Supreme Court did not reaffirm Edidem Ekpo Okon Abasi-Otu as Obong of Calabar – Document shows

The controversies surrounding the interpretation of the Supreme Court judgement of 13 January, 2023 regarding the revered and ancestral throne of the Obong of Calabar, have finally been laid to rest following the release of document containing the judgement.

Document released on Tuesday 17 January by the apex court clearly shows that there is no where in the 42-page document that the Court “Reaffirmed” Edidem Ekpo Okon Abasi-Otu as the Obong of Calabar.

Instead, the Supreme Court in its judgement, gave the current holder of the royal stool a soft landing by qualifying him to stand in for a fresh election that will produce the next monarch in line with the principle of natural justice.

The judgment permits Ani to contest but since the Appeal court said he was capped as an Etubom and recognized Obong in council he may not be legible.

Below are the last four pages of the 42-page document containing the January 13th Supreme Court judgement:

IN THE SUPREME COURT OF NIGERIA

HOLDEN AT ABUJA

ON FRIDAY THE 13TH DAY OF JANUARY, 2023

BEFORE THEIR LORDSHIPS

MUSA DATTIJO MUHAMMAD JUSTICE SUPREME COURT

CHIMA CENTUS NWEZE JUSTICE SUPREME COURT

AMINA ADAMU AUGIE JUSTICE SUPREME COURT

UWANI MUSA ABBA AJI JUSTICE SUPREME COURT

HELEN MORONKEJI OGUNWUMIJU JUSTICE SUPREME COURT
SC. 633/2013

BETWEEN:

1. Etubom (Dr.) Anthony Asuquo Ani

2. Etinyin Okon Effiong Offiong

3. Chief Obong Eyo Offiong APPELLANTS

4. Chief Emmanuel Eniang Offiong

5. Anthony Eniang Offiong

(For themselves and on-behalf of Diet Hot Nkpor Clan, Mbiabo lkoneto, Odukpani Local Government Area)

AND

1. Etubom Ekpo Okon Abasi Otu

2. Etubom Otu Efa Otu

(For themselves and representing the 1ST SET OF RESPONDENTS
Esit Edik Traditional Council)

AND

1. Etubom Essien Ekpenyong Effiok

2. Etubom Okon Asuquo

3. Etubom Micha Archibon 2ND SET OF RESPONDENTS

(For themselves and representing Etuboms’ Traditional Rulers Council, Obong’s Palace)

JUDGMENT

(Delivered by AMINA ADAMS AUGIE, JSC)…..

The Court of Appeal may have found that first Respondent (Abasi Otu) was qualified to contest for the Stool, however, it held as follows on the issue of fair hearing:

From the only evidence available to the High Court, the only impression that a reasonable man would have of the process by which the 1st Appellant (Abasi Otu) became a candidate not nominated by his Ruling House, who was screened by his Vice-Chairman, and was furtively recommended as the most suitable candidate for selection as the Obong of Calabar, is that Appellants (Etubom Traditional council) used their positions in Western Council unfairly to the disadvantage of 1st Respondent (Ani) in breach of the pillar of natural justice that a person should not be a Judge in his own cause. Since the evidence of the 2nd Appellant (Etubom Okon Asuquo of the Etubom Traditional council) was that the 1st screening of 1st Respondent (Ani) was cancelled, and he was not notified of the cancellation and afforded the opportunity to be screened again when another screening exercise was conducted by 2nd Appellant on another date for other candidates, 1st Respondent was undoubtedly denied the right to be heard in the selection process that led to proclamation of 1st Appellants as the Obong. Even the protest by the 1st-5th Respondents (Ani up to Anthony Eniang Offiong) on irregularities in the process, as per Exhibit 6, was without any concern to fairness, disregarded by the Etuboms Council of the Palace of the Obong, who are the kingmakers by Exhibit 5, which did not answer or respond to the complaint in respect of the screening but simply replied the request for presentation of 1st Respondent (Abasi Otu) for capping to the Etuboms Council. In these circumstances, how can the Appellants ((Etubom traditional council) in good conscience, claim and maintain that the 1st Respondent (Ani) was afforded a fair hearing or that the selection process, which ended in the proclamation of the 1st Appellant (Abasi otu) did not breach the essential requirements of natural Justice, merely on the ground that the name of the 1st Respondent (Ani) was used by them in the process as having participated therein. No, natural justice for a reasonable man, required that Appellants ((Etubom traditional council) provide factual basis and evidence that indeed, the 1st Respondent (Ani) was afforded the opportunity to be heard and that to controvert the facts and evidence of 1st Respondent and even by the Appellants, show that the Appellants were not Judges or adjudicators in their own cause. Let me point out that the positions occupied by Appellants in Western Calabar would not ipso facto disqualify them from being properly nominated by their respective families and participation in the selection of an Obong. But the way and manner they used their position in the process was contrary to the dictates and fundamentals of natural justice. For that reason, I find myself In agreement with the High Court and learned Senior Counsel (Joe Agi) for the 1st – 5th Respondents that for breaching the 1st – 5thRespondents’ right to fair hearing and essential elements of natural justice, the selection was not only defective but vitiated by the breach.

