Chief Abah Ogboda V. Daniel Aduluga (1971)

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COKER, J.S.C. 

The present appellant was the plaintiff in an action instituted by him in the High Court, Markurdi, Benue-Pleateau State, and in which his claims as endorsed on his writ were as follows:-

“1. A DECLARATION that the unlawful appointment of the 1st defendant by the 2nd defendant as the new district head of Edumoga, in Idoma Division, is NULL and VOID, and that the plaintiff and his people are the rightful persons to nominate for appointment as the NEW district head a fit and proper person, or persons.

2. AN ORDER directing the 2nd defendant to appoint either of th TWO eligible candidates, to wit, (1) Mr. John Idu and (2) Mr. Christopher Abakpa, as the NEW district head of Edumoga, with effect from the date of the day of the purported appointment of the 1st defendant.
3. A REFUND of the sum of about 250pounds unlawfully paid to, and received by the 1st defendant, as personal emolument.
4. AN INJUNCTION restraining (1) The 1st defendant, his servants, agents and otherwise from holding the said 1st defendant out as the new District Head of Edumoga, and also from performing the sacred duties and rites of the sacred office of the district head of Edumoga; (2) The 2nd defendant his servants, agents and otherwise from according recognition to the 1st defendant and treating him as the new district head of Edumoga, as if he, the first defendant, were the accredited representative of the people of Okpale particular, and of the entire people of Edumoga district in general.”

There were on the writ two defendants to the action the first being one Daniel Adulugba (who is the respondent before us on this appeal) and the second the O’chi-doma of Idoma. The dispute concerns the appointment of a successor to the Deistrict Head of Edumoga in Idoma Division. Although in his writ the plaintiff described himself as the “Oche of Okpale suing on behalf of himself and of all the other elders and people of Okpale” very little turned on his representative capacity throughout the proceedings and indeed in the course of his judgment the learned trial Judge stated that he would treat the action as a personal, rather than a representative, action. As against the O’chidoma of Idoma the plaintiff’s action was later withdrawn and dismissed with costs.

Pleadings were filed and delivered. According to his statement of claim, the complaint of the plaintiff is that he as the Oche of Okpale clan is the next in turn to be appointed the District Head of Edumoga district since the Okpale clan is one of the five constituent clans in Edumoga District which had always occupied the post in succession in the following order, that is to say, Eke, Ojigo, Obokolo, Amego and Okpale. The statement of claim also avers that although the Oche (or head), the elders, and all the people of the Okpale clan had nominated two persons and submitted their names to the O’chi-doma for approval and appointment as the District Head of Edumoga the O’chi-doma wihtout any reason whatsoever had ignored the nominations and on the 16th May, 1966 had pronounced the 1st defendant (now respondent) who is from the Ojigo clan as the District Head. On the other hand the statement of defence admits the nomination, approval and appointment of the 1st defendant by the 2nd defendant and avers that Okpale was never a clan within the Edumoga District, that the members thereof are a female off-shoot of the Ojigo clan and that as such they have no right or entitlement to nominate, much less secure the approval and appointment of one of their number as the District Head.

At the trial both sides gave evidence in support of their pleadings. The action was heard and determined by Jones, J. who meticulously considered the evidence and the various points raised and decided that the plaintiff’s claim had failed in toto. He also awarded costs totalling 61 guineas to the 1st defendant. This appeal is from that decision and the main plinth of the argument before us is that the judgment is not supported by the weight of evidence.

Manifestly such a ground of appeal must endeavour to show either that the trial Judge wrongly accepted evidence which he should not legally have accepted or that the decisions or inferences drawn from the evidence so accepted are unjustified. In the course of his reserved judgment the learned trial Judge observed as follows:-

“Plaintiff does not deny the O’chi Idoma’s right to appoint a district head for Edumoga, but claims that in coming to a decision as to whom to appoint he is bound by certain rules agreed between the N.A. and the clan elders of Edumoga and that in the appointment under dispute these rules were not followed.”

It is not disputed or even argued before us that the plaintiff’s case was not correctly put by the learned trial Judge in the above quoted passage. Although the learned trial Judge later expressed some animadversions concerning the clarity of the pleadings he nevertheless proceeded to summarise the rules agreed by the parties for the approval and appointment of a District Head in the following observations:-

“I find the pleadings a little confused, but the evidence has made it clear that 5 in essence plaintiff’s claim rests on two of these rules. They are, first that in making his decision the O’chi Idoma, acting as head of Idoma N.A., must accept the person or persons selected for his consideration by a majority of the elders of all Edumoga in full session. He may veto any or all such persons as being unsuitable, but he may not appoint anyone not so selected. Second, that each of the clans in Edumoga took its turn to nominate to the elders persons from among its own numbers for the post of District Head, and this rotation system has not only been agreed between the clan-elders but has become hallowed by tradition.”

