Kenor Madina Tal & Ors V. Abdullahi Shuaibu Anampara & Ors (2016)

LawGlobal-Hub Lead Judgment Report

BIOBELE ABRAHAM GEORGEWILL, J.C.A.

This is an appeal against the judgment of the Gombe State High Court in Suit No: GM/43/2012: Kenor Madina Tal & Ors. V. Abdullahi Shuaibu Anampara & Ors delivered on 19/11/2014 by M. A. Pindiga J, in which the claims of the Appellants as Plaintiffs against the Respondents as Defendants were dismissed.

?The Appellants were dissatisfied with the said judgment and had promptly appealed against the said judgment to this Court vide a Notice of appeal filed on 17/12/2014 on five grounds. However, subsequently, the Appellant sought and obtained the leave of the Court and filed its amended Noticed of Appeal on five grounds on 11/6/2015 but deemed properly filed on 27/10/2015. The Record of Appeal was transmitted on 5/5/2015 but deemed duly transmitted on 27/10/2015. The Appellant?s brief was filed on 20/1/2016 but deemed properly filed on 2/2/2016. The 1st ? 3rd Respondents? brief was duly filed on 29/2/2016. The 4th ? 5th Respondents? brief was filed on 3/5/2016 but deemed properly filed on 4/5/2016. The Appellant?s reply

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brief was filed on 4/4/2016 but deemed properly filed on 12/4/2016. The 1st ? 3rd Respondents filed on 29/2/2016 a notice of preliminary objection challenging the competence of the Appellants? suit before the Court below. See pages 245 ? 264 of the Record of Appeal for the judgment and pages 265 ? 269 for the original Notice of Appeal.

At the hearing of the Appeal on 4/5/2016 P. A. Aki Esq, learned senior counsel to the Appellants adopted the Appellant?s brief and Appellant?s reply brief as their argument in support of the appeal and in opposition to the preliminary objection of the 1st ? 3rd Respondents and urged the Court to dismiss the preliminary objection for lacking in merit and totally being misconceived and to allow the appeal and to set aside the judgment of the Court below and to grant the reliefs sought by the Appellants as Plaintiffs against the Respondents as Defendants as per their claims before the Court below.

?On his part, Michael Oforma Esq, learned counsel holding the brief of Chief Caleb Ubale, learned senior counsel to the 1st ? 3rd Respondents adopted their Respondent?s brief

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as their argument in support of their preliminary objection and in opposition to the appeal and urged the Court to strike out both the suit and appeal of the Appellants for being incompetent and or to dismiss the appeal as lacking in merit and to affirm the judgment of the Court below. On his part, Musa Saidu Esq, learned Director of Civil Litigation, Ministry of Justice, Gombe State for the 4th ? 5th Respondents adopted their Respondents? brief as their argument in opposition to the appeal and urged the Court to dismiss the appeal as lacking in merit and to affirm the judgment of the Court below.

By way of oral reply on points of law to the 4th ? 5th Respondents? brief, learned senior counsel to the Appellants submitted that the 4th ? 5th Respondents? brief was incompetent in that the only issue distilled therein for determination was not tied to any of the five grounds of appeal and should therefore be discountenanced and struck out. In further oral reply, learned Director of Civil Litigation for the 4th ? 5th Respondents conceded that the sole issue in the 4th ? 5th Respondents? brief was not tied

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to any of the grounds of appeal but contended that it was still valid and properly before the Court in this appeal and should be considered by the Court in the determination of the appeal in the interest of justice.

By a writ of summons filed on 26/3/2012 and by a Statement of Claim filed on 27/3/2012, the Appellants as Plaintiffs before the Court below instituted an action against the Respondents as Defendants claiming several reliefs including a declaration that the purported appointment of the 1st Respondent as District Head of Tal made contrary to the custom and tradition of Tal people by the 2nd and 3rd Respondents is unlawful, null, void and of no effect.

The parties duly field and exchanged pleadings together with the written statements on oath of their respective witnesses and documents they each intend to rely on at the trial of the suit. At the trial, the Appellants as Plaintiffs called six witnesses and tendered some documents admitted in evidence as exhibits A, B, C, D, D1, E and F before the Court below and closed their case on 29/10/2013. In their defence, the 1st ? 3rd Respondents as 1st ? 3rd Defendants called four

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witnesses and tendered some documents admitted in evidence as Exhibits K and L and closed their case on 20/1/2014. On their part, the 4th ? 5th Respondents as 4th ? 5th Defendants did not call any witness but closed their case on 20/1/2014. Upon adoption of the final written addresses of the parties, the Court below delivered its judgment on 19/11/2014 in which it dismissed the claims of the Appellants as Plaintiffs.

At the hearing before the Court below, the Appellants as Plaintiffs called PW1, Andiriya Madina, PW2, Samaila Wazan, PW3, Molta Babadidi, PW4, Haruna Wakili (2nd Appellant), PW5, Prince James Pass (3rd Appellant), and PW6, Aliyu Y. Yusuf. The 1st ? 3rd Respondents as 1st ? 3rd Defendants called DW1, Joshua Usman, DW2, Yila Baba Takora, DW3, Yusuf Musa and DW4, Abdullahi Shuaibu Anampara (1st Respondent) See pages 201 ? 208, 215 – 238 of the record for their evidence.

Having calmly appraised myself with the facts and circumstances of this appeal and bearing in mind that there is a notice of preliminary objection filed on 29/2/2016 by the 1st ? 3rd Respondents and thus touching on the issue of

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jurisdiction which must be first determined one way or the other before if need be considering the merit of the substantive appeal, let me at this stage proceed to consider the preliminary objection of the 1st ? 3rd Respondents as required of me, firstly in law, so to do.

RULING ON PRELIMINARY OBJECTION
By a Notice of Preliminary Objection filed on 29/2/2016, the 1st ? 3rd Respondents are challenging the competence of the Appellants? suit as it was filed before the Court below on the ground that the Appellants? suit as initiated against the 2nd and 3rd Respondents was statute barred by virtue of the operation of Section 2 of the Public Officers (Protection) Act 2004.

On the preliminary objection, learned senior counsel to the 1st ? 3rd Respondents had submitted that the Court below avoided the issue of Public Officers (Protection) Act 2004 raised by the 1st ? 3rd Respondents and thus failed to pronounce on its jurisdiction by refusing to allow the preliminary objection of the 1st ? 3rd Respondents to the effect that the Appellants? suit was statute barred and urged the Court to hold that by

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Section 2(a) of the Public Officers (Protection) Act 2004, the Appellants? suit was statute barred having been commenced after 3 months of the appointment of the 1st Respondent by the 4th Respondent and to dismiss the suit for being incompetent. Counsel relied on Yusuf V. Egbe (1987) 2 NWLR (Pt. 65) 341; Egbe V. Adefarasin (1985) 1 NWLR (Pt. 3) 549; Ajayi V. Ababiyi (2012) All FWLR (Pt. 634) 1; Nwora V. Nwabueze of Oedu (2013) 221 LRCN (Pt. 1) 32 @ p. 41; Madukolu & Ors V. Nkemdilim & Ors (1982) ACNLR 341; Sken Consult V. Ukey (1981) 1 SC 6; Tkowa Motors (Nig) Ltd V. U.B.A. Plc (2008) 2 NWLR (Pt. 1011) 347 @ p. 367 (2008) 156 LRCN; Afolabi V. Adekunle & Ors (1983) 14 NSCC 389 @ p. 405; NNPC & Anor V. Sele & Ors (2013) 219 LRCN (Pt. 1) 1 @ p. 6; Timi Timi V. Amabebe 14 WACA 347.

?In the Appellants? reply brief, learned senior counsel to the Appellants had submitted that the preliminary objection is not only foreign and incompetent but also an abuse of judicial process in that a preliminary objection is not an appeal against the judgment of the Court below but a challenge to an appeal based on law and contended that in law the

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purport of a preliminary objection is not to attack the judgment of the Court below but is targeted at attacking an appeal before the appellate Court from being heard on the merit based on the fact that the process initiating the appeal is fundamentally defective and urged the Court to discountenance the preliminary objection. Counsel referred to Order 10 Rule 1 of the Court of Appeal Rules 2011 and relied on Akwasim V. Ojichie (2004) 10 NWLR (Pt. 882) 488; Ahaji Yisau V. WEMA Bank Ltd (2001) 11 WRN 91; Ojo & Ors V. A. G. Oyo State &N Ors (2008) 164 LRCN 130 @ pp. 144 ? 145.

My lords, the issue of jurisdiction has long been settled in several decided cases, is a fundamental one and thus can be raised at any stage of the proceedings, even on appeal for the first time. However, in the instant appeal it has been raised before the Court below and whether rightly or wrongly either discountenanced or avoided or dismissed. Indeed, the law is that once the issue is that of jurisdiction it can be raised for the first time on appeal even without the leave of Court since jurisdiction is the life blood of every cause or action and thus where the

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requisite jurisdiction is found to be lacking, that is indeed the end of the matter. See Madukolu V. Nkemdilim (1962) 2 All NLR 581. See also P. E. Ltd.  v.  Leventis Trading Co. Ltd. (2002) 5 NWLR (Pt. 244) 693; Petro Jessica Ent. Ltd V. Leventis Trading Co. Ltd. (1992) 5 NWLR (Pt. 244) 132; Okereke V. Yar?Adua (2008) All FWLR (Pt. 430) 25; Essien V. Esssien (2010) All FWLR (Pt. 523) 1992.
In AG. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552, the Supreme Court per Kayode Eso JSC., had put it so poetically thus:
?Without jurisdiction, the labourers that is the litigant and counsel on the one hand and the Court on the hand labour in vain?

At the trial, the 1st ? 3rd Respondents had challenged the competence of the Appellants? suit on the ground that it was statute barred having been filed outside the three months period as prescribed by Section 2 of the Public Officers (Protection) Act 2004 in that the 2nd and 4th Respondents were public officers and any suit challenging their act carried out in their official capacity must be filed within three months. In a ruling delivered on 11/9/2012, the Court below held inter

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alia thus:
?This Court is of the view that by virtue of Order 23 Rule 1 of this Court, a party shall plead specifically any matter for example performance, release and relevant statute of limitation, fraud or any fact showing illegality, which if not specifically pleaded might take the opposite party by surprise. In the interest of justice, I shall call on the Respondent and pleading the defence in their statement of defence as a stepping stone for ventilation of the preliminary objection. I see it as premature and unsupportable when the plea is yet to be raised in the statement of defence. ………….Therefore, the preliminary objection raised by the defence is hereby discountenanced. The submission of learned counsel to the Plaintiffs is upheld. Pleadings ordered to be filed? See page 198 of the record.

There was no appeal against this decision of the Court below by the 1st ? 3rd Respondents as 1st ? 3rd Defendants and the case had thus proceeded to the filing and exchange of pleadings and hearing before the Court below. The 1st ? 3rd Respondents, in line with the order of the Court below, duly pleaded the issue of

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the Public Officers (Protection) Act 2004 and raised it in their final written address. In its judgment, the Court below held inter alia thus:
?In his submission counsel to the 1st ? 3rd Defendants formulated two issues for determination; 1: whether this suit is not statute barred and ought (sic) by statute of limitation law? ……….. This Court is going to deal with issue No. 2, Issue No. 1 being ruled over in the previous sitting of this Court…………………….This Court therefore holds that the issue of statute of limitation was one dealt with, it cannot arise again except on appeal? See pages 259 ? 260 and 263 of the record.

Yet again there is neither any appeal nor cross appeal against the above decision of the Court below by the 1st ? 3rd Respondents, which decision seems to be the sole basis for the preliminary objection filed in this appeal by the 1st ? 3rd Respondents.