**In other words, the trial Court and Court of Appeal were ad idem that the way and manner in which the first Respondent (Abasi Otu) was selected and proclaimed the Obong of Calabar was not in accordance with the principles of natural justice, and I totally agree. Natural justice implies fairness and all that is reasonable. Prof. Ben Nwabueze, in his book Military Rule and Social Justice in Nigeria published in 1993, opined that justice “means acting fairly towards others without bias or partiality, and without harming their interests”. He further stated:

What Justice is can best be understood by considering the feelings aroused in us by injustice. Whereas Justice is a cold virtue that evokes no feeling, injustice or unfairness amuses intense fury in us and we get heated up and indignant about it – -Injustice betokens an absence of respect and manifests a lack of concern. For this reason, the occurrence of injustice – immediately puts the unity and coherence of society under strain. Justice Is thus rightly regarded as “the bond of society”, the “cornerstone of human togetherness”. It is the condition in which the individual can feel able “to identify with society, feel at one with it, and accept its rulings”.

In this case, I do believe that the Efik people deserve better; they need to know that the Etubom selected as the Obong of Calabar ascended the throne in strict compliance with the rules of natural justice and with no subterfuge of any kind.

“Nemo judex in causa sua” is a Latin phrase, which means – ‘no man should be a Judge in his own cause”. It is a principle of natural justice that no person can judge a case, in which he has a personal interest or involvement — G.E.C. V. Akande (2012) 16 NWLR (Pt. 1327) 593 SC. This rule of natural justice is, therefore, not confined to the cause in which the person is a Party, but it also applies to a cause in which he has an interest or he is involved in.

It underlines the doctrine of reasonable apprehension of bias, which is not permitted in law because a taint of bias would destroy the integrity of the proceedings conducted in such a manner—see Duhaime’s Law Dictionary.

As the Court of Appeal pertinently observed, the positions occupied by the Respondents (Etubom Traditional council) would not ipso facto disqualify them from being nominated, selected and presented as the candidate of their respective Houses. However, the first Respondent (Abasi Otu), metamorphosed from being the Chairman of the Westem Calabar Traditional Rulers Council that was entrusted with the task of selecting an Etubom from amongst themselves as the candidate for the Stool of Obong of Calabar, into a candidate for the Stool without notice to the other candidates. As it is, his metamorphosis from Chairman to candidate is a flagrant violation of the rules of natural justice, as no man should be a Judge in his own cause.

The Respondents (Etubom Traditional council) had claimed that they took the decision to select the first Respondent (Abasi Otu) as its candidate for the Stool because the first Appellant (Ani) was not qualified to vie for the Stool. It is true that the first Appellant is not qualified, but that is beside the point as far as the issue at stake in this case is concerned.

** The decision taken by the Western Council to select the first Respondent as its candidate is, undoubtedly, a breach of the site of natural justice, and it is settled that if a principle of natural justice is violated, it does not matter whether, if the proper thing had been done, the decision would have been the same -“The decision must be declared to be no decision” – see Adigun V. A.G., of Oyo State (1987) 1 NWLR (Pt.53) 678 and Salu V. Egeibon (1994) 6 NWLR (Pt. 348) 23 at 44, wherein this Court per Adio, JSC, also explained as follows:

If a principle of natural justice is violated, it does not matter whether if the proper thing had been done, the decision would have been the same; the proceedings will still be null and void. In other words, if the principles of natural justice are violated in respect of any decision, it is immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision, must be declared to be no decision.

