Alhaji Mohammed Sarki Aliyu V. Alhaji Musa Nagogo Ibrahim & Ors (1996)
LawGlobal-Hub Lead Judgment Report
EDOZIE, J.C.A.
The Oriye Rindre is the title of the traditional ruler of the Rindre people of Wamba in Akwanga Local Government Area of Plateau State. The last incumbent to the stool was Alhaji Suleiman Mohammadu Kore who was on 23rd April 1983 installed as a 2nd class chief by the Governor of Plateau State. Following his subsequent demise sometime in 1990, arrangements were made to fill the vacant stool. The procedure for the selection and appointment to fill the vacancy to the throne has been codified in the Plateau State Legal Notice No.2 of 1990 titled: “The Appointment And Deposition of Chiefs (Appointment of Oriye Rindre) Order 1990” (Exhibit 6). Its main provisions relevant to this case are reproduced hereunder as follows:-
“3. The Oriye Rindre shall continue to be selected by the traditional selectors from amongst the adult male descendants from each of the three ruling houses of:-
(a) Misa
(b) Suwa and;
(c) Pesa
- The traditional selectors, which shall constitute the Electoral College for the purpose of the selection of the Oriye Rindre shall be persons holding the offices:-
(i) Head of Mawu Pese
(ii) Head of Mawu Misa
(iii) Head of Mawu Suwa
(iv) Head of Mawu Sagye
(v) Head of Mawu Lulu-
(vi) Head of Mawu Ungo
(vii) Sarkin Nakere
(viii) Sarkin Wayo
(ix) Sarkin Gitta
(x) Sarkin Jida
(xi) Sarkin Konya
6(1) The Presiding Officer shall summon a meeting, within the Local Government Area of the traditional selectors after giving a notice of not less than seven days of his intention to summon such a meeting.
(2)The Secretary and a representative of the Local Government appointed by the Military Governor shall be in attendance as observers
(3) Seven traditional selectors shall constitute a quorum for such meeting.”
Pursuant to the above provisions, an election to fill the vacant stool was conducted on 12th February, 1991.
In that election, the appellant, Alhaji Mohammed Sarki Aliyu and the 1st respondent Alhaji Musa Nagogo Ibrahim were the only contestants and they polled 3 and 7 votes respectively with the result that the 1st respondent was declared elected.
Thereupon the appellant as plaintiff commenced proceedings in court against the respondents as defendants to challenge the election.
Pleadings were filed and exchanged. As spelt out in paragraph 19 of the Statement of Claim, the reliefs sought by the appellant are as hereunder;
“1. Whereof the plaintiff claims from the defendants as follows:-
(a) A declaration that the 2nd and 3rd defendants by themselves, agents or servants violated Orders 3, 4 and 6 (1) of the (Appointment and the Deposition of Chiefs) The Appointment of the Oriye Rindre Order 1990.
(b) A declaration that the first defendant not being a member of any of the three ruling houses of Wamba listed in Order 3 aforementioned is not qualified to contest for the office of the Oriye Rindre.
(c) A declaration that:
(i) the votes of Ibrahim Umaru, Mohammadu Lamu and Mallam Sambo Bici; and
(ii) the votes of the other selectors who voted for the first defendant are null and void for being in violation of orders 3, 4 and 6 of the Oriye Rindre Order of 1990 respectively, and the native law and custom of the Rindre people
(d) An order setting aside the selection and approval of the first defendant as Oriye Rindre.
(e) A declaration that the plaintiff being the only lawful candidate is the winner of the said selection in accordance with the provisions of the Oriye Rindre Order of 1990.
(f) A perpetual injunction restraining the first defendant from parading or holding himself out as the Oriye Rindre and from performing any rites or duties attached to the office.
(g) A perpetual injunction restraining the second and third defendants, their agents, servants or privies from installing, recognising or dealing with the first defendant as the Oriye Rindre of Wamba.”
The 1st respondent in this Amended Statement of Defence denied the appellant’s claim and in a counter-claim sought certain reliefs one of which is
“(a) A declaration that the plaintiff’s participation as a candidate for selection to the traditional stool of the Oriye Rindre which took place on the 12.2.91 was null and void as he is a member of the Mawu Lube family which is not one of the Ruling houses of Wamba and which has no relationship with any of them whatsoever.”