?By Order 10 Rule 1 of the Court of Appeal Rules 2011, a Respondent who intends to challenge the competence of an appeal shall file a preliminary objection to that effect within three clear days to the date of hearing of the

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appeal. The primary objective of a preliminary objection is to attack the competence of an appeal on the basis of it being incompetent. A preliminary objection properly so called is therefore an attack not on the suit as was filed before the Court below but against the appeal showing why it should not be entertained on the merit by the Court as a result of the incompetence alleged. See Alhaja Sanmi V. Alhaji Olateju & Ors (2013) LPELR 21377 (CA). See also Okereke & Anor. V. Nze Adiele (2014) LPELR 24103 (CA).
The intention primarily to attack the competence of the appeal must clearly form the basis of the preliminary objection and not as in the instant preliminary objection challenging directly the competence of the Appellants? suit over which the Court below had made findings twice and against which findings there are neither any appeal nor cross appeal and thus binding on all the parties.

?At any rate, it is well settled law that a decision of the Court not appealed against remains valid and subsisting and thus binding on the parties. It cannot merely be wished away by the party against whom it was given. To set it aside he must

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appeal or cross appeal against it. In the absence of any ground of appeal touching on and challenging the decisions of the Court below refusing the prayer of the 1st ? 3rd Respondents to strike out the Appellants? suit for being statute barred, the 1st ? 3rd Respondents cannot raise same in this appeal even under the guise of a preliminary objection as they are bound by the decisions of the Court below against them on this issue. See the following plethora of cases on this issue; SPDC Nig. Ltd. V. X.M. Federal Ltd. & Anor. (2006) 16 NWLR (Pt. 1004) 189; Iyoho V. Effiong & 2 Ors. (2007) 11 NWLR (Pt. 1044) 31 @ p. 55; Hon Friday & Ors. V. Governor of Ondo State & Anor (2012) LPELR 7886 (CA); APGA V. Sen. Chris Anyanwu & Ors (2014) LPELR 22182 (CA); Ogunyade V. Osunkeye (2007) All FWLR (Pt. 389) 1175 @ pp. 1206 ? 1207; Onibodu & Ors V. Akibu & Ors (1982) 13 NSCC 199; Anyaduba & Anor V. N.R.T.C. Ltd (1992) 5 NWLR (Pt. 243) 535 @ p. 553; Unity Bnak Nig. Plc V. Bouari (2008) 7 NWLR (Pt. 1086) 372 @ p. 400; Oputa Horsfall V. Chukwunwike Amaizu & Ors (2013) LPELR 22874 (CA0; LSPC V. Purification Technique Ltd

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(2012) 52 NSCQR 274 @ P. 309; Williams V. Sanusi (1961) 11 All NLR 334; Nwokedi V. Ekwenugo Okugo (2002) 16 NWLR (Pt. 794) 441 @ p. 449; Onafowokan V. Wema Bank Plc (2011) 46 NSCQR 181.

I thought I should also at this stage consider albeit briefly the challenge to the competence of the 4th ? 5th Respondents? brief by the learned senior counsel to the Appellant. It is true that in law an issue for determination not distilled from a competent ground of appeal or not arising from any of the grounds of appeal or distilled from an incompetent ground of appeal is utterly incompetent and thus liable to be struck out or discountenanced. See Roba Investment Ltd. V. Arewa Metal Container Ltd. (2010) LPELR 4990 (CA). See also Peter V. Okoye (2002) FWLR (Pt. 110) 1864; Lambert V. Nigerian Navy (2006) 7 NWLR (Pt. 950) 54; Oniah V. Onyia (1989) i NWLR (Pt. 99) 514; Osafile V. Odi (1994) 2 SCNJ 1; Borishade V. NBA Ltd. (2007) i NWLR (Pt. 1051) 217.

?On the other hand where the issue raised is that an issue for determination was not tied to any of the valid grounds of appeal, it gives rise to different considerations from those where an issue for

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determination does not arise from any valid ground of appeal or is distilled from an incompetent ground of appeal. In the latter case, it renders the issue for determination incompetent but not so in the former case, in which the issue if it arises from the grounds of appeal, though not so tied may still be considered in the interest of doing substantial justice to the parties. In the instant appeal, the objection is within the former category challenging the failure to tie the sole issue in the 4th -5th Respondents? brief to any of the Appellants? ground of appeal.
?At the hearing of this appeal when this issue was raised one would have thought that the learned Director of Civil Litigation for the 4th ? 5th Respondents would have simply applied orally for leave to tie the sole issue as distilled by him to all or any of the grounds of appeal but he regrettably did not do so. Be that as it may, it is my view that the issue of failure to tie the issue for determination to any of the grounds of appeal, though desirable, is not substantial to warrant the striking out of the 4th ? 5th Respondents? brief. It leans more on

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technicality than on substantial justice, which is the present trend in our Courts. The objection of the Appellants? counsel to the competence of the 4th ? 5th Respondents? brief being merely technical and intended to defeat the substantial justice of the case does not and cannot find any favour with me in my consideration of this appeal. See Alim Akanbi Dada V. Chief Jonathan Dosunmu (2006) 50 WRN 1.
A Court of law, it must be remembered always, does not concern itself so much with trifles when there are weightier matters of substantial justice before it to decide between the parties. See also Nneji V. Chukwu (1998) 1 NWLR (Pt. 81) 84; Jeric Nigeria Ltd. V. Union Bank of Nig. Plc (2007) 5 NWLR (Pt. 691) 477; Adegbuyi V. APC & Ors (2013) LPELR 22799 (CA0; Nofia Surakatu V. N.H.D.S Ltd (1981) 4 SC 26; Ojora V. Odunsi (1964) NMLR 12; Onyeama Oke V. Amos Eke & Ors (1982) 12 SC 218.
In the instant appeal, I do not see any miscarriage of justice occasioned on the Appellants by the failure of the 4th ? 5th Respondents? counsel to tie his sole issue to any of the grounds of appeal as would warrant this Court

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discountenancing the said 4th ? 5th Respondents? brief in this judgment. I would at all times and in all cases cast my lot or my vote, when the chips are down, with the doing of substantial justice than allowing mere technicality riding roughshod over and above substantial justice to the parties. I therefore, discountenance the objection to the competence of the 4th ? 5th Respondents? brief as raised by the Appellants? counsel and hold that it is competent before the Court in this appeal. See Alim Akanbi Dada V. Chief Jonathan Dosunmu (supra) @ p. 1, where the Supreme Court had emphatically pronounced thus:
?Though it is very necessary and desirable for the learned counsel for the Appellant to always relate or tie the issues formulated for determination in the Appellant?s brief to the grounds of appeal, from which the said issues are distilled, failure to do so may not necessarily result in the issues being struck out for being incompetent, particularly where in the opinion of the Court the issues can validly be distilled from the grounds of appeal and in such a situation the Court can on its own take a close look

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at the grounds of appeal and the issues formulated and in order to do substantial justice between the parties, which is the preoccupation of the Court, consider the said issues in its judgment.?

On the whole therefore, I hold that the Notice of Preliminary Objection is not only totally misconceived but also completely lacking in merit and consequently, it is hereby overruled and dismissed in its entirety. I shall therefore, proceed to consider and determine the substantive appeal anon.

JUDGMENT
In the Appellants? brief, P. A. Aki Esq., learned senior counsel to the Appellant had distilled four issues for determination from the five grounds of appeal, namely:
1. Whether the Gombe State High Court was right in holding that the Gombe State Creation of Emirate, District, Villages ward and appointment and deposition of Emirs and Chiefs (Amendment) Law 2004 has abolished the custom and traditions of Tal people in appointing the Mai Tal (District Head of Tal)?
2. Whether the Lower Court was right in the way it applied the decision in the case of Akuneziri V. Okenwa & Ors (2000) 4 NSCQR 278 when the decision was irrelevant

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to the facts and the law in the present case thereby leading to miscarriage of justice against the Appellants?
3. Whether the Gombe State High Court was right to hold that the appointment of 1st Respondent as the District Head of Tal was made in full compliance with the provisions of the Gombe State Creation of Emirate, District, Villages, ward and appointment and deposition of Emirs and Chiefs (Amendment) Law 2004 to warrant such appointment to be confirmed by this Court?
4. Whether the judgment of the Gombe State High Court which relied heavily on the testimonies of DW1 ? DW4 and the Exhibits tendered is not a decision against the weight of evidence? Settled from grounds four and five.

?On his part, in the 1st ? 3rd Respondents? brief, Chief Caleb Ubale had adopted the four issues for determination as distilled by the learned senior counsel for the Appellants. In the 4th ? 5th Respondents? brief, Musa Saidu Esq., had distilled a lone issue for determination, namely:
?Whether from the available and facts and evidence led by both parties before the trial Court, the appointment of the 1st Respondent by

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the 4th Respondent as the 2nd District Head of Tal has violated the provisions of the Gombe State Creation of Emirates, District, Villages, wards and Appointment and deposition of Emirs and Chiefs (Amendment) Law 2004 to warrant such appointment being set aside by this Court.?

I have taken time to peruse the record of appeal. I have also taken time to calmly review the submissions of counsel in their respective briefs and the judgment of the Court below as touching on the issues as joined by the parties in their pleadings. It does appear to me that the four issues for determination as distilled from the five grounds of appeal as contained in the amended Notice of Appeal by the Appellants, and as adopted by the 1st ? 3rd Respondents? counsel, are the apt issues arising for the due determination of this appeal and they are hereby adopted as the four issues for determination in this appeal. I shall consider issues one and three together to resolve them in one fell swoop since they are clearly interwoven.

ISSUES ONE AND THREE TAKEN TOGETHER.
1. Whether the Gombe State High Court was right in holding that the Gombe State Creation of

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Emirate, District, Villages ward and appointment and deposition of Emirs and Chiefs (Amendment) Law 2004 has abolished the custom and traditions of Tal people in appointing the Mai Tal (District Head of Tal)?
3. Whether the Gombe State High Court was right to hold that the appointment of 1st Respondent as the District Head of Tal was made in full compliance with the provisions of the Gombe State Creation of Emirate, District, Villages, ward and appointment and deposition of Emirs and Chiefs (Amendment) Law 2004 to warrant such appointment to be confirmed by this Court?

On issue one learned senior counsel to the Appellants had submitted that customary law is the organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It therefore mirrors the culture and traditions of the people in a given area and contended that is an elementary principle of law that he who asserts must prove his assertion. Counsel referred to Sections 16 and 131 of the Evidence Act and relied on Sokwo V. Kpongbo & Ors (2008) 159 LRCN 1 @ p. 22; Ogolo V. Ogolo (2004) 115 LRCN 3099 @ p. 3109; Olobobund V. Lawal (2008) 161 LRCN 76 @ p. 97<br< p=””

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Learned senior counsel to the 1st ? 3rd Respondents had submitted that from the provisions of the enabling law, The Emirs and Chiefs (Amendment) Law 2004, it fully recognises the custom, tradition, culture and nature law of the people especially in the making of appointments of Traditional Rulers and contended that Section 9(1) of the law deals with the appointment of the District Heads, as is the subject matter of this appeal. Counsel relied on Military Governor Lagos State V. Adeyiga (2012) 205 LRCN 1 @ p. 8

On his sole issue, learned senior counsel to the 4th – 5th Respondents had submitted that the burden of proof rest squarely on he who asserts and it is not exceptional to this appeal and contended that where a statute mentioned specific things those things not mentioned are not intended to be included and urged the Court to hold that the Court below was right in its interpretation of the extant law on appointment of Emirs and Chiefs, including the District Head of Tal, Mai Tal under the laws of Gombe State. Counsel referred to Section 131 (1) (2) of the Evidence Act 2001; Section 30 of the Interpretation Act (Cap 74) Laws of Bauchi State;

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Section 11(1) of the Interpretation Act LFN 2004 and relied on Anube V. Odili (2004) 8 NWLR (Pt. 358) 494; Berliet Nig Ltd V. Kachalla (1995) 9 NWLR (Pt. 420) 478; Cappa ?D? Alberto Ltd. V. Akintola (2003) 4 SC (Pt. 11) 2 @ p. 9; Aromolaran V. Agoro (2013) 239 LRCN 79 @ p. 104; Essien V. Etukun (2009) All FWLR (Pt. 490) P. 1889; Augustus Kimden & Ors V. The Military Governor of Gongola State & 7 Ors (1988) 5 SC 28 @ p. 47.

