Abdullahi Ogwu Omaye & Anor V. Usman Omagu & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.
This is an appeal against the judgment of the High Court of Kogi State sitting in Anyigba in Suit No. AYHC/3/99 delivered on the 29th of January 2001. In an action commenced by way of writ of summons on the 11th day of January 1999, the plaintiffs now Respondents before this court in a representative capacity claimed against the defendants now appellants the following reliefs:-
(a) A declaration that the purported appointment of the 1st defendant as the Onu Inats of Ikpoba by the 2nd defendant is contrary to the native law and custom, norms and traditions with respect
to the stool of Onu Ikpoba and same is null and void and of no effect.
(b) A declaration that the 1st plaintiff being a male member of Ada Edibo Ruling House of Onu Inata of Ikpoba
(c) An order directing the 2nd defendant to bead the 1st plaintiff as the duly appointed Onu Inata of Ikpoba In accordance with the custom and traditions
(d) An order of perpetual injunction restraining the 1st defendant from parading himself as the acting Onu Inata of Ikpoba and the 2nd defendant from recognizing the 1st defendant as same
The facts of the case stated briefly are that the plaintiffs now respondents in this appeal filed this action in a representative capacity on behalf of Ada Edibo or Eneojo Ruling Family, Imadi Ruling or Akele Family and Ocheja Ruling Family of the Onu Inata of Ikpoba Chieftaincy in the Omala local Government Council of Kogi State.
The 1st Respondent Mallam Usman Omagu who is from a male line of Ada-Edibo Ruling Family who according to the plaintiffs/Respondents is the family to produce the Onu-Inata was selected by the elders of the three Ruling Families. They constituted the kingmakers for the purpose of selection and nomination of whoever would become the Onu Inata of Ikpoba.
The former Onu Inata Omaye Oruma died in 1993. 1st defendant/appellant acted as the Onu Inata since that date. The elders of the three families as kingmakers nominated the 1st Respondent as the Onu-Inata elect. The kingmakers declined to recommend the 1st appellant because he failed to establish that he belongs to any of the three Ruling houses from the male line. He claimed that he IS from the Atama-Akele House which is not recognized as a Ruling House for the purpose of producing an Onu-Inata Ikpoba. The Respondents claimed that the stool of Onu Inata rotates among the three Ruling Families of Inata and it is the turn of Ada-Edibo Ruling House to produce a candidate. The 1st appellant having acted as Onu Inata since the demise of the last one in 1993, is by native law and custom precluded from contesting for nomination and or selection as the Onu Inata. As a matter of fact the Respondents held that the 1st appellant was never a contestant for the stool of Onu Inata and that he never gave evidence that he contested for the stool either before the Kingmakers or the Omala Traditional Council. The 1st Respondent Mallam Usman Omagwu requested to be beaded as the Onu of Inata by the 2nd defendant/appellant the Attah of Igala to which the 1st appellant protested. The 2nd Appellant His Royal Majesty the Attah of Igala directed the Omala Traditional council headed by the Onu He to investigate the vacant stool of Onu Inata. Vide Exh.p1
The Omala Traditional Council invited all parties interested in the stool, the contestants and kingmakers in the conduct of the investigation. At the end of the Inquiry it found in favour of the 1st Respondent and issued Exh D2. The 1st appellant protested that the Onu Ife, Chairman of the Omala Traditional Council did not allow him to give evidence during the Inquiry. The 1st appellant protested to the Igala Area Traditional Council headed by the Attah of Igala on the conduct of the investigation by Omala Traditional Council (Vide page 138 lines 20-23 of the Record). The 2nd Appellants thereupon set up a five-man panel, which took evidence from all contestant and their witnesses. The panel made its findings and recommended that the appellant be appointed as the Onu Inata Ikpoba. (Vide Exh D3 on pages 76- 88 of the Records.) The 2nd appellant received the recommendation and by a letter dated the 31/7/98 Exh D2 appointed the 1st appellant as the Onu Inata. The Respondent being aggrieved by the decision of the 2nd Appellant the Attah of Igala filed this action before the High Court of Kogi State: In the course of trial parties exchanged and amended their pleadings. The plaintiffs/Respondents called six witnesses PW1-PW6 and tendered four documents as p1-p4, while the appellants tendered four exhibits as Exh D1-D4 (Vide pages 66-92 of the Record of Proceedings).
After the address of counsel the appellants filed a motion to amend their statement of defence to plead a legal defence that is the Public Officers protection law as applicable to the 2nd Appellant. In effect that the case of Respondents was statute barred. The lower court refused to entertain the application. Vide pages 188-197 of the Record.
In the considered judgment delivered on the 29/1/01, the trial court granted all the reliefs sought by the plaintiffs/Respondents in their amended statement of claim.