After stating the rules as given in evidence by the plaintiff and accepted by the learned trial Judge, he then took considerable care to pin-point the areas covered by the plaintiff’s complaint. He took the view that the plaintiff’s complaint covers both the rules and the nomination and appointment and commented as follows:

“It is not in dispute that past district heads of Edumoga have been appointed as follows:

1. Chief Ikumonu from Eke Clan
2. Chief Idibia from Ojigo Clan
3. Chief Agbam from Obokolo Clan
4. Chief Abah Ujah from Amejo Clan.

What is in dispute is whose turn is next. Here, plaintiff has two lines of attack. He says that it is now the turn of the fifth and final clan in Edumoga, the Okpale Clan, of which he is Chief. This is his pleading. In evidence, however, in support of this contention, he has raised another possible source of error in the appointment. It is that even if Okpale cannot claim this turn, yet it is still not the turn of defendant’s clan. Defendant’s clan is Ojigo.”

Before we proceed to a discussion of the particular points raised in the course of counsel’s argument, it is appropriate to dispose of a point which has arisen from our own reading of the record of appeal and the observations of the learned trial Judge to which we have just referred. Although by his pleadings the plaintiff’s case has been put on the basis that he should be appointed the District Head of Edumoga by the 2nd defendant the O’chi-doma of Idoma, yet at the trial he was allowed to and indeed did give evidence suggesting another line of attack or claim to the effect that even if Okpale clan cannot claim a turn in the appointment of a District Head yet it is still not the turn of the 1st defendant’s clan, i.e. Ojigo. We have pointed out numbers of times that the evidence in respect of matters not pleaded really goes to no issue at the trial and the court should not have allowed such evidence to be given. (See Chief Sule Jimbo & Ors. v. Aminu Asani & Ors. SC. 373/67 dated the 13th March, 1970). Even when such evidence had been wrongly allowed, the trial court should disregard it as irrelevant to the issues properly raised by the pleadings.

Be that as it may, the argument before us is that the learned trial Judge should have found that the Okpale is a 5th clan within the Edumoga District, that the Okpale clan has an Oche (or clan head) and that since all the other four clans had had their turns it was the turn of the Okpale clan to produce for appointment a candidate for the district headship. The argument in support of the contention that the Okpale is a 5th clan is based on the admission in the pleadings. Paragraphs 1, 2, 4 and 5 of the statement of claim read as follows:

“1. That the plaintiff is the “Oche” of Okpale and the traditional head of the Okpale people.

2. That Okpale is a “Clan” in Edumoga District, Idoma Division.
3. That each clain is headed by its own “Oche”.
4. That the whole of Edumoga District is headed by a person called District Head, who is nominated by each clan in turns.”

and by paragraph (1) of the statement of defence paragraphs 1, 4, 5 of the statement of claim were admitted. But the statement of defence then goes on in paragraph 2 to aver as follows:

“Paragraph 2 of the statement of claim is denied. The defendants say that Okpale is a sub-clan in Edumoga District.”

The denial in paragraph 2 of the statement of defence of paragraph 2 of the statement of claim clearly puts in issue at the trial the averment in the second paragraph of the statement of claim that Okpale is a clan in Edimogba District. Learned counsel for the plaintiff has contended before us that on the pleadings to which we have referred there was an admission that all clans have Oches or clan heads and that it is admitted that the Okpale people have an Oche therefore, counsel argued, there is an admission that Okpale is a clan. We do not think that this inference is justified. The only paragraph of the statement of claim which clearly puts the claim of the Okpale people to constitute a clan was expressly denied in the statement of defence. The issue at the trial was not whether they are a clan to be reckoned with in the nomination and appointment of a District Head. We think therefore that the learned trial Judge was quite justified in coming to the conclusion which he did that the plaintiff had failed to establish that his people were a clan entitled to present a candidate for the district headship.

In the course of the argument, learned counsel for the plaintiff had suggested that we should remit the case back for trial de novo with liberty to the parties to amend their pleadings. In answer to this, learned counsel for the 1st defendant submitted that there was no irregularity necessitating such a step and also that in any case and by virtue of section 55(1)(b) of the Local Authority Law, Cap. 77 (Laws of Northern Nigeria, 1963) the appointment of the district head is made by the Native Authority and not by the O’chi-doma of Idoma. We take it that the submission of learned counsel for the 1st defendant implied that the action as it now is has been wrongly constituted. We are of the view that it is rather too late in the day to take the point and we therefore decline to express any views on the validity or otherwise of that point. We agree however with learned counsel that there was no irregularity on the record compelling a remission of the case back for retrial. The learned trial Judge carefully considered the issues actually raised on the pleadings. The only ground of appeal argued before us postulates that the findings of the Judge are not supported by the evidence before him. We are unable to find, and indeed learned counsel for the plaintiff has not drawn our attention in particular to, any finding in respect of which there is no evidence which, if accepted, would justify that finding.

The appeal therefore fails and it is dismissed. The appellant will pay to the respondent the costs of the appeal fixed at 81 guineas.

Other Citation: (1970) LCN/1833(SC)