On issue three, learned senior counsel to the Appellants had submitted that the law in issue was badly draped but that notwithstanding it is the duty of the Court not to rewrite the law but to try and make a meaning out of it and in so doing the Court has to read the law as it is but not what the parties or their witnesses thought it to be. Counsel relied on Araka V. Egbue (2003) 111 LRCN 1844 @ pp. 1862 ? 1863; Adebayo & Ors V. PDP & Ors (2013) 221 LRCN (Pt. 1) 69 @ p. 156; Abioye V. Yakubu (1991) 3 LRCN 1037 @ p. 1121.

Learned senior counsel to the 1st ? 3rd Respondents had submitted that issue three is the same as issue one and is merely an attempt to rigmarole the Court into confusion and

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urged the Court to refuse the temptation, but he agrees with the Appellants? counsel submissions on the correct position of the law as decided in Aromolaran V. Agro (2015) 239 LRCN 79 @ p. 104; Araka V. Egbue (2003) 111 LRCN 1844 @ pp. 1862 ? 1863; Adebayo & Ors V. PDP & Ors (2013) 221 LRCN (Pt. 1) 69 @ p. 156, but maintained that it does not in any way adversely affect the correct decision of the Court below as it was not applicable to the instant case.

In the light of the pleadings and evidence of the parties and the judgment of the Court below, could it be said that the Court below was wrong when it held that Ascendancy to the District Head of Tal is by appointment as averred and contended by the Respondents and not by election as averred and contended by the Appellants?

By the Statement of Claim, it was averred by paragraph 4 that the 4th Defendant is the Executive Governor of Gombe State who has the power to appoint or recognise any Emir, Chief, District Head or Ward Head while the 5th Defendant is the administrative authority responsible for paying the salaries of District Heads, Village Heads and Ward Heads under

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its control. It was further averred that by Custom and tradition of Tal people in Tal District all their rulers in the District, whether at Ward, Village or District level, are elected and the election is by ruling families in Tal District and the candidate with the highest number of people becomes the elected ruler. The two ruling families in Tal were stated to be Bekeri Termana and Bekeri Kuthkuthe. By paragraphs 8, 9, 10 and 11 it was averred that under the custom and tradition of Tal people when there is a vacancy in the Mai Tal stool a list of candidates is presented to the Mai Tangale for a date to be fixed for the election of the Tal ruler and on the date of election all taxable adults line up behind their choice of candidates and the one with the greater number on people linning up behind him becomes the elected ruler and the Mai Tangale and the Tangele Traditional Council present the elected ruler to the Governor for recognition and oath of office, without which he ceases to hold office.

?By paragraph 12, it was averred that both the Appellants and the 1st Respondent are from the two ruling families in Tal, while by paragraphs 13, 14, 15, 16, 17,

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18, 19, 20 and 21, the 1st Defendant?s father, Shuaibu Anampara was in the early 1970?s elected the village head of Tal in line with the custom and tradition of Tal people and ruled until he died in 2011. The two ruling families then presented five candidates to the 2nd and 3rd Respondents for election under the custom and tradition but the election was not conducted and the 1st Respondent was unilaterally hand picked as the District Head of Tal by the 2nd Respondent contrary to the custom and tradition of the Tal people amidst petitions and complaints against the said imposition. Finally, by paragraphs 22 and 23, the position of District Head, Mai Tal is neither hereditary nor by appointment but by election under the Tal custom and tradition and the Appellants are qualified and interested candidates still waiting for the required election to produce the next District Head for Tal people. See pages 3 ? 7 of the record of appeal.

?On the other hand, by the Amended statement of defence, paragraphs 1, 2, 3, 4, 12 and 14 of the statement of claim were admitted, while paragraphs 15, 16, 17, 18, 19, 20, 21 and 22 of the statement of claim were

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denied. By paragraph 3, it was averred that the Gombe State Creation of Emirates, Districts, Villages, Wards and Appointment and Deposition of Emirs and Chiefs (Amendment) Law 2004 is the extant law governing the creation and appointments of District Heads in Gombe including the District Head of Tal since 2001. By paragraph 5, it was stated that the Tal custom and tradition of election of rulers was in respect of their Village Heads as it existed before 2001 and that by the creation of Districts, the Heads were appointed by the Government upon application to the 2nd Respondent, the Mai Tangale and the 3rd Respondent, the Tangale Traditional Council.

By paragraphs 6 and 7, it was averred that the 2nd Appellant himself was appointed as the District Head of Ayaba and later as Village Head of Pandinkude on 30/5/2005 by the Government of Gombe State in line with the Emirs and Chiefs (Amendment) Law 2004 without any election, while the 1st Respondent was appointed the District Head of Tal on 26/5/2011 by the Government of Gombe State under the said Emirs and Chiefs (Amendment) Law 2004. By paragraph 19, 20 and 21 the 1st Respondent?s late father was

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never elected as the District Head of Tal but as Village Head of Tal in the 1970?s and was in 2001 elevated by the Government of Gombe State to District Head of Tal upon the creation of Tal District under the Emirs and Chiefs Law subsequently amended in 2004 and the 2nd Appellant himself was also appointed District Head of Ayaba in 2001 by the Government of Gombe State without any election and was later appointed as Village Head of Pandinkude still without any election. By paragraph 23, it was averred that all the village Heads in Tal District, namely Village Head of Bekeri, Village Head of Pandinkude and Village Head of Ayaba were each and all appointed by the Government of Gombe State without any elections. See Pages 98 ? 101 of the record.

On the state of the pleadings, it would appear that the crucial questions of facts that came up for resolution before the Court below were as follows;
a. Whether the procedure for ascendancy to the Village Head of Tal and District Head of Tal is by election or appointment?
i. What is the procedure for ascendancy to the Village Head of Tal?
ii. What is the procedure for ascendancy to the

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District Head of Tal?
b. Who as between the Appellants as Plaintiffs and the 1st ? 3rd Respondents as 2st ? 3rd Defendants proved their assertions in their pleadings by cogent evidence?

?To answer these crucial questions, the starting point is the findings and views of the Court below, when it held inter alia thus;
?The function of the legislature is to make laws for good governance of each State of the Federation. The Supreme Court held in Akuneziri V. Okenwa & Ors (2000) Vol. 4 NSCQR 278 @ 282, ?where the words of a document in an enactment are clear and not ambiguous they should be given effect to where there is no conflict in one part of an enactment and another, and the provisions of the part which is relied on are plain and unambiguous those provisions should be applied without the need to call in (sic) and other parts of the enactment?. According to the above provision of District head is appointed not elected. The Plaintiff agreed that they all applied for the post of District head of Tal together with the 1st Defendant. ?.. PW4 Haruna Wakili who is a beneficiary of the laws of

29

appointment of Chiefs is as at today the village head of Pandinkude, he did not refused or asked the State Governor or any Association to conduct an election to the stool of village headship of Pandinkude. See the appointment letter Exhibit D1 ? As to whether the purported appointment of the 1st Defendant as District head was made in accordance with the creation of Emirates, District, Village ward and Appointment and Deposition of Emirs and Chiefs (Amendment) law 2004? Going through Sections 2, 8 ad 9 of this above again in my view the answer to this question is in the affirmative. The evidence of DW1 ? DWIV and the Exhibits are not challenged or contradicted. I therefore, give judgment to the Defendant in this case as laws cannot give way to custom and tradition. Plaintiffs case is hereby dismissed having not gone further to prove fraud as they alleged. The Provisions of Sections 8 and 9 of the Creation of Emirates, District, Villages, Wards and Appointment and Deposition of Emirs and Chiefs (Amendment) law 2004 are fully complied with. Therefore, the submissions of the learned counsel to the Plaintiffs hereby

30

discountenanced.? See pages 259 ? 264 of the record.

On the face of the specific averments of the 1st ? 3rd Respondents as touching on the creation of District of Tal and splitting same into Tal and Ayaba Districts with appointment of the father of the 1st Respondent and the 2nd Appellant as respective District Heads of Tal and Ayaba in 2001 by the Gombe State Government without any elections, did the Appellant file any Reply to statement of Defence? It would appear they did not do so. Again with the averments that the 1st Respondent was appointed by the 4th Respondent and not by the 2nd and 3rd Respondents as claimed by the Appellants, did the Appellants file any reply to the statement of defence or amend their pleadings to reflect this fact surrounding the appointment of the 1st Respondent as in Exhibit K before the Court below? They also never did so but went on with their claim that the 1st Respondent was appointed by the 2nd and 3rd Respondents contrary to the very appointment letter as in Exhibit K before the Court below.

?On the state of the pleadings of the parties, the case of the Appellants was very straightforward and it is

31

simply that ascendancy to the District Head of Tal has from time immemorial under the custom and tradition of Tal people been by election supervised by the 2nd Respondent, Mai Tangale and never by appointment or inheritance. It was never the case of the Appellants that ascendancy to the District Head of Tal was by appointment under any law, including the Emirs and Chiefs (Amendment) Law 2004 or that the appointment of the 1st Respondent was not in line with the provisions of the said Emirs and Chiefs (Amendment) Law 2004. These were rather issues raised in the pleadings of the 1st ? 3rd Respondents to the effect that upon the creation of Tal District in 2001 and splitting same into two Districts of Tal and Ayaba by the Government of Gombe State, it also appointed the very first incumbents on those stools being the father of the 1st Respondent and the 2nd Appellant without any election and thus became the only mode of appointment to District Heads as distinct from Village Heads who by custom and tradition were prior to 2001 elected by the people.

In the light of the pleadings of the parties and the evidence led thereon by them and having reviewed

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same in the face of the findings of the Court below, I hold that the Court below, though in very terse words, arrived correctly at the proper finding that from the year 2001 ascendancy to the newly created District of Tal was by appointment by the 4th Respondent, the Government of Gombe State under the Emirs and Chiefs Law, which was subsequently amended in 2004 and not by election as it was for Village Head of Tal prior to 2001.

It was clear on the evidence led that not only the evidence of the 1st ? 3rd Respondents were more probable and consistent with their pleadings, their evidence were largely supported by the evidence of the Appellants who admitted that the 2nd Appellant was a beneficiary of the creation of Tal District as split into Tal and Ayaba Districts in 2001 of which he was appointed by the Government of Gombe State as the District Head of Ayaba and was not elected by any person from Tal and without any complaint or challenge to the act of the Government in so appointing him.

As regards the father of the 1st Respondent both parties are ad idem that in the 1970?s his election was as Village Head of Tal and that it was

33

only in 2001 that Tal District was created by the Government of Gombe State pursuant to the Emirs and Chiefs Law and he was appointed and elevated to the position of District Head of Tal without any election. The District Head of Tal is, therefore, in my finding as rightly found by the Court below, being not a product of the custom and tradition of the Tal people but purely a creation for the first time of the Government of Gombe State pursuant to the Emirs and Chiefs Law, was by appointment by the Government of Gombe State and not by election under the custom and tradition of Tal people.

This position was further made clearer when by the evidence from the Respondents and as admitted by the Appellants that in 2005, the 2nd Appellant who had earlier in 2001 been appointed as District Head of Ayaba was pursuant to the Emirs and Chiefs (Amendment) Law 2004 demoted from being the District Head of Ayaba and appointed the Village Head of Pandinkude by the Government of Gombe State still without any election and he accepted it and has been in that position till date without any complaint or challenge to his appointment by any person from Tal.