Being aggrieved by the decision of the lower court – the appellants appealed to this court. Fourteen grounds of appeal were filed altogether. At the hearing of the appeal of this appeal the appellants distilled eleven issues for determination in their joint brief filed on 31/3/06. The issues are as follows:-
(i) Whether the trial court was right in dismissing the appellants application to amend their statement of defence to plead a legal defence of statute of limitation i.e. Public Officers Protection Law which would have questioned not only the competence of the plaintiffs suit but the jurisdiction of the court to adjudicate in the case commenced outside the time allowed the plaintiff.
(ii) Whether from the state of pleadings the 1st defendant/Appellant did not deny the existence of Ocheja Ruling House/or the 3rd ruling House as referred to by the trial court.
(iii) Whether the stool of Onu-Inata is rotational amongst the three Ruling Houses.
(iv) Whether the material findings of the trial court on the evidence of the PW1 and PW 6 were supported by the credible evidence on the Record.
(v) Whether the trial court was correct in holding that Omaye Oruma reigned as Onu Inata in place of Uloko Ocheja.
(vi) Whether the trial court was correct in holding that Omaye Oruma reigned as Onu Inata in place of Uloko Ocheja.
(vii) Whether from the evidence available on record, the provision of Section 149(d) of the Evidence Act was appropriately invoked against the defendants/appellants by the trial court.
(viii) Whether the trial court was right in its treatment of the appellate powers of the 2nd defendant/Appellant in the circumstances of this case.
(ix) Whether the trial court was correct in voiding Exh D2, D3, and D4.
(x) Whether the 2nd appellant was bound by Exhibit P2 in the circumstance of this case.
OR
Whether his royal Majesty, the Allah of Igala who has the prerogative to appoint and bead an Onu Inata of Ikpoba, is duty bound to accept the recommendation of the Omala Local Government Traditional council as to who should be the Onu Inata.
(xi) Whether the Respondents prove their claim on the balance probability to warrant the judgment of the trial court. The appellant filed a reply brief on 29/9/06.
The Respondents in their joint briefs filed on 28/7/06 settled six issues for determination as follows:-
(1) Whether the learned trial judge erred in his conclusion that the amendment of the pleadings sought by the Appellants in the trial ought not to be allowed.
(2) Whether the trial court erred in holding that the 1st Appellant is a female descendant and as such disqualified from ascending to the stool of Onu Inata of Ikpoba
(3) Whether the trial court was wrong in holding that the stool of Onu Inata of Ikpoba was rotational among the three Ruling Families who have since the inception taken their turns on the throne.
(4) Whether the trial court erred in holding that the 2nd Appellant is incompetent to set up a panel to investigate the stool of Onu-Inata.
(5) Whether the learned trial court misconstrued the Issues in the treatment of the appellant’s powers of the rd appellant by voiding the proceedings in Exhibits D3 and D4 together with Exhibit D2.
(6) Whether on the evidence before the court, the trial court erred in entering judgment for the plaintiff.
In the appellants brief – the appellants learned counsel at page 6 worked out a scheme of argument for the eleven issues raised for determination in this appeal. It is my observation that the presentation of this mode of argument would not help the appellants. According to page 4 line 1.12 of the brief the appellant remarked that this appeal challenges virtually all the findings made and the conclusion arrived at by the trial court. The appellants made an effort to compress some of the issues in their submission.
It is my impression that the issues can be further compressed or reframed for ease of reference. Since an appellate court has the power to reframe the issues raised for determination by an appellant, I shall not hesitate to invoke same so as to lead to a proper determination of the instant appeal.
Sha v. Kwan (2000) FWLR pt 11 page 1798 at 1815
Akpan v. The State 1992 6 NWLR pt 248 page 439 at pg 66
Momodu v. Momodu 1991 1 NWLR pt 169 page 608 at 621The six issues formulated by the Respondents are subsumed in the eleven issues raised by the appellants, while the issues raised by the appellants are based on the pleadings, findings of fact and the conclusion arrived in the judgment of the learned trial judge.
For ease of reference the issues for consideration in this appeal shall be as follows:-
(1) Whether the learned trial judge was right to have disallowed the amendment sought by the appellant to its statement of defence by pleading the Public Officers Protection Law Cap of the Federation 1990.
(2) Whether the 3rd appellant – the Attah of Igala in Council is bound to accept the recommendation of the Omala Traditional Council in his traditional role of appointing and beading of an Onu Inata of Ikpoba
(3) Whether the Respondents proved their claim on the balance of probability to warrant the judgment of the trial court?
ISSUE ONE
Whether the learned trial judge was right to have disallowed the amendment sought by the appellant to its statement of defence by pleading the Public Officers Protection Law Cap 379 Laws of the Federation 1990.
The learned counsel for the appellant submitted that the appellant sought leave of court to amend the statement of defence by pleading a new paragraph aimed at showing that the action of the plaintiffs/Respondents was statute-barred in that the 2nd appellant is a public officer within the meaning of Section 2(a) of the public officer’s protection Law 1990. He cannot be validly sued after three months from the date of the commencement of cause of action. The nature of the amendment touches upon the question of the competence of the Respondents suit before the trial court and the jurisdiction of the court to adjudicate on the claims.
