Alhaji Isah T. Sokwo V. Joseph Daku Kpongbo & Ors (2002)

LawGlobal-Hub Lead Judgment Report

ODUYEMI, J.C.A.

By leave of the High Court of Kogi State, the plaintiff for himself and on behalf of Akuba and Edegeshi ruling houses caused to be issued against the 1st, 2nd, 3rd and 4th defendants on 22nd December, 1998, a writ of summons with the particulars of claim endorsed.

Subsequently, with leave of the court, the plaintiff filed an amended statement of claim wherein he claimed in paragraph 29 the following reliefs:

“a. A declaration that the appointment of the 1st defendant by the 2nd to 4th defendants as the Aguma of Bassa Kwomo land is unlawful, unconstitutional, null and void and of no effect, the 1st defendant not being from any of two ruling clans/houses entitled to the stool nor was he adopted by the Akuba clan, who it is its turn to produce the Aguma after the death of Aguma Joseph D. Alagani (i.e. the immediate past Aguma of Bassa) and more so that the appointment patently violated the provisions of law No.7, 1992 of Kogi State on appointment and deposition of Chiefs.

b. A declaration that only the Akuba and Edegeshi clans/ruling houses are entitled by rotation to the stool of Aguma of Bassa Kwomo in Bassa LGC.

c. A declaration that by the custom and tradition of the Akuba and Edegeshi clans, it is Akuba clan/ruling house that should produce the present Aguma following the demise of late Joseph D. Alagani who was adopted as Edegeshi candidate even though he was/is not from Edegeshi clan.

d. A declaration that the plaintiff is the one entitled to be appointed as the Aguma of Bassa having come from Akuba clan and duly nominated by the elders of the ruling house in line with custom of Bassa Kwomo.

e. A declaration that the plaintiff is entitled to be appointed as the Aguma of Bassa Kwomo and that the 2nd – 4th defendants recommend, appoint and recognise the plaintiff as such.

f. A declaration that the 2nd and 3rd defendants’ failure without just cause to consider the plaintiff’s application for the stool of Aguma and recommend him forappointment is unreasonable, illegal, unconstitutional and against the rule of natural justice.

g. A perpetual injunction to restrain the 1st defendant from parading himself or holding himself out as the Aguma of Bassa Kwomo or from performing the function of Aguma of Bassa and the 2nd to 4th defendants from recognising him or treating him as such.”

1st defendant filed a statement of defence while 2nd, 3rd and 4th defendants filed a joint statement of defence all denying the claims of plaintiff.

Plaintiff subsequently filed a reply to the defence of 1st respondent as well as another reply to the 2nd – 4th respondents. The matter went to trial.

At the end of the trial, the trial court found in favour of the plaintiff part of his claim in relief (a) to the extent that the appointment of the 1st defendant by the 2nd – 4th defendants as the Aguma of Bassa Kwomo land is unlawful, unconstitutional, null and void and of no effect and that the appointment patently violated the provisions of section 3(2) of Law No.7 of 1992 of Kogi State on appointment and deposition of Chiefs.

The court also granted the relief (g) sought by the plaintiff by making an order of perpetual injunction to restrain the 1st defendant from parading himself or holding himself out as the Aguma of Bassa Kwomo or from performing the function of Aguma of Bass a Kwomo and the 2nd to 4th defendants from recognising him or treating him as such.

However, the court refused the grant of the second leg of the relief (a) which seeks a declaration that the 1st defendant not being from any of two ruling clan/ houses entitled to the stool nor was he adopted by the Akuba clan whose turn it is to produce the Aguma after the death of Aguma Joseph D. Alagani, i.e. the immediate past Aguma of Bass a as well as the other reliefs sought in (b), (c), (d), (e) and (f) of paragraph 29 of the amended statement of claim. The plaintiff felt aggrieved by the refusal of the court to grant some of the reliefs he sought and he has appealed to this court.

Similarly, the 1st defendant felt aggrieved by the reliefs granted by the court. 1st defendant has also cross-appealed to this court. Both plaintiff/appellant as well as 1st defendant/cross-appellant, with the leave of this court amended their respective grounds of appeal by filing additional grounds of appeal in this court. The plaintiff/appellant increased his grounds of appeal from 5 to 10 while the 1st defendant/cross-appellant increased his from 3 to 5. Shorn of their respective particulars the grounds of appeal of the plaintiff/appellant read as follows:-

“Ground One.

Part of the judgment is against the weight of evidence.

Ground Two.

The learned trial Judge misdirected himself on the facts when he held that the stool of Aguma of Bassa Kwomo is a brain child of Colonial Administration and that the Aguma of Bassa Kwomo stool is not alternated between Akuba and Edegeshi clans exclusively thereby occasioning a miscarriage of justice.

Ground Three.

The lower court misdirected itself in law on the true interpretation of exhibit D1 when it held at page 244 lines 5 – 7 of the judgment as follows:

“Exhibit D1, ex facie, does not show any fact of adoption of the late J. D. Alagani by Edegeshi clan” and thereby occasioned a miscarriage of justice.

Ground Four.

The learned trial Judge misdirected himself on the facts by making an incorrect finding of fact when he held at page 213, lines 8 – 12 of the judgment in the record thus:

“As at the time of its creation or inception, there was no ruling house, to the stool, that is, the stool of Aguma of Bassa Kwomo was not specifically meant for any particular community in Bassa Kwomo land” and thereby occasioned a miscarriage of justice.

Ground Five.

The learned trial Judge misdirected himself on the facts by making an incorrect finding of fact and arrived at a wrong conclusion at page 213, lines 15 – 17 that Tamaji was appointed as the first “Aguma” of Bass a Kwomo and thereby occasioned a miscarriage of justice.

Additional Grounds of Appeal

Ground Six.

The learned trial Judge misdirected himself on the facts when he held at page 222, lines 3 – 5 of the judgment in the record thus:

“I, therefore hold that the defendants have proved the custom of rotating the stool of Aguma of Bass a Kwomo amongst the five existing clans in Bassa Kwomo land, and the selection of the 1st defendant is in line with that custom” and thereby occasioned a miscarriage of justice.

Ground Seven.

The learned trial Judge misdirected himself in law when he came to the conclusion that upon the pleadings and evidence that there was no lack of fair hearing on exhibits P2, P7 and P8 and thereby occasioned a miscarriage of justice.

Ground Eight.

The learned trial Judge misdirected himself on the facts when he held at page 222, lines 7 – 10 of the judgment in the record thus:

“I also hold that there is a king-maker’s panel constituted with a member each from the five existing clans in Bassa Kwomo land and it is that panel which selects a candidate for appointment to the Aguma of Bassa Kwomo Stool”

and thereby occasioned a miscarriage of justice.

Ground Nine.

The learned trial Judge misdirected himself on the facts when he came to the conclusion at page 213, lines 19 – 24 of the Record thus:

“Between 1934 and 1950, there was no single Chief of the Bassa Kwomos, as each of the five clans were made independent native authorities, hence Dangara and Gberugu both from Akuba clan were never at any time appointed as Aguma of Bassa Kwomo” and thereby occasioned a miscarriage of Justice.

Ground Ten.

The learned trial Judge misdirected himself in law on the true interpretation and applicability of section 14(2)(b) of the Kogi State Chiefs (Appointment, Deposition and Establishment of Traditional Council) Law, 1992 on the issue of quorum and/or 2/3 majority vis-‘a-vis exhibit P.21 and thereby occasioned a miscarriage of justice.

From the 10 grounds of appeal, appellant distilled in his brief of argument five issues as follows:

“1. Whether upon a careful evaluation of the evidence adduced in this case, the learned trial Judge was right when he said that the stool of Aguma of Bass a Kwomo was a brain child of colonial administration with no ruling house at inception and that the custom of rotating the stool amongst the five existing clans in Bassa Kwomo land has been proved instead of exclusive alternation between Akuba and Edigeshi clans, hence the appointment of the 1st respondent was in line with that established custom?. (Grounds one, two, four and six of the grounds of appeal as amended).

2. Whether the learned trial Judge was right on his interpretation and application of section 14(2)(b) of the Kogi State Chiefs (Appointment, Deposition and Establishment of Traditional Council) Law, 1992 on the issue of quorum of the Kogi State Council of Chiefs vis-a-vis exhibit P.21?. (Ground ten).
3. Whether given the available evidence, the learned trial Judge was right when he said Tamaji was appointed as the first “Aguma” of Bassa Kwomo and that between 1934 and 1950, there was no single chief of the Bassa Kwomos hence Dangara and Gberugu from Akuba clan were never at any time appointed as Agumas of Bassa of Bassa Kwomo?. (Grounds five and nine).
4. Whether upon a careful evaluation of evidence, the learned trial Judge was right when he said that a king-makers panel constituted with a member each from the five existing clans in Bassa Kwomo land is in charge of appointment to the Aguma stool let alone the interpretation that exhibit Dl does not show adoption of late J. D. Alagani by Edigeshi clan?. (Grounds three and eight).
5. Whether from the pleadings and the available evidence, the learned trial Judge came to the right conclusion that exhibits P2, P7 and P8 were duly considered hence there was no lack of fair hearing thereof. (Ground seven).”

For his part, the 1st respondent in his own brief also distilled five issues for determination in this appeal as follows:-

“1. Whether the stool of Aguma of Bass a Kwomo evolved from the custom and tradition of the people from time immemorial and exclusive to Akuba and Edigeshi and not a creation of the colonial administration in 1931 with the right of succession opened to all the five clans of Bassa Kwomo land. (Grounds 1,2,4 and 6 of grounds of appeal as amended).

2. Whether the learned trial Judge was right in his interpretation of section 14(2)(a) of Chiefs (Appointment, Deposition and Establishment of Traditional Council) Law, 1992 vis-‘a-vis exhibit P.21.

(This issue relates to ground 10 of amended ground of appeal).

3. Based on the abundant evidence before the court, whether the trial Judge was right in holding that Tamazhi was the first Aguma of Bassa Kwomo and that between 1934 and 1950 there was no single Chief of Bassa Kwomos hence Dangara and Gberugu were never made Aguma of Bassa Kwomo.

(Issue relates to grounds 5 and 9 of the amended ground of appeal).

4. Whether ex-facie exhibit “D1″ reveals adoption of Joseph Dodo Alagani and whether selection of a candidate for the stool of Aguma of Bassa Kwomo by the king-makers of Bassa Kwomo land has not become a feature of the native law and custom of Bassa Kwomo governing the appointment of Aguma of Bassa Kwomo.

(Issue encompasses grounds 3 and 5 of the amended grounds of appeal).

5. Whether the learned trial Judge was not right in holding that there was no breach of fair hearing in respect of exhibits P2, P7 and P8.

