Wayo Ubwa V. Tyowua Bashi (2007)

LawGlobal-Hub Lead Judgment Report

BELGORE, J.C.A.

This is an appeal against the decision of the Benue State High Court holden at Katsina Ala, contained in the judgment of Hon. E. Eko, J., delivered on the 27th day of July, 1994. The dispute between the parties arose from the selection of a district head for the newly created Usar District in Kwande Local Government Area of Benue State. The plaintiffs (now respondents) claimed that the 1st respondent was selected for the vacant stool on 3rd day of June, 1992, by five (5) votes to two (2) and one (1) abstention, of the accredited kingmakers, at the selection exercise conducted at the Local Government Secretariat, Adikpo and it was a conclusive selection exercise. The defendants on the other hand insisted that the exercise of the 3rd day of June, 1992 was inconclusive and was disrupted by protests. (The 1st defendant shall hereinafter be referred to as the appellant.) They maintained that the only conclusive selection exercise was that of the 8th day of July, 1992 where the appellant was selected to the vacant stool by five (5) votes to three (3). Initially, the respondent had sued in representative capacity for himself and on behalf of six kingmakers of Usar District. Five of the kingmakers later came in as co-plaintiff on their own stand. They are (1) Duza Usar; (2) Ityokigbir Agu; (3) Akawa Gwar; (4) Tongo Ikyanyon; and (5) Tyowua Bashi.

The claim of the respondents as finally formulated was as contained in paragraph 24 of their amended joint statement of claim, namely –

(i) A Declaration that the 1st plaintiff was and is, the only selected person for the office of District Headship of Usar, having validly obtained an overwhelming majority of lawful votes of the accredited/kingmakers on 3/6/92 and in accordance with the custom, tradition and practice of Usar people in particular and Tiv people generally.

(ii) A Declaration that the purported selection of the 1st defendant by unknown and unqualified ‘kingmakers’ and at unlawful instance of the Secretary to the 2nd defendant as District Head of Usar on 8/7/92 and purportedly approved by 2nd and 4th defendants, without authority, was wrong, illegal, therefore null and void and of no effect whatsoever.

(iii) An Order of perpetual injunction restricting the 2nd, 3rd and 4th defendants, either by themselves or through their agents, servants or privies (sic), from ever recommending the 1st defendant to the 5th defendant for approval and appointment as District Head of Usar; and if any such recommendation and/or approval have already been made and/or given such be declared as null and void and of no effect whatsoever.

(iv) An Order of perpetual injunction restraining the 1st defendant from parading himself, or causing anybody to regard or accord any regard to him, as the District Head of Usar.

(v) An Order of perpetual injunction restraining the 5th defendant from approving and/or appointing the 1st defendant as the District Head of Usar.

(v) Any other or further order or orders as the Honourable Court may deem fit to make in the circumstances, and as the Justice of the case demands.

It was the case of the respondents that after the selection exercise of the 3rd day of June, 1992, the Secretary to the 2nd defendant, instead of submitting the name of the 1strespondent to the appropriate authorities for approval and appointment, he, on or about the 8th day of July, 1992, held an unlawful meeting with the appellant and other persons and the appellant was purportedly at that unlawful meeting, selected by a new set of kingmakers as the District Head of Usar. His name was hurriedly forwarded to the 4th and 5th defendants for approval and appointment. 1st respondent later got to know of this new development but all his efforts to acquaint the 4th defendant with the position of things were to no avail. Hence this action.

On their part, the appellant, and his co-defendants stood their ground that the only conclusive selection exercise was that of the 8th day of July, 1992 and that there was no minutes of the meeting of the 3rd day of June, 1992. The appellant in his separate statement of defence, out rightly denied that there was any meeting held on the 3rd day of June, 1992. To him, it was the meeting of the 8th day of July, 1992,where he was purportedly elected/selected, that was lawfully convened, held and fully attended by all those entitled and that the accredited kingmakers voted five (5) against 3 (three) votes in his favour, thereby selecting him as District Head of Usar by majority votes. He was emphatic in his pleadings that his selection was lawfully done.