It is trite that amendment of pleadings can be made at any stage of the proceedings before judgment and even on appeal if it is meant to do substantial justice between the parties and not allow undue technicalities to defeat the essence of justice. The learned counsel submitted that the Respondents rely on the facts already pleaded and the evidence available on record to support the legal defence they now consider vital to their case. The appellants opposed the amendment not only that it was too late but also that it would require further oral evidence.
The Appellants held that the amendment was not meant to overreach or made mala fide. The Respondents can be compensated in costs. In its attempt to resolve whether or not to allow or disallow the application the trial court erroneously considered the merit of the legal defence sought by the appellants. The lower court considered at an interlocutory stage what it is meant to consider at the substantive stage. The learned trial judge also concluded on page 197 of the record that:
“But there is no law that the amendment sought if granted would not propel the plaintiffs to call fresh or additional evidence in rebuttal. There should be an end to litigation.”
The learned counsel further submitted that there was sufficient evidence before the court to sustain the defence of statute of limitation, the Public Officers Protection Law. Whether the defence would have succeeded or not is a different matter all together. The lower court was not only in error to have refused the amendment the refusal also occasioned a miscarriage of justice. The appellants cited cases in support of the submission.
Oyewole v. Lasisi 2000 FWLR pt 10 pg 1606 at page 1618
James Oguntimehin v. Gubere & ors 1964 NMLR pg 55
Soleye Aro & 2 ors v. Raimi Adisa Babayemi & 1 or 2004 FWLR pt 204 pg.60
Fagbule v. Rodrigues 2003 FWLR pt 137 pg.1171 at page 1194
Ojah v. Ogboni 1976 1 All NLR pg.277
The Respondents conceded that amendment can be made at any time before judgment but it is not absolute, as if the amendment would introduce a new issue after a party had closed its case the application will not be allowed. An amendment is more easily granted when the grant does not necessitate the calling of additional evidence or changing the character of the case. Once the calling of evidence have been concluded any amendment of the pleadings or claim can be justified or allowed only on the premise that evidence in support of it is already on record.
There is no such evidence in support of the amendment already on record. The Respondents referred to the findings of court as to whether the suit is affected by statute of limitation as to renders the action incompetent. The court went into analysis of the documents and evidence before it to determine whether in the absence of the proposed amendment there was enough evidence upon which to found that statute of limitation applied. The court had a proper appreciation of the issue involved. Vide pg 208 lines 29-31 of the Records. The court was right not to allow the proposed amendment. The Respondents cited cases-
Adetutu v. Aderounhunmu & ors 1984 6 SC 92
Okafor v. African Continental Bank Ltd 1975 5 SC 89
Loufti v. Czarnikor Ltd (1952) 2 All ER 823-8824
Lagos City Council v. Ogunbiyi 1969 1 All NLR 297-299
ISSUE TWO
Whether the appellant – the Allah of Igala in Council is bound to accept the recommendation of the Omata Traditional Council in his traditional role of appointing and beading of an Onu Inata of Ikpoba.
The learned counsel for the Appellants submitted that His Royal Majesty, the Attah of Igala is the only authority to appoint and bead anybody to becomean Onu Inata. Hence he can set up a panel to investigate and ascertain the right person to be beaded to ascend the stool of Onu Inata. On the 28th of July 1997 the Attah of Igala gave such directive to Omala Local Government Traditional Council to investigate the contest of the stool of Onu Inata and submit its findings and recommendation to him for necessary action.
Vide Exh P1 at page 66 of the Record. After the Inquiry the council found in favour of the 1st Respondent and issued a letter to him notifying him of his appointment as the Onu Inata Vide Exh D1.
The 1st appellant protested to the Attah of Igala against the violation of his right. The 2nd appellant set up his own panel of Inquiry. At the end of the assignment they submitted their findings and recommendation. As an outcome of the findings of the Panel – the Attah of Igala accepted the recommendation of the panel of Inquiry and beaded the 1st Appellant. The learned counsel further submitted that this 2nd Appellant is an appellate body to other Traditional council in Igala. The Attah claimed to have beaded the last Onu Inata before this one now in contest.
The Omala Local Government Traditional Council acted ultra vires of its power to have appointed the 1st Respondent.
The Attah of Igala is not bound by the Recommendation of the Omala Local Government Traditional Council. The Attah Igala set up another Panel of Inquiry under his chairmanship when the council failed to acquaint him with its recommendation after its Inquiry. The learned trial judge wrongly nullified Exhibits D2-D4 issued in connection with the 2nd appellants Inquiry – this court should set aside the reasoning and conclusion of the trial court. There is no law or statute vesting the power to investigate exclusively on Omala Local Government Traditional Council. The authority of the Attah of Igala to appoint and bead an Onu Inata is not derived from Kogi State Law No.7. The power of the Omala Local Government Traditional council is only limited to advising the Attah Igala on Chieftaincy Makers and control of Traditional Titles when so requested. The steps taken by the Attah in appointing the Onu Inata is fair and right.