(Issue relates to ground 7 of the amended ground of appeal)”;

while 2nd – 4th respondents in their joint brief of argument formulated for determination in this appeal, four issues thus:

“1. Whether upon a careful evaluation of evidence, the evolution and ascension to the stool of Aguma of Bassa Kwomo has been established by evidence to be the exclusive preserve of the Akuba and Edegeshi clans only. (Distilled from grounds one, two, four and six).

2. Whether upon a careful evaluation of evidence, the learned trial Judge was right in his findings that Tamaji was the first Aguma and that Dangara and Gberugu from Akuba were never appointed as Aguma of Bassa Kwomo. (Distilled from grounds five and nine).
3. Whether the learned trial Judge was right in his evaluation that the panel of king-makers constituted with a member each from the five clans is responsible for the appointment to the stool of Aguma. (Distilled from grounds three and eight).
4. Whether exhibits P2, P7 and P8 were duly considered by the trial Judge and whether he was right in his

interpretation of section 14(2)(b) of the Kogi State Chiefs (Appointment, Deposition and Establishment of

Traditional Council) Law 1992 on the issue of quorum of the 3rd respondent. (Distilled from grounds seven and ten).”

Appellant subsequently filed in this court a reply to 1st respondent’s brief.

For the purposes of the main appeal, I shall deal with the issues as formulated in the appellant’s brief of arguments.

The complaints of appellant encompassed in the first issue relate to the findings by the lower court that,

(i) the stool of Aguma of Bass a Kwomo was a brain-child of colonial administration with no ruling house at inception;

(ii) the custom of rotating the stool amongst the five existing clans in Bassa Kwomo land has been proved instead of exclusive alternation between Akuba and Edigeshi clans; and

(iii) hence, the appointment of the 1st respondent was in line with that established custom.

For the appellant; learned counsel relied on the viva voce evidence of PW1 that from colonial times, the procedure for the selection of a candidate for the stool had always been done by the elders after which the candidate would be taken to the Europeans for approval as well as the corroboration by PW3 (plaintiff) of the same version of the procedure particularly with regard to the selection of plaintiff’s father.

Appellant’s brief then refers to page 4 of exhibit 20 at paragraph 8 and stresses that the elders of the clans were involved in the selection of Tamaji as the Aguma of Bassa to succeed Kwanaki.

It is to be indicated that while the claim of plaintiff is that Kwanaki from Akuba clan was the first Aguma of Bass a Kwomo, it is the contention of the 1st respondent that though Kwanaki was a Bassa of Akuba clan, he in fact, was holding the foreign title of Bassa Etsu, a Nupe Title; and that the first Bassa man to hold the chieftaincy under the title of Aguma of Bassa was Tamazhi from Edigeshi clan.

It is the further submission that the evidence of all three witnesses for plaintiff are in confirmation of his pleadings that only two clans viz – Akuba and Edigeshi had consistently produced Agumas in turn except for the instance of Aguma Dodo Alagani who hailed from a third clan – Arishamishi whom the plaintiff claims was adopted by Edigeshi clan to make him fall in line with plaintiff’s averment that the stool was by custom only rotated between Akuba and Edigeshi clans.

It is therefore the contention of plaintiff that had the learned trial Judge properly evaluated the evidence, he would have come to the conclusion that the Aguma stool was of ancient origin and not the brain child of the colonial administration and that by custom only people of Bassa Kwomo origin who belong to the Akuba or Edigeshi clans or were adopted by either of the two clans had ascended to the stool of Aguma of Kwomo. Plaintiff therefore calls on this court to rectify the error. Reliance is placed inter alia, on:

(i) Universal Insurance Company Ltd. v. T A. Hammond (Nig.) Ltd. (1998) 9 NWLR (Pt. 565) p. 340.

(ii) Kwajaffa v. B.O.N Ltd. (1999) 1 NWLR (Pt. 587) p. 423. (iii) Ademolaju v. Adenipekum (1999) 1 NWLR (Pt. 587) p. 440. (iv) Musa v. Yerima (1997) 7 NWLR (Pt.511) 27, (1997) 7 SCNJ p. 109.

The 1st respondent, after referring to the pleadings between the parties and the evidence extracted from plaintiff who was 3rd P.W. under cross-examination contended that the entire edifice of the plaintiff/appellant’s claim that the stool of Aguma of Bassa Kwomo evolved from 1860 A. D. or time immemorial had collapsed and that the plaintiff under cross-examination had turned round to support the pleadings of 1st defendant/respondent in answer to paragraph 8 of the statement of claim that the stool of Aguma of Bassa Kwomo was created in 1931 on the merging together of the five clans of Bassa Kwomo land to form Bassa Kwomo native authority.

It is contended that this admission by plaintiff is adverse to his case and is admissible in the proceedings against the plaintiff in proof of the facts asserted by the 1st defendant. Reliance is placed on: (i) Seismograph Services (Nig.) Ltd. v. Chief Eyuafe (1976) 9-10 SC 135 at 146. (ii) Artra Industries Ltd. v. N.B.C.I. (1998) 4 NWLR (Pt.546) 357, (1998) 3 SCNJ 97. (iii) Oseni Aboyeji v. Momoh & 2 Ors. (1994) 4 NWLR (Pt.341) 646, (1994) 4 SCNJ 302.

As to the issue of ruling house/clans, it is the submission that there is no evidence that the colonial administration which created the stool of Aguma of Bassa Kwomo limited ascension to the stool to any one clan or group of clans.

It is the contention that plaintiff admitted this much when as P.W.3 under cross-examination he stated:

“I am not aware of any law made by the colonial masters depriving the other clans from contesting the stool of Aguma of Bassa Kwomo.” It is also contended that DW4 gave evidence under cross-examination that Sanda Kpongo the father of 1st defendant/respondent from Ozongulo clan contested the stool of Aguma against Sokwo Kurubua, the father of plaintiff during the colonial administration: that this piece of evidence was not contradicted or challenged by the plaintiff.

It is therefore contended that it cannot be rightly claimed that the stool of Aguma of Bassa Kwomo was reserved to two clans to the exclusion of the other three clans.

It is also contended that DW1 the king-maker representing Akuba clan – same clan with the appellant as well as DW2 also from Akuba clan together with DW3 – clan head of Edigeshi clan and DW4 king-maker representing Edigeshi clan all testify that the stool of Aguma of Bassa Kwomo is meant for all the five clans who take it in turn.

Mention is also made of a portion of exhibit P.18 tendered by appellant himself which asserts categorically that there were no ruling houses in Bassa Kwomo land.

For the 2nd, 3rd and 4th defendants/respondents, it is contended in the joint brief that –

While the appellant as PW3 and his witnesses PW1 and PW2 maintained that the stool of Aguma is the exclusive preserve of the Akuba and Edigeshi clans, the respondents and their witnesses testified to the fact that the stool of Aguma of Bassa Kwomo is the entitlement of the five Aguma clans which enjoy it in turn.

Reference is also made to exhibits P15, P19 and P20, the evaluation of the evidence proffered and tendered in evidence by the appellant and the respondents as well as the findings of fact by the learned trial Judge in his judgment on the issues.

It is the contention of the 2nd, 3rd and 4th respondents that the findings of the learned trial Judge are proper; they do not run counter to the evidence and are in no way perverse nor do they occasion any miscarriage of justice; so, they should not be disturbed by this court. Reliance is placed on: (i) The State v. Ajie (2000) 11 NWLR (Pt.678) 434, (2000) 7 SCNJ p. 1. (ii) Jason Umesie & Ors. v. Hyde Onuaguluchi Ors. (1995) 9 NWLR (Pt.42 1) 515, (1995) 12 SCNJ p.120. (iii) David Akpan and Anor. v. Udo Utin & Ors. (1996) 7 NWLR (Pt.463) 634, (1996) 6 SCNJ 244.

The following paragraphs of the pleadings are relevant to this issue.

(a) Amended statement of claim:- Paragraphs 6, 7, 8(a), 14 and 16.

“6. The plaintiff is from Akuba ruling house/clan entitled to the stool of Aguma of Bassa Kwomo land and he is bringing this suit in a representative capacity on behalf of himself and Akuba and Edegeshi ruling houses/clans; the only ruling houses/clans to the stool of Aguma of Bassa Kwomo land …

7. The name Aguma is the name of the stool of the paramount ruler of the Bassa Kwomo people who came to settle in their present place about 1860 A.D. The plaintiff shall rely and lead evidence of this fact at the hearing of this case.

8(a) The plaintiff avers that from 1860 A. D. to date. Even though there are five clans in Bassa Kwomo land out of which only two clans take the stool of Aguma of Bassa Kwomo by rotation. This is right from the inception of the stool of Aguma of Bassa land.

The five clans are Akuba and Edegeshi (who are the only royal/ruling houses). Arisamishi. Ozongulo and

Ashashama who are not ruling houses/clans to the stool.

The plaintiff shall rely and lead evidence to this fact at the hearing of this case…..

14(a) The plaintiff avers that right from the inception of Aguma stool in Bassa Kwomo land till 1997, there have been six Agumas so far who took the stool one after the other. Out of these six past Agumas, four are from Akuba clan and the remaining two are from Edegeshi and Arishamishi clans one of which is J. D. Alagani though from Arishamishi clans was adopted by Edegeshi as their clan candidate when it was their turn to produce Aguma after the death of Sokwo Kurubuwa in 1966…

(b) The oder of succession to the stool of Aguma from inception till 1977 is as follows:-

1.Kpanachi Jisu – 1st Aguma of Bassa from Akuba clan. 2. tamazhi – 2nd Aguma from Edegeshi clan

3. Dangara-3rd Aguma from Akuba clan.4 Gbarugu -4th Aguma from Akuba clan 5.Sokwo Kurubuwa-5th Aguma from Akuba clan 6. Joseph Dodo Alagani-6th Aguma from Arishamishiclan but adopted as Edegeshi clan candidate upon taking oath of secrecy and adoption in that regard.
4. In the Odugbo panel/declaration, it is clearly stated that there are only two clans/ruling houses to the stool of Aguma of Bassa Kwomo land and Joseph D. Alagani, who was a candidate then could only be made/appointed as such if Edegesi who it was its turn to produce the Aguma was ready and willing to adopt him as their candidate. The plaintiff further avers that the said Odugbo panel/declaration of September, 1968 is still valid, subsisting and binding as far as succession to the Agumaship stool is concerned. The plaintiff shall rely and lead evidence to this effect at the trial of this case.”

(b) Statement of defence of 1st defendant:- Paragraphs 8, 10, 13, 16, 18, 20, 52 and 53.

“8. In answer to paragraph 8 of the statement of claim, the first defendant states that the stool of Aguma of Bassa Kwomo is not limited to only between Edegeshi and Akuba clan….