The 2nd and 3rd respondents filed an amended joint statement of defence.
There was also filed by the appellant a reply to the 1st respondent’s statement of defence.
The appellant’s suit was initially commenced at the High Court Keffi but was later transferred by the Chief Judge to Jos High Court where it was heard and determined by Azaki J, (as he then was and of blessed memory) notwithstanding request by the appellant for the case to be heard by another Judge.
At the trial, the appellant and each set of the respondents called witnessed in support of their respective cases. In a considered judgment delivered on 23rd June, 1993, the learned trial Judge at p. 139 of the record framed the issues for determination thus;
“(a) Whether or not the plaintiff or the 1st defendant was a member of Misa ruling house and qualified to contest the chieftaincy.
(b) Whether or not Ibrahim Umaru, Mohammed Lamu and Mallam Sambo Bici were qualified kingmakers and were wrongly allowed to participate in the selection exercise of Oriye Rindre and the effect of their such participation on the selection exercise.
(c) Whether or not in issuing Notices to the selectors, paragraph 6 of the instrument for the selection of candidates was breached.
(d) Whether or not some kingmakers were kept away by the 1st defendant or his agents in order to deny the plaintiff the chances of soliciting votes from them”
After considering the oral and documentary evidence given by the parties, the learned trial Judge made findings to the following effect, that is to say, that the appellant was not a member of Misa family house and being a member of Luba house which is separate from the Ruling houses he was not qualified to contest for the vacant stool; that the 1st respondent was a member of Misa’ s ruling house and qualified to contest for the vacant stool; that the appellant failed to prove that Ibrahim Umaru, Mohammed Lamu and Mallam Sambo Lici were not the proper kingmakers; that the complaint that paragraph 6 (1) of Exhibit 6 was breached was without substance and finally that the allegation that some kingmakers were kept away by the 1st respondent or his agents to prevent the appellant from soliciting votes from them was not established. In conclusion, the learned trial Judge at p. 156 lines 5 to 12 of the record said:-
“The totality of the evidence before me is such that the plaintiff did not prove his case against the defendants. He is not entitled to any of the above reliefs. I hereby dismiss the action.
The 1st defendant filed a counter-claim against the plaintiff.
It was not seriously pursued by way of evidence. In the course of submission, it was abandoned. It is hereby struck out.”
Dissatisfied by that judgment, the appellant filed the instant appeal predicated on a notice of appeal which on amendment with the leave of this court contains seven grounds of appeal. Parties by their counsel filed their briefs of argument. In the appellant’s brief of argument, the following issues were set down for determination.
“(i) Having regard to the pleadings and the evidence adduced in support thereof, was the learned trial Judge right in holding that the 1st respondent was a member of Misa Ruling House and was therefore qualified to contest for the vacant stool of the Oriye Rindre of Wamba.
(ii) Having struck out the 1st respondent’s counter-claim against the plaintiff and taking into consideration the pleadings and the evidence led in support as well as the entire circumstances of the case, was the learned trial Judge right in holding, as he did, that the plaintiff was not a member of Misa family house and that being a member of Lube house he was not qualified to contest for the vacant stool in accordance with the Appointment and Deposition of Chiefs (Appointment of Oriye Rindre) Order 1990.
(iii) Having regard to the facts and circumstances of this case, was the learned trial Judge right in failing to disqualify himself from hearing and determination of this matter, and if the answer to the above is in the negative, can it be said that the plaintiff had a fair hearing.
(iv) Did the judgment of the learned trial Judge show a dispassionate consideration of the issues properly raised before him.
(v) Did the plaintiff prove his complaints on the three kingmakers and if he did, was it without effect on the entire proceedings of the selection exercise.
(iv) Having regard to the pleadings as well as the evidence led in support, was the learned trial Judge’s finding relating to the intendment of Exhibit 6 warranted?
(vii) Having regard to the evidence adduced at the trial, did the plaintiff prove his case?”