The Respondents however submitted that the Attah Igala beads any such person who has been selected as the Onu Inata in accordance with the customs and tradition governing the stool. The Onu Inata Chieftaincy falls within the ambit of the law. By virtue of Section 2 of the Chief’s Appointment Deposition and Establishment of Traditional Council’s Law 1992. It is the Omala Traditional council that has jurisdiction to investigate the Inata stool.
The Omala Traditional Council has the power to advice on the question of appointment, deposition and discipline of village heads and determine questions relating to chieftaincy matters and control of traditional titles except where the matter is the exclusive reserve of a paramount chief in which the traditional council can only advice.
Onu-Inata stool is not that of a village head as it controls 7-9 villages. The 1st appellant was acting as Onu-Inata when the contest for the stool was on.
Before the 2nd Respondent set up a panel of Inquiry there was no proper appeal, protest or petition before the traditional ruler hence no reasons forming the basis for the abuse before the court. There was therefore no appeal before the 2nd appellant as Exh D2 was not placed before the panel neither was it stated in Exhibit D3 that p2 or the decision of the Omala Traditional Council was being attacked therein. The proceedings evidenced in Exhibit D3 was an entirely new and unrelated proceedings to the one in Exhibit p2, The Attah of Igala stated that Exh p2 was not considered by the panel in its appellate jurisdiction. The 2nd appellant usurped the power of Omala Traditional council as provided by law. The lower court was therefore right in setting aside the decision of the 2nd appellant made in Exhs D2 and D4 as null and void.
The 2nd appellant lacked the powers to appoint and bead the 1st appellant as the Onu Inata as the 1st appellant was not a contestant before the Omala Traditional council, nor was he selected by the kingmakers of Inata Ruling House.
The court is urged to resolve this issue in favour of the Respondent.
ISSUE THREE
Whether the Respondents proved their claim on the balance of probability to warrant the judgment of the trial court?
The appellants adopted their argument on issues 2-10, and added that the plaintiffs have failed to prove their claim as per their amended statement of claim and upon the preponderance of evidence. The judgment of the lower court is unreasonable and against the weight of evidence adduced.
The appellants threw light on the fundamental and irreconcilable contradictions that defeats the case of the Respondents particularly in the evidence of the prosecution witnesses. There is nothing to show in Exh P2 that the 1st Appellant belongs to the female line.
The plaintiffs witnesses contradicted themselves on the issue of the number of Ruling families available, the number of Onu Inata produced by each Ruling family, and whether or not a member of a female line has ever been Onu Inata whereas it is the evidence that a female descendant according to tradition cannot ascend to the stool of Onu Inata. The appellant contended that the courts judgment is against the weight of evidence because appropriate weight was not given to some evidence adduced particularly the evidence of the 2nd PW – the Attah of Igala, his status as Chief custodian of Native Law and Custom applicable to the stool of Onu Inata. He personally beaded Omaye Oruma as a confirmation that he was not from a female descendant. The material contradictions which exist in the instant appeal are fatal to the case of the Respondents.
Under this issue the appellant raised the issue of rotation of the Onu Inata stool between three Ruling Houses and concluded that the Respondent failed to prove the rotation which they pleaded. This court is urged not to place reliance on the letter of appointment issued by the Omaia Traditional Council to the 1st Respondent as the said letter was issued without authority. The Attah of Igala reserves the power to set up a panel through which he can ascertain the rightful person to bead to ascend to the stool of Onu Inata. The procedure adopted by his Royal Majesty in arriving at beading the 1st Appellant is fair, just and cannot be voided by the trial court.
The Respondents did not prove their claim that the 1st appellant was of the female line of Onu-Inata stool. The court is urged to allow the appeal set aside the findings and conclusions of the trial court in its place enter a verdict of dismissal of the Respondents claim. The Appellants referred to cases
Fatoba v Ogundahunsi 2003 FWLR pt 154 pg 561 at 580
Egesumba v. Onwusuruike 2002 FWLR pt 128 pg 1386 at 1432
Lawson v. Afani continental Co Nig Ltd & Anor 2002 FWLR pt 109 PO1736 at 1768
The Respondents replied that the 1st Respondent was selected and nominated as the Onu Inata by the kingmakers of the three families eligible to vie for the vacant stool of Onu Inata Ikpoba.
The 2nd appellant thereafter referred the Omala Traditional council to investigate the title of Onu-Inata. The 1st appellant did not contest before the kingmakers and Omala Traditional Council. On the demise of incumbent Onu Inata, an acting Onu Inata is appointed by the Ruling House to act in that capacity until a substantive one is appointed.
Elders of the three families constitute the kingmakers for the purpose of selecting an Onu Inata. The parties agree that it is taboo for a female descendant to be appointed as Onu Inata. The court found that Atama-Akele the family to which the 1st Appellant claimed to belong was not a ruling House.