?Having duly

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considered the entirety of the pleadings of the parties and the evidence led thereon by them before the Court below as in the printed record, I have no doubt in my mind and I so hold that the procedure for ascendancy to the District Head of Tal is as follows, namely;
a. From 2001 following the creation of the District of Tal by the Government of Gombe State pursuant to the Emirs and Chiefs Law, whenever a vacancy occurs in the stool of District Head of Tal, interested candidates from the two ruling families, in the absence of a consensus candidate, applies to the Mai Tangale for consideration for appointment as the District Head of Tal.
b. The Mai Tangale presents the names of the candidates, if there still be no consensus amongst the candidates, to the Governor of Gombe State for his consideration and appointment of one of the applicants/candidates as the District Head of Tal.
c. Upon the Governor so considering, one of the applicants/candidates is appointed as the District Head of Tal by the Governor and thus becomes the Mai Tal.

?It is very pertinent to point out at once that in the procedure for the ascendancy as Headship from the 2001

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to the newly created District of Tal was exclusively by appointment by the Government of Gombe State which created the said District by law and not by election by the people as hitherto existed for the lower grade of Village Head of Tal. I do not therefore, see any where the Court below pronounced, as was being erroneously argued by the Appellants? counsel and made an entire issue in this appeal, that the Emirs and Chiefs (Amendment) Law 2004 had abolished or abrogated the custom of Tal people.

The true position from the pleadings and proved evidence of the Respondents, which the Court below believed and quite rightly too in my view, is that the stool of District Head of Tal District is not a creation of the custom and tradition of the Tal people but a creation of law promulgated by the Legislature of Gombe State and appointments made to the said stool by the Government of Gombe State, which had in the first place created it. This finding by the Court below is correct and unimpeachable and must be allowed to stand.

?My lords, since it is clear that no issue was joined on whether the appointment of the 1st Respondent complied fully or not with

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the provisions of the Emirs and Chiefs (Amendment) Law 2004, that not being the case of the Appellants, the provisions and interpretation of Sections 2, 6, 8, 9 and even 12 of the Gombe State Creation of Emirates, Districts, Villages, Wards and Appointment and Deposition of Emirs and Chiefs (Amendment) Law, 2004, was in reality not even part of the crux of the case of the Appellants as their case was simply that ascendancy to the stool of District Head of Tal, Mai Tal was by election, QED; nothing more, nothing else and nothing less! I cannot, therefore but consider all the volumes of submissions, very brilliant indeed, of the Appellants? counsel on whether the appointment of the 1st Respondent was in full compliance with the Emirs and Chiefs (Amendment) Law 2004 to be valid, as going to no issue at all on the issue as joined by the parties, this is more particularly so in the absence of any reply to the Amended Statement of defence of the 1st ? 3rd Respondents by the Appellants.

In law, no matter how brilliant or breathtaking submissions of counsel may be, and I admit and confess that the Appellants? counsel submissions on this issue

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was so alluring, brilliant and tempting, once it is not based on the issues joined between the parties and the evidence led thereon, it is irrelevant, inconsequential and goes to no issue and ought to be discountenanced as it cannot supply facts not pleaded or take the place of evidence not led. The parties and their counsel, as well as the Court, if I may reiterate, are bound by the pleadings and issues joined between the parties and none can go outside the pleadings and evidence to contend what was not pleaded and on which no issue was joined between the parties. See Union Bank of Nigeria Plc. & Anor V. Ayodare & Sons Nig. Ltd (2007) 13 NWLR (Pt. 1052) 567. See also Ishola V. Ajiboye (1998) 1 NWLR (Pt. 532) 4; Chukujekwu V. Olalere (1992) 2 NWLR (Pt. 221) 86; Obasuyi V. Business Ventures Ltd. (2000) 5 NWLR (Pt. 658) 668 @ p. 690; Aro V. Aro (2000) 3 NWLR (Pt. 649) 443 @ p. 457; FBN Plc V. Akparabong Community Bank (2006) 1 NWLR (Pt. 962) 438.

Now, unless and until the Appellants had conceded that ascendancy to the stool of District Head of Tal is now by appointment by the Government, as distinct from election as they contended, they cannot

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raise the issue of non compliance with the Emirs and Chiefs (Amendment) Law 2004 as an issue in this appeal since that was not their case by their pleadings and therefore, cannot become their case merely on the submissions of their counsel.

On the strength of all that the Court below found as facts and decided, I am unable to see where it held that the Emirs and Chiefs Law had abolished the custom and tradition of Tal people or went wrong in its finding that the Emirs and Chiefs (Amendment) Law 2004 was fully complied with, though that was not even in issue on the issues as joined in the pleadings of the parties but was proved on the credible and cogent evidence as led by the Respondents through DW1, DW2, DW3 and DW4.

The Court below was perfectly right when it held on the copious evidence as led before it that the appointment of the 1st Respondent as the Mai Tal, District Head of Tal was by the Government of Gombe State vide Exhibit K in full compliance with the provisions of the extant law, which is the Gombe State Creation of Emirates, Districts, Village and Ward and Appointment and Deposition of Emirs and Chiefs (Amendment) Law 2004. The

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submission that Exhibit K is not a letter of appointment of the 1st Respondent by the Governor of Gombe State by the use of the words the Executive Governor of Gombe State ?has approved your appointment? is to say the least and with greatest respect to Appellants? counsel a little trifling and baffling too.

The contents of Exhibit K are very explicit and is simply and surely that the 1st Respondent has been appointed as the Mai Tal, District Head of Tal by the Governor of Gombe State as conveyed to the 1st Respondent by one Alhaji Mohammed ? Kabir Adamu, Permanent Secretary, Security, Political and Chieftancy Affairs Bureau for Secretary to the State Government; it was also explicitly stated therein that the appointment was pursuant to the powers conferred on the Governor of Gombe State by the said Emirs and Chiefs (Amendment) Law 2004. To place the sort of construction as submitted by the Appellants? counsel on the contents of Exhibit K would in my view be quite absurd and it is hereby discountenanced.

The Appellants? counsel, with respect, clearly misconceived the intendment of the provisions of Sections 6, 8 and

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9 of the Emirs and Chiefs (Amendment) Law 2004, which as quite aptly submitted by the 1st ? 3rd Respondents? counsel and quite rightly too, was not on trial as to its validity in this appeal, when he contended that it was not followed and this is because the District Head of Tal is a complete new creation under the said Emirs and Chiefs Law which vested the power of appointment on the Governor of Gombe State, it being not a prior existing stool before 2001. The other procedure for recognition, in my view, is clearly in respect of pre – existing stools whose incumbent are by the said Law required to be granted recognition by the Governor of Gombe State but not so with stool directly created by the said law and whose appointment of incumbents was directly vested on the Governor of Gombe State.

In all therefore, the provisions of the said Emirs and Chiefs (Amendment) Law 2004 were, as rightly found by the Court below, fully complied with by the 4th Respondent in the valid appointment of the 1st Respondent as the District Head of Tal, the Mai Tal on 26/5/2011 and it so stands. Curiously, the validity of the appointment of the 1st Respondent by the

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4th Respondent as being in full compliance or not with the extant Emirs and Chiefs (Amendment) Law 2004 was no where made part of the pleadings of the Appellants, who merely alleged by their pleadings that the 1st Respondent was appointed by the 2nd and 3rd Respondents contrary to the custom and tradition of election of the District Head of Tal by the people of Tal, before the Court below and thus cannot be raised from the air by the Appellants? counsel as he did, so regrettably and elevated to an issue for determination in this appeal unsupported by any pleadings of the Appellants.

In law therefore, even if evidence were elicited on it they should go to no issue being evidence on facts not pleaded. It was never the case of the Appellant that the 1st Respondent was appointed by the 4th Respondent, the Governor of Gombe State contrary to the provisions of the Emirs and Chiefs (Amendment) Law 2004 as was so vigorously canvassed in the Appellants? brief without any supporting pleadings to that effect. All such contentions by the Appellants were, in my view, dead on arrival, completely irrelevant to the pleaded case of the Appellants and hereby

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discountenanced in its entirety.

I therefore, have no difficulty resolving issues one and three against the Appellants in favour of the Respondents and firmly that the Court below was right when it held that ascendancy to the Headship of the District of Tal created by the Government in 2001 is by appointment by the Government of Gombe State and further that the appointment of the 1st Respondent by the 4th Respondent as the District Head of Tal was proper and in accordance with the provisions of the Emirs and Chiefs (Amendment) Law 2004.

My lords, issue two is purely an issue of law and I intend to consider it after considering issue four which deals more with the evaluation of the evidence led by the parties through their witnesses and I proceed to do so anon.
ISSUE FOUR
?Whether the judgment of the Gombe State High Court which relied heavily on the testimonies of DW 1 ? DW 4 and the Exhibits tendered is not a decision against the weight of evidence
On issue four, learned senior counsel to the Appellants had submitted that the Respondents having not been able to cite any of the Sections of the law that

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abolished or changed the existing custom of Tal people, the Court below as well as the parties cannot enact another custom merely by their pleadings and submissions and urged the Court to hold that the Court below was wrong to hold that the Appellants failed to prove their claims against the Respondents. Counsel relied on Olanrewa V. Oyesomi & Ors (2014) 236 LRCN 170 @ p. 203 Amaechi V. INEC & Ors 158 LRCN 1 @ p. 176; Ndayako V. Dantoro (2004) 118 LRCN 3972 @ p. 3995 Pee; Michale Romaine V. Christopher Romaine (1992) SCNJ 1.

Learned senior counsel to the 1st – 3rd Respondents had submitted that the appointment of the 1st Respondent may not be in accordance with Appellants? custom and tradition but it is not against the extant law, the Gombe State Creation of Emirates, Districts, Villages and Ward and Appointment and Deposition of Emirs and Chiefs (Amendment) Law 2004, which has not been abrogated and the Tal Community cannot therefore, insist on its way of doing things in the face of the clear provisions of the extant law and contended that the Court below had properly appraised the facts and the evidence of the witnesses before it, which

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evaluation of evidence has not faulted to warrant interference by this Court. Counsel relied on Igbanude Obodo & Ors V. Emmanuel Ogba & Ors (1987) 1 All NLR (Pt. 1) 157 @ p. 158.

I have given due consideration to the pleadings and evidence of the parties as led before the Court below as in the printed record. I have also painstakingly read through the judgment of the Court below in the light of the complaints of the Appellants and reviewed the submissions of counsel for the parties and it would appear that while the Appellants? counsel vehemently contends that this is a proper case for this Court to intervene to re?evaluate the evidence in the printed record and come to a different conclusion from that arrived at by the Court below, the Respondents? counsel vehemently contends respectively that the Court below having properly appraised and adequately evaluated the evidence in the printed record and came to correct conclusions, the need for re?evaluation of the evidence in the printed record does not arise. These diametrically opposed contentions raise in a very frontal way the very vexed issue of when can an appellate Court

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intervene to re?evaluate the evidence in the printed record in coming to its conclusion in an appeal before it?

The circumstances in which an appellate Court can intervene varies from case to case and would ultimately depend on the peculiar facts of each case and therefore, such circumstances cannot be laid down with any tinge of exhaustive finality by the Courts, though some useful guides have been proffered over the years by the Courts. An appellate Court will readily intervene to re-evaluate the evidence in the printed record if it is shown that the conclusions drawn by the Court below or a trial Court on the proved facts before it do not flow from such proved facts or runs contrary to such prove facts and was thus perverse. See Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ p. 19. See also Owor V. Christopher (2010) All FWLR (Pt. 511) 962 @ p. 992; Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1247 @ p. 1307; Mini Lodge Ltd. V. Ngei (2010) All FWLR (Pt. 506) 1806 @ pp. 1820 ? 1821.

I have looked at Ground five of the grounds of appeal as contained in the amended notice of appeal, from which the 4th issue was distilled and I have

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borne in mind that when in an appeal, an Appellant employs the phrase that the ?judgment is unreasonable, unwarranted and against the weight of evidence?, it postulates that there was no evidence which if accepted would support the findings of the trial Court or the inference which it had made. It could also mean that when the evidence adduced by the Appellant is balanced against that adduced by the Respondent on the imaginary scale of justice, the judgment given in favour of the Respondent would be against the weight which should have been given, having regard to the totality of the evidence before the Court. See Mogaji V. Odofin (1978) 4 SC 94; UBN Ltd. V. Borini Promo Co. Ltd. (1998) 4 NWLR (Pt. 547) 640; Anyaoke & Ors. V. Aidi & Ors (1986) 3 NWLR (Pt. 751) 1.