In the 1st respondent’s brief of argument, objection was raised against grounds 3, and 4 of the appellant’s amended grounds of appeal on the ground that they are incompetent. Four issues were distilled in respect of the remaining grounds. These are:-
“(1) Whether the appellant (plaintiff) belongs to Misa Ruling House and therefore eligible to contest for the vacant stool of Oriye Rindre?
(ii) Whether the 1st respondent (1st defendant) was a member of Misa Ruling House and eligible to contest for the vacant stool of Oriye Rindre?
(iii) Whether the selection of the 1st respondent (1st defendant) was in substantial compliance with Exhibit 6?
(iv) Whether the trial Judge committed any error that was substantial and which occasioned a miscarriage of justice?”
The 2nd and 3rd respondents adopted in their brief the issues formulated in the 1st respondent’s brief and the objection raised therein against the appellant’s 3rd and 4th amended grounds of appeal.
On 26th March, 1996 when the appeal came before us for hearing, the parties by their counsel adopted their respective briefs of argument and in addition made short oral submissions in amplification of issues canvassed in their briefs. Before wading into the arguments on the issues formulated in the briefs, I consider it appropriate to dispose of the objection against grounds 3 and 4 of the appellant’s amended grounds of appeal on which the appellant’s 3rd issue for determination is predicated.
For better appreciation of the nature of the objection and its merit or demerit, the background facts relating thereto are outlined as follows:- As stated earlier on, the suit, from which this appeal emanated was commenced at the Keffi Judicial Division of the Plateau State High Court presided over by Naron J. Before that court, the case proceeded to hearing in the course of which the plaintiff/appellant called five witnesses. Thereafter, the case was transferred by the Chief Judge from Keffi to Jos to be hard de novo before High Court No.6, Jos presided over by Azaki J. (as he then was). The appellant challenged the order of transfer by appealing to this court which eventually dismissed that appeal. At the resumed hearing before Azaki J. the appellant applied to have the case transferred from his court on grounds of bias to any other Judge of the same court for hearing and determination. The motion on notice in this regard which is dated 4th September, 1992 is at pp. 46 to 51 of the record of proceedings. The motion was heard by Azaki J and in a ruling delivered on 3rd October, 1992, he ruled that he had no jurisdiction to entertain the motion and made an order that the matter be referred to the Chief Judge for determination.
The application was accordingly referred to the Chief Judge who heard arguments thereon and in a ruling delivered on 1st December, 1992, dismissed same. In consequence the substantive suit was heard by Azaki J (as he then was) who as earlier stated dismissed the appellant’s claim on 26th June, 1993. In relation to the foregoing facts, the appellant had in grounds 3 and 4 of the amended notice of appeal filed on 22nd June, 1994 complained as follows:-
“3. The learned trial Judge erred in law in failing to disqualify himself from the hearing and determination of this matter on grounds of likelihood of bias and this error occasioned a miscarriage of justice.
Particulars of Error
(a) At a stage in the proceedings, the plaintiff raised the issue of likelihood of bias against him by the learned trial Judge and applied to have the case transferred to another Judge.
(b) Arguments were advanced before the learned trial Judge in support of the application asking for the transfer of the case and he made a ruling referring the application to the Chief Judge for hearing.
(c) The Chief Judge heard the application and refused to transfer the case to another Judge even though the plaintiff had expressed his loss of confidence in this learned trial Judge.
(d) Given the above circumstances, the learned trial Judge should have disqualified himself from continuation with the case.
The plaintiff did not have a fair hearing in that having openly expressed his loss of confidence and faith in the learned trial Judge, the said Judge went ahead and concluded the hearing and determination of the matter.
Based on the above grounds 3 and 4 of the amended grounds of appeal, the appellant formulated the 3rd issue for determination already set out above but at the risk of repetition is reproduced thus:-
“(iii) Having regard to the facts and circumstances of this case, was the learned trial Judge right in failing to disqualify himself from hearing and determination of this matter, and if the answer to the above is in the negative, can it be said that the plaintiff had a fair hearing?”