The 1st appellant did not establish how he was appointed to be substantive Onu Inata by the kingmakers of Inata ruling house in accordance with Native law and custom. The learned trial judge considered the evidence led by the parties and put them individually on the imaginary scale before weighing them together before concluding that the appeal did not discharge the onus of proof on them. This court should hold that the lower court reviewed the appellants defence as well as the Respondents evidence before making its findings. The court is to dismiss the appeal. The Respondent cited cases
Unic v Ucic Ltd 1999 3 NWLR pt.593 pg.17 at pg.27
Abidoye & or v. Alawode & ors 2007 5 NSLR pg 632 at 644
Bhojsons Plc v. Daniel-Kalio 2006 5 MJS 136 at pg 156.7
Alii V Alesinloye 2000 6 NWLR pt 660 at pg.177
I have painstakingly considered argument and submission of counsel in respect of the three issues raised for determination in this appeal. I intend to consider these issues seriatim.
In issue one this court has to consider based on the evidence on printed record and the briefs of the parties whether the learned trial judge was right to have disallowed the amendment sought by the appellant to its statement of defence by pleading the public officers protection law cap 379 laws of the Federation 1990.
The principles guiding the amendment of pleadings at any stage of trial are well established going by numerous decided authorities. It is settled law that a party can amend his pleadings at any stage of the proceedings before judgment.
Furthermore “An amendment to the pleadings can be made at any stage of the proceedings different considerations apply depending on whether the amendment is being sought before or after close of evidence by the parties.
But once the calling of evidence has been concluded, any amendment of the pleadings or claim can be justified or allowed only on the premises that evidence in support of it is already on record, so it is necessary, and in interest of justice to allow the amendment in order to make the pleadings or the claim accord with record to settle the real issue in controversy between the parties.”
Fagbule v. Rodrigues 2003 FWLR pt 137 pg 1171 at page 1194
Solayo Aro & 2 ors v. Raimi Babayemi & 1 or 2004 FWLR pt 204 pg 60
The nature of the amendment sought is inserting a new paragraph aimed at pleading that the action of the plaintiffs/Respondents was statute barred as the 2nd appellant as a public officer comes within the purview of Section 2(a) of Public Officers Protection Law cap 379 Laws of the Federation 1990 which stipulates a period of three months next after the act, neglect or default complained of to institute an action against any person who is a public officer within the definition of the Constitution and the act complained of was done in execution of their statutory duty which is a public duty.
After the date on which the applicable law provides that legal proceedings cannot be taken any person having a right of action can no longer institute an action. If the appellants action is statute barred it affects the legal competence on jurisdiction of court
Egbe v. Adefarasin 1987 1 NWLR pt 47 pg 1
Obiefuna v. Okoye 1964 1 All NLR pg 357
Julius Berger (Nig) Plc v. Omogui 2001 15 NWLR pt 736 pg 401
Statute of limitation is undoubtedly raises a jurisdictional issue.
An objection challenging the jurisdiction of the court can be raised at any stage of the proceedings. The rationale behind this principle of law appears to be based on the facts that jurisdiction is the fulcrum of any valid adjudication and without it the whole proceedings is an exercise in futility, and a complete nullity.
Generally, an issue of jurisdiction of court or tribunal can be raised at any stage of the proceedings even before filing of statement of defence since jurisdiction is a life issue.
When the issue of jurisdiction is raised it is the duty of the court engaged in the proceedings to determine the issue at the earliest opportunity. The issue raised without doubt affects the competence of court to adjudicate on the proceeding as if the action is statute barred by virtue of Section 2(9) of the Public Officers Protection Law, the court is deprived of jurisdiction to hear the suit even If this defence is raised at the stage of address. I observe the argument of the Respondent that the objection to the courts jurisdiction to entertain the suit will lead to re-opening their case as well as introduce new issues into case. I do not agree with this as there is evidence as to the status of the 2nd Appellant, the date a letter was issued to the 1st Respondent and the date an action was filed in the lower court on printed Record. I agree that the lower court was in grave error to have refused to grant the application to amend sought by the defendants/appellants. At the close of evidence the counsel addressed the court on the issue of statute of limitation which can render the action incompetent. This being a legal point affecting the competence of court it can be raised at any stage of proceedings. The court responded by giving it priority in the judgment. It was settled that the 2nd Appellant – the Attah of Igala- Chairman and Igala Area Traditional Council as body is a Public Officer by reason of Section of the Public Officer Protection Law and the decision in Aliyu Ibrahim V Judicial Service Committee Kaduna State (1998) 14 NWLR pt 584 pg 132.
By reference to the minutes of the panel of investigation set up by the 2nd appellant and letter of appointment to the 1st appellant Exhs D2 and D3 the suit of the Respondents before the lower court was statute barred having been filed outside the 3 months statutory period allowed by Section 2(a) of the Public officers Protection law. The core issue before the trial court was determination of the date the cause of action accrued. When the respondents became aware of the appointment of the 1st Appellant as the Onu Inata or when Exhs D2 and D3 were issued and the 11th of January when the writ of summons was issued. Exhs D2 – D3 came from the custody of the appellants which is an eye-opener that they were not brought to the notice of the respondents.
The 1st Respondent testified that it was on the occasion of his third visit to Idah that the Attah told him that he had given the stool of Onu Inata to the appellant. The 1st respondent came back home and relayed the development to the kingmakers of Onu Inata stool.