10. The first defendant further states that from time immemorial and prior to 1931, each of the five clans of Bassa Kwomo operated as an independent autonomous clan; each having its own clan head called Aguma. The clan heads shortly before 1931 were as follows:

CLAN HEAD

Edigeshi (Oigache) Tamazhi Arisamishi Heshi Ozongulo Gben

Ashashama Gara Akuba Kwanaki

13. The first defendant avers that the constant inter-clan wars and the killing of Kwanaki of Akuba clan led the colonial authority to create a united Bassa native authority with a common stool since the people of the five clans were of the same tribe. The common seal and/or its impression is hereby pleaded.
14. In further answer to paragraph 8 and in answer to paragraph 9 of the statement of claim, the first defendant avers that since the creation of a single Bassa Kwomo Native Authority, each of the five clans constituting Bassa Kwomo Native Authority has a right to the title of Aguma of Bassa Kwomo; and each has been taking its turn at the title to rotation from one clan to the other.
15. The first defendant avers that the first Aguma-Uto of Bassa Kwomo was Tamashe Kekure who was then clan head of Edigeshi. Letter Ref. No. 101/1926/26 of 14th September, 1931 is hereby pleaded. The Government Gazette of 1931 is also hereby pleaded….
16. On the imprisonment of Tamazhi from Edigeshi clan, the office of Aguma of Bassa Kwomo became vacant and was not filled until 1950 when the then Senior Divisional Officer in the person of R.G. Adams restored it….
17. In reply to paragraph 14 of the statement of claim, the first defendant avers that the stool of Aguma of Bassa Kwomo was created in 1931 when the five clans of Digashe (Adigeshi), Arishameshi, Ozogulo, Ashashama and Akuba were formed into a united Bassa Kwomo native authority with a common seal.
18. The first defendant states that the first person to be appointed Aguma of Bassa Kwomo was Tamazhi from Edigeshi clan.”

(c) Joint statement of defence of 2nd – 4th defendants:

Paragraphs 3, 4, and 14.

3. In answer to paragraph 8 of the plaintiff’s claim the 2nd and 3rd defendants aver that the various investigations conducted and facts available to the 2nd and 3rd defendants are that there exists in Bassa Kwomo five clans of Akuba, Edegeshi, Arisamishi, Ozongulo and Ashashama which also forms the five ruling houses for the Aguma stool.

Evidence shall be led of this investigation (sic) at the hearing of this suit.

4. The 2nd and 3rd defendants also gathered that the stool usually rotates between those five clans. Three clans have had their turn and these Edegeshi, Akuba and Arisamishi ruling clans in that order……
5. The 2nd defendant avers in answer to paragraphs 15 and 16 of plaintiff’s claim that when the plaintiff raises the existence of Odugbo panel in one of their meeting of Bassa Local Government Traditional Council (BLTC) held on 6/8/97, he was asked to produce the said Odugbo declaration which he was unable to produce.”

I intend to set out the arguments of the parties on issues 3 and 4 also before resolving the issues together as they all relate to evaluation of the evidence on entitlement to the stool of Aguma of Bassa Kwomo.

Issue 3 deals with the question whether Tamaji of Edigesin clan was the first Aguma of Bassa Kwomo or it was Kpanachi from Akuba clan and whether there was an Aguma of Bassa Kwomo chieftaincy title between the years 1934 and 1950.

In this connection, appellant maintained that the evidence of PW1, PW2 and PW3 was as averred in the amended statement of claim and remained unshaken in so far as the list given by the plaintiff of the six persons who had reigned under the title of Aguma of Bassa Kwomo since the title was created is concerned.

Appellant claims that the evidence of defendant’s witnesses that Dangara and Gberugu were never Agumas but clan chiefs of the Akuba clan had no basis. Appellant also relies on exhibits P18, P19 and P20 in support of his assertion that Kpanaku from Akuba clan was succeeded by Tamazhi from Edigeshi clan.

It is also contended that the finding by the learned trial Judge item (iii) at page 212 of the record that “Kwanaki was an Etsu over the Bassa Kwomos” meant and it is intended to mean “Kwanaki was the first indigenous chief of the Bassa Kwomos. Appellant urged the court to determine this issue in its favour and disturb the finding of the trial court.

The contention of the 1st respondent in the respondent’s brief is that-

By the statement of defence of 1st defendant, the reply by plaintiff and the evidence of DW1 and DW2 who hail from Akuba clan, the clan of plaintiff, it is clear that:-

(a) Kwanaki Jisu was “Etsu” and not “Aguma” of Bassa Kwomos – Etsu being a Nupe title.

(b) The first Aguma of Bassa Kwomo was Tamazhi from Edigeshi (Digache) clan.

(c) There have been since Tamazhi only Sokwo Karuba from Akuba clan: Joseph Dodo Alagani from Alishmishi clan and finally Joseph Daku Kpongbo – the 1st defendant as ‘”Agumas”.

(d) DW1 and DW2 both from Akuba also testified that Dangara and Gberugu were never appointed Aguma of Bassa Kwomo but they were at one time or the other only heads of Akuba clan.

1st respondent also relies on exhibits P18, P19 and P20 in support of his contention that only four Agumas have ruled in Bassa Kwomo and not six as claimed by appellant.

(e) That between 1934 and 1951. the five clans of Bassa Kwomo were made independent of a single chief.

In the event 1st respondent urged this court not to disturb the findings of the lower court. Reliance is placed on –

(i) Oba Fasikun II v. Oba Oluronke II (1999) 2 NWLR (Pt.589) 1, (1999) 1 SCNJ 105.

(ii) Ivienaghor v. Bazuaye (1999) 9 NWLR (Pt.620) 552, (1999) 6 SCNJ 235.

2nd – 4th respondents in their brief of arguments on this issue which was treated as issue no. 2, quoted profusely from exhibits P18, P19 and P20 in addition to references to the pieces of the evidence by the plaintiff and 1st defendant in support of their claim that the successor to Kwanaki i.e. Tamaji was the first “Aguma” of Bassa Kwomo to be so called.

It is also contended that in 1935 the clan heads and their respective councils were independent native authorities in their own rights and that this position remained to February, 1951 when Sokwo (Kurubua) was appointed Aguma.

2nd – 4th respondents thus contend that the findings of the lower court were consequent upon satisfactory and enough evidence in support and should not be disturbed. Reliance is placed on:

(i) S.A. Adebanjo v. A. P. Brown (1990) 3 NWLR (Pt.141) 661, (1990) 6 SCNJ 1; and

(ii) Owoade & Ors. v. Omilola & Ors. (1988) 2 NWLR (Pt.77) 413, (1988) 5 SCNJ 1.

I now turn attention to issue No.4 which is whether the finding of the learned trial Judge that a king-maker’s panel exists in Bassa Kwomo land constituted with a member each from each clan which is charged with responsibility for making recommendations to the 2nd respondent and whether exhibit D1 shows that J. D. Alagani. who was appointed Aguma of Bassa Kwomo in 1968, was adopted by Edigeshi clan.

Appellant repeats the pleadings, arguments and the contentions with regard to issue No.1 which is to the effect that the chieftaincy title of Aguma is open only to two out of the five existing clans. Appellant maintains and adopts those arguments on this issue also.

It is contended that the late Joseph Dodo Alagani from Arishamishi clan was ordinarily not qualified to ascend the throne having not come from any of the two ruling houses or clans if he was not adopted by one of them. It is maintained that it was that adoption by Edigeshi clan as Edigeshi clan’s candidate that qualified Alagani for appointment as Aguma.

As for the documentary evidence on the matter, reliance is placed on exhibit D1. As to the composition of king-makers, it is the contention of appellant that from time immemorial the elders of the clan whose turn it was to produce the next Aguma had always handled the selection process and that the elders constitute the king-makers of the Akuba and Edigeshi clans and not king-makers from the five existing clans in Bassa Kwomo land. Reliance is placed on exhibits P7 and P20.

It is also claimed that failure of 2nd – 4th respondents to respond in writing in refutation of exhibit P7 constitutes an admission of its contents. Relies on

(i) Gwani v. Ebule (1990) 5 NWLR (Pt. 149) p. 201; (ii) C.C.S. Ltd. v. Nwokocha (1998) 9 NWLR (Pt. 564) p. 98.

For the 1st respondent, total reliance is put on exhibit D1 on the ground that the contents of the document speak for itself. Exhibit D1 is the minutes of the meeting of the clan heads of the five clans existing in Bassa Kwomo land and representatives of the Kwara State Government on the selection of Joseph Dodo Alagani in 1968 as the Aguma of Bassa Kwomo land.

In particular, it is claimed that the clan heads appointed the king-makers’ panel consisting of a member from each clan. The Senior Divisional Officer requested Akuba and Arishmishi clans respectively to put up a candidate each for the king-makers to recommend. No request was made from Edigeshi clan and that clan did not make a nomination. The selection of Joseph Dodo Alagani from Arishamishi clan in preference to Simon Wodi Shigaba from Akuba clan was on the personal merit of the former as well as being a candidate of his own clan – Arishamishi.

Reference is also made to the oral evidence in Court in which DW1, the king-maker from Akuba clan both in the 1968 exercise and that of 1997 described any allegation that Alagani was adopted by Edigeshi clan as false; as well as that of DW4, the kingmaker representing Edigeshi clan in both the 1968 and 1997 exercises who answered under cross-examination by plaintiff/appellant’s counsel in respect of the issue of oath of secrecy that the oath was to ensure that the deliberations were not disclosed until the Government announced the name of the new Aguma.

The 2nd – 4th respondents in their own brief made arguments identical to those in the brief of 1st respondent on this issue and urged this court to give to the words in exhibit D1 their normal meaning in the absence of a special meaning in the con. Reliance is placed on:

(i) Ishola William v. T A. Hammond Projects Ltd. (1988) 1 NWLR (Pt.71) 481, (1988) 2 SCNJ 318;

(ii) Chief R. B. Buraimoh v. Chief Maliki Adeniyi Esa & 8 Ors. (1990) 2 NWLR (Pt. 133) 406, (1990) 4 SCNJ p.1.

Furthermore, it is submitted that where there is documentary evidence; it should be used as a hanger from which to assess oral evidence – Kimdey and Ors. v. The Governor of Gongola State (1988) 2 NWLR (Pt.77) 445, (1988) 5 SCNJ p. 28.

As has been seen above each of the parties placed much premium on exhibits P18, P 19, P20 and D I for Support in respect of its respective stand on issues 1,3 and 4.

I shall now set out relevant portions of these exhibits in historical order –

(a)Exhibit P20 – A Letter Ref. No. 59/1931/196 from the District Officer i/c Igala Division dated 15th November, 1931 to the resident Kabba Province. It set out certain proposals for the administrative and judicial re organisation of Bassa Kwomo District for which approval of the resident was sought.

At P. 3 item C on the subject of appointment to vacant District Headship the following appears:-

“7. C. Appointment to Vacant District Headship. Vide my 101/1926/26 of 14th September, there is no “ruling house” amongst the Bassa Kwomo and albeit the Akuba clan to which the late Etsu Kwanaki belonged is numerically superior it would, in my opinion, be most unwise to make an appointment from this source until the breach between themselves and the Arasamashe has had time to heal; nor for that matter is there any likely candidate available.

