Alhaji Isah T. Sokwo V. Joseph Daku Kpongbo & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

This appeal is against the judgment of the Court of Appeal, Abuja Division delivered on 26th March, 2002. In the judgment, the Court of Appeal dismissed the appeal by the appellant, who was also the appellant in that court and allowed the cross appeal of the respondents, who were also the respondents in that court. The appellant’s appeal at the court below was against the judgment of the High Court of Justice of Kogi State sitting at Dekina, delivered on 12th June, 2000. The appellant who was the plaintiff at the trial court suing for himself and on behalf of Akuba and Edigeshi Ruling Houses had brought an action against the respondents who were the defendants, claiming the following:-

“(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, whom it is his turn to produce the Aguma after the death of Aguma Joseph D. Alagani (that is the immediate past Aguma of Bassa) and moreso that the appointment patently violated provisions of law no.7 1992 of Kogi State on appointment and deposition of chiefs.

(b) A declaration that only the Akuba and Edigeshi clans/ruling houses are entitled by rotation to the stool of Aguma of Bassa Kwomo in Bassa Local Government Council.

(c) A declaration that by the custom and tradition of the Akuba and Edigeshi 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 Edigeshi candidate even though he was/is not from Edigeshi 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 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 for appointment 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 recognizing him or treating him as such.”

At the hearing of this action, the appellant testified in support of his claims and also called two other witnesses. In the course of their evidence, documents totaling twenty-one were tendered and admitted in evidence. The 1st respondent however called seven witnesses and tendered two documents in evidence, while the 2nd, 3rd and 4th respondents called no oral evidence, but relied on two documents in their defence.

The case of the appellant as plaintiff is that he is the only candidate entitled to be appointed as the Aguma of Bassa Kwomo after the death of the immediate occupant of that stool, Joseph Dodo Alagani, having been selected by his Akuba ruling house. The appellant contended that the filling of the vacant stool of Aguma of Bassa Kwomo, is the exclusive preserve of the members of the Akuba and Edigeshi ruling houses on the demise of the late Aguma Joseph Dodo Alagani. That Edigeshi ruling house having served its turn through the late Joseph Dodo Alagani, it was then the turn of the appellant’s Akuba ruling house to produce the successor to the throne because the Ist respondent who is neither a member of Akuba clan nor that of the Edigeshi clan, was not eligible since the stool of Aguma of Bassa Kwomo was a creation of Bassa Kwomo native laws and custom.

The case of the respondents as defendants at the trial court was that the stool of Aguma of Bassa Kwomo is not an exclusive preserve of Akuba and Edegeshi clans but that all members of the five clans of Akuba, Edigeshi, Arishamishi, Asheshama and Ozongulo, are eligible to be considered to fill the vacant stool. That the 1st respondent being a member of the Ozongulo clan, was rightly nominated and appointed to succeed late Joseph Dodo Alagani, asserting that the stool of Aguma of Bassa Kwomo was not a creation of Bassa Kwomo native law and custom but the creation of the colonial government.

At the conclusion of the trial, the learned trial Judge in his judgment delivered on 12th June, 2000, found in favour of the appellant as plaintiff granting him part of the relief (a) claimed to the extent that the appointment of the 1st respondent/defendant by the 2nd, 3rd and 4th respondents/defendants as Aguma of Bassa Kwomo, was declared unlawful, unconstitutional, null and void and of no effect on the ground of the appointment having been made in violation of the provisions of section 3(2) of Law No.7 of 1992 of Kogi State on the Appointment and Deposition of Chiefs. The trial court also proceeded and granted the appellant the injunctive relief (g) sought by him against the respondents restraining the 1st defendant/respondent from parading himself or holding himself out as the Aguma of Bassa Kwomo or from performing the function of Aguma of Bassa Kwomo and the 2nd, 3rd and 4th defendants/respondent from recognising him or treating him as such. The trial court however, refused to grant second part of the declaratory relief sought in relief (a), as well as other reliefs sought in (b), (c), (d) and (f) earlier quoted in full in this judgment.

