SHABA AUDU v. ALH. JUBRIL GUTA & ANOR
(2003)LCN/1447(CA)
In The Court of Appeal of Nigeria
On Monday, the 7th day of July, 2003
CA/IL/3/2002
RATIO
EVIDENCE: HE WHO ALLEGES MUST PROVE
“It is trite law that he who alleges must prove and usually the burden of proof is primarily on the plaintiff. Now, whereas the respondents testified to the fact that there were no kingmakers in respect of the stool of Etsu Yampa of Ogudu the appellant testified to the contrary but never called any of the alleged kingmakers to testify as to the fact that they exist in relation to that stool and that all the traditional or customary procedures necessary for the selection of an Etsu Yampa of Ogudu were duly followed in the present case as regards the choice of the appellant.” PER SYLVANUS ADIEWERE NSOFOR, J.C.A.
JUSTICES
SYLVANUS ADIEWERE NSOFOR Justice of The Court of Appeal of Nigeria
PATRICK IBE AMAIZU Justice of The Court of Appeal of Nigeria
WALTER SAMUEL NKANU ONNOGHEN Justice of The Court of Appeal of Nigeria
Between
SHABA AUDU
(for himself and on behalf of Ibrahim family of Ogudu) Appellant(s)
AND
1.ALH. JUBRIL GUTA (Etsu Yampa of Ogudu)
2. ALH. HALIYU YAHAYA (Etsu of Tsonga) Respondent(s)
SYLVANUS ADIEWERE NSOFOR, J.C.A. (Delivering the Leading Judgment):
The plaintiff, qua appellant herein, suing in a representative capacity i.e. “for himself and on behalf of Ibrahim Family of Ogudu”, by his writ of summons filed in the Ilorin High Court of Kwara State on the 3rd of April, 1996, had claimed, as endorsed on the writ and repeated in paragraph 24 of the statement of claim:-
“24 Whereof the plaintiff claimed as follows:-
1. A declaration that 2nd defendant’s appointment in September, 1991 of the 1st defendant, as Etsu Yampa of Ogudu is ultra vires, illegal and contrary to the custom and tradition of the people of Ogudu.
2. A declaration that the plaintiff’s family is the next family to present a candidate for the vacant post of Etsu Yampa of Ogudu.
3. An injunction restraining the 2nd defendant from or installing the 1st defendant as Etsu Yampa of Ogudu.”
Written pleading were ordered in the suit. They were filed delivered and exchanged. The case was fought and contested on the issues joined on the statement of claim and the joint statement of defence of the defendants.
The case came on for trial before R. O. Elelu-Habeeb J. on the 8th of October, 1998, when the actual hearing in the suit commenced.
The plaintiff testified “viva voce” as P.W.3 and called the evidence of two other witnesses: (Shittu Ibrahim, P.W.1; and Yakub Umaru as P.W.2). At the close of the case for the plaintiff, the defendant called the evidence of their one witness, Alhaji Alhassa Jiya (D.W.1) and closed their case.
At the conclusion of the evidence and after receiving the final oral addresses by the counsel, the learned trial Judge, in a reserved and well considered judgment on the 22nd of January, 2001, at page 47 of the record of appeal, held-
“On the totality of the evidence before the court, I am of the view that the plaintiff’s claim (sic) are not support by cogent uncontradictory evidence to warrant judgment to be given in his favour.
The claims are frivolous and are hereby dismissed accordingly.”
He awarded to the defendants the sum of N500.00 as costs against the plaintiff.
It becomes necessary, now, to state the background facts of the case giving rise to the present appeal for the purpose, inter alia, of elucidation to facilitate a quick understanding of the issue canvassed at the trial and being pursued here on appeal. The case deals with and concerns the Ogudu village headship or, the Etsu Yampa chieftaincy stool of Ogudu. The stool fell vacant on the death in 1991, June, of Chief Ndanusa the Etsu Yampa of Ogudu.
The principal allegations of fact forming the foundation of the plaintiff’s case are contained in the following relevant paragraphs 2, 4, 6, 8, 9, 18, 19, 20, 21, 22 and 23 of the statement of claim. They read:-
“2. The first defendant is a native of Mureji, but now lives at Ogudu. He claims to be the Etsu Yampa of Ogudu.
4. Evidence of how the family of the plaintiff found, settled and traded at Ogudu will be given.
6. The plaintiff’s ancestor namely Ibrahim became the 1st ruler by virtue of being the 1st settler and founder of Ogudu town.
