2022 that he refused to accept the result of the election which produced the 1^st Plaintiff as Chairman “with reasons”, and that he only handed over to the person that won the second election he organized himself.
3. BOTH PARTIES ADMITTED that the tenure officers is three (3) years based on exhibit “1”. DW1 also admitted this both in his Statement of defence and his cross examination.
4. BOTH PARTIES ADMITTED that that at a time there were two parallel governments in the community.  DW1 also admitted this during his cross-examination on 14/10/2022.
5. BOTH PARTIES ADMITTED that the existence of parallel governments led to the intervention of Rev. Father Kyrian Chilaka, which intervention resulted in withdrawal of Charge No: MAH/54C/2016 and further resulted in EXHIBIT “5”.

The counsel also said tht the defendants’ sole witness, DW1 told the honourable court on 14/10/2022 that he signed his statement on oath in his lawyer’s chambers.

The counsel formulated issues for determination as:

1. Whether the plaintiffs have the locus standi to bring this action?
2. Whether there is a tenable defence to the plaintiffs’ suit?
3. On a balance of probability whether the plaintiffs are ot entitled to their claim?

 

On issue 1, it is submitted that the submission of learned Defendants’ counsel on locus standi of the Plaintiffs in this case is totally misconceived. This is because in arguing the issue, he proceeded on a wrong premise by relying on the Statement of Defence of the Defendants from which he made references thereof.  The law is that in determining locus standi, the court can only look at the Statement of Claim and not at any other process. DANIYA VS IYAGIN (2002) 7 NWLR (PT. 766) 355, AJAGUNGBADE III VS LANIYI (1999) 13 NWLR (PT. 633) 92 at 111 F – G. ADEOKIN RECORDS VS M.C.S.N (LTD/GTE) (2018) 15 NWLR (PT. 1643) 550,555 at 565 A – E and 566 A – B, DIAMOND PET LTD VS C.B.N (2015) 14 NWLR (PT. 1478) 179.

 

According to the counsel, in the instant case, learned Defendants’ counsel erroneously referred to paragraph 5 of the Statement of Defence, and proceeded thereafter to expound the law on locus standi. Notwithstanding that Defendants proceeded on a wrong legal premise, the Plaintiffs have the standing to sue in this case.

 

While a trial court will only look at the Statement of Claim, to ascertain whether or not a Plaintiff has locus standi, the Plaintiff has to show or demonstrate that he has sufficient interest in the subject matter and that his civil rights and obligations have been or are in danger of being infringed. NWOKOCHA VS AZUBUIKE (2013) 4 NWLR (PT. 1343) 197, 201 at 211 A – B; BARB US & CO (NIG) LTD VS OKAFOR UDEJI (2018) 11 NWLR (PT. 1630) 298.

 

To demonstrate that the Plaintiffs have locus standi, the counsel referred the Court to paragraphs 1, 3, 6, 7, 8, 9, 10,21,22,23 and 24 of the Statement of Claim. The foregoing paragraphs, adequately shows that Plaintiffs have sufficient interest and that there is breach or threat of breach and infringement of Plaintiffs’ civil right and ‘ obligations. Indeed from the very first paragraph of the Statement of Claim, Plaintiffs demonstrated their locus standi by pleading thus:- ” … the Plaintiffs are also, by virtue of a duly conducted election, the Chairman, and  vice Chairman, respectively, of Okoro-Na community/Family Meeting in Amuzi, Ahiara in Ahiazu Mbaise Local Government Area of Imo State.

 

According to the counsel, paragraphs 1 and 3 clearly their interest in the subject matter and also their capacity to bring the action; paragraphs 7 and 8 show that their rights and obligations were founded on the constitution (EXHIBIT “1”); while paragraph 9 shows that the Plaintiffs’ tenure of office will lawfully terminated on 8/10/2022; whereas paragraphs 22 and 23 show the actual threat or infringement of their right to enjoy their tenure up to 8/10/2022.

 

The Plaintiffs have therefore, shown the breach of their civil rights by the Defendants as well as their interest. The injury or hardship which the Plaintiffs will suffer culminates in the loss of their tenure, notwithstanding the fact that they were elected to complete that tenure up to and including 8/10/2022. Referred to UWAZURUONYE VS GOV. OF IMO STATE (2013) 8 NWLR (PT. 1355) 28, 56 – 57, H -A.

 

The court is urged to discountenance the contention of the Defendants’ counsel. The existence or not of locus standi can only be determined by looking at the Plaintiffs’ case and not otherwise. In the instant case there is sufficient interest disclosed in the Statement of Claim as well as infringement of Plaintiffs’ civil rights and obligations, all of which give them the locus standi to bring this action.

 

On issues 2 and 3 argued jointly, it is submitted that there is no enable defence to this suit and that, accordingly, there is nothing to be placed on the other side of the imaginary scale on behalf of the Defendants. Therefore, on a balance of probability, it is submitted that the scale of justice tilts in favour of the plaintiffs. This is because on 14/10/2022, the only witness tendered by the Defendants in these proceedings (DW1) admitted that he signed his Statement on oath in his lawyer’s office

 

It is contended therefore, there is nothing on the other side of the scale of Justice to counter or attempt to balance against the case of the Plaintiffs. This view is by reason of the fact that the DW1 (Chief Patrick Chiemenem) who is also the only witness for the Defendants in this case has no competent evidence before the Court. We say so because there is no viable evidence to give life to the pleadings of the Defendants in their Statement of Defence.

 

According to the counsel, Section 112 of the Evidence Act, 2011 provides that no affidavit shall be admitted where it is proved that same is not sworn before a person before whom it ought to be sworn. Also, S. 117(4) of the Evidence provides thus:- “An affidavit when sworn shall be signed by the deponent or if he cannot write or is blind, marked by him personally with his mark in the presence of the person before whom it is taken”. In the instant case, the DW1 admitted on oath upon being cross examined on 14/10/2022 that he signed his deposition on oath in his lawyer’s office.

 

The DW1’s lawyer’s office is neither a Court Registry nor does the commissioner for oath reside therein. The legal consequence of this is simple. The court is urged to discountenance the entirety of DW1’s depositions as they are defective and cannot stand. Relied on CHIDUBEM VS. EKENNA (2009) ALL FWLR (PT. 455) 1692 at 1695, NWAKOLOBI VS EJEMELI (2022) ALL FWLR (PT. 1128) 297, 300 at 321 – 322 G – B, OKOBIEMEN VS. U. 8. N. PLC (2019) 4 NWLR (PT. 1662) 265 at 268, BUHARI VS INDEPENDENT NATIONAL ELECTORAL COMMISSION (2008) ALL FWLR (PT. 437) 42, (2008) 19 NWLR (PT. 1120) 246, (2008) SCNJ 1; EROKWU VS EROKWU (2016) LPELR – 41515 (CA).

 

It is submitted, therefore, that the Statement on Oath of DW1 is defective and incompetent. His entire Statement on Oath which constitutes his evidence-in-chief must be discountenanced; so is any evidence proffered by him at the trial as they go to no issue, and we urge my Lord to so hold.

 

The court is urged to hold that there is no evidence on the other side of the imaginary scale to counter the evidence of the Plaintiffs in the proceedings.

 

ASSUMING BUT WITHOUT CONCEEDING that the Statement on Oath of DW1 is valid, and/or notwithstanding the want of a tenable defence to the Plaintiffs’ claim, we still maintain that the Defendants essentially admitted plaintiffs’ case. This is because both parties are in agreement that the tenure of office of any elected government is three (3) years, per EXHIBIT “1”. Referred to paragraph 8 of the Statement of Claim and paragraph 9 of the PW1’s statement on oath, as well as paragraph 8 of the Statement of Defence which admitted paragraph 8 of the Statement of Claim. The counsel further referred to the evidence of DW1 on cross-examination where he admitted that by the provision of EXHIBIT “1”, the tenure of office of elected officers is three (3) years.

