Achegbulu Aku V. Inalegwu Anyebe & Ors (1994)

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RABIU DANLAMI MUHAMMAD, J.C.A. 

The respondents herein were the plaintiffs at the court below. The appellant was one of the four defendants sued by the respondents in the High Court of Benue State holden at Ankpa. The respondents for themselves and on behalf of the members of the Adoga Ruling House were claiming for the following:-

“(i) A declaration by the court that by Icheke Custom only the Adoga Ruling family of Icheke Clan can, to the exclusion of any other ruling family, present the candidate to fill the vacant stool of Gago (village head) in succession to Yusufu Akuh and in particular that the Itodo Ruling family are not yet eligible by the strict order of rotation, to present, select or offer a candidate (including 1st defendant) to fill the vacant stool of Icheke Clan Head in succession to Yusufu Akuh.

(ia) A declaration that the 1st plaintiff is the only person appointed and or selected for the vacant stool of Gago (Icheke Village Head) and qualified to be so recognised as successor to Yusufu Akuh.

(ii) A declaration that the Government of Benue State, its agencies, parastatals or functionaries are not legally or constitutionally competent to participate in the selection, approval and/or recognition of the Gago (village head) the Gago being an office in the traditional religion of Icheke Clan.

(iii) An order restraining the 1st defendant from parading himself about as candidate for Icheke or pretending in any manner to be Gago (Icheke village head) or entitle to be one.

(iv) An order restraining the 2nd, 3rd and 4th defendants from recognising, regarding or holding out the 1st defendant as a candidate or person selected for the vacant stool of Icheke Village Head (Gago).

(v) An order restraining the defendants from interfering or attempting to interfere in any manner whatsoever customary process.”

Pleadings were ordered filed and exchanged. At the hearing of the matter, the respondents, who were the plaintiffs at the lower court, called five witnesses. The defendants at the lower court, the appellant inclusive, called 7 witnesses. According to the respondents, there are three ruling houses in Acheke Village namely, Itodo, Adoga and Oganaji Ruling houses. However only the Itodo and Adoga Ruling Houses are eligible to produce candidates to fill the vacant stool of Icheke village known as Gago. It was contended that production of a Gago was on strict rotation between the Itodo and Adoga Ruling Houses. Yusufu Aku was the last Gago and he came from the Itodo Ruling House. It is the contention of the respondents that since the ascension to the stool of Gago is strictly rotational, it was the time of the Adoga family to produce a candidate to fill the vacant stool of Gago. They maintained that the appellant who is a member of Itodo family is not qualified to become the Gago because he comes from the same family as the last Gago.

On the other hand, the appellant contended that there were four ruling houses that produced the Gago of Icheke. These were Itodo, Adoga, Oganaji and Odoma Ruling Houses. After the death of the last Gago, it became the turn of the Odoma Ruling House to produce the next Gago. The appellant stated that he belonged to the Odoma Ruling House and as such his appointment as the Gago of Icheke was right.

In his judgment, the learned trial Judge, Ejembi Eko J., after reviewing the evidence adduced by both parties and the submissions of the counsel identified the issue before him as “whether the Gago is a Chief so called”. He then proceeded and considered Ss. 67 and 68 of the Local Government Law, 1976 and made some specific findings. He then continued:-

“I have held that the Gago did not originate from native law and custom of Icheke but rather an office in the Local Government and therefore statutory. I have also held that the Gago of Icheke existed before 1976. The plaintiffs gave evidence that it existed by 1964, under the defunct Igala Native Authority. If that was the case then in my judgment the Icheke Gago Area or village area was in administrative sub-area created or deemed to have been created by or under Cap. 77 particularly section 55 thereof. And the Gago village head was a sub-area head within the definition of sub-area head under section 2 of Cap.77.”

The trial Judge then considered S.55 of Cap. 77, of the Local Government Law, 1976 and concluded:-

“A subordinate area authority by section 2 of the Local Government Law, 1976 means and includes any town, district, village or other area authority. The cumulative effect of section 2; 191 and 192 of the Local Government Law, 1976 is that all subordinate area authorities constituted by or under Cap. 77 (particularly S.55 thereof) including district, village, town or Gago areas are now extinct. The offices of the district head, village head (Gago) etc constituted by or render the repealed Cap. 77 have been abrogated. They are therefore neither available to be contested into nor disputed unless revived by law. I know of no law reviving these extinct offices.”