Apparently, all the parties were not happy with the judgment of the trial court resulting in the appellant as plaintiff appealing against it and the respondents who were the defendants also cross appealed against it to the Court of Appeal Abuja which in its judgment delivered on 26th March, 2002, dismissed the appellant’s appeal and allowed the respondents’ cross appeal. The instant appeal is by the plaintiff/appellant who was not satisfied with the dismissal of his appeal by the court below.

In accordance with the rules of this court, the appellant filed his appellant’s brief of argument. A reply brief each in response to the 1st respondent’s briefs and the 2nd – 4th respondents’ brief of argument, were also duly filed and served. In the appellant’s brief of argument, the following issues were raised for determination.

“1. Whether the learned Justices of the Court of Appeal were right in affirming the decision of the trial court that the chieftaincy of Aguma is entirely the creation of the colonial government and not a creation or evolution from native law and custom (hence rules of native law and custom do not apply) thereby refusing to disturb the findings of facts and conclusion of law made by the trial court on the ground that they were based on sound legal principles (Grounds 7 and 1).

2. Whether the learned Justices of the Court of Appeal were correct in their interpretation and application of section 14(2)(b) of the Kogi State Chiefs (Appointment, Deposition and Establishment of Traditional Council) Law No.7, 1992 on the issue of quorum of the Kogi State Council of Chiefs vis-a-vis exhibit 21 (Ground 2).
3. Whether the learned Justices of the Court of Appeal were correct in their resolution of the issue of fair hearing against the appellant as it affects exhibits P.2, P.7, P.8, P.9, P.10 and P.11 (Grounds 3 & 8).
4. Whether having raised the issue of section 4(1) and (2) of Law No.7, 1992 suo motu, and without according the appellant the opportunity to address the court, the learned Justices were correct in their interpretation and application of the said section to the exclusion of section 3(2) of Law No.7 of 1992 thereby faulting the trial court for invoking section 3(2) (supra) (Grounds 4, 5 & 6).
5. Whether upon a careful examination of the evidence and issues raised in the appeal, the learned Justices of the Court of Appeal were right in dismissing the appeal of the appellant in its entirety.
6. Whether the learned Justices of the Court of Appeal were right in allowing the cross appeal on the ground that it had merit thereby reversing and setting aside that part of the judgment of the trial court nullifying the appointment of the 1st respondent as the Aguma of Bassa Kwomo and also setting aside the order of injunction (Ground 10).”

Although five issues for determination were identified in the 1st respondent’s brief of argument, all the five issues were fully covered by the six issues raised in the appellant’s brief of argument. The learned counsel to the 2nd – 4th respondents however, is of the view that only three issues are derivable from the grounds of appeal filed by the appellant. Therefore in the 2nd – 4th respondents’ brief of argument, the following issues were formulated.

1. Whether the lower court was right in holding that the findings of facts and conclusion of law made by the trial court were based on sound legal principles (distilled from grounds 1 and 7).
2. Whether the lower court was right in its interpretation and application of section 14(2)(b) of the Kogi State (Chiefs Appointment, Deposition and Establishment of Traditional Council) Law, 1992 otherwise known as Law No.7 to hold that the 3rd respondent conveyed for the purpose of consideration the appointment of the 1st respondent (distilled from ground 2).
3. Was the appellant denied fair hearing by the 2nd respondent and the lower court viz the Court of Appeal (distilled from grounds 3, 4, 5, 6 and 8).

Taking into consideration that the appellant went to the trial court principally to challenge the appointment of the 1st respondent as the Aguma of Bassa Kwomo on the ground that the stool was not entirely the creation of colonial government but a creation or evolution from native law and custom which reserved the stool for rotation between the appellant’s Akuba clan and Edigeshi clan to the complete exclusion of the 1st respondent’s Ozongulo clan, the main issue for determination is issue one as formulated in the respective parties’ briefs of argument.