The counsel said he has not over-looked the fact that the Defendants purported to have amended EXHIBIT “1” via EXHIBIT “11”. EXHIBIT “11” purports to have been made on 26/07/2019. By 26/07/2019, the parties were still embroiled in a dispute which resulted in the Charge in the Magistrate’s Court in MAH/54C/2016. Referred to paragraphs 14, 15 and 16 of the Statement of Claim and to EXHIBITS 2, 3, 4 and 5. From EXHIBITS 2 and 3, the 1^st Plaintiff and others were arraigned in the Magistrate’s Court Ahiazu in MAH/54C/2016 on 10/10/2016. EXHIBIT 4, the “Agreement to settle”, was made on 22/08/2019, while EXHIBIT “5”, the “Letter of information reporting that the dispute had been settled” was made on 9/10/2019.

This pre-supposes that the purported “amendment”, which was made on 26/07/2019 was made while the parties were in court in MAH/54C/2016. The court is urged to strike down EXHIBIT “11” as a product of one of the factional/parallel executives which resulted in Charge No. MAH/54C/2016. The court is further urged to hold that EXHIBIT 11 became extinguished and died with the intervention of the peace-maker, Rev. Father Kyrian Chilaka.

 

On the contrary and assuming but not conceding that EXHIBIT 11 actually overrides EXHIBIT 1, then it is submitted that the effect of EXHIBIT 11 is that it extended the tenure of the Plaintiffs from three (3) years to four (4) years.

 

If the Court decides to go by defendants’ EXHIBIT 11, are the Defendants still justified to attempt to truncate and terminate the Plaintiffs’ tenure and claim that it ended on 20^th March, 2020? In other words, if the court decides to go by exhibit 11 (which is the defendants’ document) then the plaintiffs’ tenure will definitely not be over by 20/03/2020 because exhibit 11 has added one (1) more year to plaintiffs’ tenure.

 

EXHIBIT 11, tendered by the Defendants is actually against the Defendants who tendered it, if they maintain that the Plaintiffs’ tenure ends/terminates on 20/03/2020. The court is urged to discountenance and strike down EXHIBIT 11. Since EXHIBIT 11 was made when the community was polarized and in court over leadership, EXHIBIT “1” remains the binding constitution.

 

According to the counsel, Article 7 of EXHIBIT 1 provides that:

“The tenure of office is three (3) years”. The 1^st Plaintiff and his executives were elected into office on 8/10/2019.

 

The concluding sentence in paragraph 18 of the Statement of Claim is that: “till date, the 7^th Defendant has refused to handover to the 1^st Plaintiff who is the elected Chairman”. This was not denied in the Statement of Defence. Indeed, the 7^th Defendant (DW1) admitted this on cross­ examination on 14/10/2022 that he did not hand over to the PW1 (1^st Plaintiff). By refusing to hand over to the 1^st Plaintiff, it can safely be stated that DW1 is the cause of the problem in Okoro-na-Okazi Community.

 

It is submitted that the action of DW1 (7^th Defendant) offence every democratic tenet. To allow DW1 to get away with this recalcitrance is tantamount to rewarding him for breaching the constitution of the Community/Family Meeting (EXHIBIT “1”) and the court is urged not to do so.

 

The Plaintiffs have asserted that what Rev. Father Kyrian Chilaka conducted on 8/10/2019 was an election. (Paragraphs 16 and 17 of the Statement of Claim, replicated as evidence at paragraphs 16, 17 and 18 of DW1’s Statement on oath).          Conversely, the Defendants asserted that what Rev. Father Kyrian Chilaka conducted on 8/10/2019 was a “quasi-election” (Paragraph 15 of the Statement of Defence, replicated as evidence at paragraph 16 of the Statement on oath of DW1).  However the court is referred to EXHIBIT “5” which is the letter written by Rev. Father Chilaka. At paragraph 2 (Count II) of EXHIBIT “5”, it simply, rightly stated thus:- “I decided to cancel the two parallel elections to conduct another one to fill the gap, to have one governing body as a sign of unity instead of “parallel government” for proper exercise and accountability” . EXHIBIT “5” did not make any reference to a quasi-election. Therefore from EXHIBIT “5”, what was conducted was a fresh election and not a quasi-election. The Defendants, therefore, lied when they said that what Rev. Father Kyrian Chilaka conducted was a quasi-election.

 

According to the counsel, another obvious lie and contradiction by the Defendants is in paragraph 19 of the statement of defence (paragraph 20 of the statement on oath of DW1). There, Defendants pleaded that 7^th Defendant (DW1) handed over to 1^st Plaintiff in 2016. However, in his cross­ examination on 14/10/2022, he told the truth, that he refused to handover in 2016, thus contradicting both his pleadings and statement on oath.

 

The court is urged not to believe the evidence of DW1. It is the law that if two possibilities can be inferred from the evidence proffered by a party, neither one can be said to have been proved. IROAGBARA VS UFOMADU (2001) ALL FWLR (PT. 61)1753. A piece of evidence will be regarded as a functional contradiction where it affirms the opposite of what had earlier been said. USIOBAIFO VS USIOBAIFO (2001) ALL FWLR (PT. 61) 1784. It is also the law that no witness who has given on oath two materially contradictory and inconsistent evidence is entitled to the honour of credibility. Such a witness does not deserve to be treated as a truthful witness. EZEMBA VS IBENEME (2004) ALL FWLR (PT. 223) 1786; AJIDE VS KELANI (1985) 3 NWLR (PT. 12) 248; AJOSE VS F. R. N. (2011) ALL FWLR (PT. 595) 396, 397 at 401 – 402, H – A. The court is urged to reject the evidence of DW1 on the issue.

 

The counsel further referred to paragraph 18 of the Statement of Claim and paragraph 19 of the Statement on oath of PW1. The court is urged to hold that the pleadings at paragraph 18 of the Statement of Claim properly accord with the decision in EXHIBIT “5”, which is that the DW1 and the former factional executive should hand over to the Plaintiffs’ executive before 20^th March, 2020. It is stated that to hold otherwise would be tantamount to reading absurdity in EXHIBIT “5” since both parties agree that the tenure of office of elected officers is three (3) years.

 

Considering that Rev. Father Kyrian Chilaka conducted the election on 8/10/2019, it would be preposterous and absurd to ask the winners of the election of 8/10/2019 to hand over in March, 2020, barely five (5) months later. Assuming, without conceding that there is ambiguity in the interpretation of EXHIBIT “5”, the court is urged to have recourse to the rule of interpretation which provides that where there is any ambiguity, that construction which preserves the individual’s right is to be preferred. DIN VS A. G. FEDERATION (1988) 4 NWLR (PT. 87) 147, 153. The court is urged to interpret EXHIBIT “5” in line with the provisions of EXHIBIT “1”. EXHIBIT “5” cannot, be interpreted to override or extinguish the express provisions of EXHIBIT “1” as it relates to three (3) years tenure, otherwise it would simply mean that EXHIBIT “5” has replaced EXHIBIT “1”.

The court is urged to discountenance any interpretation that may lead to absurdity.

 

This suit was filed on 27/01/2021. By the time it was filed, the Plaintiffs sought for an order of the Honourable Court that their tenure of office will expire in October, 2022. Between January, 2021 and October, 2022 is a period of one (1) year and ten (10) months. The court is one of law and equity. It is only equitable if my Lord, in finding for the Plaintiffs also, direct that their tenure will terminate on any date one (1) year and ten (10) months from the date of determination of this suit.

 

The court is urged to resolve issues A, B and C in favour of the Plaintiffs and to dismiss the counter-claim of the Defendants.

 

In conclusion it is submitted that the Defendants essentially admitted the case of the Plaintiffs.  Anything contrary would tend to breach the provisions of EXHIBIT “1”. The DW1 expressly admitted on cross-examination that he did not hand over to the 1st Plaintiff in 2016. The DW1 rather proceeded to conduct another election which produced another chairman in the community. It was this act of the DW1 that led to the existence of parallel administrations in the community. The evidence of DW1 on cross-examination sharply contradicts the pleadings of the Defendants as it relates to hand over. Contradiction is material and the DW1 should not be believed by the Honourable Court. DW1, the only witness for the Defendants signed his Statement on Oath in his lawyer’s chambers, against the provisions of the Evidence Act. There is no evidence, therefore, to give life to the Statement of Defence. There is no tenable defence to the Plaintiffs’ claim. On a balance of probability, the Plaintiffs are entitled to judgment.