The trial Judge after considering other issues concluded his judgment thus:-

“Having held that the Gago of Icheke was/is a sub-area head of subordinate area authority constituted by or under the repealed Cap. 77 and that it has by the law repealing Cap. 77 been abolished. I shall restrict myself in my trial orders only to the reliefs sought to restrain the defendants from recognising or regarding the 1st defendant as gago of Icheke. Since by law the 1st defendant or anybody at all can no longer perform the functions of gago. It is hereby my order that:-

(a) The 1st defendant be and he is hereby restrained from parading himself about as the Gago of Icheke or in any way pretending to be such;

(b) The defendants be and they are hereby restrained from recognising or regarding the 1st defendant as Gago (village head) of Icheke.”

Aggrieved with this decision, the appellant appealed to this court on five grounds of appeal. Each of the parties filed a brief of argument. Even though, strictly speaking, the respondents could not be said to have filed a respondent’s brief. The so-called respondent’s brief was filed on 18th February 1993 about one year before the appellant filed his brief which was deemed filed on 21st February 1994. This is a violation of order 6 rule 4 of the Court of Appeal rules 1981 which stipulates that the respondent shall file the respondent’s brief within forty five days of the service of the appellant’s brief on him. The respondent’s brief shall answer all material points of substance contained in the appellant’s brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. Where a respondent files his brief before he is served with the appellant’s brief, apart from non-complying with order 6 rule 4(1), he is also in violation of order 6 rule 4(2) because he cannot answer all the material points raised in the appellant’s brief. It is my opinion that the brief filed by the respondents is fundamentally defective and I so hold. At the hearing of the appeal, we told the learned counsel for the respondents that he could not be heard because the brief he filed was defective which was tantamount to filing no brief. Counsel for the respondent then informed us that he was not opposing the appeal and that the appeal should be allowed and the case be remitted back to the High Court to be heard de novo.

Haruna learned counsel for the appellant adopted and relied on the appellant’s brief in its entirety and urged us to allow the appeal. The appellant identified three issues for determination in his brief. These are:-

“(a) Was the trial court right in granting certain reliefs sought by the plaintiffs (respondents) when the proper order to have made was that of dismissal of the suit since it was held that the res or subject matter of the suit, that is, the office of Gago (village head) had become extinct?

(b) Does statutory recognition of a customary title or office necessarily divest such title or office of its origin and operation under native law and custom? Or can it be said that section 192 of the Local Government Law 1976 abrogated the office of Gago (village head) with effect from 31st March 1977 or at all?

(c) Was it open to the trial court to raise certain issues in its judgment and determine same when none of the parties canvassed those issues nor their counsel afforded the opportunity to address the trial court on those issues?”

It was submitted in the appellants’ brief that from the pleadings and the evidence adduced before the trial court, the contest between the parties was as to who was entitled to be the Gago of Icheke and as such the cause of action canvassed at the trial court was the determination of the person entitled to be the Gago of Icheke. The case of Attorney General Kwara State v. Olawale (1993) 1 NWLR (Pt. 272) 645; (1993) 1 SCNJ 208 was referred to for the definition of cause of action. It was also submitted that the trial court having held that the office of Gago has ceased to exist, the trial court ought to have dismissed the suit in its entirety. It was further submitted that orders of injunction are granted to protect the existing legal right of a person, it is therefore imperative that an applicant for an order of injunction must establish the legal right to which he is entitled and which the grant of the order sought is necessary to protect: Akapo V. Hakeem – Habeeb (1992) 6 NWLR (Pt. 247) 266; (1992) 7 SCNJ (Pt.1) 120. Since the trial court declared the plaintiff’s right to the office of Gago of Icheke non-existent it was wrong for the court to grant the orders of injunction against the appellant.

On the second issue, it was submitted that from the evidence adduced, the first Gago of Icheke was Ochiba and that the fourth Gago was Salefu who reigned before 1953. It was submitted that the institution of Gago predated the Native Authority Law, Cap. 77 Laws of Northern Nigeria which came into force in 1954.

It was further submitted that from the evidence adduced, it was clearly established that the institution of Gago of Icheke originated from the Native Law and Custom of Icheke. It was also submitted that the trial court was in gross error when it declared that “to be a Chief the authority and recognition must come from the Community and not from outside the Community.” Since there is nothing in the Interpretation Law, which states that once a Chief is recognised or conferred any authority from outside a native authority, he would cease to be a Chief. It was contended that the recognition of the office of Gago of Icheke under any statute is incapable of extinguishing the origin and operation of the office so that the repeal of such statute cannot abolish the office. Taiwo v. Sarumi (1913) 2 NLR 106.