At the time the Council took the decision to select the first Respondent (Abasi Otu), Appellants had written their protest letter dated 28/3/2008, wherein they stated:

We also wish to bring to your notice the conflict of interest involved in the screening and selection of the candidates for the Obongship. Etubom Ekpo Okon Abasi Otu as an interested party in the Obongship is the Chairman of the Efik lboku Esit Edik Traditional Rulers Council (Western Council) and his fellow Etubom (from Adiabo) is the Vice Chairman, who presided at the meetings where candidates were screened. This is a serious violation of natural Justice. it should be pointed out that Adiabo had produced the Obong of Calabar, Edidem Otu Ekpeyong Effah in 1985 at the expense of lkoneto. Their surreptitious attempt to do so through the back door this time is most unacceptable. We also wish to point out that the purported report of the screening for the Obongship was the handiwork of Etubom Ekpo Okon Abasi Otu and Etubom Otu Eta Otu. The said report was NEVER considered by the Efik lboku Esit Edik Traditional Rulers Council arid is, therefore, null and void. We, therefore, plead with the Etubcm Traditional Rulers Council to please ensure that justice is done and lkoneto is given the opportunity to produce the next Obong of Calabar. This should especially be so because all the six agnates to the Throne have taken their turns on the Throne except lkoneto.

The Etuboms Council in their reply dated 1/42008, merely responded to their request for the presentation and capping of the first Appellant and said nothing about their complaints regarding the said “serious violation of natural justice”.

As the Court of Appeal asked, in these circumstances, can the two sets of Respondents (Abasi Otu and Etubom Traditional council) in good conscience, claim and maintain that the first Appellant (Ani) was afforded a fair hearing or that the selection process, which ended in the proclamation of the first Respondent (Abasi Otu) as the Obong of Calabar, did not breach the essential requirements of natural justice? The answer is that they cannot.

It is for this reason that I wholeheartedly agree with the Court of Appeal that the selection and proclamation of the first Respondent (Abasi Otu) as the Obong-elect, on 31/3/2008 must be set aside. But it is my view that the justice of this case demands that the Western Calabar Traditional Council, which was mandated to select an Etubom from amongst themselves, ‘who shall be the new Obong”, should go back to the drawing board, and start the process on a clean slate.

This is because the way and manner in which the first Respondent was selected and proclaimed the Obong of Calabar, polluted the selection process, or should I say muddied the waters, so that there is no clear view of when and where to say this far and no more in the process of selecting the next Obong. In the circumstances, the best way to go is for the Western Council to conduct another process to select an Etubom, who shall be the new Obong of Calabar.

Having so decided, it is clear that the questions raised in Issues 3 and 4, are of no moment in this Appeal, and they are, therefore, academic questions, which this Court avoids at all cost. An academic question does not relate to the live issues in the litigation, and being spent, it will not enure any right or benefit on the successful party — CPC V. INEC & Ors (2011) 18 NWLR (Pt. 1279) 493. Courts do not expend valuable judicial time and energy on academic questions — K.R.K. Holdings (Nig.) Ltd. V. FBN & Anor (2017) 3 NWLR (Pt. 1552) 326, therefore, I will not venture into addressing the said Issues 3 & 4 in this Appeal

The end result of the foregoing is that this Appeal lacks merit and it is, hereby, dismissed. I affirm the decision of the Court of Appeal, particularly the order made setting aside the selection and proclamation of first Respondent as the Obong-elect by Etuboms Conclave of the Palace of the Obong of Calabar. I also order that the Western Calabar Traditional Rulers Council shall conduct another process to select an Etubom from amongst themselves, including the first Respondent, who shall be the next Obong of Calabar, in line with the provisions of the Constitution of Etuboms Council, Palace of the Obong of Calabar, January 2002, and in strict compliance with rules of natural justice.

Appeal is dismissed, and the Parties shall bear their respective costs.

Amina Adamu Augie,

Justice, Supreme Court

APPEARANCES

Joe Agi (SAN), with,

0. F. Ekeugba, Esq.,

For the Appellants

F.R.A. Williams, Esq.,

for the First Set of Respondents

Nella Andem-Ewa Rabana, SAN, with

Sean F. Kennedy Akaolisah, Esq.,

For the Second Set of Respondents

Note on capping

The Supreme Court upheld the decision of the Appeal Court that Ani was not capped hence disqualified him as he cannot vote or be voted for.

“Surely, the Appellants cannot argue as they did that “capping/induction” was not provided for in the Constitution. Article 24 thereof did not merely state that a candidate selected for succession to the throne must be an “Etubom of a Royal House”, it also specified that the said Etubom of a Royal House “must be recognized as such by the Obong and Council”.

CW1, (Etubom Eniang Essien) who is their Witness, made it clear that to be recognized by the Obong and Council, the Etubom of a Royal House must have been presented to his Traditional Council and inducted before he is presented and inducted into the Etuboms Council, Palace of the Obong of Calabar, and traditional rites include capping and induction by a reigning Obong”