 

 

Defendants’ counsel filed reply on points of law wherein he stated that counsel to the Defendants, having perused the final written address of the Plaintiffs’ Counsel, joins issues on the following:

1. ON WHETHER THIS HONOURABLE COURT CAN SAFELY DETERMINE PLAINTIFFS’ CLAIM ONE TO THE EXCLUSION OF EXHIBIT 5
2. ON THE ISSUE OF DEPOSITION OR AFFIDAVIT SWORN OUTSIDE THE PRESENCE OF COMMISSIONER OF OATHS
3. ON TECHNICALITY

 

ON WHETHER THIS HONOURABLE COURT CAN SAFELY DETERMINE PLAINTIFF’S CLAIM ONE TO THE EXCLUSION OF EXHIBIT 5

The counsel maintained that the court cannot safely resolve this dispute in isolation to Exhibit 5. According to the counsel this leads us to freedom of contract. By Exhibit 5 both parties voluntarily chose to be bound by the outcome of Exhibit 5. In fact Exhibit 5 was tendered by the plaintiffs in this proceedings. The freedom and autonomy of contract is fundamental principle of contract Law. Parties to a contract have the freedom to determine the terms of their contract. No other person, not even the Court can determine the terms of the contract between the parties thereto. Referred to – STATOIL (NIG.) LTD VS. INDUCON (NIG.) LTD (2021)7 NWLR (PT.1774)1 @ 124 -125., BFI GROUP CORPORATION VS. BPE (2012)18 NWLOR (PT.l332)209. He also relied on Section 169 of Evidence Act 2011,  UDE VS. NWARA (1993)2 NWLR (PT.278)638. At this point, parties are bound by Exhibit 5; the Court can only give effect to the letters of Exhibit 5. This is why the plaintiffs’ case hinging strictly on Exhibit I is diversionary, and does not touch the heart of the matter.

 

Therefore, in view of the agreement reached between the parties in Exhibit 5, can the plaintiffs be said to have any reasonable cause of action vis-a-viz S.169 of the Evidence Act, 2011 by this action?

 

The counsel submitted that by virtue of the provision of Section 136 of the Evidence Act 2011, the onus is on the plaintiff who seeks declaratory judgment to establish first his case by credible, cogent and admissible evidence or persuasive arguments. It is after the plaintiff may have established or proved his case that the onus would shift to the defendant to rebut the case of the plaintiff already established. ANDREW VS.I.N.E.C (2018)9 NWLR (PT.1625)507 @ 551 PARAS. E- G.

 

In the instant case, the plaintiffs’ Counsel at paragraph 5.25 of his written address argued that where a witness’s evidence in chief, or evidence under cross-examination and re-examination if any, are founded on defective witness’s statement on Oath, it is as if the witness gave no evidence at all. Counsel cited the case of: OKOBIEMEN VS. U.B.N PLC (2019)4 NWLR (PT.1662)265 @ 268.

It is submitted that the above case cited by my learned friend is distinguishable from the instant case. In the above cited case, it is one in which the witness’s statement was not sworn to at all either before the Commissioner for Oaths or any other person. It is thus a fundamental defect not to have a witness’s statement sworn to. See: OKOBIEME VS. U.B.N (SUPRA) @ 277 PARA.B.

But in the instant case, the witness’s deposition was sworn to on 8^th March 2021 before Commissioner for Oaths. Between 8/3/2021 and 14/10/2022 when the witness was cross-examined is a very long period in which the witness may have forgotten where he signed his deposition; whether before the Commissioner for Oaths or before a legal practitioner. In any case, the said deposition is before this Court to see if it was not sworn to before a Commissioner for Oaths. The position of the Law is that the Court disallows leading oral evidence in proof of a document. See: NMMAGI VS. AKOTE (2021)3 NWLR (PT.1762)170 @ 193 PARAS. B – F.

 

Oral evidence must not be allowed to prove or vary documentary evidence before the Court, except where fraud is alleged. In the instant case, no fraud is alleged; it is mere undue reliance on technicality which is repugnant to just and fair hearing. It is germane that the life issue in this case is Exhibit 5 which acts as estoppel in the parties case and not Exhibit I which is a Bye-law guiding the day-to-day activities of the parties. The Court is merely called upon to interpret Exhibit 5 and give effect to it; and in so doing, the Court is enjoined to give the plain interpretation to the clear and unambiguous letters of the arbitration report. The court is further urged to dismiss the case of the plaintiffs and allow that of the Counter-claimant.

 

RESOLUTION OF MATTER

The issues that call for determination are:

Whether there is competent and valid evidence from the defendants in defence of the Plaintiff’s claim and prove of his counter claim.

Whether the Plaintiff has proved his case

On this issue it is argued by the Plaintiff that since the sole witness for the defendants stated in the witness box that he signed his written deposition in his counsel chambers, the written deposition and his evidence should be discarded and discountenanced. It has always agitated my minds with regards elevating a written disposition to the status of an affidavit. my question is if the written deposition is now an affidavit why should a witness be subjected to another oath to adopt his written deposition if it has now become an affidavit. An affidavit does not need an oral testimony to explain it or authenticate it.

 

There should be no need for swearing in a witness who has already deposed to his affidavit. We should as well do away with swearing in witnesses in the witness box. As long as their deposition has been deposed to before the Commissioner for Oaths, they should just enter the witness box and take their cross examination.

 

In matter heard under affidavit evidence, the deponent of the affidavit is not even seen not to talk about asking him or her whether he signed the affidavit before the Commissioner for Oath or not. And I wonder why should the trial court should not adopt the method of finding out if the affidavit in support of motions and applications were signed before the commissioner for oath

If signing a witness statement on oath is so vital and a statutory requirement maybe it can be raised suo motu by the court because a court of law should not close its eyes to the violation of a substantive law.

 

I also wonder the efficacy in this respect of the presumption of regularity or validity accorded official acts. When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. See MICHAEL OKAROH V. STATE (1990) 1 NWLR (PT. 125) 128; OKEGBU V. STATE 11 SC 1

 

In my view the stamp of the Commissioner for Oath should be enough evidence that the affidavit was signed before the Commissioner for Oaths. What makes affidavit an affidavit is the stamp and signature of the Commissioner for oath. A person who prepares an affidavit containing false statement in his chambers, has his witness sign same and put it in his drawer cannot be said to have lied under oath because that document though in the form of an affidavit containing all the legal requirement of the format of an affidavit, does not have the signature and stamp of the commissioner for oath. He can only be said to have lied under oath if it can be shown that it has the stamp and the name of the Commissioner on oath.

 

If after signing in chambers and his counsel who is notary public or a person authorized to minister oath sign and stamps then it could be said to have been sworn before a wrong person and invalid. But if after being signed in the chambers and same is taken to the Commissioner of oath who append his signature and stamp then it is valid in my humble view

 

To my mind once a witness appears in the witness box and adopt the written deposition under oath it should be enough to show that he signed same. That should be the most important thing and not whether he signed it before the Commissioner for Oath or not. If there is endorsement of payment and signature of the oath officer, it is enough. And what happened where the witness signed before the commissioner with the signature of the commissioner for oaths and no endorsement of payment? Or where he signs before the Commissioner of Oath and there is no signature of the commissioner for Oaths.