This main issue cutting across the respective briefs of argument of the appellant and the respondents, is whether the court below was right in affirming the decision of the trial court in its findings that the chieftaincy of Aguma, is entirely a creation of the colonial government and not a creation or evolution from native law and custom hence rules of native law and custom do not apply thereby refusing to disturb the findings of fact and conclusion of law made by the trial court on the ground that they were based on sound legal principles. Appellant’s counsel in his argument in support of this issue lamented that the court below went ahead to affirm the findings of the trial court inspite of the extensive arguments marshalled by the appellant to warrant the setting aside of the findings. Learned counsel went ahead to probe into the oral and documentary evidence led at the trial court and maintained that there was enough evidence to support the appellant’s case that the Aguma of Bassa Kwomo chieftaincy is deeply rooted in native law and custom, rather than the child of the colonial government as found by the trial court and affirmed by the court below. While conceding that this court seldom interferes with concurrent findings of fact supported by sufficient evidence as laid down in several decisions of this court such as Njoku v. Eme (1973) 5 S.C. 293 at 306; Chinwendu v. Mbamali (1980) 3- 4 S.C. 31 at 75 and Abidoye v. Alawode (2001) 6 NWLR (Pt. 709) 463 at 473, learned counsel stressed that the present case is within the few recognized exceptions to the basic principle of law. One of such exceptions, according to counsel, is where the issue in controversy between the parties is simply a matter of inference that can be drawn from established facts on record as was the case in Nnorodim v. Ezeani (2001) 5 NWLR (Pt.706) 203, (2001) 2 SCNJ 1 at 5. Relying on a number of cases including Abidoye v. Alawode (supra) and Olujinle v. Adeagbo (1988) 2 NWLR (Pt. 75) 238 at 255; learned counsel submitted that the concurrent findings of the two courts below are manifestly perverse, patently erroneous or incongruous and that with proper exercise of judicial discretion, there exists special circumstances warranting interference with the concurrent findings. The alleged secrecy surrounding the nomination and selection of Joseph Alagani as Aguma in 1968 and the fact as found by the trial court that Kwanaki, who was the first indigenous Bassa Kwomo Chief, hailed from Akuba clan being the largest of the clans which had produced more Agumas, were identified as such reasons justifying this court to disturb the concurrent findings of the two lower courts.

For the 1st respondent, it was submitted that the appellant has failed to show the existence of the necessary conditions to justify this court disturbing the concurrent findings of the trial court and the Court of Appeal in the instant case if decisions in the cases of Sanyaolu v. The State (1976) 5 SC 37; and Ibrahim v. Barde (1996) 9 NWLR (Pt.474) 53, (1996) 12 SCNJ 1 are taken into consideration. Learned counsel stressed that the findings of fact made by the learned trial Judge that the stool of Aguma of Bassa 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 is unassailable based on the state of pleadings, documentary and oral evidence before the trial court. Therefore, there is no legal basis or justification for the Court of Appeal to disturb the findings. After referring to specific paragraphs in the pleadings of the parties and going through the oral and documentary evidence on record culminating in reliance on the decisions in Ahmed v. The State (1999) 7 NWLR (Pt.612) 641 (1999) 69 LRCN 1403; Asanya v. The State (1991) 3 NWLR (Pt. 180) 422; and Dogo v. The State (2001) 3 NWLR (Pt.699) 192, (2001) 83 LRCN, 197 at 202; learned counsel urged this court not to interfere with the concurrent findings of fact by the courts below.

The arguments of the learned to the 2nd-4th respondents on this whole embracing issue, are virtually the same as those proffered by the 1st respondent. Learned counsel therefore further emphasized that the court below did not disturb the findings of the trial court because they were not perverse as claimed by the appellant. After calling in aid the decisions in Biariko & Ors, v. Edehogwuile & Ors (2001) 12 NWLR (Pt.726) 235, (2001) 4-5 SCNJ 332 at 347 and Agbeje & Ors. v. Ajibola (2002) 2 NWLR (Pt.750) 127, (2002) 1 S.C.N,J. 64 at 80 – 82, learned counsel urged this court not to disturb the concurrent findings of fact by the two courts below.