At a full meeting of the clan elders held at Oguma on the 26th of August, Tamaji Headman of the Digache clan (vide para. 11 of the report) was unanimously accepted as successor to the late Kwanaki; he has been in acting charge of the district ever since, shows very great promise, and I have no hesitation in recommending his appointment for apart from the considerations to which reference is made in the preceding paragraph he is a man of quite outstanding ability and force of character….

I have to request, in this connection, that the Nupe title of Etsu give place to the Bassa equivalent of Aguma.”

(b) Exhibit P19 – A Letter reference No. 55/1932/1 dated 5th November. 1932 from the District Officer i/c, Igala Division Idah to the resident. Kabba Province. Lokoja. The letter is headed “Notes on The Bassa Kwomo” and enclosed what is termed “A short Monograph on the Bassa Kwomos” of Igala Division.

Paragraphs 10 and 11 dealing with Population and Administrative Organisation respectively read:-

“10. The district is populated mainly by the Bassa Kwomo tribe and the 1931 census revealed the following statistics:-

Tribes Adult Adult

Male Female Total

Bassa Kwomo 4540 5017 9557

Hausa 160 177 337

Nupe 53 59 112

Igbirra (Pandha) 212 236 448

Igala 370 413 783

11. The district is administered by the Aguma (formerly Etsu, a Nupe title) of Bassa Komo, a chief of the 4th class, through the seven village group headmen of (in order of importance):

Oguma, Arasamashe, Odenye, Odugbo, Kakari, Kpanke and Okporo

The office of Aguma is necessarily (for reasons which will appear later) selective, that of village group Headman generally hereditary or selective within the narrow circle of those who have hereditary claim and the same applies to Hamlet Headmen. The Aguma is assisted by the Asekpa (formally Shaaba) and the usual staff of scribes (2) messengers (2) and police (4).

(c) Exhibit P18 – Again, this is a letter reference No. 54/1924/369. It is dated 10th February, 1951. It was

addressed by the District Officer i/c Igala Division to the resident, Kabba Province Lokoja. It made certain proposals to the resident for approval on the reconstitution of Bassa Kwomo native authorities. The relevant portions are:

Paragraphs 3,4, 5, 6 and 9.

“3. The area occupied by the Bassa Kwomo is approximately 320 square miles and has a density of about 77 per square mile.

4. The idea of having a single native authority is no new one but has not worked in the past. In about 1880 the Bassa Kwomo firmly established their claim to independence from the Igala when they defeated a large Igala army at Odugbo. After the advent of the British, the Bassa Kwomo were given a series of alien chiefs who went under the title of Etsu, a Nupe title copied from the neighbouring Bassa Nupe. In 1918, there was a rising necessitating a police patrol, but it was not until 1930 that the first Bassa Kwomo Chief was appointed and he was assassinated in 1931 when a further police patrol was sent to arrest the ringleaders of the rising which caused his death. The District Officer was then constituted the native authority and one Tamaji, the clan head of Digache, was appointed Chief of Bass a Kwomo under him. In 1934, the Bassa Kwomo were again reorganized and though the District Officer remained native authority, the clans were made independent of a single chief. In 1935, the clan heads and their councils were made independent native authorities in their own rights. This position still obtains.

5.The details of the five clan heads and their council constituting the native authorities are as follows:-

Clan Clan Head Headquarters Population

Akuba Soko Oguma 15571

Arasamashe Vacant Inugu Tamaji 3321

Azongulu Saidi Kpanko 8186

Digache Wudi Kakuri 2457

Ashashama Zaigbe Odugbo 1528

24763

6. It has been unanimously agreed that Soko, clan head of Akuba, should be appointed the first Chief of Bassa Kwomo and that there should be a single native authority comprising the Chief of Bass a Kwomo and his council.

It will be noted that the population comprising the Akuba claim is 64% of the total of the Bassa Kwomo. It is therefore recommended that the council be strengthened by the addition of two further members from the Akuba clan. It would then consist of two members from Akuba clan and the clan heads of the other few clans under the chieftainship of the clan head of Akuba. It is proposed to make the village heads of Adenyi and Akande the two additional members from the Akuba clan, they will become heads of sub-clans, Adenyi being responsible for the Western part of the Akuba Clan Area and Akande for the Eastern part. These two regions are quite separated geographically, being divided by the desolate Umberiche range of hills which are uninhabited….

9. It will be necessary to amend the schedule of native authorities listed in Public Notice 213 in Gazette 60 of 1947 (Vol. VIII page 678 of Laws) by deleting the words Akuba, Arasamache, Ashashama, Digache and Azongulu in the third column of the schedule and the details in the fifth and sixth columns and substituting: Designation of native authority: Bassa Kwomo Members of native authority: Chief of Bassa Kwomo and Council. Area: Bassa Kwomo district.”

(d) Exhibit D: This is the minutes of a special meeting comprising the clan heads, The council and the King-makers panel held in Oguma council hall on 16th December, 1968.

The relevant portions which are at pages 3 and 4 are: –

“S DO He asked Akuba and Arisamishi clans to put up their candidate for the king-makers to recommend.

Tukura Heshi The clan head of Arisamishi nominated Mr. Joseph Dodo Alagani as the candidate for Arisamishi clan.

Kaura Sokwo: The clan head of Akuba selected Mr. S. W. Shigaba as the candidate for Akuba clan.

At this juncture the clan heads were asked to leave the Hall as to allow the king-makers the opportunity to decide on whom to choose.

S D O He told the members to choose one name out of the following candidates:

1. Joseph Dodo Alagani
2. Simeon Wodi Shigaba

Paul Jimba from Edigeshi: He supported the candidature of Mr. J. D. Alagani as the chief of Bass a Kwomo, on the ground that he is the only one who commands the support and confidence of Bassa Kwomos.

Zhizhi Jimaza from Ozungulo He seconds Paul Jimba that J. D. Alagani should become the Chief of Bassa Kwomo.

Ameh Woniba from Arisamishe He supports the candidature of Mr. J. D. Alagani as the Chief of Bassa Kwomo.

Jimba Zagana from Akuba He suggested that the member should take oath of secrecy and he further asked why the Edigeshi’s put J. D. Alagani’s name as their candidate.

Answer: It was unanimously agreed, and oath of secrecy was taken.

He, Jimba Zagana supports Mr. Alagani’s candidature as the chief of Bassa Kwomo.

The whole king-makers recommended that the Government should appoint Mr. Joseph Dodo Alagani as the Chief of Bass a Kwomo because he is the one acceptable to the generality of Bassa Kwomos.

S D O He thanked the members for being able to make a decision on this important issue which has been a problem for Bassa Kwomos. He said that before the advent of Europeans we looked upon our chiefs as our leaders and for such a wise, brave and just man must be chosen. He said that he feels the whole section of the community of Bass a Kwomo have accepted this selection. He expressed his happiness on the selection made because his predecessors have tried it in vain. He warned the members to keep the matter secret. He disclosed to them that theirs was just to recommend and it is the Government’s to approve or disapprove any person recommended.”

It is to be noted that each of the exhibits is well over twenty years old. Hence the provisions of section 130 of the Evidence Act, Cap. 112, LFN, 1990 apply.

Section 130 provides:

“130. Recitals, statements, and descriptions of facts, matters, and parties contained in deeds, instruments, Acts of the National Assembly, or statutory declarations, twenty years old at the date of the contract, shall, unless and except so far as they may be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters and descriptions.”

Similarly, in so far as averments in the respective pleadings of parties are concerned, it is the law that parties are bound by their pleadings and cannot be allowed, without an amendment of their pleadings, to go outside them to establish their case. Aderemi v. Adedire (1966) NMLR 398 at 401.

It is also the law that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist – section 135(1)Evidence Act.

The learned trial Judge in his judgment made certain material and important findings of fact as follows:

A- On the pleadings

(i) It is an undisputed fact on the pleadings of the parties that prior to 1931, the existing five clans of Bass a were autonomous and each produced its own clan head – p.

199 of the record.

(ii) The plaintiff pleaded in paragraphs 15 and 16 of the amended statement of claim a certain Odugbo panel

declaration as to the repository of the custom relating to the selection and appointment of the Aguma Kwomo as being an alternation of the said stool between Akuba and Edegeshi clans. Each set of defendants denied the existence of that document. Nothing has been said by any witness regarding the Odugbo panel report on the said custom of the Bassa Kwomos.

In the circumstance the learned trial court declared those averments in paragraphs 15and 16 of the amended statement of claim as abandoned.

B – On exhibits P15, P19, P20 and D1 – his Lordship made the following findings of fact –

“1. The stool of the Aguma of Bass a Kwomo was the brain child of the colonial administration in Bassa Kwomo land and not at the instance of any of the clans in that land.

2. As at the time of its creation or inception, there was no ruling house, to the stool, that is, the stool of Aguma of Bassa Kwomo was not specifically meant for any particular community in Bassa Kwomo land.
3. Some Hausas and Nupes had been appointed as chiefs of Bassa Kwomo until the first indigenous Bassa Kwomo, in the person of Kwanaki from Akuba clan was appointed by the colonial administration in 1930, as an Etsu.
4. Upon the assassination of Kwanaki in 1931, Tamaji, the headman of Digache (Edigeshi) clan was unanimously selected and accepted by the clan elders as the successor to Kwanaki and so Tamaji was appointed as the first “Aguma” of Bassa Kwomo and installed as such with a 4th class staff of office in August, 1932.
5. The appointment of Aguma Tamaji was based upon his personal merit and acceptability by the Bassa Kwomo community and not upon any custom or ruling house arrangement.

6.Between 1934 and 1950, there was no single chief of the Bassa Kwomos, as each of the five clans were made independent native authorities, hence Dongara and Gberugu both from Akuba clan were never at any time appointed as Aguma of Bassa Kwomo.

7. The next Aguma of Bassa Kwomo after Tamaji was Sokwo (Kurubuwa) from Akuba clan who was appointed with a single Bassa Kwomo Native Authority constituted and consisting two members from Akuba clan, for being the single largest clan and the clan heads of the other four clans.
8. The Aguma of Bassa Kwomo stool is not alternated between Akuba and Edigeshi clans, so the stool is not exclusive to them.
9. The Colonial Administrators who initiated and/or instituted the said stool did not limit ascension or succession to the stool to only one or two clans nor was any of the clans in the Bassa Kwomo land disentitled to the stool.
10. Late Aguma Joseph Dodo Alagani was selected and appointed in 1968, in his own right having hailed from Arisamishi clan and not upon an alleged adoption by Edigeshi clan.
11. Exhibit D1, exfacie, does not show any fact of adoption of the late J. D. Alagani by Edigeshi clan.
12. The Agumas of Bass Kwomo since the inception of the stool with a 4th class staff of office in 1932. were;

i. Tamaji from Edigeshi clan;

ii. Sakwo Kurubuwa from Akuba clan;

iii. J. D. Alagani from Arishamishi clan.”

