In the High Court of River State, Nigeria, Port Harcourt Judicial Division, Holden at Port Harcourt. Before Justice E.N. Ogbuji, JudgeSitting on Friday, December 2, 2011Suit No. DHC/6/2007Between:Apostle G.D. Numbere(For himself and on behalf of Christians in Kalabari Kingdom, operating under the auspices of Christian Association of Nigeria and/or Assembly of Kalabari Christians)' claimants)andHis Majesty King (Prof.) T. J. T. Princewill(Amachree Xi Amayanabo of Kalabari);Taribo Ngiangia (For himself and on behalf of Kalabari Ekine Sekiapu Society and Akaso juju adherents in Buguma); Mr. Robinson Owukiabo (For himself and on behalf of Kalabari Ekine Sekiapu Society and Simingi juju adherents in Tombia)Mr. Leaden Dokubo(For himself and on behalf of Kalabari Ekine Sekiapu Society and Ogu juju adherents in Obonoma);Chief Bourdilleon Ekine(For himself and on behalf of Kalabari Ekine Sekiapu Society, Adum and Fenibeso/Amatemeso adherents in Kula);Chief Ibani Braide(For himself and on behalf of Kalabari Ekine Sekiapu Society and Aku juju adherents in Bakana) (defendants).JudgmentHE argued that the first condition to satisfy is for the Claimant to show that the Assembly of Kalabari Christians is a duly registered body in line with the Companies and Allied Matters Act of the Federal Republic of Nigeria 1990, and secondly that he is one of the registered trustees and has been delegated to sue in a representative capacity. He submit that t is only the registered trustees of the body who are known to law that can sue and be sued on behalf of that body. He relied on the case of Lekwot Vs. Judicial Tribunal (1997) 7 SCNJ 347 At P. 354 Lines 10-15, P 355 Lines 23-30; P 356 Lines 21-23 And Iyke Medical Vs. P Pfizer Inc. (2001) 5 SCNJ 12 at P 27 Per A.I Iguh JSC.On issue three, counsel argued that the claimant must present a case of violation of his individual right as a result of the actions of the 1st defendant and others practicing their culture in form of masquerade display which the court will deem actionable and just.He submits that the 1999 constitution of Nigeria protects 'culture' and 'traditions' of indigenes. That Section 21 of the said constitution provides that culture and tradition of indigenes shall be protected, preserved and promoted provided it is shown not to be repugnant to law, natural justice and public policy. Also Section 14(3) Evidence Act Cap. 112, Laws of the Federation of Nigeria 1999, provides that in case of any custom relied upon in any judicial proceeding it shall not be enforced as law if it is contrary to public policy and is not in accordance with natural justice, equity and good conscience.He submits the claimant has not shown in court that the practice of Kalabari culture and tradition is against the law or public policy. That Claimant, when led in evidence in Court, said that it is not the intention of this suit to abolish the culture and traditions of the Kalabari people.Counsel submits that the claimant and every other Christian have rights under the constitution, so the traditionalists too have rights in practicing their culture and traditions. That the 1st defendant and others will be deprived of the rights, which are protected by law, to practice their culture and traditions if the declaratory judgment and injunction sought by claimant is granted.He urged this honourable court to dismiss the case of the claimant with cost.The 2nd and 4th defendants also jointly filed their written address dated April 14, 2011, and raised three issues for determination to wit:' whether the claimant has the authority and locus standi to institute this suit on behalf of all the Christians in Kalabari land/kingdom under the auspices of Assembly of Kalabari Christians;' whether the claimant has shown any reasonable cause of action in this suit to be entitled to the relief sought;' whether the custom of the Kalabari people, the cultural practices and the rules for the said cultural practices complained about are repugnant to natural justice, equity and good conscience contrary to public policy.On issue one, counsel for the 2nd and 4th defendants submitted that the claimant does not have the authority and the locus standi to institute this suit on behalf of all the Christians in Kalabari land/kingdom under the auspices of Assembly of Kalabari Christians. And has failed woefully to prove to the satisfaction of this honourable court that he has such authority with credible evidence both documentary and oral. He relied on Ezezie Vs. Anuwu (2008 12 NWLR (Part 1107) 446, 452 ratio 3, NDULUE VS. IBEZIM (2002) 12 NWLR (part 139, 147 ratio 4; Section 75 Evidence Act (Cap E14) Laws of the Federal 2004; Ogun Yombo Vs. Okoya (2002) 16 NWLR (part 793) 224, 231, ratio 8, paragraphs B-D, P. 254; Ifekwe Vs. Madu (2000) 14 NWLR (part 688) 459 ratio 2, paragraphs A-C, P. 473; Re-Otuedon (1995) 4 NWLR (Part 392) 655, 658-659 ratios 1 and 2; Otapo Vs. Sunmonu (1987) 2 NWLR (Part 58) ratio 25 P. 592; Section 679(1) of the Companies and Allied Matters Act (Supra); Nambe & Ors. Vs. Yesufu Adennola (1977) 1 SC P. 1 at P. 8 paragraphs 6-25.On issue two, counsel submits the claimant has not shown any reasonable cause of action as to be entitled to any of the relief sought in this suit. On the meaning of cause of action he relied on Ojukwu Vs. Yar'Adua (2009) 12 NWLR (Part 1154) 50, 75-76 ratios 23-25.He submits there is non because under cross examination it has been revealed that the defendants have been exercising their customary rights of night Mgbula masquerade display and town cleansing rituals from time immemorial even before the claimant on record was born and before he gave his life to Christ. That as the Christians have right