The kingmakers called a meeting on 28/11/98 where they decided to go to court. The decision to go to court was based on the information passed to the 1st Respondent by the Attah and not on Exh D2 which he was not aware of. Furthermore Section 2(a) of the Public Officers Protection Law will not apply if it is shown that the 2nd appellant acted without legal justification, abused his office or acted in bad faith. It is the submission here that the Igala Area Traditional Council acted ultra vires of its power and usurped the statutory function of Omala Traditional Council by investigating the stool of Inata. The Attah of Igala will exercise his prerogative of beading the Onu Inata once the council has investigated the same as well as issue a letter of appointment to the winning candidate. The lower court in view of the foregoing defects held that the case was competent. The safest line of action in the circumstance of this case is to adopt the date the Respondents and kingmakers of the Onu Inata stool met and decided to go to court as the date the cause of action accrued which was 28/11/98.
The action was filed on 11/1/99, which is still within the statutory period of three months as stipulated by Section 2(a) of the Public Officers protection Law Cap 379 Laws of the Federation. It is apparent that the suit is not statute barred and this court so hold. Issue one is decided in favour of the Respondents.
ISSUE NO. TWO
Whether the 2nd appellant – the Allah of Igala in Council is bound to accept the recommendation of the Omala Traditional Council in his traditional role of appointing and beading of an Onu Inata of Ikpoba.
In this issue the role of the 2nd Appellant – Igala Area Traditional Council under the Chairmanship of the Attah of Igala shall be considered. Attah of Igala gave evidence as the DW 3 before the lower court.
There is unanimous evidence that the 2nd Appellant beaded the 1st appellant as the Onu Inata of Ikpoba – the traditional title in dispute. The 1st appellant claimed that he petitioned the 2nd Appellant against the decision of the Omala Traditional Council reflected in Exh p2. By Exhibit p1 the 2nd appellant directed the Omala Traditional Council to investigate the Onu Inata title because the 1st Respondent applied to be beaded as the Onu Inata of Ikpoba. The Omala Traditional Council conducted an Inquiry into the Onu Inata Chieftaincy and found in favour of the 1st Respondent as the rightful candidate to occupy the stool and communicated same to him by Exh D2.
As paramount ruler of Igala land only the Attah can bead any body who has been appointed as the Onu Inata according to Igala a Native law and custom. The Inata stool is within the Omala Local Government Council of Kogi State hence it is under the Omala Traditional council. That Attah of Igala is the custodian of anything relating to the Native law and custom of the Igala tribe does is not disputed.
The Attah also appreciates the competence of the Omala Traditional council to conduct investigation or inquiry in respect of chieftaincy question relating to Onu Inata stool.
The Chiefs (Appointment, Deposition and Establishment of Traditional Councils) Law 1992 created the Omala Traditional Council by section 2 of the law the definition of a chief includes “Traditional Ruler”.
A Traditional Ruler is defined as
“Any person who by virtue of his ancestry occupies a throne or stool of an area or was appointed to that stool in accordance with custom or tradition of the people”. The Onu Inata stool domain or kingdom covers 7-9 villages, the stool is occupied in rotation by three ruling houses with common ancestry.
By Section 25(a) (b) and (J) of the Kogi State Chiefs ((Appointment, Deposition and Establishment of Traditional Councils) law 1992 – the Omala Traditional Council has the power to advice on the question of appointment, deposition and discipline of Gagos/Village Heads and Madakis and determine questions relating to chieftaincy matters and control of traditional titles except where the matter is the exclusive reserve of a paramount Chief in which the traditional council can only advice. The Omala Traditional council by virtue of Section 25(a) of the Traditional council law shall investigate the Inata stool and issue out letter of appointment thereafter. The Attah of Igala shall thereafter exercise his prerogative as the paramount ruler to bead the successful candidate as the Onu Inata. The council performed this Role, sent a letter of appointment to the 1st Respondent to take effect from the 21st of November 1997. (Vide page 73).
It was the case of the Respondents that the 1st appellant was not a contestant before the kingmakers and did not show any interest before the Traditional council Investigation Panel. He was the acting Onu Inata at the time, who was supposed to hand over the property of office to anybody appointed to occupy the stool.
Furthermore he belonged to a female line of the Ruling Family as he claimed to belong to Itama-Akele Family not recognized by members of the other three Ruling Houses. The 1st appeal claimed to have appealed to the 2nd Appellant – the Attah of Igala – by petition or protest.
In the evidence before the lower court the appeal to the 2nd appellant was supposed to be by a letter which was never tendered as part of evidence in this case. The 2nd Appellant, the Attah with five members of the Igala Area Traditional council set up a new panel to investigate the stool of Onu Inata.