Furthermore in the judgment, the trial court made the following additional findings of fact at p. 221:-

“i. There is a panel of kingmakers established for the selection of the Aguma of Bassa Kwomo.

ii. The said king-makers panel first became involved in the selection of an Aguma in 1968, during the selection of late J. D. Alagani.

iii. The DW 1 – James Jimba Zagana, from Akuba clan and DW4 – Paul Jimba, from Edigeshi clan were among the kingmakers who selected the late J. D. Alagani from Arishamishi clan as the Aguma of Bassa Kwomo in 1968.

iv. The same DW1 and DW4 (supra) were among the five king-makers who selected the 1st defendant from Ozongulo clan in 1997 as the Aguma of Bass a Kwomo. v. The king-makers panel is comprised of a member each from the five clans in Bassa Kwomo land.

vi. The king-makers panel was not in existence nor was it involved in the selection and appointment of Tamazhi from Edigeshi clan in 1932 and that of Sokwo Kurubuwa from Akuba clan in 1951.

vii.There is no written resolution showing the order of rotation of the stool amongst the five clans in Bassa Kwomo land.

viii. The stool has been rotated among Edigeshi (Aguma Tamazhi); Akuba (Aguma Sokwo Kurubwa);

Arishamishi (Aguma J. D. Alagani) and Ozongulo (Aguma J. D. Kpongbo); which is on trial here, and

ix. The stool is yet to be tasted by Ashashama clan only.

See: Exhibit D2

I, therefore hold that the defendants have proved the custom of rotating the stool of Aguma of Bass a Kwomo amongst the five existing clans in Bassa Kwomo land, and the selection of the 1st defendant is in line with that custom. I also hold that there is a king-makers panel constituted with a member each from the five existing clans in Bassa Kwomo land and it is that Panel which selects a candidate for appointment to the Aguma of Bassa Kwomo stool.”

In the consideration by an appellate court of the evaluation of the evidence by a lower court, the following principles amongst other apply-

(a) In a claim for declaration, the plaintiff must rely on the strength of his own case and not on the weakness of the defendant’s case – (i) Kodilinye v. Odu (1935) 2 WACA 336; (ii) Bashua v. Maja (1976) 11 SC 143. However, the plaintiff can take advantage of and rely on evidence by the defence which supports his case Akinola v. Oluwo (1962) SCNLR 133.

In a civil case, the proper approach to evidence called by both sides is to ask the question – On which side does the weight of evidence lie? This is because proof in civil cases is on balance of probabilities. In the assessment of evidence on any particular issue, evidence called by each side ought to be put on either side of the imaginary scale and weighed together. Whichever out-weighs the other in terms of probative value should be accepted. Mogaji v. Odofin (1978) 4 SC 91 at 93.

An appellate court will not lightly interfere with findings of fact of the court below unless such findings are shown to be perverse or not the result of a proper exercise of discretion – Ogundipe v. Awe (1988) 1 NWLR (Pt. 68) p.118. Where the issue of evaluation of facts do not depend entirely on the credibility of a witness but where proper inference is to be drawn from the facts proved, the appellate court is in as good a position as the court of trial; and will draw the proper inference naturally flowing from the facts so proved – Akesse v. Akpabio (1935) 2 WACA 264 but will not reverse the finding of the court merely because it would have found differently. Asani Balogun v. Alimi Agboola (1974) 1 All NLR (Pt. 2) p. 66.

Where there is oral as well as documentary evidence, documentary evidence should be used as a hanger from which to assess oral testimony – Fashanu v. Adekoya (1974) 6 SC 83.

Customary evidence is a mirror of accepted usage – Owonyin v. Omotosho (1961) 1 All NLR 304 at 309.

One of the characteristics of customary law is that it must be in existence at the relevant time and must be recognised and adhered to by the community – (i) Lewis v. Bankole (1908) 1 NLR 81 (ii) Kimdey v. Military Governor of Gongola State (1988) 2 NWLR (Pt. 77) p. 445.

There cannot be rules of customary law stricto sensu applicable to a chieftaincy created by the colonial government.

Hence, there could not be a breach of the rules of customary law or tradition in the appointment to a vacancy existing in a chieftaincy which is entirely the creation of statute or for administrative purposes. Kimdey v. Military Governor of Gongola State (supra).

The courts, in the administration of justice, have not the liberty to act on instinct; cases are decided on proof by admissible and credible evidence and not on evidence not made available to the court – (as is the case of the Odugbo panel report in this suit). In effect, decisions are not based on intuition that documentary evidence not placed before it must have existed. Katto v. C.B.N. (1991) 9 NWLR (Pt. 214) p. 126.

I have, in the light of the above principles considered the evaluation which the learned trial court made in the judgment on the evidence placed before it, – oral and documentary, in the light of the pleadings of the parties.

I consider that the findings both of fact and conclusions of law have been made based on sound legal principles I have no need to disturb them. In the circumstance, I find against the appellant with regard to issues 1, 3 and 4 in this appeal. I now turn attention to issue No. 2.

This deals with the question whether the lower court was right in its interpretation of section 14(2)(b) of the Kogi State Chiefs (Appointment, Deposition and Establishment of Traditional Council) Law, 1992 on the issue of quorum of the Kogi State Council of Chiefs vis-a-vis exhibit 21.

The contention of the plaintiff/appellant on this issue is that contrary to the requirements of section 14(2)(b) of the Law, the meeting of the Kogi State Council of Chiefs to recommend the 1st defendant as Aguma of Bassa Kwomo for appointment by 4th defendant was neither duly summoned nor was a quorum of the members present at the deliberations.

It is the contention of appellant that ex facie, the chairman of the council was not present at the meeting and so it must be presumed that the meeting was not called by the chairman. In that event appellant argues that, to be duly convened in accordance with the law, evidence ought to have been called on the request made to the chairman for a meeting signed by not less than 2/3 of the members.

It is also the contention of appellant that since S. 14(2) (b) requires 2/3 of the members to convene such a meeting, its quorum had to be 2/3, of the members before a meeting of the council can be valid.

1st respondent, 2nd – 4th respondents as well as the learned trial court disagree with the proposition on the ground that exhibit 21 which is the record of the meeting did not on the face of it say that it was convened at the request of the chairman by 2/3rd of the members of the council: and also that even if a 2/3rd of the members was necessary for the convening of such a meeting, the attendance of members to form a quorum is not necessarily 2/3 as this is not stipulated expressly by the provisions of the law.

Section 14 provides:-

“14.(1)There shall be a Secretary to the council to be appointed by the Governor on such terms and conditions as the Governor may determine.

(2) The Secretary shall be responsible for:

(a) The summoning of all meetings of the council upon the direction of the chairman or upon the request made to the chairman for a meeting signed by not less than two third (2/3) of all members of the council;…”

In my view, exhibit 21 does not say on the face of it that the meeting of which it is the minutes was not convened by the chairman.

It is accordingly not permissible for appellant to read into the document what is not there.

There is also the presumption of regularity in respect of the document – See S. 149(c) of the Evidence Act. If appellant contends that the meeting was not convened by the Chairman, the burden is put on him by S. 135 of the Evidence Act to prove it.

He had the opportunity to do that because, exhibit 21 was produced in court at his instance. However, plaintiff’s council chose to produce the document through the Director in the Department of Local Government and Chieftaincy Affairs, Lokoja of 4th defendant under sections 192 and 193 of the Evidence Act and not through the Director as a witness – See p. 140 of the record of proceedings.

Appellant cannot now shift the burden of proof which was properly his on to the defendants.

As to the quorum required of the meetings of the council, it is my opinion that appellant is mistaken that a quorum of the council to take valid decisions must be 2/3rd of the members.

There is no such specific requirement relating to the quorum in Law No.7 1992.

The law of general application applicable to Kogi State in the matter is still section 54 of the Interpretation Law, Cap. 52, Laws of Northern Nigeria, 1963.

Section 54 provides:-

“54. Save as may be otherwise expressly provided by any written law –

(a) whenever any act or thing is by any written law required to be done, or any decision taken, by a body of persons consisting of not less than three such act or thing may be done, or such decision taken, in the name of that body by a majority of those persons;

(b) whenever such body is assembled the chairman or other member presiding shall, in all matters in which a decision is taken by vote by whatever name such vote may be called, have a casting as well as a deliberative vote.”

There is no dispute that the membership of 3rd respondent was 27.

In that event, 14 members would constitute a quorum. There were in fact 18 members at the meeting.

I hold that a quorum of members was present at the meeting.

Accordingly, a decision of 3rd respondent on the matter could not be invalidated on account of lack of quorum if the decision was otherwise validly taken.

In the event, I find against the plaintiff in respect of issue No. 2.

There is now left for consideration and determination in respect of the main appeal only issue No.5 i.e. Whether from the pleadings and the available evidence, the learned trial Judge came to the light conclusion that exhibits P2, P7 and P8 were duly considered by 2nd respondent so that there was no denial to plaintiff of his right of fair hearing.

It is necessary to indicate that exhibits P2, P7 and P8 were letters addressed by the plaintiff to the 2nd respondent to assert the right of Akuba clan i.e. plaintiff’s clan with the Edigeshi clan to exclusive entitlement to the chieftaincy title of Aguma of Bassa Kwomo, and that there are no Kingmakers established in Bassa Kwomo. Also that the late Aguma J. D. Alagani was selected by the body of council and king-makers vide exhibit D1 because of his adoption by Edigeshi clan as recommended in what the plaintiff terms “The Odugbo Declaration of 1968” – See p. 2 of exh., P2.

Exhibits P2, P7 and P8 are to be distinguished from exhibits P9, P10 and P11 which are the complaints of the appellant addressed to the 4th respondent and by his agents and which form the basis of the cross-appeal.

It is the contention of appellant that his claims were not considered or responded to nor were appellant’s witnesses given oral hearing when he and his witnesses were summoned before 2nd respondent and they appeared before 2nd respondent.

Appellant contends that since the learned trial court found as a fact that appellant was not given oral hearing he should have ruled that that finding amounted to lack of fair hearing but instead, he ruled that exhibits P2, P7 and P8 were duly considered by 2nd respondent – hence there was no lack of fair hearing.

It is appellant’s contention that in the absence of written reply/response to exhibits P2, P7 and P8 the inference was that his complaints were disregarded – and that this amounts to lack of fair hearing – particularly since the matter concerned a 1st class chieftaincy and that there was nothing on the face of exhibit D4 to indicate that the principle of fair-hearing was accorded to exhibits P2, P7 and P8.