In the light of the above and other germane principles of law on the issue of when an appellate Court can intervene to re-evaluate the evidence in the printed record, having been duly averted to in my mind and considering the judgment of the Court below in the light of the salient findings of facts and the principles of law relied upon by the Court below, is this a proper case

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for this Court to intervene to re?evaluate the evidence of the parties as in the printed record of appeal? To answer this question as to whether this is a proper case for this Court to intervene to re- evaluate the evidence on the printed record, the starting point are the facts on which the parties by their pleadings are ad idem.

In determining therefore, on whom lies the burden of proving any fact in issue, it must constantly be borne in mind that no onus lies on a party whose allegation of fact is admitted by the other party. This is so because in law facts admitted need no further proof as admission is perhaps one of the strongest form of evidence available in any proceedings between parties in the Court. See FCE V. Anyanwu (1997) 4 NWLR (Pt. 501) 533. See also Lewis Peat (NRI) Ltd. V. Akhimien (1976) All NLR 460.

In law, it is now beyond argument that the parties, and if I may add the Court, are bound by the pleadings of the parties as it is also now well settled that pleadings not only define the issues in dispute between the parties, they also highlight matters on which there is agreement between them and any admitted fact or facts on

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which no issues were joined need not be proved by the other party. See Balogun V. Egba Onikolobo Community Banak (Nig) Ltd. (2007) 5 NWLR (Pt. 1028) 584. See also Hon. Zubairu & Anor. V. Lliyasu Mohammed & Ors. (2009) LPELR 5124 (CA); Oshiomole V. Airhiavebere (2013) 7 NWLR (Pt. 1353) 376; Adekoyi & Ors. V. Adesina & Ors. (2010) 12 SC (Pt. 1)1; Ojiogu V. Ojiogu (2010) 9 NWLR (Pt. 1198) 1; Akpan V. Bob & Ors. ( 2010) 17 NWLR (Pt. 1223) 421; Baloil Nig. Ltd. V. Navcon Nig Ltd. (2010) 16 NWLR (Pt. 1220) 619; Olabode V. Oyesina (1977) 2 SC 97; Solano V. Olusanya & Ors. (1975) 1 SC 55; Smurtif Ltd. V. M.V. Gongola Hope (2002) 22 WRN 30.

Having taken a calm look at the averments in the pleadings of the parties, the facts in dispute on which the parties duly joined issues are as follows; When did village headship of Tal came into being?; when did District head of Tal came into being?; whether the procedure for ascendancy to the Village Head of Tal and District Head of Tal are the same and thus; what is the procedure for ascendancy to the Village Head of Tal?; what is the procedure for ascendancy to the District Head of Tal? and who as

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between the Appellants as Plaintiffs and the 1st ? 3rd Respondents as 2nd ? 3rd Defendants proved their assertions in their pleadings by cogent evidence?

In resolving these questions on the pleadings and evidence as led by the parties in the printed record in the light of the findings of the Court below, I bear in mind that generally in civil proceedings the burden of proof, though said not to be static, is on the Plaintiff who usually asserts his rights and who may lose if no evidence was called, such that the burden of proof or evidential burden properly so called, shifts from one party to the other depending on who positively asserts what and on whom the burden of introducing evidence lies. See Sections 131, 132, 133 and 134 of the Evidence Act 2011. See also Odofin V. Mogaji (1978) 11 NSCC 275, Lawson V. Manuel (2006) 10 NWLR (Pt. 989) 569; Agboola V. UBA Plc. (2011) 11 NWLR (Pt. 1258) 375; Anambra State Govt. V. Gemex Int. Ltd. (2012) 1 NWLR (Pt. 1281) 333; Miller V. Minister of Pensions (1947) 2 All ER 372; Mil. Gov. of Lagos State V. Adeyiga (2012) 5 NWLR (Pt. 1293) 291; Fayemi V. Oni (2010) 17 NWLR (Pt. 966) 78; INEC V. Ifeanyi

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(2010) 1 NWLR (Pt. 1174) 98; C.C.C.T.C.S. Ltd. V. Ekpo (2008) 6 NWLR (Pt. 1083) 362; Andem V. Etim (2010) 14 NWLR (Pt. 1185) 489; Ojo V. Kamalu (2005) 18 NWLR (Pt. 958) 523; AG. Bayelsa State V. AG. Rivers State (2006) 18 NWLR (Pt. 1012) 596; Alao V. Kure (2000) FWLR (Pt. 6) 889.

I am also aware and I bear it in mind, as it is well settled law, that generally the assessment and evaluation of evidence and the ascription of probative value is the turf of trial Courts. However, where a trial Court fails in its duty of carrying out proper appraisal of the evidence led before and thus fails to make proper and adequate use of its vantage position of seeing the witnesses testify and had arrived at perverse or erroneous findings and conclusions on the established evidence before it, an Appellate Court if so called upon is under a duty, indeed an obligation, to interfere and intervene to reappraise the evidence on the printed record, which the trial Court had failed to do, to arrive at proper findings as dictated by the justice of the case, particularly where the credibility of witnesses is not involved. See Eyiboh V. Abia & Ors. (2012) 16 NWLR (Pt. 1325)

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51.

In civil cases issues are settled on the pleadings and not on the evidence and therefore facts pleaded but on which no evidence was produced are deemed abandoned and thus goes to no issue. This is so because pleadings no matter how comprehensively or elegantly drafted do not constitute evidence as they are mere notice of the case of one party to the other. See Chief Ibanga V. Chief Usanga & Ors. (1982) 5 SC 49. See also Farasco Nig Ltd. V. PZ Industries Plc. (2010) LPELR 4142; UBA Plc. V. Sani Abacha Foundation for Peace and Unity (2004) 3 NWLR (Pt. 861) 510; FBN Ltd. V. Moba Frams Ltd. (2005) 8 NWLR (Pt. 928) 92; Atanda V. Ajani & Ors. (1989) 1 NWLR (Pt. 111) 511, NIPC Ltd. V. Thompson Organisation (1969) NMLR 99.

?Honestly, this appeal, taking into consideration the issue as joined by the parties and the evidence as led by them including the very many instances of admission under cross examination of the case of the 1st ? 3rd Respondents by the Appellants? witnesses, is filled with so much sound and fury but in reality on the facts and evidence signifying absolutely nothing worth the energy dissipated on it. The Appellants

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simply failed to prove their case against the Respondents but the 1st ? 3rd Respondents did not lie on their oars and had rather proceeded to marshal out credible, cogent, consistent and largely admitted evidence to prove their defence to the claims of the Appellants. In the true sense of the word, this Appeal is akin to a storm in a tea cup, and it is a truism that no matter the level of boiling water in a tea cup it cannot amount to even a simple wave talkless of a storm.

Now, looking at the contents of Exhibit K admitted before the Court below without any objection and showing that the 1st Respondent was neither appointed by the 2nd Respondent nor the 3rd Respondent, as no such letter of appointment was neither produced nor tendered in evidence by the Appellants, but was appointed by the 4th Respondent, it does appear to me that the Appellants had by their averment in paragraph 4 of the statement of claim conceded the validity of the appointment of the 1st Respondent by the 4th Respondent, who by their pleadings has the right so to do.

?Curiously, on the face of Exhibit K, and without any amendment to the writ of summons and the relief No. 1

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as claimed in the statement of claim, the Appellants? principal relief No. 1 praying for the nullification of the appointment of the 1st Respondent as the Mai Tal because it was done by the 2nd and 3rd Respondents fell like a pack of cards as there is not an iota of evidence before the Court below to the effect that he was so appointed by them. Indeed when the PW5, Prince James Pass, the 3rd Appellant, who was the 3rd Plaintiff before the Court below, was taken up on this issue in his cross examination, this was what ensued;
Q; Look at paragraph 8 and 9 of your statement on oath?
A: Yes it was the 2nd Defendant who appointed the 1st Defendant as Mai Tal
Q: When did he appoint him?
A: On 12/6/2011
Q: You will be surprised that the 2nd Defendant did not appoint the 1st Defendant
A: He appointed him since he gave him the appointment letter
Q: Who wrote the appointment letter
A: I dont know because I didnt see it. See page 221 of the record.

The PW5, one of the co- aspirants to the exalted stool of District Head of Tal, Mai Tal, being so naive and rushing to Court over the contents of a letter he has not even

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seen or read? Incredible but yet these are the stuff the Appellant?s claims in the suit before the Court below was made of.

In law pleadings do not constitute evidence and unless otherwise admitted, a pleading not supported by evidence is equally deemed abandoned. See Yusuf V. Oyetunde (1998) 12 NWLR (Pt. 579) 483; Lawson V. Afani Continental CO. Ltd. (2002) 2 NWLR (Pt. 752) 585; Ezemba V. Ibeneme (2009) 14 NWLR (Pt. 798) 623; Olufemi V. Asho (2000) 2 NWLR (Pt. 643) 143; Omoboriowo V. Ajasin (1984) 1 SCNLR 108; Nsiegbe V. Mgbemena ( 2007) All FWLR (Pt. 372) 1769; George V. Dominion Flour Mills Ltd.(1963) NLR 74; Emegokwe V. Okadigbo (1973) 4 SC 113; Oyebade V. Ajayi (1993) 1 NWLR (Pt. 260) 313, Akere V. Adesanya (1993) 1 NWLR (Pt. 288) 484.

In The Registered Trustees of the Apostolic Church V. Mrs. Olowoleni (1990) SCNJ 69, His lordship, Nnaemeka-Agu, JSC, had succinctly stated thus:
?A party?s case is defined, circumscribed and limited by its pleadings. This is why pleading demands so much care and skill to draft. For where a plaintiff?s pleadings is defective or bereft of essential averments, it could constitute a

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definite guarantee for his failure, as he cannot lead evidence on any fact which he did not aver in his pleading, unless of course, the issue was raised in the opponent?s pleadings. Any evidence on a fact not pleaded goes to no issue and ought to be disregard.?

The Appellants as Plaintiffs called the following witnesses; PW1 was one Andiriya Madina aged 80 years. He testified in chief that presently the Mai Tai is known as District Head and that ascendancy is by election and not by appointment or inheritance. Other elected Mai Tal which he witnessed were; Mai Shonti, Mai Suleiman and Mai Shuaibu Anampara. Ascendancy is by members of the ruling house not by hereditary, the Bekeri Tarman and Bekeri Kuthkuthe ruling families pick candidates to contest for the Mai Tal under the supervision of the Mai Tangale and that on the death of the last incumbent in 2011 no elections as required by the custom of Tal people has been conducted to fill the vacant Mai Tal stool but the Mai Tangale on his own picked the 1st Respondent as Mai Tal from the list of candidate without holding the customary election to fill in the vacant Mai Tal stool. On cross

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examination, he admitted that he is of the same parent with 1st Appellant and cousin to the 2nd Appellant but he does not know with whom 2nd Appellant contested to became District Head of Ayaba when confronted thus:
Q: I Put it to you that he did not contest with anybody as he was appointed after the Government of the day created the District of Ayaba.
A: I don?t know that.
Q: 2nd Plaintiff is now village head.
A: Yes I know the village head of Pandikude.
Q: Do you know how he became village head of that place.
A: I don?t know.
Q: Do you know how many votes he get before becoming the village head of Pandikude.
A: I don?t know how many votes and also don?t know with whom he contested.
Q: Do you know who created the District of Ayaba
A: I don?t know.
Q: Is Ayaba District still in existence.
A: I don?t know who abolished it.
Q: That it was because of the abolishing of the Ayaba District that the 2nd Plaintiff now became the village head of Pandikude.
A: I don?t know. See Pages 14 ? 16, 201 ? 203 of Record.