This court has been invited in this issue to reverse the findings of fact of the two courts below that the chieftaincy of Aguma is entirely a creation of the colonial government or administration and not a creation or evolution from native law and custom. There is the well settled presumption of law regarding the correctness of the findings of fact of courts below and the presumption must be displaced to reverse the findings of fact. See Williams v. Johnson (1937) 2 WACA 253, It is equally well settled that this court will not lightly interfere with the concurrent findings of fact of the courts below, In Ogundipe v. Awe & Ors. (1988) I NWLR (Pt. 68) 118 at 125, this court per Obaseki, J.S.C., affirmed its often repeated proposition that it will not interfere where there have been concurrent findings of fact by the courts below unless such findings are shown to be perverse or not the result of a proper exercise of discretion.

Let me further emphasis that it is not the primary function of this or any appellate court for that matter, to make findings of fact or to appraise evidence. Also where the findings of fact is based entirely on the credibility of the witness, this court will be reluctant to interfere. See Kponuglo v. Kudadja (1934-35) 2 WACA 24. The duty to make primary findings of fact by the evaluation of the evidence before it by the additional advantage of watching the demeanour of witnesses is essentially preserved for the trial court. See Egri v. Uperi (1974) 1 NMLR. 22,

However, where the issue relates to the proper inference to be drawn from the facts proved, the Court of Appeal and of course this 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. See Akesse v. Ababio (1935) 2 W.A.C.A. 264. An appellate court will also reverse the findings of fact if in its opinion, it is not supported by the evidence. See Lengbe v. Imale (1959) SCNLR 640, (1959) W.R.N.L.R. 325. I shall not forget to remind myself also that this court will not reverse the findings of fact of courts below merely because the court would have found differently. See Ogundulu v. Philips & Ors. (1973) 1 N.M.L.R.267.

Having examined very closely the record of this appeal particularly the pleadings of the parties, the oral and documentary evidence placed before the trial court, I am fully satisfied that the findings of fact by the learned trial Judge that the chieftaincy of Aguma is entirely a creation of the colonial government or administration and not a creation or evolution from native law and custom, is well supported by the evidence before the trial court. I may add here that even the evidence of the appellant himself who is now disputing the findings of the trial court, actively contributed to the findings when he said under cross examination at page 137 of the record as follows: –

“I am aware of the Bassa Kwomo Native Authority. I do not know when it was created. I know it was created because the people from that area wanted to be governed by themselves. It was created by the colonial government. The 1st Aguma of Bassa Kwomo was appointed by the colonial government in 1931. Bassa Kwomo native authority was in existence before the appointment of the 1st Aguma of Bassa Kwomo in 1931. The 1st Aguma of Bassa Kwomo was appointed for the whole clans in Bassa Kwomo land.”

Since the appellant himself seemed to have agreed to the existence of the Bassa Kwomo Native Authority which was part of the colonial government for which the 1st Aguma of Bassa Kwomo was appointed in 1931 presumably by the same colonial Government, there is no basis whatsoever for the appellant to dispute the findings of fact that the Aguma chieftaincy was infact the creation of colonial government. It is for the same reason that the findings of fact by trial court as subsequently affirmed by the court below, flowing directly from the evidence on record, cannot be described as perverse to justify any interference by this court. On this main issue for determination therefore, the appeal must fail.

Therefore, the appellant having woefully failed to prove his claim that the chieftaincy of Aguma is entirely a creation of native law and custom which exclusively reserved the stool in rotation between the appellant’s Akuba clan and Edigeshi clan, his entire appeal against the findings of fact of the two courts below on the procedure adopted for the selection and appointment of the 1st respondent as the Aguma of Bassa Kwomo is entirely without merit. This is because all the remaining issues in this appeal are also based strictly on findings of fact of the two courts below to which clear provisions of sections 3, 4 and 14 of the Kogi State Chiefs (Appointment, Deposition and Establishment of Traditional Council) Law, No.7 of 1992, were appropriately applied. In particular, the issue of custom relating to the ascension or succession to the stool of Aguma of Bass a Kwomo, the findings made by the trial court and upheld by the court below are quite valid having regard to the state of pleadings and evidence adduced before the trial court. This situation coupled with the abysmal failure of the appellant to prove the custom of exclusiveness of the stool to his named clans completely destroyed the appellant’s case. In other words, there were no inadequacies in my view, in the conclusions arrived at by the court below in dismissing the appellant’s appeal and in allowing the cross appeal of the respondents. As the appellant has failed to show that the two courts below had failed to make necessary inference from the proved and accepted facts in the instant case, the entire appeal is completely devoid of substance. See Olale v. Ekwelendu (1989) 4 N.W.L.R. (Pt. 115) 326 at 347.

