DAJAP KUTSE & ORS. V. ATTORNEY-GENERAL, PLATEAU STATE & ORS.
In The Supreme Court of Nigeria
On Friday, the 26th day of February, 1999
SC.222/93
RATIO
COURT PROCESS: CONCURRENT FINDINGS OF FACT BY THE LOWER COURT
This is a matter entirely based on concurrent findings of lower courts on facts. The attitude of this court is not to disturb such findings. The findings were based on the lawful evidence before the lower courts. [Ojo vs. Government of Oyo State (1989) 1 NWLR (Part 95) 1, Awoogbo v. Eze (1995) 1 NWLR. (Part.372) 393; Odunsi v. Bamgbala (1995) 1 NWLR (Part374) 641; Ajao v. Alao (1986) 5 NWLR (Pt. 45) 802.]. PER M. A. BELGORE, J.S.C.
JUSTICES
SALIHU MODIBBO ALFA BELGORE Justice of The Supreme Court of Nigeria
ABUBAKAR BASHIR WALI Justice of The Supreme Court of Nigeria
IDRIS LEGBO KUTIGI Justice of The Supreme Court of Nigeria
EMMANUEL OBIOMA OGWUEGBU Justice of The Supreme Court of Nigeria
UTHMAN MOHAMMED Justice of The Supreme Court of Nigeria
Between
- DAJAP KUTSE
2. SUNDAY MUTFW ANG GUNNING
3. ISHA YA JACKDEN
4. YUSUFU DAKAHAP
5. NDOM DAGONG
6. DAUKAT GUKAS
7. MUTLE MWOLTOK
8. KANSHEK GAU Appellant(s)
AND
- ATTORNEY-GENERAL, PLATEAU STATE
2. MANGU LOCAL GOVERNMENT COUNCIL
3. GEOFFREY MUSA YAULE
4. MANGU TRADITIONAL COUNCIL Respondent(s)
M. A. BELGORE, J.S.C. (Delivering the Leading Judgment): This appeal came up as a result of actions consolidated for hearing from the High Court of Plateau State. The claims concern the Plateau State Local Government Legal Notice No.7 of 1978 on District Headship of Kerang in Mangu Traditional Council. The aforesaid Legal Notice No.7 modified the process of selecting the District Head of Kerang. The Notice provides, inter alia as follows:
“1. The District Head of Kerang shall continue to be chosen by the traditional selectors from any of the adult male families of Pulukum, Kohop, Guwen and Kohop Paug.
2. The traditional selectors shall be persons holding the following offices, namely:
(a) Madaki;
(b) Galadima;
(c) Sarkin Tsati;
(d) Baraya;
(ej Mishkahan Dikibin.”
The Notice was issued in accordance with section 72(3) (c) of Plateau State Local Government Edict 1976. The present appellants who were plaintiffs in the trial court and appellants in the Court of Appeal claimed as follows:
“A. An order nullifying the Plateau State Legal Notice No.7 of 1978 as promulgated on the basis of false and fraudulent information.
B. A declaration that the plaintiffs’ respective houses or collectively, Galadima house is one of the ruling houses in Kerang District and cannot be excluded from the ruling houses of Kerang in the selection of the District Head.
C. An order restraining the defendant, its servants, its agents or privies from preventing the plaintiffs from participating in the selection of the District Head of Kerang.”
After hearing all evidence, learned trial Judge found that in accordance with the law a committee was set up to investigate and make recommendation leading to Legal Notice No.7, now in issue. He found no substance in the plaintiffs’ suit and dismissed it accordingly. The Court of Appeal to which the plaintiffs appealed to, also dismissed the appeal by upholding the findings of the trial court. Thus the appeal to this court.
The Kerang town is the most prominent abode of the tribe generally referred to as Sura. It is at Kerang that the District Head resides, thus making it the headquarters of Sura District. Being dissatisfied with the decision of the Court of Appeal which affirmed the judgment of the trial court, the plaintiffs/appellants in their appeal to this court raised the following issues for determination:
“1. Whether having regard to the finding of fact that the appellants were members of the Pwashin ruling house of Kerang District, the learned Justices of the Court of Appeal were right in dismissing the appellants’ appeal.
2. If the answer to the above is in the affirmative, whether the court below was wrong in its decision that there was no obligation to consult the appellants in promulgating the Legal Notice No.7 of 1978.”
The Court of Appeal looked into the Legal Notice and found, as the trial court did, that due and thorough investigation was conducted in accordance with Local Government Edict of 1976 before Legal Notice No.7 was issued. There was no proof of fraud as claimed by the appellants and it was held that the appellants’ claim must fail. The entire action was based on historical evidence which essentially was on facts. The trial court made copious findings of fact and the Court of Appeal found no reason to interfere with those findings. But before I avert to this issue of findings of fact, it is pertinent I dwell on the Local Government powers or declarations of which the Plateau State Local Government Edict, 1976 section 72 is an example.