The respondents’ objection under consideration is to the effect that grounds 3 and 4 of the appellant’s amended grounds of appeal as well as issue (iii) of the appellant’s issue for determination based on them in so far as they are based on the interlocutory decision of the court below are incompetent as no prior leave of the court below or this court was sought and obtained before the said grounds of appeal were filed. In the list of additional authorities sent to us by learned counsel to the 1st respondent, he relied on several authorities stated therein. The appellant’s counsel filed a reply in which he responded to the objection in paragraph 1.2 of the reply brief thus:-
“1.2 In paragraph 2.1 of the 1st respondent’s brief aforesaid under the Heading – Issues for determination – the 1st respondent’s counsel submitted that grounds 3 and 4 of the appellant’s grounds of appeal are incompetent in that according to him, they are challenging an interlocutory decision of the trial Court and leave of this court was not obtained. He therefore submitted that issue No.3 formulated by the appellant is therefore incompetent. With due respect to learned counsel, the argument aforesaid is misplaced as it amount (sic) to a clear demonstration of the fact that counsel does not understand the grounds aforesaid. This is because contrary to the argument of the respondent’s counsel, the appellant is not complaining against the decision of the Chief Judge which refused to transfer the case from the learned trial Judge. The said grounds 3 and 4 amount to a complaint against the learned trial Judge for refusing to disqualify himself from further hearing and determination of the case despite the fact that appellant had expressed his desire to have the case transferred to another Judge on the ground of loss of confidence in the learned trial Judge. To say or argue that the said grounds amount to an appeal against the ruling of the Chief Judge is, to say the least a misconception of the said grounds of appeal.
Your Lordships are therefore respectively urged to allow the appellant’s appeal on the said grounds 3 and 4 since the respondent has not specifically advanced any argument in relation to the issue No.3 which covers those grounds.”
From the above, the solitary question raised on the preliminary objection and the reply thereto is whether or not grounds 3 and 4 of the appellant’s amended notice of appeal upon which appellant’s issue (iii) was framed were based on the interlocutory decision of the court below. It seems to me that the appellant’s argument in respect to issue (iii) of his issue for determination at pp. 17 and 18 of the appellant’s brief of argument belies his contention that the grounds of appeal in question do not relate to the decision of the learned Chief Judge in dismissing the appellant’s motion on notice requesting that the suit be transferred from Azaki J. (as he then was) to another Judge for hearing and determination. At Pages 17 and 18 of the appellant’s brief of argument, after the background facts were set out, it was argued as follows:
“It is pertinent to point out however that during the course of the argument of the said motion before the learned Chief Judge, this was what he said:-
“Court to the learned counsel:-
If I am not favourably disposed to grant the order being prayed for, and the trial proceed (sic) in court 5 as usual and your client loses the case, the issues being canvassed before me, can’t they be raised as a ground of appeal before the Court of Appeal?”
It is submitted that from the foregoing statement of the learned Chief Judge, it cannot be said that the plaintiff had a fair hearing. After dismissing the application for transfer, the learned trial Judge went ahead with the hearing and determination of the matter and indeed gave judgment against the plaintiff.”
By alluding to the ruling of the learned Chief Judge as indicated above, learned counsel to the appellant cannot argue seriously that the two grounds of appeal under consideration did not stem from the ruling of the learned Chief Judge dated 1st December,1992 or that of Azaki J dated 30th October 1992 in both of which the appellant’s motion to transfer the case to another Judge was not granted.