Furthermore, as all the claims of the appellant as plaintiff at the trial court were dismissed by the court below in allowing the cross appeal of the respondents and dismissing the appellant’s appeal on the strong ground that the appellant had failed to prove the native law and custom of the Aguma chieftaincy of the rotation of the stool of Aguma of Bassa Kwomo between the Akuba and Edigeshi clans as having originated from any native law and custom of Bassa Kwomo Local Government Area, all the remaining issues raised by the appellant in this appeal which are clearly rooted in the existence of the supposed native law and custom relied upon by the appellant, must also collapse with the 1st issue for determination. This is because quite contrary to the claim of the appellant, the appointment of the 1st respondent was made in accordance with the requirements of the Kogi State Law No.7 of 1992 on the Appointment and Deposition of Chiefs. There being no native law and custom applicable to the appointment or approval of the 1st respondent as the Aguma of Bassa Kwomo at the time the appointment was made, there was no breach of any native law and custom claimed by the appellant under section 3(2) of the Kogi State Chiefs (Appointment, Deposition and Establishment of Traditional Council) Law No.7 of 1992. This is in line with the findings of the court below that the Aguma of Bassa Kwomo chieftaincy not being a creation of native law and custom, is not governed by the provisions of section 3(2) of the Kogi State Law No.7 of 1992 but by the provisions of section 4(2) of the same law, as the chieftaincy in dispute was the creation of colonial government or administration. Section 4 of this law, it is observed, is concerned with the appointment of chiefs otherwise than in accordance with native law and custom. Thus, the appointment of the 1st respondent having been made in accordance with the procedure prescribed under section 4 of the Chiefs Law No.7 of 1992 of Kogi State, was quite in order under the law.

In any case, since all the remaining issues 2, 3, 4, 5 and 6 in the appellant’s brief of argument are predicated on the appellant’s assertion that the nomination and recommendation for appointment to fill the vacant stool of Aguma of Bassa Kwomo are governed by native law and custom under section 3(2) of the Kogi State Chiefs (Appointment, Deposition and Establishment of Traditional Council) Law No.7 of 1992, whether the court below was correct in its interpretation and application of section 14(2) of the law in the selection and appointment of the 1st respondent, or whether the appellant was given a fair hearing in the process which was not under native law and custom, or that the appellant was not heard on the application of section 4 of the 1992 law rather than section 3 which he claimed applied; or that his appeal and the cross appeal were rightly dismissed and allowed respectively by the court below are of no moment since the appellant had not made out a case to justify this court looking into the concurrent findings of fact of the two courts below to give life to the said issues. The law is well settled that this court is not given to make moot decisions or decide hypothetical matters which have no bearing with the case the court is called upon to decide which in this case is whether grounds exist to warrant interfering with the concurrent findings of fact of the two courts below. See Ikenye Dike & Ors. v. Obi Nzeka II & Ors. (1986) 4 NWLR (Pt. 34) 144; Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387; Kosile v. Folarin (1989) 3 NWLR (Pt. 107) 1 at 8; and Adewunmi v. Attorney-General Ekiti State & Ors. (2002) 2 NWLR (Pt. 751) 474 at 525.

In the result, this appeal fails and it is hereby dismissed for lack of merit.

The judgment of the court below is affirmed. There shall be N10,000.00 costs to the respondents against the appellant.

SC.365/2002