The provisions in Local Government Edict in most of the States in the former Northern Nigeria runs in this vein:
“72(1) A local government shall have power to make declarations and to recommend modifications of customary law of its area of authority.
(2) Where a Local Government exercises the powers conferred upon it by this section, it shall submit the declaration to the Commissioner stating the customary law which appears to it to apply in its area.
(3) The Commissioner upon receipt of the declaration and if satisfied that it accurately records the customary law in question and is not repugnant to natural justice, equity and good conscience, shall submit the same to the Governor, who after satisfying himself shall by order direct that the customary law stated in the declaration areas modified in the recommendation as the case may be, shall be the customary law applying to the matter for the area to which the declaration or recommendation relates.
(4) A declaration or recommendation may be in respect of the customary law applying generally to specified persons or classes of persons.
(5) A recommendation for modification of customary law may be submitted whether or not a declaration of an order under this section with respect to the same has been made.
(6) The power conferred under this section shall not extend to customary law relating to any matters for which the provision is made in the Chiefs (Appointment and Deposition) Law.”
The reason for these provisions is that no custom is ossified. Changes do take place by expansion of some families, by breaking up into factions and reduction or obliteration of some families by deaths or certain disqualifications. Thus it is legally recognised that occasional modifications must be made. Colonial administration, according to the evidence before the trial court, even appointed as District Head in the same Kerang a person whose qualification was not blood affinity to any ruling house but mere enlightenment because of his exposure, even though this was done against protests. What is always essential before a modification will be made into declaration is an inquiry. The appellants never denied there was an inquiry; their posture is that they knew there was an inquiry but they were not formally invited to appear before it. There was no suggestion that they were prevented from appearing before the inquiry tribunal to make any representation if they had so wished. Once an inquiry was conducted, and it reflects substantially the custom of the people, and it is not repugnant to natural justice, equity and good conscience and when presented to the governor he satisfies himself that the proposed modification represents the customary law of the people, he shall approve the modified customary law. Thus in this case there is no evidence of fraud, or lack of natural justice, equity and good conscience.
This is a matter entirely based on concurrent findings of lower courts on facts. The attitude of this court is not to disturb such findings. The findings were based on the lawful evidence before the lower courts. [Ojo vs. Government of Oyo State (1989) 1 NWLR (Part 95) 1, Awoogbo v. Eze (1995) 1 NWLR. (Part.372) 393; Odunsi v. Bamgbala (1995) 1 NWLR (Part374) 641; Ajao v. Alao (1986) 5 NWLR (Pt. 45) 802.].
I find no merit in this appeal and I accordingly dismiss it with N10,000.00 (ten thousand naira) costs to each set of respondents.
A. B. WALI, J.S.C.: I have read before now, the lead judgment of my learned brother Belgore, J.S.C. and I agree with his reasoning and conclusion for dismissing the appeal. I adopt them as mine and also hereby dismiss the appeal.
I adopt the consequential orders in the lead judgment including that of costs.
I. L. KUTIGI, J.S.C.: I read in advance the judgment just rendered by my learned brother Belgore, J.S.C., I agree with his reasoning and conclusions therein. The appeal is dismissed with costs as assessed.
E. O. OGWUEGBU, J.S.C.: I have had the advantage of the lead judgment just read by my learned brother Belgore, J.S.C. I agree that the appeal is on concurrent findings of facts. The trial court took pains to examine the facts before making its finding on them. The court below upheld those findings of facts.
The position is that where there are two concurrent findings of facts by two lower courts The court will be reluctant to upset the two concurrent findings as no exceptional circumstance has been shown to warrant such interference.
I agree that the appeal is devoid of any merit and it is hereby dismissed. I abide by the order as to costs made by my learned brother Belgore, J.S.C.
U. MOHAMMED, J.S.C.: I have had the preview of the judgment just delivered by my learned brother, Belgore, J.S.C., in draft and I agree that the appellants have failed to disturb the concurrent findings of the two lower courts. I too agree with the lower court that there is no substance in the suit filed by the appellants before the High Court.
This appeal has therefore failed. It is accordingly dismissed. I also award N10.000.00 costs in favour of the respondents.
Appearances
A.A. Damun. Esq. For Appellant
AND
M.Y. Saleh. Esq. – for the 2nd & 4th Respondents
H.N. Fwangchi (Mrs) D.P.P. Plateau State- for the 1st & 3rd Respondents For Respondent