PW2 was one Samaila

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Kwarau aged 81 years. He testified in chief that the Mai Tal is the District Head while there are other rulers at the village and ward level under the District head and that he knows the Tangale custom and tradition. Ascendency to Mai Tal is by election amongst candidates from the ruling families of Bekeri Termana and Kuthkuthe and the custom was applied to his knowledge in the elections of Mai Maina Shonti, Mai Suleiman Laluttu and Mai Shuaibu Anampara. The 1st Appellant was handpicked by the Mai Tangale and imposed on the people of Tal against their custom and tradition as ascendency is not by appointment or hereditary in Tal custom and tradition but by election. On cross examination, he does not know when the last Mai Tal ascended the Mai Tal stood as he was away in Kao where he returned to Tal in 1996. He admitted that a District head is higher than a village head. He was then confronted thus:
Q: It was taxable adults that elect your leaders.
A: It was the whole adults that elect our leader.
Q: Ayaba and Pandikude are same place.
A: No they are different places.
Q: Who made Haruna Wakili the village head of Ayaba.
A: People of

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his town.
Q: With whom did he contest.
A: I cannot say as I was not at home.
Q: Do you know how Tal became a District.
A: This is the work of politics.
Q: It is true that you don?t know that there are laws governing appointment of District head including that of Tal.
A; I don?t know. See pages 11 ? 13, 204 ? 208 of the record.

PW3 was one Molta Babadidi aged 68 years. He testified in chief that the custom and tradition of ascendency to the Mai Tal is by election if there is no consensus on a candidate from the Ruling families and the election is conducted on a date fixed for it amongst the candidates from the ruling families and the candidate with the greater number of people behind him is declared the winner and made the Mai Tal. He witnessed the election of the 1st Respondent?s father who contested with three other candidates; Andiriya Madina, Tafida Sambo and Bamaiya Kutto but that the 1st Respondent was not elected as the custom and tradition requires and is not the Mai Tal. On cross examination, he does not know when the 1st Respondent?s father was elected as the Mai Tal though he

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voted in that election he does not know how many votes he scored to win as he left when he heard that the 1st Respondent?s father whom he voted for too had won. See Pages 148 ? 149, 215 ? 216 of the record.

?PW4 was Haruna Wakili aged 65 years, he is the 2nd Appellant. He testified that he is the village head of Pandinkude under Tal District and that he is one of the contestants to the Mai Tal stool to which ascendency is by election and not by handpicking of a person or by inheritance. The election is usually conducted under the supervision of Mai Tangale and in which taxable adults queue behind their preferred candidates and whoever scores the highest votes is the winner and becomes the Mai Tal. In 2011, the Mai Tangale made a mistake to imposed the 1st Respondent on the Tal people contrary to their custom and tradition, which should be restored and election held to fill the vacant Mai Tal stool. On cross examination, he admitted that he has been the village head of Pandinkude for 12 years and he was confronted thus:
Q: With whom did you contest the stool of Pandinkude.
A: I did not contest with anybody.
Q: Why.
A:

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It was the Government that appointed me.
Q: Did you accept this appointment.
A: Yes.
Q: You were one time a District head during Hashidu era of where.
A: Yes I was that of Ayaba.
Q: Who made you District Head then.
A: Government of Gombe State.
Yet he insisted that he contested and scored 100 votes in an election conducted by one Alkali Joshua to become the District head after he had admitted that he was appointed by Government as District Head and did not contest with anybody. He was further confronted thus:
Q: How did you became village head from District head.
A: I was demoted by Government of Gombe State.
Q: And you accepted it.
A: Yes.
Q: I put it to you that it is the Government that controls the affairs of Chieftaincy Affairs.
A: Yes.
Q: You did not become a village head by or through custom and tradition.
A: Yes. It was the Government that appointed me District head and later demoted me to village head. See Pages 17 ? 18, 218 ? 210 of the record.

PW5 was Prince James Pass aged 47 years, the 3rd Appellant. He testified that he is a contestant to the Mai Tal

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Stool and that he knows the custom and tradition of Tal people of Tangale tribe, in which ascendency is by election of candidate from amongst candidates sent to Mai Tangale by the ruling families but in 2011 the Mai Tangale contrary to the custom single handedly picked the 1st Respondent as the Mai Tal, when ascendency is not by appointment or inheritance but by election as required by Tal custom and tradition which should be conducted to fill the vacant Mai Tal stool amongst the 6 candidates from the two ruling families. On cross examination, he insisted that it was the Mai Tangale that appointed the 1st Respondent as Mai Tal on 12/6/2011 and he was confronted thus:
Q: Who wrote the appointment letter.
A: I don?t know because I didn?t see it.

He maintained that it was the community that appointed Haruna Wakili, the PW4 as the District head of Ayaba and that he was now village head as recommended by the community. He denied that by Exhibit B he applied to be appointed as the Mai Tal but was merely asking for election to be held into the vacant Mai Tal stool. See pages 20 ? 22, 220 ? 222 of the record.

?PW6 was

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one Aliyu Y. Yusuf. He testified that he is from Tal and knows the custom and tradition of Tal people of Tangale tribe and is the Secretary of Tal Community Development Association (TCDA). The procedure for election of Mai Tal is that the ruling families present willing candidates to Mai Tangale requesting for a date for election and the election is by votes among the candidates and only taxable adults participate in the voting and whoever candidate scores the highest vote becomes the District head. The Mai Tangale has no power to choose, appoint or pick any of the names sent to him as Mai Tal as all he has to do is to ensure that a peaceful election is conducted under his supervision. The Tal Community Development Association wrote to the Mai Tangale for a date for election in 2011 upon the death of the last Mai Tal but the Mai Tangale refused to fix a date for the election and rather handpicked one of the candidates, the 1st Respondent as the District Head contrary to the custom and tradition of the Tal people and who also did not take any Oath. Ascendency to Mai Tal stool is not by inheritance but by election. On cross examination, he admitted that there is

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a law in Gombe State for the creation of Emirates, Districts, villages and wards and appointment and deposition as amended in 2004. See pages 23 ? 25, 222 – 224 of the record.

The Appellants as Plaintiffs also tendered the following documents in evidence as Exhibits;
Exhibit A : Application by the 2nd Appellant to the 2nd Respondent to contest for the position of Tal District head; Exhibit B: Application by the 3rd Appellant to the 2nd Respondent for appointment as District head of Tal dated 13/1/2011; Exhibit C: Letter by TCDC dated 2/5/2011 to the 2nd Respondent titled ?Request to grant free, fair and credible election of Mai Tal?; Exhibits D: Letter by TCDA dated 8/8/2011 to the Governor of Gombe State titled ?Undemocratic imposition of Abdu Shauaibu Anampara as the District head of Tal (Mai Tal) on Tal Community by His Royal Highness Mai Tangale?; Exhibit D1: Letter of appointment of 2nd Appellant as village head of Pandinkude, signed by the Permanent Secretary, Special Services and political Affairs Bureau for Secretary to the State Government dated 30/5/2005; Exhibit E: A letter by Bekeri Termana/Kuthkuthe ruling

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families of Tal District to the 5th Respondent dated 21/7/2011 and signed by 1st and 3rd Appellants and titled “Complaint on the unlawful appointment of the District head of Tal by the President of the Tangale Traditional Council His Royal Highness, Dr. Abdu Buba Maisheru II JP OON the 15th MaI Tangale”; Exhibit F: A letter by Bekeri Termana/Kuthkuthe Ruling families of Tai District to the Governor of Gombe State dated 21/8/2011 signed by the 1st, 2nd and 3rd Appellants and titled “Complaint against the appointment of a District head in Tal.?

On their part, the 1st ? 3rd Respondents as 1st ? 3rd Defendants called the following witnesses; DW1 was one Joshua Usman aged 72 years. He testified that the custom of Tal people in Tangale tribe in those day was that the Mai Tal was by election under the coordination of the then District head, the Mai Tangale under the supervision of the then Native Authority. He has witnessed the elections but he participated in the election of 1st Respondent?s father as village head between 1973 and 1975, when Mai Tal was a village headship then under Tangale District. The procedure of

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ascendency to Mai Tal has since changed to appointment under the relevant law when District heads were created about 10 years ago by the Government and Tal was made a District head and Anampara the then village head was appointed as the Tal District head by the Government without any election by the Government and in the same way the 2nd Appellant was appointed as District head of Ayaba without any election. The Appellants and the 1st Respondent in 2011 applied for appointment as Mai Tal but the 1st Respondent was so appointed. On cross examination, he admitted that the Tangale people have their custom and tradition of election to village heads which was in practice and he was confronted thus:
Q: And the election is done according to the tradition is by guying (sic) up.
A: As was the practice of that time.
Q: When did the custom changed.
A; I will not say precisely when the custom changed to appointment.
Q: Who changed the custom.
A: I don?t know who changed it to appointment but the appointment was made by Government.

He admitted that he has not seen any letter from Government cancelling the tradition of election but

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in practice it has become by appointment by government. He was taken up on the evidence of the 2nd Appellant that he conducted his election as Village head thus:
Q: PW4 (Haruna Wakili) said before this Court that you supervised his election.
A: It is not true I have never supervised any election which Haruna Wakili contested in or even any.
Q: You said the appointment of Mai of Tal is now done by appointment, who makes the appointment.
A: It is the Government that makes the appointment.

?He maintained that the 1st Respondent is the incumbent Mai Tal appointed by the Government. See pages 108 ? 109, 226 ? 229 of the record.
DW2 was one Yila Baba Tokara aged 82 years old. He testified that he is a permanent member of Tangale Traditional Council and that the custom of election of Village heads was a general custom of Tangale and not Tal custom but that District heads are appointed by Government and not by election. In 2011 when the late Mai Tal died, the Mai Tangale asked the elders to recommended one out of the 6 candidates but they could not and the Mai Tangale submitted some of the names of the candidates to the

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Government who appointed the 1st Respondent as the Mai Tal. On the creation of District heads by Government the custom of election gave way to appointment by Government and it was in that way the 2nd Appellant was appointed as Village head of Pandinkude, Gerson as village head of Bikeri and District head of Todi were all appointed by Government since 2001 under the law but from members of the ruling families under the custom of the people, which being dynamic changes. On cross examination, he was confronted thus:
Q: One of the customs handed down by your fore fathers is that during election of your Chief or leaders the people line up.
A: It used to be that way not now.
Q: The custom of queuing up for election changed, when did it change.
A: During the Civilian Administration.
Q: Did Tangale Council sat and change the custom of Tangale people.
A: As a council they changed the custom of queuing to elect a Chief or Mai.
Q: When did you sit to change this custom.
A: During the Civilian Administration time.

He maintained that there are king makers for Mai Tangale but the Districts have no King makers and when vacancy

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occurs in a District, the ruling houses apply to the Tangale Traditional Council headed by the Mai Tangale and in 2011 six names were sent to the Tangale Traditional Council for appointment as the Mai Tal, which in turn sent some of the names to the Government, which appointed the 1st Respondent as the Mai Tal. He reiterated that the change from election to appointment of the Mai Tal was as a result of the law on appointment and deposition of District heads, Chiefs and Emirs and ascendency is now by nomination and subsequent appointment by the Government. See 110 ? 111, 229 ? 233 of the record.