The President the Attah of Igala made statement as follows:-
“The President informed the council than an appeal was lodged before the Area Traditional Council in appointing One Mallam Usman Omagwu as Onu Inata as per letter No.OML/TC/VOL.1/5 of 25th November 1997. They contended that Mallam Abdullahi Ogwu Oruma has been acting as Onu Inata since the death of Omaye Druma in August 1993, and that apart the appointment of an Onu Inata is the prerogative of His Royal Majesty- the Attah of Igala and not the Omala Traditional council.”
The foregoing in my view is a misconception as the Attah of Igala in exercising his prerogative relating appointment of a Chief shall consider the report of investigation carried by the Omala Traditional council following an appeal by any aggrieved candidate. The role of the Attah shall be a review of the steps taken by the Omala Council. Omala Council shall act on the evidence and submission of Elders, kingmakers and members of the three Rulings Houses.
By Native law and custom – members of the Rulings houses and kingmakers have the initial duty of selecting a candidate. The Attah can only exercise any prerogative where there is a stalemate in the selection and appointment down the line. Consequently the appointment of the 1st Appellant by the 2nd Appellant violated the native law and custom of the community on which the appointment of an Onu Inata of Ikpoba is based. There is evidence on record that though he was present at the investigation of Omala Traditional councH he did not declare his intention to contest, while the elders in their family – who were also kingmakers were not aware of his interest in the stool, Vide pages 86 lines 26-28.
The Attah in making a decision on the Onu Inata Chieftaincy has to rely on the native law and custom relating to the Chieftaincy. Customary law is unwritten and it depends on what the appropriate authority believes or is persuaded to believe by evidence is the customary law. Customary Law is a question of fact to be proved by evidence matters that are associated with or related to native law and custom or customary law on chieftaincy are to be strictly proved by calling cogent, reliable and credible evidence.
Olagbemiro v. Ajagungbade III 1990 3 NWLR pt 136 pg 37
Oladele v Aromolaran II 1996 6 NWLR pt 453 PO180
Adenaiya v. Governor-in-Council Western Region 1962 1 SCNLR pg.442
Jokanola v. Military Governor Oyo State 1996 5 NWLR pt.446 pg.1
Ajibi v. Olaewe 2003 8 NWLR pt 822 p.237
The Attah of Igala cannot exercise his prerogative to appoint and bead a candidate when evidence of Native Law and custom relied upon by the appellant is not cogent, reliable and credible. I resolve this issue in favour of the Respondent.
Issue No three distilled for the determination of this court is whether the Respondents proved their claim on the balance of probability to warrant the judgment of the trial court, It is trite that it is the duty of a trial court to review the evidence adduced by either side and proceed to appraise them before making findings of fact.
If the evidence in favour of a party is more preponderant in terms of quality, admissibility, relevance, credibility and probative value after being put on the imaginary scale, the party wins otherwise he loses.
Karibo v. Grend 1992 3 NWLR pt 230 P9 426
Mogaji v. Odofin 1974 4-5 SC P9 91
Mogaji v. Cadbury (Nig) Ltd 1985 2 NWLR pt 7 P9 393
The evidence before the trial court is that the three Ruling Houses eligible to present candidates for ascendancy to the stool of Onu Inata of Ikpoba are:-
(1) Ada Edibo or Enejo Ruling House
(2) Imadi Ruling House
(3) Ocheja or Akele Ruling House
The ascending procedure is by rotation. The order of rotation appears to be the evidence by majority of members of the Ruling Houses. I have to observe here that the appointment to this chieftaincy is made according to Native Law and custom.
The customary law applicable is unwritten and it depends on what the appropriate authority believes or is persuaded to believe is the customary law. Parties concerned may make representation oral or documentary for the authority to make up its mind about what is the customary law which pertains to a particular chieftaincy. The evidence in support of a custom must come from witnesses belonging to the community to show that the community regards the customs as binding on them. In addition to members of the Ruling Houses there must be witnesses from among the chiefs, the kingmakers, traditional rulers and important members of the community who are conversant with the customs and traditional history of the community. Custom according to Section 2(1) of the Evidence Act Cap 112 Laws of the Federation 1990 defines customs as a rule which in particular district has from long usage, obtained the force of law.
Section 14 of the Evidence Act Cap 112 Laws of the Federation 1990 provides that no custom relied upon in judicial proceedings shall be enforced as law if it is contrary to public policy and is not in accordance with natural justice, equity and good conscience.
According to decided cases the mode of proving customary law relating to the selection and appointment of chieftaincy as based on native law and custom is not restricted to any particular method.
Oladele v. Aromolaran II 1996 6 NWLR pt 453 pg 180
Ayoade v. Military Governor of Ogun State 1993 8 NWLR pt. 309 pg.111
Popoola v. Adeyemo 1992 8 NWLR pt 257 pg.1
Obala of Otan Aiyegbaju v. Adesina 1999 2 NWLR pt 590 pg.163
It is however not the duty or function of the court to make or declare the customary law of a community. The duty of the court is to apply the customary law.
There is evidence that the ascendancy to the stool is rotational between the three Ruling Houses. The appellants disputed this because of the disparity in the number of candidates who had occupied the stool from each ruling house. The evidence about rotation of candidates must be accepted as the three Ruling houses cannot present a candidate simultaneously. The opportunity to present a candidate has to be alternated between the ruling houses which is only equitable and to pave way for a peaceful co-existence in the community.