In the joint statement of defence of the 2nd, 3rd, 4th, 5th and 6th defendants it was averred that the meeting of the 3rd day of June, 1992 was actually scheduled but it did not actually take place nor was the selection exercise conducted because the intended meeting of the 3rd day of June, 1992 was disrupted and aborted by youths who were neither kingmakers nor were they supposed to take part in the deliberation of the panel who came to the venue.

Both sides led evidence and at the end of the proceedings, the learned trial Judge, Eko, J., believed the evidence of the respondents and their witnesses. He rejected the evidence of the appellant and his co-defendants and their witnesses. He believed and held that a meeting for the selection of a District Head of Usar was held on the 3rd day of June, 1992, at which the 1st respondent was duly elected or selected by majority votes of five (5) kingmakers to two with one abstention. He also believed and held that there were minutes of the said meeting which he said were being mischievously kept away by the Secretary of the 2nd defendant. In his considered judgment, the learned trial Judge lamented that he was not told as to who had the job of canceling the election of the 3rd day of June, 1992 even if it was disrupted either in the middle or towards the end. He also lamented for not being told as to who constituted the panel that purportedly did the fresh election of the 8th day of July, 1992. He went ahead to enter judgment in favour of the respondents declaring the 1st respondent to have been validly elected the District Head of Usar.

It is against that judgment that the appellant herein has now appealed. His co-defendant at the lower court, apparently having not been aggrieved by the judgment, have not joined him in this appeal, the appellant filed five grounds of appeal, namely –

1. The learned trial Judge erred in law and on the facts on record in failing to hold that the selection exercise for the election of Usar District Head was validly conducted on the 8th of July, 1992.
2. The learned trial Judge erred in law in placing undue Reliance on and thereby misapplying the ratio in Olanrewaju v. Governor of Oyo State (1992) 9 NWLR (Pt. 265) at 335.
3. The learned trial Judge erred in law and on facts on record in holding that the selection of 1st plaintiff accords with the custom the plaintiffs pleaded and proved by evidence.
4. The learned trial Judge misdirected himself in law in getting unduly pre-occupied with the powers of the Tiv Area Traditional Council when what was necessary and before the trial Court was the conduct of the selection exercise for the election of Usar District Head.
5. That the decision is against the weight of the evidence. The appellant later obtained leave of this court and filed an amended notice of appeal which incorporated two additional grounds of appeal as grounds 6 and 7 respectively. Also shorn of their particulars as done to grounds 1 to 4, ground 6 and 7 read thus:
6. Having regard to the combined provision of sections 6, 7, 8 and 9 of the Benue State Council of Chiefs and Traditional Councils Edict, 1991, and section 4(2) of the Chiefs (Appointment and Deposition) Law, Cap. 20, Laws of Northern Nigeria (applicable to Benue State; by which the Traditional Councils determined the chieftaincy matter between the parties, the court below lacked jurisdiction to hear and determine this case.
7. By reason of the provisions of Order 43, rule 1 of the High Court (Civil Procedure) Rules, 1988, the suit as instituted by the plaintiff/respondents is/was incompetent and ought to have been struck out by the learned trial Judge.

Briefs of argument were filed and exchanged. The appellant distilled four (4) issues for determination as follows:

1. Whether the learned trial Judge had jurisdiction to entertain this suit.
2. Whether the suit as instituted by the respondents was/is competent.
3. Whether or not the learned trial Judge was right in holding that the appellant was not duly selected as District Head of Usar.
4. Whether or not the learned trial Judge misapplied the ratio in Olarewaju v. Governor of Oyo State (1992) 9 NWLR (Pt. 265) at 335.

In their own brief, the respondents submitted a sole issue for determination in the following terms –

Whether or not the learned trial Judge of the Benue State was right when he entered judgment for the plaintiffs (herein respondents) in terms of their amended joint statement of claim.

Apart from their brief of argument, the respondents also filed a preliminary objection on the ground that the appellant did not obtain the leave of court to argue grounds 6 and 7 as they have raised fresh issues/points on appeal. No reply brief was filed in response to the preliminary objection. Argument was proffered in support of the preliminary objection in the respondents’ brief of argument.