For the 1st respondent, it is argued that contrary to the oral evidence of appellant as PW3 in court that 2nd respondent did not hear him, attention is invited to paragraph 23 of his amended statement of claim thus:-

“At one of the meetings of 2nd defendant on 6/8/97, decision was taken that all the contestants to the stool of Aguma of Bassa Kwomo should come with their documents and witnesses to the next meeting. The Akuba and Edigeshi who brought their witnesses who were served with witness summons by the 2nd defendant were not allowed by the 2nd defendant to hear their witnesses.”

It is contended that the averment shows that Akuba and Edigeshi clans had attended a meeting with 2nd respondent at which they were requested to produce documents to support their claim which they failed to do.

It is therefore submitted that though fair hearing is fundamental, it does not necessarily connote that the party so entitled must be heard orally; since a hearing can be done by oral or written representations.

The 2nd – 4th respondents deal with this issue in the first of the two legs of issue No.4 in their joint brief. It is contended that the trial Judge based his findings on exhibits D3 and D4 tendered in evidence by 2nd – 4th respondents.

Exhibit D3 is the minute of a meeting of 2nd defendant held on 30th December, 1997 in the council hall.

Exhibit D4 is the recommendation/appointment of New Aguma of Bassa Kwomo dated 7/1/98 from 2nd respondent to the Director-General of Department of Local Government and Chieftaincy Affairs of 4th defendant indicating the annexures thereto.

It is accordingly submitted that the maxim audi alteram partem has not been breached in relation to exhibits P2, P7 and P8.

In his judgment the learned trial Judge, after a review of the pleadings and the evidence came to the inference that:- “So, the inescapable inference I have drawn from these facts, is that just like the plaintiff and his witnesses were not orally heard by the 2nd defendant, so also the other candidates with their own witnesses were not so heard by the 2nd defendant. I so hold.”

He also came to the conclusion that – “I am satisfied, after a perusal of exhibit D4 tendered in evidence by the 2nd – 4th defendants that exhibits P2, P7 and P8 were duly considered by the 2nd defendant. Therefore, 1do not think there was a lack of fair hearing on exhibits P2, P7 and P8. 1say so because, the maxim, audi alteram partem, does not necessarily connote that a party entitled to be heard, must be so heard orally. For, a hearing can be by oral evidence or by written representations like it was done in exhibits P2, P7, P8 vis-a-vis exhibit D4….

All said, I am of the firm opinion that since there is no evidence before me of a double standard employed by the 2nd defendant in considering the written representation of the plaintiff in exhibits P2, P7, and P8, there was no failure of justice against the plaintiff by the 2nd defendant.”

It is now settled law for the determination of appeal on issues of fact that it is not the business of an appellate court to embark on a fresh appraisal of the evidence where the trial court has unquestionable evaluated and appraised it unless such findings are perverse – Akinyele and Ors. v. Eyiyola and Ors. (1981) 5 SC 291; Awoyale v. Ogunbiyi (No.2) (1986) 2 NWLR (Pt.24) 626, (1986) 4 SC 98.

One finds the following among the resolutions of the 2nd respondent at their meeting on 30th December, 1997 with regard to the subject-matter of the appeal:-

“RESOLUTIONS

9. That there was no vivid record to show that Agumaship stool is rotated within only two ruling clans, viz – Akuba and Edigeshi as claimed by Alh. Isah Sokwo and his brother Mr. Hulo Sokwo.
10. That they (Alh. Isah Sokwo and Mr. Hulo Sokwo) were not able to produce the said “Odugbo declaration” that says the stoolship of Aguma of Bassa is rotated within the Akuba and Edigeshi ruling clans.
11. That the three Agumas that had ruled, come from Edigeshi, Akuba and Arisamishi in the following order:

a. Akuba – Sokwo Kurubua

b. Edigeshi – Tamazhe Shaba

c. Arisamishi – Mr. J. D. Alagani.”

Of equal significance is the following, on the same subject-matter during its consideration at the meeting of the Kogi State Council of Chiefs held on 5th May, 1998 at Government House, Lokoja –

“HRH, the Ejeh of Ankpa asked if there were investigation on the appointment before it was passed to State Council of Chiefs for necessary action. Responding, the Director-General of the Department of Local Government and Chieftaincy Affairs informed members that the petitions were investigated but found baseless and frivolous hence the recommendation before the State Council of Chiefs.”

I am therefore in agreement with the learned trial Judge that no standard has been employed to the detriment of the appellant in this case different from any standard that has been used to the others involved in the contest for the stool in dispute.

In an inquiry by an administrative tribunal, the hearing can be on oral evidence or written documents submitted by the parties interested in the inquiry or whose civil rights and obligations will be affected by the inquiry; Thus a hearing of parties to a dispute need not be oral – Hart v. Military Governor, Rivers State and Ors. (1976) 11 SC 211.

In the event, I find against the appellant on issue No.5 also.

Having resolved all five issues for determination in this appeal against the appellant, I find no merit in the appeal. I dismiss the appeal in its entirety.

I affirm the decision of the learned trial Judge with regard to the part of the judgment which is the subject of this appeal.

I now turn to the cross-appeal.

As indicated earlier, the learned trial court, in its decision found partly in favour of the plaintiff and granted part of the declaration claimed by plaintiff in relief (a) – to the effect that the appointment of the 1st defendant by 2nd – 4th defendants as Aguma of Bassa Kwomo land is unlawful, unconstitutional, null and void and of no effect; that the appointment patently violated the provisions of section 3(2) of Law No.7 1992 of Kogi State on the Appointment and Deposition of Chiefs.

The learned trial court also granted in favour of the plaintiff a perpetual injunction restraining the 1st defendant from parading himself or holding himself out as the Aguma of Bassa Kwomo or from performing the function of Aguma of Bassa Kwomo. The court also restrained the respondent from recognising or treating the 1st respondent as such.

It is against that portion of the judgment of the trial court that the cross-appellant has appealed to this court. The notice of cross-appeal contained three original grounds but was subsequently amended with leave of this court by the filing of two additional grounds.

The five grounds of cross-appeal without their respective particulars read:”

“Ground 1

The learned trial Judge erred in law applying the provisions of section 3(2) of Kogi State Chiefs (Appointment, Deposition and Establishment of Traditional Council) Law, 1992, to void the appointment

of the 1st defendant when there was no proof that the purported letter of complaint exh. ‘P11’ ever got to the knowledge of the then Military Administrator of Kogi State.

Ground 2

The learned trial Judge misdirected himself when he held that “I now hold that the failure of the then Military Administrator to hold an inquiry into the dispute as to the selection and appointment of a successor to the stool of Aguma of Bassa Kwomo as shown in exhibits P10 and P11 amounted to a non-compliance with the Law No.7 1992 and it breached the principle of fair hearing – a child of natural justice.”

Ground 3

Part of the judgment is against the weight of evidence.

ADDITIONAL GROUNDS OF APPEAL

Ground 4

The learned trial Judge misdirected himself in law by holding at page 237, lines 4 – 12 of the records, thus:

“I am in agreement with Mr. Akubo, for the plaintiff, that it was incumbent on the Military Administrator, the then Chief Executive of the 4th defendant, when he became aware of exhibits P10 and P11 which indicated that the selection or appointment of a successor to the Aguma of Bassa Kwomo stool, was in dispute, he ought to have caused an inquiry into that stool before he approved the appointment of the 1st defendant to that stool.”

Ground 5

The learned trial Judge erred in law by granting a perpetual injunction against the defendants when the claim of the plaintiff only succeeded partially on the ground that the 4th defendant failed to comply with a condition precedent i.e. making an enquiry before approving the appointment of the 1st defendant/respondent.”

From the five grounds of appeal the cross-appellant has formulated five issues for determination thus-

“l. Whether a breach of the rules of natural justice arises in this appeal, that is whether it is incumbent on the 4th respondent to conduct an inquiry based on exhibits P10 and P11?.

(This issue relates to grounds 2 and 4 of cross-appeal)

2. Whether the appellant was a proper contestant for the stool of Aguma of Bassa Kwomo and whether he has a right to be heard under S. 3(2) of Law No.7. 1992 of Kogi State on the complaints in exhibits P10 and P11?.

(Ground 2 of cross-appeal)

3. Whether the Military Administrator, the then Chief Executive of the 4th defendant (4th respondent) was aware of exhibits PIO and Pl1 and whether there has been a derogation of duty conferred on the Military Governor by S. 3(2) of Law No.7, 1992 of Kogi State?.

(Grounds 1 and 4 of cross-appeal).

4. Whether the trial Judge was right to have granted a perpetual injunction against the respondents when the suit of the appellant only succeeded narrowly on the ground that the 4th respondent did not comply with the condition precedent before approving the appointment of the 1st respondent?.

(Ground 5 of cross-appeal).

5. Whether the conclusion arrived at in granting in part reliefs (a) and (g) of the plaintiff/appellant’s claim is not contrary to the evidence which has been properly evaluated and findings made by the trial Judge?.

(This issue emanates from ground 3 of cross-appeal).”

For his part, the appellant/cross-respondent distilled two issues for determination in this appeal thus:-

“1. Whether upon a careful evaluation of available evidence and having regard to exhibits P10 and P11, the learned trial Judge was right to invalidate, nullify and/or void the appointment of the cross-appellant as Aguma of Bassa Kwomo on ground of lack of fair healing and failure of the Military Administrator to hold an inquiry in accordance with section 3(2) of the Kogi State Chiefs (Appointment, Deposition and Establishment) of Traditional Council Law, 1992?. (See Grounds 1,2, 3 and 4 of the cross-appeal as amended).

ALTERNATIVELY

1. Whether upon a careful evaluation of the evidence, the learned trial Judge was right to invalidate, nullify and void the appointment of the cross-appellant for non-compliance with section 3(2) of the Kogi State Chiefs (Appointment, Deposition and Establishment of Traditional Council) Law as and Establishment of Traditional Council) Law, 1992 (sic) as well as the lack of fair hearing?. (See grounds 1, 2, 3 and 4 of the cross-appeal as amended).
2. Whether having invalidated, nullified and/or voided the appointment of the cross-appellant as the Aguma of Bassa Kwomo, the learned trial Judge was right to have granted a perpetual injunction thereof as claimed by the appellant/respondent?. (See ground 5).

I am in agreement with the cross-respondent that the issues for determination can be abridged to two.

On that account, I shall adopt the issues Nos. 1 and 2 (but not the alternative as formulated by the appellant/cross-respondent in the determination of this cross-appeal.

I now turn to issue No.1 which covers issues Nos. 1,2,3 and 5 of the issues formulated by the cross-appellant.

It is the contention of appellant that the request of the plaintiffs/cross-respondent in exhibit 11 is for an inquiry into the identity of clans eligible to ascend the stool of Aguma of Bassa Kwomo and not the issue of selection or appointment of anyone; and that request tantamounts to a request for the making of a chieftaincy declaration.