After all the three Ruling houses have a common ancestor. About disparity in the numbers of those who had occupied the stool from each Ruling House – it must be borne in mind that evidence to establish customary law is based on Traditional history. Traditional history is evidence as to rights alleged to have existed beyond the time of living memory proved by members of the community.
Such evidence exhibit imperfection in human recollection particularly by witnesses advanced in age. The court must therefore realise that demeanour of witnesses is of little guide to the truth of the matter where there is a conflict in traditional history. It has to be recognized that in the course of transmission from generation to generation of the traditional history mistakes may occur. That is why weight to be attached to evidence of traditional history is a matter which is left to experience and wisdom of the judge.
Akuru v. Olusadan-In-Council 1954 14 WACA 523
There is evidence on record
(1) That upon the death of an incumbent Onu Inata an acting Onu Inata is appointed by the Ruling House to act in that capacity, pending the nomination or selection of a substantive Onu Inata by the kingmakers.
(2) That parties are in agreement that the male elders of the three Ruling Houses constitute the kingmakers for the purpose of selecting an Onu Inata
(3) There is overwhelming evidence from all witnesses including the Attah of Igala that it is a taboo for a female member/descendant to be appointed as the Onu Inata.
(4) The Respondent led evidence to establish that an acting Onu Inata cannot be appointed as substantive Onu Inata. The Attah of Igala 2nd appellant gave evidence that he beaded Omaye Druma the immediate past Onu Inata and the elder brother of the 1st Appellant. The case of Omaye Oruma who acted for one Iloko is supposed to be the only time a female descendant ascended the stool of Inata.
(5) The 1st appellant was acting Onu Inata when the 1st Respondent contested before the kingmakers of Inata family and before Omala Traditional council.
(6) The court concluded based on the available evidence that Atama-Akele as put forward by the 1st appellant was not a ruling house – majority of the member of the three Ruling Houses confirmed this. This discredited the evidence or claim of the Respondent to the throne as a member of that family – and confirms that he belongs to the female lineage of Akele or Inata family.
(7) The court found that the 1st appellant did not prove how he was appointed, nominated or selected to be the substantive Onu Inata by the kingmakers of Inata ruling house in accordance with native law and custom.
I agree with the learned trial judge as there are stages in the appointment to a chieftaincy stool as follows:-
(1) The initial stage of selection at family level as candidate of choice by the Ruling House.
(2) The next stage of presentation, and approval of nomination and appointment by the council (3) The final stage of installation and beading which in the case is the prerogative of the Allah of Igala.
There may be need for his intervention where there is a genuine dispute between ruling Houses as to the presentation of candidate. This is not the position in this case as the Ruling Houses had selected their candidate – appointment had been made in the person of the Respondent according to Native law and custom. In the event of a chieftaincy based on custom – the onus will be on a contestant to prove the customary law regulating the appointment to the chieftaincy and also prove that his appointment was made according to the customary law. The court will also ensure that no family is declared as a ruling house which is not generally recognized as such by the community and the family.
Where there are before the court for the purpose of proving a particular fact in issue two conflicting traditional histories in the sense that it is difficult or impossible for the court to ascertain which version represents the truth, then it can make resort to acts or facts in recent times to ascertain which version is more probable.
However where conflicting versions of traditional histories are such that one version is easily preferable to the other or others a trial court is bound to make a finding in that respect and a resort to the principles in Kojo II v. Dansie 1957 1 WLR 1223 would be unnecessary. Where there are as in the instant case internal conflicts in the traditional evidence adduced by one party in proof of his assertion, then, there will be no need to test the party’s traditional evidence with that of the other.
Mogaji v. Cadbury Nig Ltd 1985 2 NWLR pt 7 pg 393
Kenon v. Tekam 2002 14 NWLR pt 232 pg 12
Evaluation of evidence and ascription of probative value to such evidence is peculiarly the function and duty of the trial court which saw, heard and assessed the witnesses.
Where a trial court clearly evaluates the evidence and justifiably appraised the facts it is not the business of an appellate court to substitute its own views of the facts for those of the trial court.
Fashanu v. Adekoya 1974 1 All NLR 35
Kuforiji v. VYB Ltd 1981 6 SC 40
Awoyale v. Ogunbiyi 1986 2 NWLR pt 24 pg 626
Adeyeri II v. Atanda 1995 5 NWLR pt 397 pg 512
Oduwole v. Aina 2001 17 NWLR pt 241 pg 1
Sanni v Ademiluyi 2003 3 NWLR pt 807 pg 381
The lower court properly considered the case of the parties before granting the reliefs sought by the Respondents. The third issue is resolved in favour of the Respondents.
In the final analysis, this appeal lacks merit and it is according dismissed.
Judgment of the lower court is hereby affirmed. N10,000 costs is awarded in favour of the Respondents
Other Citations: (2007)LCN/2492(CA)