I am of the respectful view that grounds 3 and 4 of the appellant’s amended ground of appeal are based on the interlocutory decisions of the court below dated 30/10/92 and 1/12/92 respectively. The aforesaid grounds of appeal are a challenge against the trial court’s exercise of its discretionary powers. Such a ground of appeal which questions the propriety of the exercise of the trial court’s discretion has been classified as one of mixed law and fact. See Nigerian National Supply Co. Ltd. v. Establishment Sima of Vaduz (1990) 7 NWLR (Pt. 164) 526 at 538 – 539; Ifediorah v. Ume (1988) 2 NWLR (Pt. 74) 5 at p. 16; U.B.A. v. Stahlbau GMBH (1989) 3 NWLR (Pt. 110) 374. By section 220 (1) (a) and (b) of the Constitution of the Federal Republic of Nigeria 1979 an appeal shall lie as of right to the Court of Appeal in respect of final decisions in any civil or criminal proceedings before the High Court sitting at first instance or where the grounds of appeal involve questions of law alone. All other appeals to the Court of Appeal not falling within those provided for in section 220(1) of the Constitution can only be entertained under section 221 (1) with the leave of the High Court or the Court of Appeal. See Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622; Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484 and Ike v. Ofokaja & Ors. (1992) 9 NWLR (Pt. 263) 42. In U.B.A. v. Stahlbau GMBH supra, the ground of appeal was that the learned trial Judge wrongly and/or failed to exercise its discretion judicially by refusing to make the order for security for costs. It was held that the ground of appeal was one of mixed law and fact for which leave to appeal ought to have been obtained.I agree with the contention of learned counsel to the respondents that grounds 3 and 4 of the appellant’s amended grounds of appeal not having been filed with the leave of court are incompetent. Those grounds are also incompetent on another ground. By Section 25(2) (a) of the Court of Appeal Act Cap. 75, Laws of the Federation 1990 the period for appealing to the Court of Appeal against an interlocutory decision is 14days. In the case of Tijani v. Akinwunmi (1990) 1 NWLR (Pt. 125) 237 at p. 250 – 251 dealing with the competence of ground of appeal against interlocutory decision in appeal against final judgment, it was opined that what an appellant ought to do is to seek leave to argue the ground relating to such an interlocutory order or ruling by filing an application for extension of time to seek leave and to appeal against the interlocutory ruling or order if he has valid reasons for his tardiness or neglect. Being of the view that grounds 3 and 4 of the appellant’s grounds of appeal which are based on the interlocutory decisions of the court below were filed without the leave of the court below or this court in breach of section 221 (1) of the Constitution and furthermore that these grounds were not filed within 14 days or any extended period in violation of Section 25(2)(a) of the Court of Appeal Act supra, the said grounds of appeal are incompetent and so too are issue (iii) of the appellant’s issue for determination distiled therefrom. Grounds 3 and 4 of the appellant’s amended ground of appeal and issue (iii) of the appellant’s issue for determination including all arguments advanced thereon are accordingly struck out.
For reasons that will become evident later in this judgment, I prefer to consider first the 5th issue for determination in the appellant’s brief of argument before dealing with the others if need be. At the risk of repetition, but for ease of reference, issue 5 reads thus:
“Did the plaintiff prove his complaints on the three kingmakers and if he did, was it without effect on the entire proceedings of the selection exercise.”
As indicated in section 4 of the Plateau State Legal Notice No.2 of 1990 (Exhibit 6) quoted earlier in this judgment, the recognised kingmakers or selectors of the Oriye Rindre are the heads of eleven families specified therein. One of the appellant’s grounds in impugning the election exercise was that three of the ten persons who took part in the election exercise as selectors were not infact the recognised selectors, that is, the heads of the families they purported to have represented in the election. The objection raised was in respect of Ibrahim Umaru, Mohammed Lamu and Mallam Sambo Bici who voted at the election and claimed to be the heads of Mawu Ungo, Mawu Sagye and Mawu Misa respectively. The appellant’s case is that the recognised heads of those families were Alhaji Umaru Bichi, Adamu Lanze and Ibrahim Isa respectively. It would appear that prior to the conduct of the election in question, actions had been instituted in the Keffi High Court challenging the eligibility of the aforesaid kingmakers viz Ibrahim Umaru, Lamu and Mallam Sambo Bici to participate at the election. The actions had not as yet been determined. See paragraphs 9, 10, 11 and 12 of the appellant’s statement of claim. The 1st respondent admitted that the three persons whose position as kingmakers were questioned actually voted at the election under consideration but he asserted that they were the recognised selectors for their respective families. In support of his assertion, he pleaded and relied on pages 16, 14 and 26 of the programme for the official installation of the Royal Highness the Oriye Rindre Alhaji Suleiman Muhammed Kore (last incumbent Oriye Rindre) which took place on 23rd April, 1983: See paragraphs 10, 11 and 12 of the amended statement of the 1st defendant.