8. That the plaintiff avers that Momoh Dendolu was one of the early settlers to join his ancestors he, Dendolu was very loyal to the plaintiff’s ancestors and Dendolu’s family was made the second ruling house.
9. The plaintiff says further that Ibrahim the father of the plaintiff was once from (sic) the Etsu Yampa of Ogudu and after his death, the following people from the 2 ruling houses had produced the Etsu of Ogudu with the following orders:-
1. Momoh Adedendulu from Dendulu house.
2. Sanni Ibrahim from Ibrahim’s house.
3. Ndanuse from Dendulu house.
18. The plaintiff says that it is now the turn of Ibrahim ruling house to produce the Etsu Yampa of Ogudu.
19. That the 1st defendant is not from any of the ruling houses and the process of his appointment or selection did not follow the tradition, custom or method of appointing an Etsu Yampa in Ogudu.
20. In case of a vacancy exists (sic) in the Stool of Etsu the next family, who will be the family to present the Etsu which (sic) hold a meeting and agree on a candidate.
21. The candidate so agreed upon will be put across to the other ruling house and the ruling houses will then present the candidate so selected the Etsu elect to the chiefs in council of Ogudu namely Balogun, Udoji, Ubandawaki and Mongaji.
22. The chief-in-council will then present the candidate so presented to the Etsu of Tsonga for turbaning.
23. The plaintiff contends that the Chiefs-in-Council and the 2 ruling houses were never consulted before the 1st defendant was presented as Etsu Yampa of Ogudu.”
Pausing here for a while for a comment or two on the statement of claim for the purposes of clarity and completeness to put the point aside! The statement of claim, in my respectful opinion, calls for an explanation or two. I am inclined to question: (1) After the plaintiff’s ancestor, Ibrahim, had founded Ogudu village and became its “first ruler” did he thereby “create” himself the Etsu Yampa of Ogudu? Put in other words, who or what authority “turbaned” him or installed him as the first Etsu Yampa of Ogudu village? Or, did he as its first ruler vest himself with the chieftaincy title of Etsu Yampa?
Secondly, after Ibrahim, the plaintiff’s father, became the first ruler (or the first Etsu Yampa of Ogudu village) and had created the second ruling house, on his death, who installed the next ruler of Ogudu village, the 2nd Etsu Yampa of Ogudu? By what procedure was he installed or turbaned?
Thirdly, before ever the chiefs-in-council (or the kingmakers) presented the candidate, (the Etsu Yampa elect) to the “Etsu of Tsonga for turbaning” willy-nilly, would he, the Etsu of Tsonga ever be informed (and if so, how and by whom) that a vacancy had occurred in the Etsu Yampa of Ogudu Stool and that the process of appointing a successor had commenced?
The defendants on their part, set up a case quite parallel to the plaintiff’s. There is no common ground between them. Not only did the defendants deny that there was any ruling house in the Ogudu village or, a chiefs council (or kingmakers) they denied that the father to the plaintiff was the Etsu Yampa of Ogudu. It is necessary to carry the following relevant paragraphs 2, 12, 14, 15, 17, 18 and 19 of the joint statement of defence by the defendants. They read:
“2. The defendants deny emphatically paragraphs 2 to 9; 11 to 24 of the statement of claim.
12. Contrary to the plaintiff’s allegation, the 1st defendant’s forerunner Lefiti was a native of Ogudu, whereas Ibrahim the plaintiff’s father, came from Ibrahim Kpata and was never appointed the Etsu Yampa of Ogudu.
14. The defendants say that the qualification to the throne of Etsu Yampa of Ogudu was loyalty to the Etsu of Tsonga and not by rotation.
15. The defendants maintain that the Emir has the reserved power to appoint any village head within his domain and had exercised this right in appointing for Tada, Chiji, Kwogi, Patako, Kutegi and other villages within living memory.
17. The defendants say powers are vested in the Emir of Tsonga to decide who becomes the Etsu Yampa of Ogudu.
18. The Edu traditional council will approve and decide on the payment of allowances as appropriate.
19. Paragraph 23 is false as the method averred is never practised and final appointment is always done by the Edu traditional council.”
Now, it is the primary onus on a plaintiff to prove his case on the preponderance of evidence. See Kodilinye v. Mbanefo Odu (1935) 2 WACA 336; A. R. Mogaji v. Madam Rabiatu Odofin (1978) 4 SC 91, 94 and their other line of cases – Arising from the State of their pleadings, the issue coming on for determination at the trial, in my respectful opinion, was this: What was the customary way or, method or, procedure for the appointment or installation of the Etsu Yampa of Ogudu village? And did the second defendant in appointing or installing the 1st defendant the Etsu Yampa of Ogudu not comply with or, breached the procedure or the customary method? Put in other words, did the 2nd defendant disregard or refuse to recognize the candidate or, the Etsu elect, presented to him by the kingmakers of Ogudu village?