 

It is interesting to observe that the court has made a difference between affidavit and statement on oath. In OKPA V. IREK & ANOR (2012) LPELR-CA/C/NAEA/289/2011, the Court laid a strong brick we can safely stand on:

” … that a witness statement on oath is different from an affidavit evidence. An affidavit is a statement of fact which the maker or deponent swears to be true to the best of his knowledge. It is a court process in writing deposing to facts within the knowledge of the deponent. It is documentary evidence which the court can admit in the absence of any unchallenged evidence. Akpokeniovo vs. Agas (2004) 10 NWLR pt 881 page 394. On the contrary a witness statement is not evidence. It only becomes evidence after the witness is sworn in court and adopts, his witness statement. At this stage at best it becomes evidence in chief. It is thereafter subjected to cross examination after which it becomes evidence to be used by the Court. If the opponent fails to cross examine, the witness’ it is taken as the true situation of facts contained there in.” Per NDUKWE-ANYANWU, J.C.A. (P. 9, Paras. C-G)

 

In TAR & ORS V. MINISTRY OF COMMERCE & INDUSTRIES & ORS (2018) LPELR-CA/MK/29/2013, that:

” …  a witness’ Statement on oath is different from an affidavit. An affidavit is a statement of fact which the deponent swears to be true to the best of his knowledge. It is a Court process in writing deposing to facts within the knowledge of the deponent; and constitutes documentary evidence which the Court can admit as the truth of the facts stated therein, in the absence of any evidence challenging same. On the contrary, a witness’ Statement on oath is not evidence. It only becomes evidence after the witness adopts the statement in Court. At this stage, at best, it becomes evidence-in-chief. It is thereafter subjected to cross-examination, after which it becomes evidence to be used by the Court. If the opponent fails to cross-examine the witness, it is taken as the true situation of facts contained therein. The only way facts in a witness statement can be jettisoned, is by cross-examination.”

See also the cases of UNION BANK V. KOLEOSO (2019) LPELR-CA/L/227/2008 and ALALADE & ORS V. ODODO & ORS (2019) LPELR-CA/L/286/2013.

 

In IDRIS V. A.N.P.P. (2008) 8 NWLR (PT.1088) 1 AT 97, PARAS. C-D; 153, PARAS. F-G (CA), thus:

“A witness’s statement on oath is in the nature of pleadings … ”

 

Despite the differentiation as noted above, the law as interpreted by the superior courts seems to have taken the stance that written deposition on oath must be signed in the presence of the person authorized to administer oaths. In CHIDUBEM V. EKENNA & ORS.(2008) LPELR-3913(CA) the court stated:

“The requirement of the law is that the deposition on oath must be signed in the presence of the person authorized to administer oaths.” Per KEKERE-EKUN, J.C.A.(P. 16, paras. D-E)

Meanwhile this requirement is not vigorously implemented and pursued in affidavit evidence as it is been vigorously pursued and implement in a written deposition.

 

Where a situation as his case arose in the case of NWAKOLOBI V. EJEMELI & ANOR (2020) LPELR-51357(CA),the Court stated:

“…On the issue of reliance on witness depositions (statements on oath) said to have been sworn to or signed at Counsel’s office, the DW1 and DW2 had actually under cross examination, strangely, confessed that they did not sign the processes before the Commissioner for Oath, as required by law. DW1 said on page 155 of the Records: “The deposition I made was signed by me I signed the deposition in my lawyer’s office”. DW2 also said: “I thumb printed my deposition. I thumb printed the said deposition in my lawyers’ office”. (See page 157 of the Records of Appeal). I think those confessions were fatal. They put a lie to the witness depositions, which had claimed to have been sworn to, before the appropriate authority (the Commissioner for Oaths). It means, the documents had been signed/endorsed by the witnesses before their Counsel in the lawyer’s office, before they were taken to the Registrar of the Court (Commissioner for Oath) for stamping and formalities by the Registrar. That was a clear violation of the law and rules, which require such documents to be signed/endorsed before the Commissioner for Oath, as a mark of consent and evidence of actual submission to the Oath or affirmation, which the whole exercise purports to portray. Where a document is signed, before being presented to the Commissioner for Oaths, for endorsement, it amounts to deceit and, in fact, perjury, in my view, as the Commissioner for Oaths does not even know and cannot identity the deponent. He also compromised his office, by so doing, making nonsense of the entire process. Sections 5, and 10 of the Oaths Act, Laws of the FRN 2004, and the Evidence Act, 2011, Section 112, made clear provisions on how to depose to affidavit before a Commissioner for Oaths or a Notary Public, and the procedures are meant to be followed, religiously. By Section 112 of the Evidence Act, 2011: “An affidavit shall not be admitted, which is proved to have been sworn before a person on whose behalf the same is offered, or before his legal practitioner, or before a partner or clerk of his legal practitioner.” In the Supreme Court decision of Buhari Vs INEC (2008)12 SCNJ 1 at 91, the Court struck out the depositions of Appellant’s witnesses, sworn before a Notary Public, who was also Counsel in the Chambers of the Senior Counsel to the Appellant, which was in violation Section 19 of the Notary Public Act and Section 112 of the Evidence Act 2011. See also the reasoning of my Lord, Ogunwumiju JCA, in the case of Erokwu & Anor Vs Erokwu (2016) LPELR – 41515 CA, where she said: “I had hitherto been of the view that even where the witness statement of the Respondent at the trial Court was not sworn to before a person duly authorized to take oaths, in contravention of Section 112 of the Evidence Act 2011, the subsequent adoption of the written deposition after he had been sworn in open Court to give evidence, regularizes the deposition. I was of the view that the witnesses’ statements, which are adopted during oral evidence on Oath are different from mere affidavit evidence, which stand on their own, without any oral backup and which are not subjected to cross-examination. That it is such affidavit evidence which do not meet the requirements of Section 112 of Evidence Act 2011 that are intrinsically inadmissible. That where a witness is in Court to say he/she is adopting an irregular written deposition, the implication is that the witness is re-asserting on Oath what is contained in the otherwise defective deposition and such adoption on oath makes all the evidence in the written deposition admissible. However, that previous way of thinking must perforce give way to the opinion of the Supreme Court in Buhari Vs INEC (2008)12 SCNJ 1 at 91. In that case, the Supreme Court unequivocally agreed with the Court of Appeal’s decision to strike out the depositions of the Appellant’s witnesses, sworn before a Notary Public, who was also Counsel in the Chambers of the Senior Counsel to the Appellant, which was a violation of Section 19 of the Notary Public Act and 83 of the Evidence Act (now Section 112)…” The provisions of Sections 107 – 120 of the Evidence Act 2011, provide the process of verifying affidavit, which, amongst other things, requires the deponent to sign the process in the presence of the person administering the oath. In the said case of Erokwu Vs Erokwu (supra), my Lord Ogunwumiju JCA further said: “The deponent after words, signs in the presence of the Commissioner for Oaths, who witnesses that the Affidavit was sworn to in his presence. This explains the phrase “Before me”, usually signed by the Commissioner for oaths. Any arrangement other than the above amounts to a nullity… When a deponent swears to an oath, he signs in the presence of the Commissioner for oaths, who endorses the document, authenticating the signature of the deponent. Signatures signed outside the presence of the commissioner for oaths fall short of the requirement of the statute and such document purported to be sworn before Commissioner of Oaths is not legally acceptable in Court.” See also Chidubem Vs Ekenna & 12 Ors (2008) LPER – 3913; (2009) ALL FWLR (Pt.455) 1692. I think the Respondents’ Counsel were therefore in grave error, when they argued that, since on the face of processes, (statements on oath by DW1 and DW2), there was compliance with the law, as the Commissioner for Oaths had endorsed the processes and stamped the same, to have been duly sworn before him, the principle of presumption of regularity, under Section 168 (1) (2) of the Evidence Act, 2011, should be invoked to cure the alleged defect. Of course, such presumption of regularity cannot, in my opinion, apply to this case in the face of the obvious/honest confessions of the DW1 and DW2, that they did not sign their statements on Oath before the Commissioner for Oaths, but did so in the office(s) of their lawyers! The effect of the above is that the said witnesses depositions of DW1 and DW2 were a nullity, and in-capable of being used in/as evidence for the Respondents at the trial Court. The trial Court was therefore wrong, in my view, to have proceeded to use the incurably defective written statements on oath by DW1 and DW2 and ascribed probative value to them in the judgment. Did the Appellant prove his case at the trial? With the above findings, I think the entire evidence of the Respondents in this case collapsed, vis a vis, the case of the Appellant at the Lower Court, relating to their evidence of possession and acts of ownership of the land in dispute, their traditional evidence and the fact that the connected and adjacent lands to the one in dispute, were also in the possession of the kinsmen and family members of the Appellant.” Per ITA GEORGE MBABA, JCA (Pp 18 – 24 Paras A – A)