When the appeal came up for hearing, the court was informed that the 1st to 5th respondents are already deceased leaving only the 6th respondent in the appeal. Learned counsel for the appellant adopted the appellant’s brief urging that the appeal be allowed. He also cited – Adesola v. Abidoye (1999) 4 NWLR (Pt. 637) 28, 59-66. Mr. E. M. Ahambahau who appeared for the 1st respondent, holding brief for Mr. B. I. Horn, SAN did not urge anything in this appeal. He did not even say anything concerning the respondents’ brief and the notice of preliminary objection earlier filed by Mr. Hom, SAN on behalf of the respondents. On the other hand, the 6th respondent now has a separate counsel in person of Mr. M. D. Karshima, who urged that the appeal be determined on the merits based on appellant’s brief. He ended up saying that he was conceding to the appeal.

The situation now is that the appellant’s brief is the only brief of argument before the court but the matter does not rest there. Learned counsel for the only surviving respondent who had his maiden and the only appearance for any of the respondents since the commencement of this action did not stop at his failure to file brief; he has invited the court to determine the appeal on the merits based on the appellant’s brief. He also informed the court that he was conceding to the appeal. Ordinarily, if a party says he concedes to an appeal, he, in effect, is asking the court to allow the appeal. But the step taken by the learned counsel in this matter is not free from difficulties. Hearing a case, that has been fiercely fought by all parties concerned right from the lower court. Parties have battled themselves up to this court right through to the Supreme Court and back. I have the dormant respondents’ brief of argument and preliminary objection lying inside this case file but upon the death of the 1st to the 5th respondents, it is now being urged on behalf of the 6th and only surviving respondent that the appeal is conceded to. My duty here is to determine this appeal on the merits based on the appellants’ brief of argument.

In the meantime, learned senior counsel for the appellant had applied for the names of the 1st to 5th respondents to be struck out in this appeal; and that the appeal be heard between the appellant and the 6th respondent; i.e. Tyowua Ubwa, as the respondent. He also applied for an accelerated hearing of the appeal. Both this application and the one by learned senior counsel for the respondents, praying for the leave to withdraw and be discharged from further appearance as counsel in this appeal were granted on the 27th day of June, 2006.

As I stated earlier in this judgment, four issues are distilled by the appellant for determination in this appeal. I will take the issues No.1 and No.2 together. The issue No.1 challenges the jurisdiction of the lower court to hear and determine this action, while issue No. 2 attacks the competency of the suit as instituted in the lower court. These two issues relate to grounds 6 and 7 respectively of the grounds of appeal.

In arguing issue No. 1, it is submitted for the appellant that where statute prescribes a legal line of action for determination of an issue, be that issue an administrative matter, chieftaincy or a matter of taxation, the aggrieved party must exhaust all the remedies in that law before going to court. This issue is anchored on section 4(3) of the Chiefs (Appointment and Deposition) Law, Cap. 20, Laws of Northern Nigeria, 1963 read together with sections 6, 7, 8 and 9 of the Benue State Council of Chiefs and Traditional Council Edict 1, 1991. Section 4(3) of Chief (Appointment and Deposition) Law provides thus –

“In the case of any dispute, the Governor” after due inquiry and consultation with the persons concerned in the selection, shall be the sole Judge as to whether any appointment of a chief or head chief has been made in accordance with any such order.”

It was argued for the appellant that from the pleadings and evidence the respondents have failed to exhaust all the avenues prescribed under section 4(3) of the said law before heading to court. It was further argued that a feeble and hasty attempt by way of petitions to the Governor as contended by the respondents in their pleadings does not avail them. It was suggested that the Governor ought to have been compelled to act in compliance with the law by way of mandamus or other remedies. Reliance was placed on Sunday Eguamwense v. James Amaghizemwen (1993) 9 NWLR (Pt.315) 1, (1993) 11 SCNJ 27, 42 and 45; and Madukolu & 7 Ors. v.Nkemdilim (1962) 1 All N.L.R. 587 – 595. It was argued for the appellant that by the provisions of section 5, 6, 7, 8 and 9 of the Benue State Council of Chiefs and Traditional Councils, Edict, 1991, it is the Traditional Council that is vested with the powers to determine chieftaincy dispute and that having validly declared the appellant as the District Head of Usar, it was futile for the respondents to come to the High Court and seek declaratory and injunctive reliefs.