It is submitted that the subject of chieftaincy declaration is covered by s. 5 of Law 7 of 1992 and not by s. 3.

As regards exhibit 10 it is the contention that exhibit 10 and the pleading of plaintiff/cross-respondent in paragraphs 15 and 16 of his amended statement of claim postulate that there is in existence a chieftaincy declaration in respect of the stool of Aguma Bassa Kwomo. It is therefore contended that the complaint which admits that a chieftaincy declaration exists is no more one for an inquiry under 3(2) which relates to matters governed by native law and custom. Reliance is placed on –

(i) Ogundare v. Ogunlowo (1997) 6 NWLR (Pt.506) 360, (1997) 5 SCNJ 281;

(ii) Oladele v. Oba Aromolaran II (1996) 6 NWLR (Pt.453) 180, (1996) 30 LRCN 937

Hence, it is submitted that if there is already a chieftaincy declaration in existence, there was no need for an inquiry by the Governor for another one.

It is also contended that having regard to the pleadings it was the duty of plaintiff to prove receipt by 4th defendant of exhibits P10 and P11 which he failed to do.

It is contended also that following findings of the learned trial court of the existence of a panel of king-makers for the selection of the Aguma of Bassa Kwomo which had been operative at the selection of late J. D. Alagani from Arishamishi clan the question of inquiry under S. 3(2) becomes a non-issue.

For the plaintiff/cross-respondent, it is argued that he pleaded and proved his protests against the appointment of the cross-appellant as Aguma of Bassa Kwomo and called for an inquiry vide exhibits P10 and P11 vide paragraphs 8 and 22 of the amended statement of claim.

It is maintained that plaintiff gave evidence that there was no response from 4th respondent to his protests; that he was not cross-examined on the evidence which the learned trial Judge duly found proved.

Relying on S. 3(2) of Law No.7 of 1992 it is contended that that section of the law makes a mandatory provision for an inquiry in the event of a dispute relating to the appointment of a successor to a chieftaincy stool such as the Aguma of Bassa Kwomo and that failure to comply with such mandatory provision is Fatal.

(i) Chief Edewo v. Uwagba & Or. (1987) 1NWLR (Pt.50) 313, (1987) 2 SCNJ 18;

(ii) Elesho v. Government of Ogun State (1990) 2 NWLR (Pt.l33) 420, (1990) 4 SCNJ 45.

It is the contention that the underlying rationale behind the need to institute an inquiry in the event of any dispute is to ensure that the principle of fair hearing is adhered to in the process; that the learned trial Judge found that the plaintiff was not heard nor given the courtesy of a reply to exhibits P10 and P11.

I have no doubt that cross-appellant missed the mark when he contended that 2nd – 4th respondents did not admit receipt of exhibits P10 and P11 in the pleadings. However, since the determination of this cross-appeal depends a lot on the two exhibits as well as the right of the plaintiff thereon to the institution of an inquiry as well as a right to be heard at that inquiry I shall set out the relevant pleadings of the pal1ies on the matter before considering the evidence thereon and also whether the learned trial Judge came to the right decision on the matter.

The relevant portions of the pleadings are as follows:- Amended Statement of Claim. Paragraphs 8 and 22.

“8.(a) The plaintiff avers that from 1860 A.D. to date. Even though there are five clans in Bassa Kwomo land out of which only two clans take the stool of Aguma of Bassa Kwomo by rotation. This is right from the inception of the stool of Aguma of Bassa land. The five clans are Akuba and Edigeshi (who are the only royal! Ruling houses); Arishmishi, Ozogulo and Ashashama who are not ruling houses/clans to the stool. The plaintiff shall rely and lead evidence to this fact at the hearing of this case.

(b) The following documents relating to the history and creation of the stool of Aguma of Bassa and the succession thereto are hereby pleaded and shall be relied upon at the hearing of this suit inter alia:

(i) Memorandum or letter to the Secretary of Northern Province dated 21st June, 1934 in relation to the proposed re-organisation of Bass a Kwomo District of Igala Division – Kabba province.

(ii) Letter to the resident of Kabba Province written by the District Officer in charge of Igala Division dated 10th February, 1951 in relation to reconstitution of Bassa Kwomo native authorities.

(iii) Report on the Bassa Kwomo District of Igala Division of Kabba Province with a covering letter dated 2nd April, 1934 written by the District Officer to the Secretary of Northern Provinces, Kaduna.

(iv) Petition or letter to the Military Administrator of Kogi State dated 6/6/98.

(v) The first defendant’s letter to the Sole Administrator of Bass a Local Government dated 27/7/98.

(vi) The plaintiff’s letter to the Sole Administrator of Bassa Local Government Council dated 29/7/98.

(vii) Letter dated 21st May, 1993 written by acting Secretary to Bassa Traditional Council to Director-General, Department of Local Government and Chieftaincy Affairs, Lokoja.

(viii) Letter dated 14/1/98 written to the Secretary of Kogi State Government.

(ix) Cash receipt of N20,000.000 deposited or paid before filing the suit….

22. The Akuba and the Edigeshi clans being dissatisfied with the conduct of the chairman of 2nd defendant on the stool of Aguma in issue wrote a petition to the secretary Kogi State Government dated 11/7/97 and also through their lawyer Ibrahim Shaibu and Co. wrote to the Military Administrator of Kogi State dated 19/12/97. The two Letters/petitions are hereby pleaded and shall be relied upon at the hearing of the case. The 3rd and 4th defendants are hereby given notice to produce the said letters to enable the plaintiff tender them in evidence at the hearing of this case.”

Statement of Defence of 2nd – 4th Respondents. Paragraphs 4,5,6, 11, 16, 17 and 19.

“4. The 2nd and 3rd defendants also gathered that the stool usually rotates between these five clans. Three clans have had their turn and these are Edigeshi, Akuba and Arishamishi ruling clans in that order.

5. The race for the selection of Aguma therefore was narrowed down to only two ruling clans i.e. Ashashama and Ozogulo. In the light of the foregoing, the following documents are hereby pleaded:

a. A memo presented to Bassa Traditional Council by Clans Head of Edigeshi, Arishamishi, Ozongulo, Ashashama and Akuba.

b. Meeting of Bassa Local Government Traditional Council held on 6th August, 1997.

c. Minute of Bassa Local Government Traditional Council meeting held at Oguma on 17th December, 1997.

6. At the meeting of the two clan heads of Ashashama and Ozongulo held on 3rd May, 1997 on which clan to produce the next Aguma. It was unanimously resolved that Ozongulo ruling clan should produce the next Aguma and whenever the stool became vacant again, the Ashashama ruling house would take its turn to produce the Aguma. Proceedings of minutes of meeting of the two clan heads (Ashashama and Ozongulo) held on 3rd May, 1997 in that respect is hereby pleaded.
7. It was in evidence before the Bassa Local Government Traditional Council (BLTC) that by tradition an Aguma is appointed through selection by the ruling house and presentation to the king-makers. The king-makers thereafter ascertain his legibility and acceptability finally recommended him to the Government.
8. They were four (4) contestants from Ozongulo in the following;

a. Mr. Joseph Daku Kpongbo b. Mr. Isaac G. Wodi c. Mr. David Yashelani d. Mr. Paul Zhiya

Of the four contestants, Mr. Joseph Daku Kpongbo was selected to fill the vacant stool. His name was forwarded to the Bassa Local Government Traditional Council vide the king-makers.

9. Bassa Local Government Traditional Council deliberated on the appointment of Mr. Joseph Daku Kpongbo and endorsed the recommendation on the following ground:

(a) That there existed in Bassa Kwomo tradition a council of king-makers that was constituted in 1968. It was this established body of kingmakers that recommended the late J. D. Alagani for appointment in 1969. Minutes of a special meeting comprising the clan heads, the council and king-makers panel held in Oguma council hall on 16th December, 1968 is hereby pleaded.

(b) That there are five ruling clans of Edigeshi, Akuba, Alishamishi, Ozongulo and Ashashama.

(c) That the stool is rotational among the five ruling clans in that order.

(d) That of the five ruling clans Edigeshi, Akuba, and Arishamishi have ruled while the remaining two, i.e. Ozongulo and Ashashama are yet to rule.

(e) That based on the understanding between the two(2) clans i.e. Ozongulo and Ashashama and the resolution of the king-makers Ozongulo’s candidate was accepted to mount the throne of Aguma of Bassa Kwomo.

10. The Bassa Local Government Traditional Council (BLTC) based on the foregoing accepted the recommendation of Mr. J. D. Kpongbo and resolved to pass his recommendation to the 2nd defendants.
11. At the meeting of the 2nd defendants held on 30th December, 1997, the Area Traditional Council members examined all the documents brought before it by the Bassa Local Government Traditional Council and recommended the 1st defendant to the 3rd defendants.

A minutes of meeting of Bassa Area Traditional Council held on 30/12/97 is hereby pleaded….

16. In answer to paragraphs 18,19,21 and 27 of the plaintiff’s claim the 2nd, 3rd and 4th defendants aver

that all the petitions from the plaintiff and his agents were duly considered.

17. In further answer to the averments in those paragraphs, the 2nd, 3rd and 4th defendants aver that the substance of the petitions was the fact that plaintiffs held that the stool of the Aguma of Bassa Kwomo was exclusively for the Akuba and Edigeshi. However, from the facts available to the 2nd, 3rd and 4th defendants, that stand of the plaintiff lacks substance.
18. In answer to the averments of the plaintiff in paragraph 25, the 2nd defendants (sic) aver that, the Akuba and Edigeshi clans were duly given fair hearing in the selection of the 1st defendant. Moreover, the plaintiff was never a contestant to the stool.”

It is obvious that from the above, the position of 2nd – 4th defendants was to admit all the documents relating to the protests and complaints of the plaintiff but to contend in paragraph 16 that “all the petitions from the plaintiff and his agents were duly considered.”

Issues having been thus joined, I shall consider the evidence of the parties thereon.

There is no doubt that plaintiff established his application to 2nd defendant and the various letters of protest by the exhibits P1, P2, P7 – P11. 2nd – 4th defendants did not give oral evidence but tendered by consent exhibits D3 and D4. In so far as exhibits P10 and P11 are concerned the portions of the judgment of the learned trial court – complained of are as follows:-

(i) P 234 lines 1 – 12

“I therefore hold that the Military Administrator of Kogi State, as the Chief Executive of the 4th defendant was aware of the complaint by Akuba and Adigeshi clans against the conduct of the Chairman of the 2nd defendant, relating to the selection and appointment processes of the new Aguma of Bassa Kwomo, as contained in exhibit P11.

I hold too that the Military Administrator of Kogi State did not respond to exhibit P11, which called for “the establishment of an independent committee of inquiry” into the dispute regarding ascension to the stool in question.”