 

In my humble view, discarding a written deposition and evidence of a witness solely on the ground that the deponent appended his signature on the document anywhere before taken it the commissioner for oaths is allowing dispensation of justice by the courts to be unduly tied down by technicalities particularly as in this case where no miscarriage of justice will be occasioned. Thus in NPA v. OKEREKE (2016) LPELR-41446(CA) it was stated:

“The Apex Court has made it a constant point of admonition that Courts of law should not be unduly tied down by technicalities, particularly where no miscarriage of justice would be occasioned given that justice can only be done in substance and not by impeding it with mere technical procedural irregularities that occasioned no miscarriage of justice. See FAMFA OIL LTD VS A.G FEDERATION (2003) 18 NLWR (PT 852) 453; OKONJO VS DR. ODJE (1985) 10 SC 267.”Per OSEJI, J.C.A. (P. 15, Paras. A-C)”

 

To curb injustice,  proceedings should be stopped immediately it is stated that the deposition was not signed before a commissioner of oath. In my humble view it is not affair that after a witness has been cross examined and documents tendered through him are scrutinize and all is jettisoned because the written depositing was signed before being taken a commissioner. And this is after he has appeared and stood before the trial court to say the signature on the document is mine and the content therein is from me.

 

It is now a trap set by lawyers at every point of cross examination to score  a technical knockout of their opponent.

 

I completely agree with the submissions of the learned counsel for the Defendants on this issue, however where a matter has been settled by the Superior Courts, I cannot decide otherwise. I will therefore discard the written deposition of the Defendants.

 

This brings me the position of the law on the entire evidence of the defendants particularly evidence elicited in the course of cross examination. I will deal with this in the course of this judgment.

 

On the locus standi of the plaintiffs. In ANYAEGBUNAM vs OSAKA(2000) 5 NWLR (PART 657) 386 it was stated per Katsina-Alu JSC (as he then was) that:

“An unincorporated association does not legally exist and must of necessity act through its appointed representatives. On the other hand a corporate entity i.e. an association that has been incorporated has legal personality. It can sue and be sued in its corporate name. It can and will enter into any agreement in its corporate name by virtue of Section 2(3) of the Land (Perpetual Succession) Act 1958.”

 

In DAIRO & ORS V. REGISTERED TRUSTEES OF THE ANGLICAN DIOCESE OF LAGOS (2017) LPELR-42573(SC) it was stated:

“Where an association of persons is unincorporated, it does not have the legal status of a juristic person. Consequently, it can sue only by a representative action. Likewise, any person who has been wronged by such an association of persons can only sue it by suing some of its members as representatives of the association. See Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (pt. 105) 558; Abakaliki LGC v. Abakaliki R.M.O. (1990) 6 NWLR (pt. 155) 182”.

 

In JACK & ORS V. WHYTE & ORS (2001) LPELR-1586(SC) it was stated:

“I agree that where a representative order would have been granted had it been asked for, failure to obtain it will not vitiate the action. See Bulai v.Omoyajowo (1968) 1 All NLR 72. It is not compulsory for a party wishing to sue or defend in a representative capacity to get an order of Court before filing his suit. The attitude this Court adopts in matters of this nature is not a rigid one. It depends on the facts and circumstances of the case. If there is evidence that the parties appear to possess representative capacity and act or presumably act on the authority of those they represent, this Court does not and will not upset on a bare objection of failure to obtain the approval of the Court. See Wiri and Ors. v. Uche and Ors. (1980) 12 SC.1.

 

On the issue of prove in this case, the case is built majorly on documents. I will therefore examine some document tendered in this case.

 

What is uncontested is that there was a leadership tussle in 2016 involving the 1^st Plaintiff and the 7^th Defendant which led to the emergence of two groups laying claim to the leadership of the community.

 

Consequently the 7^th Defendant made a criminal report against the 1^st Plaintiff and some other persons who were subsequently charged and arraigned before the Chief Magistrate Court on the 10-10-2016.

 

It does appear that from the 2016 to 8^th October 2019 there was no clear leadership of Umu Okoro na Okazi Family Meeting. It should be noted that by the Constitution of the Umu Okoro na Okazi at the time of the dispute, an elected officer has a three year tenure. In other words whoever was elected in 2016 was expected to have left office in 2019. One can therefore conclude that at the 8^th October 2019 the tenure of whosoever was elected in 2016 had elapsed.

 

Now as a way forward, the major actors agreed to bury their differences in the interest of the greatest numbers of the community. Rev Fr Kyrian Chilaka brokered peace among the feuding parties. The parties on the 22^nd day of August 2019 put their thoughts/agreement down as contained in exhibit 5A

EXHIBIT 5A

AGREEMENT TO SETTLE OUR DIFFERENCES

 

We the entire Okoro/ Okazi Meeting have agreed with one voice, to settle all our difference including the case. in the court (change No; MAH/54/C/2016) in view of this, we have given Rev. Father Kyrian.C. Chilaka, the authority to help us achieve this goal. We promise to accept, for peace to reign, his verdict, by divine inspiration. We promise not to insinuate, perpetuate or re – activate the case / cases in any form of manner till time immemorial so be it.

 

Signed: Community leaders

1. Peter Anumudu
2. Onyeananam Oliver
3. Njoku Onyemuche
4. Ukachi Godwin

Those involved in the court case

1. Chief Patrick Chimenam
2. Chief Bishop Chinedu Nwachukwu

 

Now on the strength of Exhibit 5A, Rev Father Kyrian C Chilaka went to work, the parties having promised ‘to accept, for peace to reign, his verdict, by divine inspiration’.

 

Within a space time of less than 2 months, Rev Father Kyrian C Chliaka produced a report and conveyed same to the Chief Magistrate, in the Magistrate Court where the charge against the 1^st Plaintiff and others was pending. This report is contained in Exhibit 5

The Exhibit 5

St. Gregory the Great Parish

                                                                   Ihitte Afoukwu

P.O. Box

Ahiazu Mbaise L.G.A

Imo State, Nigeria

Dated 9-10- 2019

The Chief Magistrate,

Ahiazu Mbaise Magisterial District,

Imo State Nigeria.

 

Letter of Information

I want to humbly inform the honorable court that the cases I was allowed to handle have been settled -charge no. MAH/54/c/2016, both courts I, II and III and other matters in the community.

 

In court II; the whole community gave their consent, (see paper attached) to abide by any verdict/decision I may give, for peace to reign, so that everybody will rest. After so many meetings and deliberations, I decided to cancel the two parallel elections to conduct another one to fill the gap, to have one governing body as a sign of unity instead of “parallel government”, for proper exercise and accountability. All accepted except few group. Though after stating their reasons, they at last said that “for peace to reign in the community, I am “free” to go ahead”. This was done on 8/10/2019 peacefully, and officers elected. It was conducted before the presence of many Okoro/Okazi men and youths, Chiefs, Nzes, and other notable and distinguished men. The people were happy that, at last, the matter has ended.

 

In court III: let it be noted that it was not the case of “stolen” but “lost”, on the course of the quarrel on that day. They have seen the truth and believed. Very soon, as I promise, total reconciliation will be conducted. So far, to the best of my knowledge, the cases are over for the interest of peace otand and the people to have their rest.

 

The officers elected, it was agreed by Okoro/Okazi executives that their tenure expires on 20″ of March 2020. Within this period, they should endevour to put everything in order and make proper account/handover. Thanks.