It is instructive to note that the appellant acknowledges that the respondents had raised petition to the Governor over the issue which he said does not avail them. In paragraphs 17, 18, 19, 20 and 21 of the amended joint statement of claim, it was averred that –

“17. It is further plaintiffs averment that, following developments, as contained in paragraphs 14, 15 and 16 of this statement, six kingmakers, including 2nd 6th plaintiffs, as well as representatives of Usar elders, made two written representation to the 4th defendant dated 9/7/92, which shall be relied upon at the trial, and one of which was sent to the office of the 5th defendant, through the Deputy Governor of the State.

18. In another written representation addressed by six kingmakers among whom were 2nd – 6th plaintiffs, as well as several elders from Usar District, to 4th defendant, presented by the persons aforementioned, the plaintiffs, among others unsuccessfully sought to have evidence with 4th defendant.
19. Plaintiffs further aver that on or about 28/8/92 at the meeting of 2nd defendant during which the issue of Usar District Headship was discussed, six kingmakers, including 2nd – 6th plaintiffs, as well as selected elders from Usar, were again refused audience by the 2nd defendant.
20. On or about 3/9/92 a letter was addressed on behalf of plaintiffs and other elders by SAI and Company, a firm of legal practitioners to the office of 4th defendant on this matter in respect of which there as been no response or reaction whatsoever.
21. Plaintiffs aver that despite paragraphs 17 – 20 of this statement there has neither been inquiry or consultation with the kingmakers including 2nd – 6th plaintiffs, to resolve the dispute arising.

Following these pleadings, the respondents gave evidence and tendered those letters/petitions which were received in evidence as exhibits; one of them was tendered by the appellant during the cross-examination of one of the respondents’ witnesses. What the pleadings and evidence show was that both the 4th and 5th defendants did not give responses to the complaints and representations made by the respondents as to what they considered as injustice. It is true that selection in 4(3) of the Chiefs (Appointment and Deposition) Law, Cap. 20, Laws of Northern Nigeria, 1963 makes the Governor the sole judge as to whether an appointment of a chief or head chief has been made; and as submitted for the appellant that it is the Traditional Council who is vested with the powers to determine chieftaincy dispute, but it has not been shown how the jurisdiction conferred on the Benue State High Court by section 272 of the Constitution of the Federal Republic of Nigeria, 1999 has been ousted or affected by the laws cited by the appellant. If the 5th defendant (Governor) would not respond to the distress call made by the respondents and the appellant has the effrontery to tender exhibit G purportedly emanating from the 4th defendant, no reasonable person would expect the respondent in the given situation to go home, sleep off and forget about their feeling of injustice. The issue of mandamus does not arise here. If it arises, at all, it is just an option. It is my considered view that if a writ of mandamus is available to compel the 5th defendant to comply with the provisions of section 4(3) of the Chiefs (Appointment and Deposition) Law, there is nothing preventing the lower court from entertaining the suit for declaratory and injunctive remedies. The Chiefs (Appointment and Deposition) Law does not bar court actions. The same does not set any condition precedent before commencement of an action and I so hold. The law is that when an action is commenced and there is non-compliance with a stipulated pre-condition for setting the legal process in motion, the suit instituted in contravention of the condition precedent is incompetent and the court is equally incompetent to entertain the suit. Nigerian Universal Bank Ltd. & 2 Ors. v. Samba Petroleum Company Ltd. (2006) 12 NWLR (Pt. 993) 98, 129.

Although the court will not intervene in the matter of selection of chiefs, if it is done contrary to natural justice or not done as required by Law, the court still intervene. See Chief J. O. Edewor v. Chief M. Uwegba & 2 Ors. (1987) 1 NWLR (Pt. 50) 313, (1987) 2 SCNJ 18. The case of the respondents at the court below was that the selection exercise conducted on the 8th day of July, 1992 contravened the guidelines issued for the purpose of selection of a District Head for Usar. By the authority of the Supreme Court in Edewor (supra) the High Court of Benue State has jurisdiction to hear and determine the suit.