?DW3 was one Yusuf Musa aged 58 years. He testified that he was appointed Acting District head upon the death of the immediate past Mai Tal but that there are no Kingmakers in Tal District and that six persons from the two ruling houses applied for appointment as Mai Tal as they failed to resolve amongst themselves as the Elders advised and the names of all the applicants were sent to Mai Tangale and in May 2011 the Governor appointed the 1st Respondent out of the 6 applicants as the Mai Tal. He maintained that prior to 2001, 1st Respondent?s father

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as well as other parts of Mai Tal were village head until 2001 when by law Tal was upgraded to a District and the Mai Tal was appointed by Government as a District head, in the same way the 2nd Appellant was appointed by the Government as District head of Ayaba in 2001, both of them did not go through any election. However, subsequently, the Emirs and Chiefs law was amended under Governor Danjuma Goje and some District heads were dissolved including the 2nd Appellant who reverted to a Village head. In 2005 the 2nd Appellant was appointed as the Village head of Pandinkude by the Government under the said law without any election and that in Tal District, all the village heads of Bekeri, Pandinkude and Ayaba presently were appointment by Government and not by election. He further stated that under Colonial Rule, the Mai Tal was appointed by the Colonial Masters but subsequently it became by election between contestants. However in 2001, by the law on creation and appointment of Emirs, Chief, District heads and the upgrading of Mai Tal from Village Head to District head, it became by appointment by the Government without election when Tal was split into two

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District of Tal District and Ayaba District with the 1st Respondent?s father and the 2nd Appellant as head of Tal and Ayaba respectively and thus the law now supersedes the custom. See pages 89 ? 90, 234 ? 235 of record.

?DW 4 was Abdullahi Shuaibu Anampara, the 1st Respondent. He testified that ascendency to Mai Tal in history was originally by appointment and later by election with the community participation in which the candidate with the highest number of people behind him in the line up becomes the Mai Tal, but that under Governor Hashidu, Tal was split into two District with his father being appointed as Tal District head and the 2nd Appellant appointed as District head of Ayaba on 28/11/2001 without any election and no legal challenge. In 2004, the law was amended to vest the Governor, then Danjuma Goje with power to create and appointed Emirs, District, village and ward heads and he reduced the two Tal Districts into one and the 2nd Appellant was removed as District head and appointed Village head of Pandinkude on 30/5/2005 by the Government without any election, the same way he was appointed the Mai Tal as one of the candidates

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to the Mai Tal stool by the Government on 20/5/2011. On cross examination, he was confronted thus:
Q: From your statement the custom of your people was to line up and elect your leader.
A: Yes Sir, initially it was done by appointment from few elders from same ruling families, they will decide who become the next Mai Tal if the stool is vacant. After such decision the White man would confirm such appointment, among the Mai?s we have three beneficiaries of such as Mai Suluton, Mai Lakambe and finally Anampara Lankelel.

He maintained that he took the oath of office and that the custom of election was changed by law to appointment even though the tradition of persons applying is still observed out of which only one is appointed by the Government. He stated that membership of Tal Community Development Association is optional and they do not speak for the community and he is a member and Patron of the Tal Community Development Association. See pages 104 ? 105, 236 ? 238 of the records.

The 1st ? 3rd Respondents as 1st ? 3rd Defendants also tendered the following documents in evidence as Exhibits; Exhibit K: A letter

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of appointment of the 1st Respondent dated 26/5/2011 as the District head of Tal pursuant to the Emirs and Chiefs (Amendment) Law 2004 by the Governor of Gombe State and signed by one Alhaji Mohammed ? Kabir Adamu, Permanent Secretary, Security, Political and Chieftancy Affairs Bureau for Secretary to the State Government; Exhibit L: A letter from the Office of the Governor dated 31/8/2012 to the Attorney General of Gombe State signed by one Shauiabu Danlami for the Secretary to the State Government referring the case of Suit No GM/43/2012 to the Attorney General of Gombe State.

It is on the strength of the above pleadings and evidence of the parties as in the record that the Court below had reviewed the evidence of PW1, PW2, PW3, PW4, PW5 and PW6 at pages 246 ? 253 of the Record, the evidence of DW1, DW2, DW3 and DW4 at pages 254 ? 259 of the record, the several documents tendered as Exhibits A, B, C, D, D1, E, F, K and L and the totality of the circumstances of the cases of the respective parties and found in favour of the Respondents as against the Appellants and holding inter alia thus:
?According to the above provisions,

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a District head is appointed not elected. The Plaintiff agreed that they all applied for the post of District head of Tal together with the 1st Defendant. ? PW4 Haruna Wakili is a beneficiary of the laws of appointment of Chiefs was at as today the village head of Pandinkude, he did not refused or asked the State Governor or any Association to conduct an election to the stool of village headship of Pandinkude. See the appointment letter Exhibit D1? See pages 259 ? 261 of the record.

This appeal, in my view, turns solely on the issue whether the Court below was right or wrong when on the evidence in the printed record it held that the method of ascendancy to the District Head of Tal is by appointment and not by election and that the 1st ? 3rd Respondents proved that the appointment of the 1st Respondent by the 4th Respondent was in full compliance with the Emirs and Chiefs (Amendment) Law 2004?

?Having reviewed the cases of the parties on the printed record, it does appear to me very clearly that while the Appellants carried on them the burden to prove that ascendancy to the District Head of Tal was by

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election by the people of Tal under the supervision of the Mai Tangale, the Respondents on the other hand carried on them the burden to prove that ascendancy to the District Head of Tal had since 2001 upon the creation of Tal District been by appointment by the Government of Gombe State.

Having gone through the entire judgment of the Court below and the evidence in the printed record, it appears most certain to me that the Court below indeed showed a clear understanding of the facts of the case as presented in the evidence of the parties and had an appreciable understanding of the applicable law and arrived at findings and conclusions which were very sound, solid, logical and impeccable and which ought not to be interfered with by this Court without any legal or factual or even logical basis shown in this appeal. It is for these reasons, I hold that this is not a proper case for this Court to intervene to disturb and or interfere with the obvious correct findings and conclusions of the Court below.

My lords, by the introduction of written statements on oath of witnesses into civil proceedings in our Courts of trial, the trend now appears to be that

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a witness?s statement on oath are most often than not a mere replica of the pleadings of the party that calls the witness and therefore, cross examination has become perhaps the only readily available medium to shift the shaft from the written deposition of a witness and thus the Court would only act on such evidence if it is found to be cogent, credible and reliable upon proper evaluation. See Tuah V. Michael (2010) 10 NWLR (Pt. 1203) 519, Aregbesola V. Oyinyola (2010) LPELR 3805 (SC)

Now, on the face of the consistent and unchallenged evidence led by the 1st ? 3rd Respondents as 1st ? 3rd Defendants through DW1, DW2, DW3 and DW4 before the Court below, and Exhibit K in particular, when considered along with the wobbling, self defeating and out ? right somersaults of the Appellants? witnesses, can it be said that the Court below was wrong when it held that, on the totality of the evidence in the printed record, including the copious documentary evidence of the parties that while the Appellants failed to prove that currently ascendancy to the Mai Tal as head of Tal District head created only in the year 2001 was by election

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in line with the previous custom and tradition of the people of Tal and not by appointment pursuant to the Emirs and Chief (Amendment) Law 2004, the Respondents on the other proved full compliance with the Emirs and Chiefs (Amendment) Law and that from the year 2001 the Mai Tal which was upgraded to District head of Tal solely by the Government became and has since been by appointment by the Government of which the 2nd Appellant was an obvious and subsisting beneficiary as firstly District Head of Ayaba and later Village Head of Pandinkude.

In law, it is not enough merely for a party to call and parade a hordes of witnesses to give quantum of evidence but whose evidence are complete shambles and half truths or outright lies or sommersault designed to merely deceive or mislead the Court from arriving at the truth as such contrived evidence would not suffice because a trial Court still has the duty to assess the quality of the evidence to decide whether to accept or reject it and it is true that in law where the issue involves only the credibility of witnesses the appellate Court would not readily interfere, unless there are exceptionally strong reasons

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to so do. See Gundiri V. Nyako (2014) 2 NWLR (Pt. 1391) 201; Saeed V. Yakowa (213) 17 NWLR (Pt. 1352) 124.

I am not unmindful of the well established principle of law that in every civil action in which a declaration is sought from the Court, a Plaintiff who seeks the declaratory relief must succeed on the strength of his own case as made out creditably on the evidence as put forward by him in support of his case and not to merely rely on the weakness or even absence of the Defendant?s case. This is however, not to say where the evidence of a Defendant supports the case of the Plaintiff he is not entitled to rely on such evidence. In the instant case, the reverse is the case as the evidence led by the Appellants clearly supported the case of the 1st ? 3rd Respondents and they were perfectly entitled to rely on the favourable evidence from the Appellants. See Nsirim V. Nsirim (2002) FWLR (Pt. 96) 433 @ p. 441.

I find that the evidence of DW1, DW2, DW3 and DW4 were, as rightly found by the Court below, not in any material particular shaken or effectively challenged or discredited upon their cross examination as they were rather largely

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supported by the evidence of the Appellants? witnesses. Interestingly, even on the face of the inconsistencies and half truths and outright admissions in the evidence of the Appellants? witnesses, which thus destroyed their case as Plaintiffs, the 1st ? 3rd Respondents still proceeded to marshal out before the Court below an almost near perfect and impeccable case, which in my view was indeed an over – kill considering the wobbling tales given as evidence by the Appellants? witnesses. The law is that evidence of a party which is unchallenged and uncontroverted by the adverse party is good evidence on which the Court should act and I hold that the Court below rightly acted on the unchallenged evidence of the 1st ? 3rd Respondents? witnesses. See Igbinovia V. Agboifo (2002) FWLR (Pt. 103) 505 @ p. 514.

My lords, on the evidence as in the printed record, it seems very clear to me that the Appellants? witnesses were not witnesses of truth and in law a witness who gives contradictory and materially inconsistent evidence on oath is not one who is worthy of being credited with any credibility. They were thoroughly

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discredited and made unreliable witnesses as their evidence taken as a whole in the light of their pleadings and cross examination evidence were without any redeeming feature and was so rightly discountenanced by the Court below. See Ezemba V. Ibeneme (2009) 14 NWLR (Pt. 789) 623.

By the incongruous pleadings and the inconsistent evidence of the Appellants? witnesses as exposed through their adept cross examination by counsel to the Respondents, it was clear that the Appellants? case was both contradictory and inconsistent as between their pleadings and the evidence led in support and thus leaving most of their crucial averments in contention with the Respondents unproved. The law is well settled that notwithstanding the difficulty of discerning absolute truth by the mechanism of litigation and judicial discernment hinged upon evidence before the Court and irrespective of the imperfections of men, the litigation process is aimed at finding out the truth according to law and therefore, a party deserving and worthy of any favourable consideration of the Court must endeavour to be consistent in both the facts he pleads and the evidence he leads

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in proof of those facts. A party will not therefore, be allowed to present at the trial evidence which are inconsistent with the case he has pleaded. He should not be of such a slippery character in his evidence if he is to be believed and credited with any veracity. See Ajide V. Kelani (1985) 3 NWLR (Pt. 12) 248; Ezemba V. Ibeneme (2009) 14 NWLR (Pt. 789) 623.

Now, what is the role or use of the copious documentary evidence placed before the Court below by the Parties? The law is that whenever there is before the Court, on an issue of fact in dispute between the parties, both oral and documentary evidence, the documentary evidence which most often is earlier in time than the oral evidence should be used as hanger on which to assess the veracity of oral evidence and the reason for this is not farfetched but simply that more often than not it is much easier for oral evidence to be twisted and as an afterthought than documentary evidence, though not ruling out the possibility in this age of technology of a document being also made to tell a lie. At any rate, documentary evidence has always and had remained the best evidence, particularly where it is neither

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discredited nor controverted by the other party. See Kimdey V. Military Governor of Gongola State (1988) 2 NWLR (Pt. 77) 445; Owena Bank Plc. V. Olatunji (2002) 12 NWLR (Pt. 781) 559; Skye Bank Plc V. Akinpelu (2010) 42 NSCQR 540; Ngige V. Obi (supra) @ p. 233.

Having calmly reviewed the entirety of the evidence as in the printed record, and using the documentary evidence as hangers on which the veracity of all the witnesses that testified in this case are assessed, I hold that the Court below was perfectly right when it held that it was the Respondents that proved by credible evidence that ascendancy to the District Head of Tal District since the creation of Tal District in 2001 was by appointment by the Government of Gombe State and not by election by the people of Tal and that the 1st Respondent was duly appointed by the 4th Respondent pursuant to the Emirs and Chiefs (Amendment) Law 2004 and not by the 2nd and 3rd Respondents as alleged but unproved by the Appellants.