to freedom of worship and freedom of movement so also the traditionalists, the Kalabari communities have right to their freedom of worship which includes the making of rules that should be obeyed for the purpose of the general public welfare, peace and stability in the society. He relied on Esabunor Vs. Faweye (2008) 12 NWLR (Part 1102) 794, 799-800.Counsel submits that when the equities are equal the first in time prevails. That in this case the custom of the people has been in existence in Kalabari and so the customary practices ought to prevail against the interest of the Christians the same not being repugnant to natural justice equity and good conscience.He submits that by Exhibit A, it is confirmed that it is the Christians who imposed their belief on the age long custom of the Kalabari people and so whatever consequences is deserved by them and does not give rise to any cause of action in their favour (volunti non fit injuria).He finally submitted on this issue that if the Claimant has shown any damage caused him or those he represent, then such damage is damage without any legal remedy. He urged this honourable court to dismiss the claimant's suit and grant the relief sought by the 2nd defendant counter claims in the interest of overriding public policy.On issue three, counsel for the 2nd and 4th defendants submitted that the custom of the Kalabari people, the cultural festival and the rules for the said cultural practices complained about are not repugnant to natural justice equity and good conscience neither are they contrary to public policy.That the claimant also admitted that rules were normally made for the observance of the said custom from time immemorial. He submits that facts admitted need no further proof. He cited Section 75 of the Evidence Act and also relied on Olubodun Vs. Lawal (2009) 17 NWLR (Part 1115) 1, 8 ratio 1 for the definition of custom.He submits that in the instant case, it has been proved that the Amasikiri rituals and the night Mgbula display and the rules made thereto have been the Kalabari custom from time immemorial, thus has the force of law and that by Section 18(1) and (2) of the High Court Laws of Rivers State of Nigeria 1999 (Cap. 62) this honourable court is enjoined to give credence to it.He urged this honourable court to dismiss the claims of the Claimant because his hands are not clean as shown in Exhibit A and other acts of violence shown in Exhibits D-@1, E-E1, F-F1 and also urged the court to grant the counter-claim of 2nd defendant.Claimant filed his address dated June 21, 2011 and raised three issues for determination to wit:' whether the claimants have discharged the burden of proof on them with regard to the allegations in the statement of claim and if the answer is in the affirmative what are the remedies available to them';' whether the 1st defendant (as the Amayanabo of Kalabari Kingdom and custodian of the customs and traditions of the Kalabari people) has power to abolish or modify the customary or traditional practices in Kalabari kingdom;' whether the claimant can maintain this suit in representative capacity to restrain the 1st defendant and others from encroaching on their rights in the name of practicing their own cultural and religious belief.In arguing issue one, he urged this honourable court to consider the following:' the claimant's allegation against the defendants as contained in his further amended statement of claim;' claimant's evidence and that of his witnesses.He submits that the claimant, through his own evidence and the evidence of the witnesses he called, led evidence in all the allegations in his further amended statement of claim from paragraph 1-28. That the law is that he who asserts must prove and this the claimant has done by giving and calling credible witnesses to prove his case. He cited Dankula Vs. Shagamu (2008) ALL FWLR (Part 413) Page 1280 at 1305-1309 paragraphs H-B.He submits also that the case of the defendants supports the claimants case in several material particulars. He also cited paragraph 5(a) of the statement of defence of the 1st Defendant, evidence under cross-examination of DW.1-DW.3, DW.5 and DW.6. That the law is that where the case of the defence supports or corroborates the case of the claimant, the claimant can place reliance on it. He also relied on Onya Vs. Ogbuji (2011) All FWLR (Part 556) Page 493 at 513-514 paragraphs H-B.Counsel submits that the Claimant having proved his case in accordance with the provisions of section 135 of the Evidence Act, the legal effect is that the Claimant is entitled to judgment. He cited Nwavu Vs. Okoye (2009) All FWLR (Part 451) page 815 at 840 paragraph E-G and 843-844 paragraphs F-G.On issue two, counsel submitted that from the totality of the evidence adduced in this case (both from the claimant and the defendants) it is obvious that the 1st defendant is the Amayanabo of Kalabari called the Sekobiri Ruling Council is the custodian of the customs, culture and traditions of the Kalabari people and, therefore, is in position to abolish or modify such customs that are barbaric, repugnant to natural justice, equity and good conscience. He submits that any custom that infringes the constitutional right to privacy, right to freedom of thought, conscience or religious belief as provided in Section 38 of the Constitution of the Federal Republic of Nigeria is unconstitutional, barbaric, repugnant to natural justice, equity and good conscience and should be modified or abolished. He cited Disciplinary Tribunal Vs. Okonkwo (2001) 3 SCNJ PAGE 186 at 225.On issue three, counsel for the claimant submits that the claimant can justifiably maintain as representative action for the