The complaint against the form by which the action was instituted is a call to technicality for which our legal system no longer has a room. The fact, alone, that parties filed pleadings which they later amended before calling witnesses in proof of their varying averments, shows clearly that the case before the lower court could not have been properly and effectually tried on affidavit evidence without oral evidence.

It will be observed that grounds 6 and 7 of the ground of appeal on which the issues No.1 and No.2 are predicated relate to fresh issues that were being raised for the first time before this court. But the appellant, with the knowledge of hindsight, obtained leave of this court on the 11th day of October, 2005 to raise the issues. If there was a hatchet job in the administration of justice, the issue and treatment of jurisdiction is one. The law is well settled that, although, it is more expedient to raise the issue of jurisdiction at the beginning of the proceedings, the issue could be raised at any stage of the proceedings, even on appeal, as has been done in the instant case. It is never too early or too late to raise it. See Kotoye v. Saraki (1993) 5 NWLR (Pt. 296) 710; Bronik Motors v. Wema Bank (1983) 1 SCNLR 296; Obikoya v. Registrar of Companies (1975) 4 S.C. 31. The hatchet job here is that the issue of jurisdiction was raised for the first time on appeal and the learned trial Judge was not afforded the opportunity to pronounce and be heard on it, while the case tried by him is to be determined on appeal on the basis of that issue.

In the light of the forgoing the issues No. 1 and No. 2 are answered in the positive.

Issues No.3 and No.4

The complaint in issue No.3 is that the learned trial Judge did pot properly evaluate evidence and that led him to hold that the appellant was not duly selected as District Head of Usar. The learned trial Judge in a considered judgment believed and preferred the evidence of the respondent as against the evidence adduced by the appellant and his co-defendants and witnesses. He found as a fact that a selection exercise actually took place on the 3rd day of June, 1992 whereby the 1st respondent was validly selected/elected. He also held that the selection exercise of the 3rd day of June, 1992 was conclusive.

He came to these conclusions after a painstaking evaluation of the evidence before him and after weighing the evidence of the appellant and his co-defendants against that of the respondents. I find the learned trial Judge’s evaluation of evidence to be perfectly in accordance with the law. I also find his findings to be unassailable. I do not see the need to interfere with the findings of the court below which are not perverse. An appellate court does not make a practice of interfering with the findings of fact made by a trial court unless those found to be perverse, or that the lower court raised wrong inference upon accepted facts or applied wrong principles to such facts. See Evangelist Johnson Igodo v. Godwin I. Owulo & Ors. (1999) 5 NWLR (Pt. 601) 70, 77; Sakare v. Bello (2003) 17 NWLR (Pt. 848) 154.

No minutes of the meeting of the 3rd day of June, 1992 were produced and the impression was given as if that meeting never held or, at least, that it never took off. The learned trial Judge found this difficult to believe in the face of the overwhelming evidence, to the contrary, before him. He is right in rejecting the contention that no minutes were taken of that meeting.

As regards the ratio in Olanrewaju v. Governor of Oyo State (1992) 9 NWLR (Pt. 265) 335, I have read the case over and over again. What I found is that the Supreme Court held that the minutes of a meeting was not the only means or method of proving what was said or done at a meeting; oral evidence could also be given by those who were present at such meeting, if they were at “ad idem”. I do not find the distinction being drawn by the appellant, between Olanrewaju’s case and the instant case to be attractive. It sounds academic and unconvincing. I do not find how the learned trial Judge has misapplied the ratio in the case of Olanrewaju (supra).

In sum, I hold that the learned trial Judge was right in holding that the appellant was not duly selected as District Head of Usar. I also hold that the learned trial Judge did not misapply the ratio in Olanrewaju v. Governor of Oyo State (supra).

This appeal fails in its entirety and it is accordingly hereby dismissed. The judgment of the Benue State High Court delivered on this case on the 27th day of July, 1994 is hereby affirmed.

Cost assessed at N10, 000.00 is hereby awarded in favour of the respondent.

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Other Citations: (2007)LCN/2266(CA)