The Appellants? Counsel also mulled the issue of contradictions in the evidence of the DW1, DW2, DW3 and DW4, having taken a hard critical look at the entirety of the evidence

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of these witnesses both in chief and under cross examination, I do not see any such material contradiction going to the substance or root of the facts they were intended to prove as pleaded by the 1st ? 3rd Respondents. Happily, over the years what would amount to material contradictions as would render evidence unreliable and liable to be rejected have inundated the Courts and thus decided authorities on this aspect of the law are legion! Materiality of facts is the key to the determination of whether one piece of evidence contradicts another and not minor discrepancy on irrelevant issues. See Unipetrol Nig. Plc. V. Adireje (2004) All FWLR (Pt. 231) 1238 @ p. 1277. In Bassey V. The State (2012) All FWLR (Pt. 633) 1816 @ p. 1832, it was stated thus:
?One evidence contradicts another evidence when it says the opposite of what the other evidence has stated and not when there is just a minor discrepancy between them. Two pieces of evidence contradicts one another when they are themselves inconsistent on material facts.?

The law is that an appellate Court, which had not seen the witnesses testify and observed their demeanour in the

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witness stand, should respect the views of a trial Court and not to readily substitute its own views except where it is shown that the conclusion reached by the Court below was perverse and nothing has been shown to be perverse in the findings of the Court below by the Appellants in this appeal.. See Sa?eed V. Yakowa (2013) All FWLR (Pt. 692) 1650 @ p.1681.
An appellate Court must always bear it in mind that the primary function of assessing the quality of evidence and ascribing probative value thereto is that of the trial Court, which heard and saw the witnesses testify. See Layinka V. Makinde (2002) FWLR (Pt. 109) 1557 @ p. 1570. See also Martins V. C.O.P. (2013) All FWLR (Pt. 666) 446 @ p. 460.

In the circumstances therefore, having found that the Court below did made proper and correct findings of facts and arrived at the correct conclusions that the Appellants failed to make out all or any of their claims against the Respondents, I hereby resolve issue four against the Appellants in favour of the Respondents.

Let me now make a return journey to issue two, which I had earlier observed is purely an issue of law.
ISSUE TWO<br< p=””

</br<

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?Whether the Lower Court was right in the way it applied the decision in the case of Akuneziri V. Okenwa & Ors (2000) 4 NSCQR 278 when the decision was irrelevant to the facts and the law in the present case thereby leading to miscarriage of justice against the Appellants

On issue two, learned senior counsel to the Appellants had submitted that the doctrine of judicial precedent which is to serve as a guide in the administration of justice if not properly handled can defeat the natural course of justice and contended that a Court applying the doctrine should not shut its eyes to the facts of the case under its consideration so as not to be misled in the application of decided cases. Counsel relied on Okoye & Anor V. CP Merchant Bank Ltd (2008) 164 LRCN 1 @ p. 30; Amaechi V. INEC & Ors (2008) 158 LRCN 1 @ p. 168.

Learned senior counsel to the 1st ? 3rd Respondents had submitted that the reason the judge in the Court below referred to the case of Akuneziri V. Okenwa & Ors (supra) was made explicit in the said judgment and did not in any way occasion any miscarriage of justice and contended that ground one of the grounds of

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appeal and issue two formulated therefrom are merely academic and urged the Court to discountenance them.

Learned senior counsel to the 1st ? 3rd Respondents had further submitted that the cases of Okoye V. CP Merchant Bank Ltd (2008) 164 LRCN 1 @ p. 30; Amaechi V. INEC & Ors (2008) 158 LRCN 2 @ p. 168 on stare decisis or judicial precedent remain good law but were cited out of con by the Appellants? counsel and urged the Court to discountenance same for being merely academic as no miscarriage of justice was occasioned.

My lords to resolve this issue, I deem it pertinent to reproduce verbatim the view of the Court below on the decision in Akuneziri V. Okenwa Ors (2000) 4 NSCQR 278 to properly focus the contention of the Appellants? counsel on this issue against the judgment of the Court below, wherein it was stated inter alia thus:
?The function of the legislature is to make laws for good governance of each State of the Federation. The Supreme Court held in Akuneziri V. Okenwa & Ors (2000) Vol. 4 NSCQR 278 @ 282. Where the words of a document in an enactment as clear and not ambiguous they should be given

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effect to where there is no conflict in one part of an enactment and another, and the provisions of the part which is relied on are plain and unambiguous those provisions should be applied without the need to call in (sic) and other parts of the enactment?. According to the above provision of District head is appointed not elected.? See pages 259 ? 261 of the record.

Honestly, I am at once at a lost to comprehend how in law the learned senior counsel to the Appellants came by this issue against the judgment of the Court below to contend that it relied on the facts of the case of Akuneziri V. Okenwa & Ors (supra), which was not on all fours with the facts in this instant case to arrive at wrong conclusions. The Court below made it clear what it was relying on the case of Akuneziri V. Okenwa & Ors (supra) for and it was simply as a guide on the interpretation of statute where the words used are clear and unambiguous and the need to refrain from going outside the specific provisions of a statute or even to other sections of the same statute to seek in aid in interpreting clear and unambiguous section of a statute. The Court below

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then applied this statement of the law in the correct, in my view, interpretation of the relevant provisions of the Emirs and Chiefs (Amendment) Law 2004 of Gombe State.

My lords, there was no where the Court below relied on the facts in the case of Akuneziri V. Okenwa & Ors (supra) as relevant for the determination of the facts in issue in the instant case. This issue, in my view, is thus most misconceived, irrelevant and simply amounts to holding on to straw when all else had failed in an attempt to impeach a logically sound, factually correct and legally impeccable judgment on appeal. In the circumstances therefore, all the beautiful and brilliant submissions of the Appellants? counsel on the principles of stare decisis are apt and correct but they are, as aptly submitted by the 1st ? 3rd Respondents? counsel, clearly irrelevant and inapplicable on the facts and circumstances of this appeal, particularly in view of the very clear and correct views of the Court below as to the extent it relied on the decision in Akuneziri V. Okenwa & Ors (supra) as guide on the rules of interpretation of clear and umambigous provisions of

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stautes by the Court and nothing more.

It follows therefore, that all such submissions of the Appellant?s counsel, no matter how brilliant, but being irrelevant to the real issues arising from the decision of the Court below, go to no issue and are hereby discountenanced. See Union Bank of Nigeria Plc. & Anor V. Ayodare & Sons Nig. Ltd (supra) @ p. 567. See also Ishola V. Ajiboye (supra) @ p. 4; Chukujekwu V. Olalere (supra) @ p. 86; Obasuyi V. Business Ventures Ltd. (supra) @ p. 690; Aro V. Aro (supra) @ p. 457; FBN Plc V. Akparabong Community Bank (supra) @ p. 438.

At any rate, the applicability of the finer principles of the doctrine of stare decisis has been well settled in our law. It does not require, with due respect, as vehemently contended by the Appellants? counsel that the facts of the two cases must be exactly the same for the doctrine of stare decisis to be applicable. The scope of operation of the doctrine of stare decisis has also been well settled. In Adetun Olade J. I. Nig. Ltd V. Nigerian Beweries Plc. (2007) 5 NWLR (Pt. 1027) 415 @ p. 436, Niki Tobi JSC, had expounded these principles thus:
?Stare

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decisis which means to abide by or adhere to decided cases, as a policy of Court to stand by precedent, is based on a certain state of facts which are substantially the same, and here the word is substantially. This means that the facts that give rise to the principles of stare decisis are the material facts, devoid of or without the unimportant details. This also means that the facts need not be on all fours in the sense of exactness or exactitude. And I must say here that there can hardly be two cases where the facts are exactly the same, and the doctrine of stare decisis which has been built by the judicial system over the years does not say that the facts must be exactly the same?
See also Chief Ugwu V. P.D.P & Ors (2013) LPELR 21356 (CA).

My lords, issue two, in my view and with respect to Appellants? counsel, is irrelevant as it does not arise from any of the decisions of the Court below in the judgment appealed against and consequently, it is hereby resolved against the Appellants in favour of the Respondents.

?Finally, looking calmly at the pleadings of the parties, it does appear to me that this case was already lost

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and won on the pleadings of the pleadings even without the necessity of calling evidence by the parties. One may ask how is this possible? This is how it played out. The Appellants pleaded that that the ONLY WAY of ascendancy to the stool of District Head of Tal is ?BY ELECTION? by taxable adults conducted amongst interested candidates from the two ruling families in Tal and supervised by the Mai Tangale and ?NEVER BY APPOINTMENT OR INHERITANCE? . In response, the 1st ? 3rd Respondents had pleaded that ascendancy to the stool of Village Head of Tal used to be by election until the year 2001 when the Tal District was created by the Government and split into two Districts; Tal and Ayaba respectively, and ascendancy to the newly created Districts Heads were ?BY APPOINTMENT? by the Government and ?NOT BY ELECTION? and that both the father of the 1st Respondent and the 2nd Appellant were appointed as the first District Heads of Tal and Ayaba respectively without any elections conducted and there were no complaints or challenges to their being so appointed by the Government of Gombe State in 2001.

?The

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Appellants did not file any reply to the 1st ? 3rd Respondents statement of defence. It is therefore, my view and I so hold firmly that by the failure to file reply to join issue on these fresh allegations of facts by the 1st ? 3rd Respondents, it was clear in law that while the parties have duly joined issues on whether or not the procedure for ascendancy to District Head of Tal was still by election or now by appointment, no issue was indeed joined on the fact of the creation of Tal District and Ayaba District by the Government of Gombe State in 2001 and the filling of the positions of District Heads of Tal and Ayaba by appointment of the 1st Respondent?s father and the 2nd Appellant respectively by the Government of Gombe State. In law a fact, particularly crucial fact, on which issues are not joined is deemed admitted and thus does not constitute a fact in issue or dispute any longer between the parties. Thus all the fresh or new facts pleaded in the 1st ? 3rd Respondents? Amended statement of defence to which the Appellants did not file any reply were in law deemed to have been admitted and therefore, cannot form part of the

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facts in issue or dispute between the parties.

On the state of the pleadings of the parties therefore, the case was lost by the Appellants and won by the Respondents even without the necessity of calling evidence. The subsequent evidence led by the parties merely, in my finding, cemented in concrete terms the successful defence of the 1st ? 3rd Respondents to the obviously failed claims of the Appellants before the Court below.

By way of a parting comment, an aside really, as I bring this judgment to a close, both in the original and amended notice of appeal, this appeal was stated to be against ?the whole decision.? I was wondering why it is so in view of the fact at pages 260 and 263 of the record, the Court below in its judgment discountenanced the objection to the competence of the Appellants? suit as raised and argued by the 1st ? 3rd Respondents. I have asked myself, whether that part of the judgment overruling, as it were, the objection of the 1st ? 3rd Respondents challenging the competence of the Appellants? suit was not part of ?the whole decision? now being appealed against by the

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Appellants? So, is that part of the decision also being appealed against in this appeal? I certainly do not think so as there is no ground of appeal challenging that part of the decision in the amended notice of appeal. The best approach would have been for the Appellants to make it clear by their notice of appeal that their appeal is against the whole decision of the Court below save that part of the decision in which the objection to the competence of the Appellants? suit was discountenanced or dismissed.

On the whole therefore, having resolved all the four issues for determination against the Appellants in favour of the Respondents, I hold that this appeal is bereft of any modicum of merit and thus liable to be dismissed. I hereby, without much ado, so dismiss this appeal for lacking in merit.

In the result, the judgment of the High Court of Gombe State in Suit No: GM/43/2012: Kenor Madina Tal & Ors. V. Abdullahi Shuaibu Anampara & Ors delivered on 19/11/2014 is hereby affirmed.

?There shall be cost of N200,00000 against the Appellants jointly in favour of the 1st ? 3rd Respondents

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only.

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Other Citations: (2016)LCN/8666(CA)