(ii) P 235 lines 8 – 11

“I therefore find and hold consequently, that exhibits P9 and P10 were not responded to by the Secretary to the State Government and the Military Administrator of Kogi State, respectively.”

(ii) P 240 lines 6 – 12

” … I now hold that the failure of the then Military Administrator to hold an inquiry into the dispute as to

the selection and appointment of a successor to the stool of Aguma of Bassa Kwomo as shown in exhibits P10 and P11 amounted 10 a non-compliance with the Law No.7, 1992 and it breached the principle of fair hearing – a child of natural justice.”

I shall deal first with the relevance of section 3(2) of the Chief etc. Law No.7 of 1992.

S. 3. “(1) Upon the death, resignation or deposition of any Chief, the Governor shall approve as the successor of such Chief any person appointed in that behalf by the kingmakers under native law and customs and if no appointment is made before the expiration of such interval as is usual under native law and custom the most senior traditional ruler in status in that domain shall carry out certain duties incidental to the chieftaincy as it may be necessary to perform pending the appointment of the Chief by the king-makers.

(2) In case of any dispute, the Governor shall, after due inquiry and consultation with the king-makers be the sole Judge as to whether the appointment has been properly made.”

Sub-section (1) makes it obligatory for the Governor to approve such person as the king-makers may appoint under native law and custom as the successor upon the death, resignation or deposition of any Chief.

However, by sub-section (2) in case of any dispute, the Governor is obliged to make inquiry and consultations with the king-makers before deciding as sole Judge whether the appointment has been properly made.

I have no doubt in my mind that plaintiff by his various letters had shown interest in the vacant chieftaincy the subject of the dispute.

There also is no doubt that he had made known to the 4th respondent the dispute between the two clans which he represents on the one hand and the other three clans in the Bassa Kwomo community on the chieftaincy on the other hand as well as his allegation of bias against the acting chairman of 2nd respondent.

Plaintiff also suggested the holding of an inquiry by 4th respondent on the matter by exhibits 10 and 11.

In the application of the law to the facts in evidence the learned trial Judge found that the claim of plaintiff is supported by S. 3(2) of the Law, that failure by 4th respondent to hold such inquiry was in breach of his duty under s. 3(2) and also in breach of the duty which 4th defendant owes to plaintiff of giving to plaintiff fair hearing.

The question is – Was the learned trial court justified in his interpretation of S. 3(2)?

A look at S.4(1) and (2) of the Law would throw more light.

Section 4(1) and (2) of the Law reads: –

“(1) The provisions of section 3 shall not apply to the office of a Chief which did not originate under native law and custom but is a creation of statute.

(2) Upon the death, resignation or deposition of any Chief referred to in sub-section (1) of this section the Governor shall approve as the successor of such Chief, any person appointed in that behalf by the king-makers in accordance with the provisions of the statute creating the chieftaincy.”

It has been seen in the course of discussing the main appeal in this judgment that the learned trial Judge made certain findings based upon the pleadings and evidence which I quoted with approval.

I do not intend to repeat those findings of the learned trial court upon which I based the resolution of issues 1, 3 and 4 in the main appeal. It is a cardinal rule of interpretation of statutes that the statute must be read as a whole for the determination of the object of the statute. Agundo v. Gberbo (1999) 9 NWLR (Pt. 617) at p. 71.

Having found that the chieftancy of Aguma of Bassa Kwomo was a brain child of the colonial masters and that it was an administrative arrangement for establishing a single native authority for the five clans of the Bassa Kwomo people, the logical conclusion was for the learned trial court to have found that the application of S. 3(2) of the Law to the case on hand is excluded by S. 4(1) of the Law of 1992. The lower court was in error by not realising that S. 3(2) did not apply to the fact found by him in this case. Therefore this court is entitled to correct that mistake – S. 16 of the Court of Appeal Act. I hold that the chieftaincy title of Aguma of Bass a Kwomo did not originate under native law and custom. Therefore the provisions of S. 3(2) of Law NO.7 of 1992 are clearly inapplicable – See exhibits

P18 and P20. See Kimdey v. Military Governor, Gongola Stale (1988) 2 NWLR (Pt. 77) P. 445.

Furthermore, since in the instant case the chieftaincy is entirely a creation by the colonial government and not a creation or evolution from native law and custom, no rules of native law and custom strict sensu, are applicable. (Ibid at p. 464).

I now turn to the question whether there has been a breach of fair hearing by the 4th defendants with regard to exhibits P10 and P11.

The learned trial court did find in the course of its judgment that the 2nd and 3rd defendants were not in breach of the rights of plaintiff to be given fair hearing with regard to his protestation in exhibits P2, P7 and P8 having given consideration to the evidence before the court.

In considering the main appeal, I have already quoted parts of exhibits P21 and D3 which justify the findings of the lower court that allegation of bias against 2nd and 3rd defendants are not substantiated.

After the decision of the 2nd defendant to recommend the 1st defendant to the 3rd and 4th defendants for appointment the Secretary communicated the same through the Director-General of the Department of Local Government and Chieftaincy Affairs to 3rd and 4th respondents by a letter dated 7th January, 1998. I quote exh. D4 which reads as follows:

“KG/ BATC/MIN/2/1/18: 7/1/98

The Director-General, Dept. of L. G. and C. A., Lokoja, Kogi State.:

RECOMMENDATION/APPOINTMENT OF NEW AGUMA OF BASSA-KWOMO

I am directed to send to you the resolutions/recommendations of the Council of king-makers, elders and Bassa-Kwomo communities, Local Government Traditional Council and that of the Area Traditional Council on who is to fill the vacant stool of Aguma of Bassa-Kwomo. That based on the above, the Bassa Kwomo, the king-makers and the Elders have unanimously resolved and recommended one Mr. J. D. Kpongbo of Ozongulo clan to the stool of the new Aguma of Bassa-Kwomo.

That both the Local Government and Area Traditional council have equally done and completed their findings and resolution as per attached minutes of meetings for your necessary actions and approval on the recommendation of the said Mr J. D. Kpongbo to the stool of Aguma of Bassa Kwomo as follows:

(a) Minutes of joint meeting of Bassa Kwomo Council of Elders and Clan Heads of 1st May, 1997

(b) Minutes of the two clan Head (Ashashama and Ozongulo) to resolve which clan should produce a candidate for the vacant stool of the Aguma of Bassa, President Bassa Area Traditional Council of 3rd May, 1997.

(c) Minutes of the joint meeting between the Bassa Kwomo Council of elders and the clan heads of 11th May, 1997.

(d) Submission of letter of recommendations of Mr. J. D. Kpongbo, minutes of special meeting of Council of King-makers held on the 24/9/97, the Curriculum Vitae (C.V.) and the minutes of Ozongulo sons meeting of 11/5/97.

(e) Minutes of meeting of Bassa Local Government Traditional Council of 17/12/97 and

(f) Minutes of meeting of Area Traditional Council of 30/12/97.”

It will be recalled that it was in anticipation of this decision that plaintiff and his agents addressed the letters exhibits P11, P9 and P10 dated 19th December. 1997, 14th January, 1998 and 6th May, 1998 respectively to the 4th respondent.

The lower court was irked by the failure of 4th respondent to acknowledge receipt of those correspondence and so concluded that meant that plaintiff was not given a fair hearing.

Exhibit D4 has conveyed to 3rd and the 4th respondents through the Director-General Ministry of Local Government and Chieftaincy Affairs all documents relating to the investigations carried out and the processing of the applications of those considered qualified to fill the post.

The approval by 4th defendant of the appointment of 1st defendant to the chieftaincy was communicated by letter dated 2nd June, 1998.

I think the lower court was wrong in his conclusion that plaintiff was not given a fair hearing. Section 149(c) of the Evidence Act, Cap. 112, LFN, 1990 requires the court to presume that the common course of business has been followed in this particular case.

The common course of conduct which must be presumed in this case is that the 4th respondent considered the documents in exhibit D4 as well as other submission made to 4th defendant by his officials on the matter as well as exhibits P9, P10 and P11 before communicating his approval of the selection notwithstanding that he did not enter into correspondence with plaintiff.

If the learned trial court had properly evaluated the evidence before it, it would have come to the conclusion that 2nd, 3rd and 4th defendants had proved the aversions in paragraph 16 of their joint statement of defence that “all the petitions from the plaintiff and his agents were duly considered.”

The duty to make primary findings of fact by the evaluation of evidence before him by the additional advantage of watching the demeanor of witnesses is essentially preserved for the trial court Egri v. Uperi (1973) 11 SC 299, (1974) 1 NMLR 22. Where the issue however relates to the proper inference to be drawn from the facts proved, the appellate court is in as good a position as the trial court, and will draw the proper inference naturally flowing from the facts so proved – particularly where no question of credibility is involved – Akesse v. Akpabio (1935) 2 WACA 264.

In this case, I hold that the proper inference that should have been drawn by the learned trial court in respect of exhibits P9, P10 and P11 is that plaintiff was given a fair hearing by 4th respondent.

I have already held that the circumstance of this case is not one that required an inquiry by the 4th respondent under S. 3(2) of Law No.7 of 1992.

In the event, I find for the cross-appellant on issue No.1.

I now go on to consider issue No.2 in this cross-appeal. It is whether having invalidated the appointment of the cross-appellant as the Aguma of Bassa Kwomo, the learned trial Judge was right to have granted an order of perpetual injunction thereof as claimed by the plaintiff/respondent – Issue No.4 in the cross-appellant’s brief.

My answer to the first issue has disposed of this issue if I am correct.

However, in the event that my decision on issue No.1 if faulted, I shall proceed to answer the issue.

The main contention of cross-appellant is that in the circumstance of this case the position should be that the parties should be put back to the position in which they were before the Governor approved or appointed the 1st respondent as Aguma of Bass a Kwomo while the Governor is allowed to comply with S. 3(2) of Law No.7 of 1992.

With all due respect, I am convinced by the argument of the appellant that the verdict of the lower court completely obliterates the appointment so long as the verdict stands is the correct one.

This would be the position if my answer to issue No.1 is faulted.

However, having determined issue 1 in favour of the cross-appellant, I hold that the cross-appeal has merit.

The cross-appeal succeeds and I allow it.

Having earlier dismissed the main appeal of the plaintiff/appellant in its entirety, I make the following orders:-

(a) The case of the plaintiff in the lower court fails in its entirety and is hereby dismissed.

(b) Reliefs (a), (b), (c), (d), (e), (f) and (g) claimed by the plaintiff in the lower court are hereby refused.

(c) For the avoidance of doubt, the order of the lower court granting perpetual injunction restraining the defendant/cross-appellant from parading himself or holding out himself as the Aguma of Bassa Kwomo or from performing the functions of Aguma of Bassa Kwomo and the 2nd – 4th defendants from recognising him as such is hereby set aside. I make no order as to costs.

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Other Citations: (2002)LCN/1116(CA)