 

Signed:

 

Chief Patrick Chiemelem            Chief B.C Nwachukwu

 

Rev. Fr. Kyrian Chilaka

 

 

It was based on the exhibit 5, that the charge against the 1^st Plaintiff and others were on the 4^th November 2019 dismissed. They were discharged and acquitted.  The proceeding of the court is exhibit 6

 

“IN THE MAGISTRATE ‘S COURT OF MO STATE OF NIGERIA

IN THE MAGISTRATE’S COURT OF AHAZU MBAISE

MAGISTIRAL DISTRICT

HOLDEN AT AHIAZU MBAISE

BEFORE HIS WORSHIP U.A.C.OGOMA ESQ CHIEF MAGISTRATE II THIS  4^TH NOVEMBER, 2019

 

MAH/45c/2916

COMMISSIONER OF POLICE

V

(1) SABINUS ODU

(2) THADDEUS ODUH

(3) BISHOP C. NWACHUKWU

(4) AZU ANUKA UNANKA

(5) JUDE GUBOR

 

Accused Persons are all presence

APPERANCE:-

1. M. Azubuike Esq for prosecution

S.V. Nkmejika Aguwa Esq for the Accused persons.

Prosecutor: the parties have settled their matter out of court 

HON court: Let the nominal complainant inform Hon court on oath and on record.

Norminal complainant is sworn on oath and states as follows:-

My names are Chief Partrick Chiemelem. I am a technician and live at Umuokirika Amuzu. I know the Accused persons in the dock. I have settled the case with Accused persons with assistance of the Reverend Father. I don’t intend prosecuting this case against the Accused persons.

Defence counsel:- No objection.

 

Court: the charge is hereby dismissed

1. Accused persons are hereby discharged and acquitted off all the three (3) counts of the charge brought under sections 517(A), 249(d) and 390(9) of the Criminal Code
2. All exhibits tendered belonging to the prosecution or Accused persons are to be released to them accordingly upon a bond

 

          Dated the 4^th November

(Sgd) U.A.C. OGOMA ESQ

CHIEF MAGISTRATE GRADE II

 

Despite the above development, the challenge was yet to be over.

 

On the 20^th day of October 2020, i.e. less than a year after the charge in court was dismissed on 4-11-2019 and election was conducted on 8-10-2019, some persons wrote what they called NOTICICATION LETTER

 

“Umuokoro/Umuokazi Family Meeting Amuzi Ahiara

Ahiazu Mbaise LGA

Imo State.

28″ December,2020

 

The chairman,

 

Okoro na Okazi Amuzi Village

Amuzi Ahiara

Ahiazu Mbaise LGA

Imo State.

 

Sir,

 

NOTIFICATION LETTER

This is to notify you that your tenure of office as the chairman of Okoro na Okazi Community has expired since 20^th March 2020 and humbly request you to fix a meeting for election of new executive before the end of this year

Also be reminded that zonining system of Okoro n Okazi stands.

Thanks fr your kind cooperation

 

Yours faithfully

 

Hon. Peter Anumudu                Ezinna Oliver Onyeananam

Chairman (Chairman Umuokoro)        Secretary (Umuokoro

 

Chief Vitalis Amadi                              Nzenwa Eto (DSP RTD)

Elder                                                                     Chairman Umuokazi

 

 

Cosmos Ohagbaji            Chief Patrick Chiemenem

Secretary Umuokazi                  Leader

 

This was followed by another termed “Reminder Letter”

Umuokoro/Umuokazi Joint Meeting

Amuzi Ahiara Ahlazu Mbaise L.G.A.   

Imo State

20^th Nov. 2020.

 

The Chairman

Okoro na Okazi Community Meeting

Amuzi Ahiara Ahiazu Mbaise L.G.A

Imo State

Sir,

REMINDER LETTER

The above mentioned body or team is again writing to you to remind you of our letter dated 20^th of October 2020, for the urgent need or demand for a peaceful conduct of election in Okoro na Okazi before the end of this year 2020 which we believe that Hon. Peter Anumudu ,one of your relations served you.

 

Please we are still expecting to hear from you soonest or perhaps you call an emergency meeting to express your intention for continuity for a second tenure.

But you should know that intention or desire by any executive cannot be willed, acquired or inherited by any officer without the general consent or approval of the general meeting or at least 2/3 majority of members.

 

Continuing , we would want you to refer your sense back to the agreement Okoro na Okazi made on the 9^th Day of October 2019 at the Court when the case was withdrawn.

 

Furthermore, be you reminded that it will be difficult for a person to cause a breach of peace in any community two times without facing punishment in the community of his habitation.

 

Please sir. Kindly cooperate, this might be our last letter to you in respect of this election.

Signed

 

Hon. Peter Anumudu      Ezinna Oliver Onyeananam

Chairman (Chairman Umuokoro)        Secretary (Umuokoro

 

Chief Vitalis Amadi                   Nzenwa Eto (DSP RTD)

Elder                                                   Chairman Umuokazi

 

Cosmos Ohagbaji                  Chief Patrick Chiemenem

Secretary Umuokazi               Leader

 

And now notification of election:

Umuokoro/Umuokazi Family Meeting Amuzi Ahiara

Ahiazu Mbaise LGA

Imo State.

28″ December,2020

 

The chairman,

Okoro na Okazi Amuzi Village

Amuzi Ahiara

Ahiazu Mbaise LGA

Imo State.

           

Sir,

NOTICE OF ELECTION

Following the Peace Settlement organized by Rev. Father Kyrian Chilaka of St. Gregory The Great Parish, Ihitteafoukwu Ekwerazu, on the Case No. MAH/54C/2016 dated 9/10/2019 and filed in the Court on 4^th November, 2019, of which you are signatory to, we hereby formally inform you that Okoro na Okazi Amuzi shall hold her election on 30^th of December, 2020, by 9:00am prompt, to elect their executives accordingly.

                  

We should be grateful in your attendance.

Yours faithfully,

 

Hon. Peter Anumudu (Chairman, Umuokoro Family Meeting)

 

D.S.P. Nzenwa Eto (Rtd.) (Chairman, Umuokazi Family Meeting}

 

The election was eventually held on 30-12-2020 and this suit was filed on 27^th January 2021 to challenge the said election

 

The whole issue now is on the content of and the interpretation to to be given to Exhibit 5. And in this case the 2^nd paragraph and the last paragraph which for easy reference are reproduced here

In court II; the whole community gave their consent, (see paper attached) to abide by any verdict/decision I may give, for peace to reign, so that everybody will rest. After so many meetings and deliberations, I decided to cancel the two parallel elections to conduct another one to fill the gap, to have one governing body as a sign of unity instead of “parallel government”, for proper exercise and accountability. All accepted except few group. Though after stating their reasons, they at last said that “for peace to reign in the community, I am “free” to go ahead”. This was done on 8/10/2019 peacefully, and officers elected. It was conducted before the presence of many Okoro/Okazi men and youths, Chiefs, Nzes, and other notable and distinguished men. The people were happy that, at last, the matter has ended.

 

The officers elected, it was agreed by Okoro/Okazi executives that their tenure expires on 20″ of March 2020. Within this period, they should endevour to put everything in order and make proper account/handover.

 

While the Defendants are of the view that there was no election conducted by the Rev Father Kyrian Chilaka on the 8-10-2019, the Plaintiff are of the view that there was election on the 8-10-2019 and in accordance with their constitution their tenure is expected to elapse in 2022.

 

Under cross examination of the DW1 stated:

Q:      It is also correct to say that because the election of the 1^st Plaintiff and the person you supported to be the chairman there was a parallel government in Okoro na Okazi

A:      Yes

Q:      Because of the confusion caused by the existence of two parallel governments, Rev Father Kyrian Chilaka had to intervene to settle the dispute

A:      Correct.

Q:      In other to resolve the dispute, Rev Kyrian Chilaka organized an election which involved all the parties

A:      Not correct

Q:      But it is correct to say that he conducted an election

A:      He did not conduct an election. He organized a settlement between the two factions of the same village.