It is pertinent to observe that the pamphlet titled “the programme for the official installation of His Royal Highness, the Oriye Rindre, Alhaji Suleiman Mohammed Kore as Second Class Chief etc” was tendered in evidence by PW4 and was admitted as Exhibit 4. On pages 8 to 17 of the said Exhibit 4 are displayed captions or photographs of the various kingmakers. That of Ibrahim Umaru and I Mohammed Lamu appeared on pp. 16 and 14 of Exhibit 4 where they were shown as the village heads of Un go and Sagye respectively. The 1st respondent relied on these facts as evidence that the disputed kingmakers were in-fact the recognised ones. However, PW4 Alhaji Muhammadu Ibrahim testified that he was responsible for collecting the picture of the persons shown in Exhibit 4 and that not all of them were kingmakers. At p. 74 lines 30 to 33, p. 75 lines 1 to 24, he testified, inter alias as follows:-
“While preparing the programme for the ceremony, the Local Government Council asked me to collect pictures of the kingmakers.
I collected the pictures and wrote their names on them, including the photograph of the incumbent as then. Not all the photographs were from the actual kingmakers. Those that were not kingmakers were Ibrahim Umaru, his picture was caption (sic) as Moji of Wamba; Mohammed Lawu was captioned as Dalatun of Wamba… Court: A programme for the official installation of Suleiman Muhammed Kore admitted and marked Exhibit 4.
PW4 continued:- I see p. 14 and 16 of Exhibit 4, there (sic) are pictures of Mohammed Lamu and Ibrahim Umaru respectively. They were described as kingmakers. They were not kingmakers by tradition. Likewise the pictures Usman Adamu, Forun Ambata at p. 10, Agoma Arum … Ibrahim Umaru belonged to family of Mawu Ungo. He is not the head of that family.
Muhammadu Lawu is from Mawu Saje family. He is not the head of the family.”
The substance of the evidence of PW4 above is that although he caused the photographs of persons described as kingmakers to be inserted in Exhibit 4, not all those persons were infact kingmakers and in particular Ibrahim Umaru and Mohammed Lamu whose claim as kingmakers are disputed are not the recognised kingmakers as erroneously described in Exhibit 4.
How did the learned trial Judge deal with the evidence of PW 4 as reproduced above. At p. 152 lines 23 to 28 the learned trial Judge said:-
“Although PW4 testified that he erroneously provided captions for the photographs of DW3 and DW4 (Muhammadu Lamu and Ibrahim Umaru) as kingmakers at pages 14 and 16 of Exhibit 4, he did not testify that as at the time of the selection exercise they had not been so appointed. I will accept his evidence.” (Italics supplied).
From the above extract, it is clear that the learned trial Judge accepted the evidence of the appellant’s witness No.4 to the effect that Ibrahim Umaru and Muhammadu Lamu whose photographs appeared in Exhibit 4 were not the  recognised kingmakers for their respective families.
Earlier, the learned trial Judge had referred to the evidence of Sambo Abdullahi Bici (DW1), Muhammadu Lamu (DW3) and Ibrahim Umaru (DW4) to the effect that they, the disputed kingmakers were the recognised kingmakers. The learned trial Judge also accepted their evidence. It is evident that the evidence of PW4 to the effect that Ibrahim Umaru (DW4) and Mohammadu Lamu (DW3) were not the recognised kingmakers which the learned trial Judge accepted is irreconcilably in conflict with the evidence of DW1, DW3 and DW4 in support that they were recognised kingmakers which the learned trial Judge similarly accepted. Based on the said irreconcilable pieces of evidence, the learned trial Judge at p. 153 lines 567 made a finding in which he held as follows:-
“the plaintiff failed to prove that they (Ibrahim Umaru, Mohammed Lamu and Mallam Sambo Bici) were not the proper kingmakers for the exercise.”
In the case of (Omohodion v. Commissioner of Police (1961) 2 SCNLR 253; (1961) All NLR (Pt. 4) 594, Taylor FJ. (as he then was) stated:-
“When a trial court declares that it accepts the evidence of certain witnesses in support of the finding of a material fact, and the record shows the testimony of those witnesses to be irreconcilable on the fact as found, an appellate court will disregard the finding.”