With regards to the 3rd issue it was submitted that neither the plaintiffs nor the defendants canvassed the issue of the legality or constitutionality of the rules which exclude non-members of the ruling houses from aspiring to the office of Gaga. As such it was not open to the trial court to raise those issues and determine same in its judgment. Umar v. Bayero University (1988) 7 SCNJ (Pt.11) 380; (1988) 4 NWLR (Pt. 86) 85. It was also submitted that the trial court was in error by declaring that the office of Gago did not originate from the Native Law and Custom of Icheke but an office in Ankpa Local Government. We are urged to allow the appeal, set aside the decision and orders of the trial court and restore appellant to his office as Gago of Icheke.

It is very clear from the plaintiff’s Writ of Summons and the pleadings of both parties that the real issues between the parties were that it was the turn of Adoga Ruling Family to present a candidate to fill the vacant stool of Gago of Icheke and that the appellant not being a member of Adoga Ruling Family was not eligible to fill the vacant stool of Gago and as such the other defendants should be restrained from recognising him as such. It is trite law that parties are bound by their pleadings. In the same vein trial courts are also bound by the pleadings and by the issues raised by and in those pleadings. A trial court has no right to ignore the pleadings of the parties and proceed to consider issues not pleaded by the parties and ultimately make findings of fact on the imaginary case it conjectured itself. See Dr. Nwafor Orizu v. Anyaegbunam (1978) 5 S.C.1; Atolagbe v. Shorun (1985)1 NWLR (Pt. 2) 360 and Adimora v. Ajufo (1988) 3 NWLR (Pt.80)1.The trial Judge in his judgment identified the issue before him as “whether the gago is a Chief so called.” This is clearly wrong. The so called issue identified by the trial Judge cannot be the issue before him. It was not borne out by the claim, the pleadings or the evidence adduced before him. Whether Gago is a Chief or not, from the pleadings and the claim was never and could not have been an issue before the lower court.

It could therefore be seen that the trial court did not confine itself to the issues raised by the parties. What the lower court did was to set up for the parties a case different from the one set up by the parties. This is clearly wrong for the duty of a trial court is to consider the case before it in the light of the parties’ complaints. It has no business setting up for the parties a case different from the one set up by the parties themselves in their pleadings. To do so will result in the denial to one or the other of the parties of his right of fair hearing. See Daniel-Kalio v. Kalio (1975) 2 S.C.15; Oniah & Ors v. Onyia (1988)1 NWLR (Pt.99) 514 and Ojo-Osagie v. Adonri (1994)6 NLWR (Pt.349) 131.

The trial Judge has misconceived the issues on which the parties based their case. He went on a voyage of his own and considered issues not pleaded by the parties and at the end made findings on the issues set up by him. This misconception is so fundamental to vitiate the proceedings at the lower court.

The above is sufficient to dispose of the appeal, but I will briefly deal with one other issue before I am done. In his judgment, the trial Judge, declared that the stool of Gago of Icheke no longer exists since, according to him the law establishing the stool has been repealed. Despite the above finding, the trial Judge went ahead and restrained the appellant from parading himself as the Gago of Icheke. He also restrained the other defendants from recognising the appellant as the Gago of Icheke. If the stool of Gago no longer exists what then is the rationale of restraining the appellant from parading himself as something that does not exist? Or of restraining the other defendants from recognising him as a non-existent village head?

It should be noted that the essence of the grant of injunction is to protect the existing legal right or recognisable right of a person from unlawful invasion by another; Kotoye v C.B.N. (1989) 1 NWLR (Pt. 98) 419. The claim for an injunction is won or lost on the basis of the existence of competing legal rights. Thus the court has no power to grant an injunction where the applicant has not established a recognisable legal right. See Obeya Memorial Hospital v. Attorney General for the Federation (1987) 3 NWLR (Pt.60) 325 and Akapo v. Hakeem – Habeeb (1992) 6 NWLR (Pt.247) 266. An application for injunction will only be granted to support a legal right, it therefore follows that for a party to succeed, he must establish that he has a legal right which is threatened. Ojukwu v. Governor of Lagos State (1986) 3 NWLR (Pt.26) 39.

In our present case, the purported legal right does not exist according to the trial Judge. This means that the plaintiff has failed to establish a recognisable legal right and as such the trial Judge was wrong to grant the injunction restraining the appellant and the defendants.

In the circumstance the appeal succeeds and it is hereby allowed. The judgment of Ejembi Eko J. is set aside. Since the trial Judge has misconceived the issues on which the parties base their case, it means that he has not properly evaluated the evidence adduced before him. In my considered opinion the correct order to make is to remit the case back to the lower court for retrial. I hereby order that the case be remitted back to the Benue State High Court to be heard de novo before another Judge. I make no order as to costs.

Other Citations: (1994)LCN/0201(CA)