Q:      I put it to you that Rev Kyrie Chilaka organized an election on 8-10-2019

A:      He did not organize an election, he organized settlement between two persons of the same family.

 

The position of the DW 1 is a complete denial of the content of the exhibit 5 which stated:

“After so many meetings and deliberations, I decided to cancel the two parallel elections to conduct another one to fill the gap, to have one governing body as a sign of unity instead of “parallel government”, for proper exercise and accountability. All accepted except few group. Though after stating their reasons, they at last said that “for peace to reign in the community, I am “free” to go ahead”. This was done on 8/10/2019 peacefully, and officers elected. It was conducted before the presence of many Okoro/Okazi men and youths, Chiefs, Nzes, and other notable and distinguished men”.

The Defendants had earlier stated:

Paragraph 11 of the Claim is only true to an extent that prior to Rev. Fr. Kyrian Chilaka’s intervention, there was what seemed to be a faction of Okoro-na-Okazi Family Meeting and the Chairman of both factions were from the same kindred of Umuokoro. What Rev. Fr. Kyrian Chilaka did was to simply collapse the parallel administrations into the one headed by the Plaintiff whose tenure elapsed in March 2019 but was extended by a quasi­ election of 8^th October, 2019; expressly stated to terminate on 20^th March, 2020.

 

This, in the face of the exhibit 5 is not accurate statement of what transpired on 8^th October 2019. There was no mentioning of collapsing parallel administrations or extension of any tenure.

 

It is my view that exhibit 5 is unequivocal on the fact that election was part of the process in the resolution of the leadership disputation in the community. And indeed there was an election of officers and executives of Okoro na Okazi family meeting. The only short fall is that it did not list or enumerate by names these officers and executives elected on this 8-10-2019. But from th facts before the court it is safe to say that the Plaintiff and his executives were the ones elected on the 8-10-2019.

 

Another area of contention is he last paragraph of the exhibit 5 vis –a vis the Okoro na Okazi Family Meeting constitutional provision that the tenure of the office holders shall be three years. The period from 8-10-2019 to 20-3-2020 is obviously less than one year.

 

Regarding this exhibit 5 and matters surrounding it, the following ensued under the cross examination of the 1^st Plaintiff as the PW1:

Q: Okoro na Okazi has Constitution guiding it?

A: They have constitution since it started having meeting

Q:      This constitution does it provide in any part that nobody should bring any matter to court.

A:      There is nothing like that.

Q:      The matter that brought about the dispute between you and the defendant what is the basis of that dispute at the Magistrate Court

A:      On 10-10-2016, one of the defendants, Patrick Chinemerem took me to Magistrate Court and prayed the court that I want to cause confusion in the village and also told the court that my gang stole handset owned by Peter Anumudu. Also, saying that election that brought me as the community leader should be cancelled by the court

Q:      How did it end?

A:      It ended on 11-4-2019, the complainant through the intervention of Rev Father Kyrian Chilaka. It ended in arbitration

Q:      That magistrate court granted you leave to settle the matter out of court

A:      Yes

Q:      Did you and the Defendants settle out of court?

A:      Yes

Q:      That settlement was it produced into writing

A:      It was written but not everything was written. It spent over 8 months when the Rev father was looking into it.

Q:      You as one of the parties did you sign the document. Look at exhibit 4

A:      Yes, I signed exhibit 4

Q:      When you signed exhibit 4 you intended it will bind you and your executive.

A:      This is concerned with my being taking to Magistrate Court; none of my executive members was taken to the Magistrate along with me.

Q:      You signed not on your behalf alone but Okoro na Okazi Family Meeting which include your members of executive.

A:      I signed for myself because I was the one that was taken to court.

Q:      This agreement gave rise to Father Kyrian Letter which is exhibit 5

A:      That is true

Q:      Read out last paragraph of Exhibit 5; was the last paragraph read to you?

A:      Yes

 

On the part of the DW1

Q:   Look at exhibit 4- that is your name and signature

A:      It is my signature

Q:      Look at exhibit 5 that is also your signature

A:      I signed it but the last paragraph made me to sign that was the ground on which the agreement was reached.

Q:      You remembered charge No . MAH/45c/2016 CP v Sabinus Odu & 4 ors

A:      Yes I remember

Q:      You were the nominal complainant in that charge

A:      I can’t remember unless I see it

 

I had earlier caved in to the superior knowledge of our Superior Courts, by holding that the Defendants did not call any witness in prove of their case hence the pleadings in defence and counter claim are deemed abandoned. However there appears to be a difference between not calling a witness and not adducing evidence.  Hence in BEVERLY DEVELOPMENT & REALTIES LTD V. TEC ENGINEERING COMPANY (NIG) LTD (2020) LPELR-52023(CA) (PP. 27-31 PARAS. A-A) it is stated:

“The only known exception to this position of the law that says that where a defendant fails to call a witness to give evidence his pleadings will be deemed abandoned, is where the defendant has elicited sufficient evidence under cross examination of the plaintiff’s witnesses in proof of the facts of his defence. In such a situation, the defendant will not be deemed to have abandoned his pleadings. The law is that cross examination is part of the proceedings and where evidence elicited under cross examination is relevant and direct, such evidence cannot be ignored – Ogbeide Vs Osula (2004) 12 NWLR (Pt.888) 86, Maduka Vs Anyadiegwu (2014) LPELR 23751(CA). In Akomolafe Vs Guardian Press Ltd (2010) 3 NWLR (Pt.1181) 338 at 351, the Supreme Court, per Onoghen JSC (as he then was) made the point thus: “it is settled law that evidence elicited from a party or his witness(s) under cross examination which goes to support the case of the party cross examining constitute evidence in support of the case of the defence of that party. If at the end of the day the party cross examining decides not to call any witness, he can rely on the evidence elicited from cross examination in establishing his case or defence. In such a case you cannot say that the party calls no evidence in support of his case or defence. One may however say that the party called no witness in support of his case or defence, not evidence as the evidence elicited from his opponent under cross examination which are in support of his case or defence constitute his evidence in the case.”  Per ABIRU ,J.C.A

 

In AEROBELL (NIG) LTD & ORS v. FIDELITY BANK (2018) LPELR-45338(CA)

“I had earlier in the course of this judgment drawn attention to the decision of the Supreme Court on the question in the Admin & Exec. of the Estate of ABACHA v. EKE-SPIFF & ORS (Supra).I need only further emphasize that failure to call witnesses does not necessarily translate to no evidence in support of pleadings as failure to call witnesses is not the same as failure to place evidence before the Court. Evidence elicited from a plaintiffs witness under cross-examination forms part of the case of the defendant. The law allows a party to rely on evidence he elicits by cross examination of his opponent’s witnesses as long as the evidence is in respect of facts which he pleaded. See: UCHIV & ANOR v. SABO & ORS (2015) LPELR0-40360 (CA).”Per TUKUR, J.C.A. (Pp. 24-25, Paras. F-D) –

 

I must also state that the fact that the defendant did not call witness does not stop the court from scrutinizing the case of the Plaintiff and to sieve same with judicial sieve. In OGUNYADE V. OSHUNKEYE (2007) ALL FWLR,(PT.389) 1179 AT 1197 PARAS. D – E (SC); (2007) 4 -5 SC 98 it is stated:

“Failure on the part of a defendant to give evidence does not automatically mean that judgment must be given in favour of a plaintiff who has a duty to prove his case. Where a plaintiff fails to prove his case on the balance of probability or on preponderance of evidence, his case will be thrown out notwithstanding the fact that the defendant did not give any evidence.” Per Mukhtar JSC.

 

Hence though I discarded the deposition of the Defendants, in deciding this I can make reference and indeed rely on evidence elicited in the course of trial and processes before the court.

 

Now was the last paragraphs talking about the elected officers before the election of 8-10-2019 or the elected officers of the 8-10-2019. Was it referring to the Plaintiff and his executive or the 1^st Defendants and his executives?