I am therefore of the view that the finding by the learned trial Judge that the appellant has not proved that the disputed three kingmakers were not the recognised kingmakers cannot stand on the authority referred to above.
Perhaps, a more serious error committed by the learned trial Judge is the opinion he had expressed to the effect that even if the appellant proved his complaint on the three kingmakers, it was of no consequence on the entire proceedings of the election exercise. In this regard, he reasoned at pp. 153 to 154 of the record thus:-
“Learned counsel for the plaintiff submitted that the effect of the participation in the exercise by the 3 kingmakers was that the entire exercise was null and void. Paragraph 6 (3) of Exhibit 6 did not provide that the kingmakers must all be present at any exercise to select a candidate to fill the vacant stool of Oriye Rindre. Rather it provided for a quorum by the presence of at least 7 kingmakers at an occasion. In Nwobodo v. Onoh (1984) 1 SCNLR 1 at 33-34, it has been held that at an election when the complaint is on wrongful exclusion or inclusion of votes, the court can go down to the polling units to collate result of the election by the use of the valid votes cast at the election. The plaintiff’s complaint is on 3 out of the kingmakers that participated in the exercise. If this number is taken away from the 10 kingmakers there would be seven other kingmakers whose qualifications were not questioned. Thus despite the complaint, there was a quorum for the exercise. I shall proceed further to deduct 3 votes of those kingmakers on the assumption that they were invalid. The plaintiff admitted in cross-examination that the votes credited to him were from PW2, PW5 and Auta Shammah, I therefore take it that the votes from DW1, DW3 and DW4 were credited to the 1st defendant. After their votes are deducted from the total votes of 7 polled by the 1st defendant, he would be left with 7 votes as against 4 (error for 3) votes polled by the plaintiff. It follows that the 1st defendant would still have been rightfully declared the successful candidate for the throne had the presiding officer refused-those kingmakers participation in the exercise on the plaintiff’s complaint.
The plaintiff did not prove his complaint on the 3 kingmakers.
Even if he did, it was without effect on the entire proceedings of the selection exercise.”
With profound respect, it seems to me that the learned trial Judge has taken a simplistic view of the matter. He had adverted to the effect of the invalidity of the votes of the disputed 3 kingmakers but glossed over the possible effect that would have resulted if those they prevented from voting had been allowed to participate in the election exercise. It is not disputed that there were infact such persons. Their names were given as Alhaji Umaru Bici, Adamu Lanze and Ibrahim Isa. Learned counsel to the appellant, O.B. James Esq. in attacking the above finding of the learned trial Judge argued at p. 22 of his brief as follows: “Besides the learned trial Judge went ahead to say that even if the plaintiff proved his case on the three kingmakers it was without effect on the selection exercise. It is however submitted that, the participation of the three traditionally unrecognised kingmakers in the selection exercise had the effect of rendering the whole selection exercise null and void. This is so because the sum effect of the participation was that the rightful king makers who ought to have taken part in the selection exercise were deprived from doing so, and no one can now say what the result would have been if they had been allowed to take part in the selection exercise.”
I cannot agree more. If the three persons the appellant claimed to be the rightful kingmakers had voted in place of the 3 kingmakers whose participation in the election was questioned the fortunes of the parties, that is, the appellant and the 1st respondent would have been adversely or favourably affected depending on the side to which their votes were cast.
As the pattern of their voting cannot be determined if they had been allowed to vote, I agree with Mr. James that the election is null and void. On this score alone, this appeal succeeds. The cardinal or crucial issue for determination in the appeal is the validity of the election exercise. The eligibility of the candidates to contest and other related issues are subsidiary matters.
The validity or otherwise of the ejection having been determined, it is futile to embark on the resolution of the other issues for determination.
In the final analysis, this appeal succeeds and is accordingly allowed. The judgment of Azaki J., (as he then was) delivered on 23/6/93 is hereby set aside. I make the following orders:-
- It is declared that the election conducted on 12th February, 1991 to fill the vacant stool of Oriye Rindre is null and void.
- The purported election and approval of the 1st defendant/respondent as the Oriye Rindre is null and void and of no effect.
- Parties are to bear their costs.
Other Citations: (1996)LCN/0243(CA)