following reasons:' The issue of the representative capacity of the claimant was settled by this honourable court on April 5, 2007, following an application to that effect filed by the claimant on April 4, 2007, when the court granted approval for the claimant to prosecute in a representative capacity;' The claimant has the locus standi to maintain this suit, the claimant sued for himself and on behalf of Christians in Kalabari Kingdom operating under the auspices of Assembly of Kalabari Christians having removed the reference to the Christian Association of Nigeria (CAN) in the amendment to his capacity by motion which wad granted on May 18, 2009 and amended on March 23, 2009.He submits that in suing in a representative capacity, it is only required of the claimant to show that both he and the people he is representing have a common interest in the subject matter of the suit. This is because, the law allows a claimant who have a common interest and common grievance to come in a representative capacity. He cited UB. PLC VS. NTUK (2004) ALL FWLR (Part 234) page 1985 at 1990-2000 paragraphs H-A; Ifekwe Vs. Madu (2001) FWLR (part 35) pg 1252 at 1275 and Disciplinary Tribunal Vs. Okonkwo (Supra).He further submits that there is locus standi relied on Nsima Vs. Anaji & Ors. (1961) NLR 441, Ogawioba & Ors. Vs. Chief Ogene & Ors. (1962) ALL NLR 59 AT 62 and Order 4 Rule 2 of the Rules of High Court, 2010.He urged this honourable court to resolve this issue in favour of the claimant and enter judgment for the claimants.The 2nd and 4th defence counsel also filed a reply on points of law, dated June 28, 2011.On the issue of proof raised by claimant's counsel the 2nd and 4th defendant's counsel, said he is in agreement with claimant's counsel that he who assert must prove the facts asserted but does not agree with him on the point that the claimant has proved all or any of the allegations made against the defendants, this he said, is because the acts of the defendants have deviated in their practice of the said custom. He cited Section 138(1) and (2) of the Evidence Act and also submitted that the case of Dankula Vs. Shagamu relied on by the Claimant does not apply in this case.He submits that it is incumbent on the claimant to prove that in the exercise of the original custom as handed down by the forebears the rule aforesaid were not part of the said custom. He relied on Section 14(1), (2) and (3) of the Evidence Act and submit also that the case of Onya Vs. Ogbuji (Supra) does not apply to this case.On the legal effect/implication of the proof of the allegations or assertions made by the Claimant's Counsel, the 2nd and 4th defendant in their reply submitted that the case of Nwanvu Vs. Okoye (Supra) cited by the Claimant's Counsel does not apply to this case.On the provisions of Section 38 of the 1999 Constitution of the Federal Republic of Nigeria and Disciplinary Tribunal Vs. Okonkwo (2001) 3 SCNJ Page 186 At 225, relied on by the claimant's counsel, the 2nd and 4th defence counsel submitted that the learned claimant's counsel stretched the provisions of the said Section 38 so far as to exclude any exception created within the said provisions. That the fact that in the exercise of a customary practices rules were made which are against the religious belief of some other group of persons cannot make a custom repugnant to natural justice, equity and good conscience. That what the court considers, when there is a clash of religious beliefs in a particular community is the overriding state interest, welfare of the society and public health of the particular community. He cited Esabumor Vs. Faweya (2008) 12 NWLR (Part 1102) 794, 799-800 Ratio 9.On the issue of the representative capacity of the claimant, 2nd and 4th defence counsel submitted that an ex-parte order of court granted on April 5, 2007 to sue in a representative capacity is no answer to the contention that claimant does not have authority to sue in a representative capacity. On the definition of ex-parte, he relief on Black's Law Dictionary, 6th Edition Page 576 and submits that the issue as to whether the claimant is representing the Assembly of Kalabari Christians is properly raised on the pleadings, that it behooves the claimant to prove to the court that he has authorization to institute this suit on behalf of the Assembly of Kalabari Christians and the term Assembly of Kalabari Christian is an entity that needed to be registered according to law to institute or authorize another person to institute an action on its behalf.He urged this honurable court to dismiss claimants claim and grant the reliefs sought by the 2nd defendant/counter-claimant the same having proved his case.Before I proceed in this judgment, it is pertinent to briefly state the cases of both parties.The claimant claim is that in Kalabari land, there are several cultural or traditional, socio-political and religious groups or institutions that exist under the Amayanabo of Kalabari Kingdom, which practice heathen traditional religion. The 2nd - 6th defendants under the 1st defendant in all traditional matters and each of them is at the helm of affairs of all traditional institutions including traditional religion in each of their communities. The Amayanabo of Kalabari has over the years either by himself or through his co-traditionalists including chiefs, men, women, youths, Ekine Sekiapu and Amatemaso adherents been imposing heathen traditional practices, culture and customs on Christians, in Kalabari kingdom including the claimant thereby interfering with their rights to practice their Christian faith or exercise their constitutional rights.
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