The PW1 testified

The current executive officers of Okoro-na-Okazi Community led by the Plaintiff was elected into office on the 8^th of October, 2019. By the provisions of the Constitution of Okoro-na-Okazi Community, the tenure of office of the current executive will expire on the 8^th day of October, 2022, subject to re-election for a second term, and subject further to good performance as provided by the said constitution.

Finally, he scheduled a new election in which leaders and the officers of the former factions were to participate, if they liked. At that election which was held on the 8^th of October, 2019, the entire community turned out, including youths, Chiefs, Nzes and other distinguished men and women. I was elected by an overwhelming majority as the Chairman. The 2^nd Plaintiff was also elected as the Vice Chairman. Other officers were also elected into the other offices as established by the Constitution of the community

 

I did not contest the 2019 election against the said Chief Patrick Chiemenem (7^th Defendant), but against one Chief Patrick Onyeananam. That even in that election of 2016, I did not contest against the 7^th Defendant but against one Chinedu Anuforo. However, Chief Patrick Chiemenem (7^th Defendant) who was the incumbent chairman, refused to hand over to me after I won that (2016) election. Till date, he never handed over to me. That election of 2016 was held on 20/3/2016. Eight (8) days later, being 28/3/2016, he (7^th Defendant) conducted a parallel election which purported to produce his stooge, Chief Patrick Onyeananam as the chairman.

 

And the evidence elicited under cross examination from the DW1 is:

Q:      Part of the complaint of the 1st plaintiff before the arbitration of Rev Chilaka was that you refused to hand over to him?

A:      I do not know what his complaint was

Q:      You refused to hand over to the 1^st plaintiff because you believed that he will audit your tenure

A:      It is not true

Q:      In the parallel election it was Chief Patrick Onyemenam emerged as the winner

A:      Correct

Q:      It was because he claims to be administering the village and the 1^st Plaintiff is also claiming he is administering the village went to the police,

A:      He was the 1^st to go to the police

Q:      Do you remember the date he conducted the settlement

A:      I cannot remember

Q:      It was 4-11-2019

A:      It can be true

Q:      There is no place in the constitution where it is stipulated that you can unilaterally amend the constitution

A:      We do not have constitution before. It was in my tenure that I set up committee that prepared the constitution. I was not the one that amended it. It was Okoro na Okazi that amended it

Q:      It is correct to say that as at the 26-7-2019 when the purported amendment to the Okoro na Okazi constitution was made that charge was still pending

A:      I cannot remember but I know I was the one that set up the committee that produce the constitution.

Q:      I put it to you that as at the 26-7-20219, the charge was still pending.

A:      Father Kyrian made the amendment and not me.

Q:      I put it to you that the so called amendment was made while the charge was still pending

A:      It was not true,

Q:      During the proceeding at the charge what was tender was exhibit 1

A:      Yes

Q:      There is no provision in exhibit 1 as leader or elder.

A:      Yes

Q:      I want to put it to you that you are the cause of the problem in Okoro na Okazi

A:      I am not the problem

 

 

 

The DW has said “ I handed over because the time I rescheduled the election the election held and I handed over to the person who won the election. The election that produced the plaintiff was kangaroo, the villages to who I wrote a letter postponing the election were not there and the executives were not there. By the provision, the tenure of the office of an elected officer is 3 years. Because of my rejection of the 1^st plaintiff as chairman I held a parallel election which produced another person other the 1^st plaintiff.

 

It is evident that the plaintiff was never at any time given the opportunity to govern. Exhibit 11 is the purported amended Constitution. Exhibit 11 is said to be made on the 26^th July 2019.

And was signed by Peter Anumudu the 2^nd defendant, Joachim Etoh the 5^th defendant and Chief Patty Chiemenem the 7^th Defendant. So 2^nd 5^th and 7^th Defendants were part of those who amended the Constitution on 26^th July 2019 and it appears without the knowledge or contribution of the Plaintiff and his executive.  While the original Constitution- exhibit 1 -was signed by the Chairman and Secretary of the Meeting with two members respectively, the alleged amended Constitution was not so signed.

 

The Plaintiffs said in his paragraph 5 that “the 2^nd defendant purports to be the new Vice Chairman, being the by- product of the same ill-contrived election of 30^th December , 2020.—-Whereas the 5^th, 6^th and 7^th Defendants were instrumental to and helped to organize the purported election of 30^th December, 2020.—-“ The question then is if the 2^nd defendants was purportedly elected in the election of 30^th December 2020, and 2^nd, 5^th and 7^th Defendants signed the purported amended Constitution of 26^th July 2019, in what capacity did they sign the amended Constitution? This will take the sail out of any claim by the 7^th Defendant that he handed over to the 1^st Plaintiff in 2016. And it points to the fact that all times material the 7^th Defendant who was the chairman for 9 years and a selected/preferred few were still running the show. Albeit undemocratically.

 

it is clear that the election which allegedly produced the 1^st Plaintiff in March 2016 was rejected by the DW1 who was the incumbent. The DW1, the incumbent then, conducted another election that produced a chairman acceptable to him.  The DW1 handed over to this preferred candidate as the chairman.

 

There is no evidence before the court to show that the Plaintiff exercised any authority as the chairman of Okoro na Okazi Family Meeting. There is nowhere in the evidence of the parties that the DW1 officially handed over to the Plaintiff. The DW1 affirmed this under cross examination.

 

Having observed and considered the circumstances surrounding this case and the objective of the meeting or peace brokered by Rev Father Chilaka, it would appear to me the “The officers elected –“ as used in the last paragraph referred to the officers elected before the 8-10-2019 and not the Plaintiffs. I think 6 (six) months would have been too short for the officers elected on 8-10-2019 to “within this period –put everything in order and make proper account/hand over”. At no point was it shown that previous officer- that is officer elected before the 8-10-2019 ever handed over to the 1^st Plaintiff and his executives. If nothing was shown to have been handed over to them definitely there will be nothing for them to put in order and make proper account/handover within 6 months. in my view those who were within the period- 6months- put everything in order and make proper account/hand over were those to whom the 7^th Defendant handed over to in 2016. Who with the instance of the 7^th Defendants dragged the 1^st Plaintiff to court on criminal charge, engaged in the amendment of the Constitution etc. It could not have referred to the 1^st Plaintiff and his executives elected on 8-10-2019

 

Democracy which thrives on egalitarianism must be allowed to trickle down and permeate to the lowest stratum of human conglomeration. This even applies to the family which is the nucleus of the society. Processes of selecting/appointing/electing those to mount the saddle of leadership must be transparent and inclusive. Leadership is a call to service. In SHERIFF & ANOR V. PDP & ORS (2017) LPELR-41805(CA) the court stated:

“Proper leadership and good governance in all respects, whether of National or State Government, Corporate business entities, Clubs or Associations or Political Parties, must be devoid of whimsical or capricious conduct, ego-centrism, self serving attitude, nepotistic or despotic dispositions etc. But must have as its concomitant bottom-line or as its hallmark, selflessness, sincerity, dedication to the service of the overall objective of the Government, Club/Association or Political Party etc.”

 

It is my view that in the circumstances of this case, the Plaintiffs merited judgment. Judgment is entered in favour of the Plaintiffs as follows:

2022. It is declared that by virtue of the Constitution of Okoro-Na-Okazi Community/Family Meeting, the tenure of office of the Plaintiff and that of their executive is still extant, subsisting and will expire on the 8^th of October, 2022.
2023. It is declared that the purported election of 30/12/2020 returning the Defendants as executive officers of Okoro­ Na-Okazi Community/Family Meeting is null and void and of no effect.
2024. Order of the court is made invalidating, nullifying and setting aside the purported election of the Defendants.
2025. Order of perpetual injunction is made restraining the Defendants from holding themselves out as executive officers of Okoro-Na-Okazi Community/Family Meeting, or from performing or carrying out any acts, functions or duties as elected officers of the Okoro-Na-Okazi Community/Family Meeting.

I so hold

I.M.Njaka

Judge

25-4-2023

Appearance: Ama Alaonu Esq., for the Plaintiff

Joe Njoku Esq., fro the Defendants