Not satisfied but indeed, aggrieved and dissatisfied with the judgment against him, the plaintiff, naturally and logically, appealed to this court from the judgment by a “notice of appeal” lodged on the 28th of February, 2001. He raised five (5) grounds of appeal.
Herein, the plaintiff is the “appellant” and the defendants are the “respondents”.
In obedience to and compliance with the rules of court, the appellant had filed an “appellant’s brief of argument” on the 21st February, 2002. Therein, he formulated three issues for determination. Although, the respondents were served with the appellant’s brief of argument, they did not file a respondent’s brief of argument in the appeal. They did not seek leave of the court to file a brief of argument after the expiration of the time allowed to them for the filing of a respondent’s brief of argument in the appeal. The appellants, therefore, applied for and was granted by court to argue the appeal based, solely, on the appellant’s brief of argument.
The three (3) issues formulated for determination at page 2 of the appellant’s brief are hereunder set down:
“4.01 Whether the trial court was right, when it held that the identity of the plaintiff now appellant is fraught with doubt.
4.02 Whether the learned trial Judge considered the totality of the evidence before it (sic) having regards (sic) to the weight of the uncontroverted evidence led by the appellant/plaintiff.
4.03 Whether the trial court was right, when it held that the failure of the appellant to call the kingmakers as witnesses was fatal to his case.”
I shall, again, pause here for a while for a comment briefly on the issues as formulated to put the point aside. I have scrutinized the issues formulated for determination. And the first question I was tempted to ask was this: Assume, argumento, we answered issue No.1 (supra) in the negative, id est, in favour of the appellant that the trial court was in error to have held that the identity of the appellant, qua plaintiff, was “fought with doubt”, would that, ipso facto, result in a reversal of the judgment against the appellant? But was the identity of the appellant, qua plaintiff, an issue at the trial?
For an answer to the poser and for the purpose of clarity, it behoves me to resort to the pleadings. Firstly, to paragraph 1 of the statement of claim!
Paragraph 1:
“The plaintiff is the eldest member of Ibrahim house of Ogudu in Edu Local Government Area of Kwara State.”
How, then, did the statement of defence deal with and answer paragraph 1 (supra)? Paragraph 1 of the statement of defence dealt with and answered paragraph 1 of the statement of claim (supra). It read:
“1. The defendants admit paragraph 1 … of the statement of claim.”
The identity of the plaintiff was clearly, on the pleadings, a non-issue at the trial. But what is the above leading me to? It is this. An issue in an appeal, as we have had occasions to say times out of number, must not only arise from and relate to a ground or grounds of appeal filed but also must be such a proposition of law or of fact or of both so cogent, weighty and compelling that a decision on it in favour of a party to the appeal will entitle him to the judgment of the court.
Needless, citing decided cases on the proposition. But if it be imperative to do so, then, see Chukwuma Okwudili Ugo v. Amanchukwu Obiekwe (1989) 1 NWLR (Pt.99) 566, 580; Standard Consolidated Dredging Construction Co. v. Katonecrest Nigeria Ltd. (1986) 5 NWLR (Pt.44) 791, 799 and their other line of cases. Issue No. 2 and issue No.3 are substantially the same. They deal with evidence, either its sufficiency or, its insufficiency or want of it. Both, therefore, may conveniently be taken, uno flatu, without any injustice, being done to the appellant.
The appeal came on for hearing on the 6th of May, 2003. The respondents were not in court. They did not appear through counsel either. Counsel for the appellant, Aliyu Salman, Senior Advocate of Nigeria (SAN) adopted the appellant’s brief of argument. In laudably short a speech in amplification of the brief, the senior counsel urged us to allow the appeal.
Contentions: – It has been contended by the counsel in the brief at page 3 thereof that the learned trial Judge was in error for failing to consider the evidence placed before him and the issues as formulated by him in his judgment for determination. In the opinion of the learned Senior Counsel, the appellant, qua P.W.3 at the trial, proffered cogent and credible evidence, which was corroborated by Shittu Ibrahim (P.W.1) and Yakubu Umaru (P.W.2) of the customary methods or, the procedure for the selection or appointment or installation of an Etsu Yampa of Ogudu. And the appellant and his other witnesses by their testimony confirmed that the appointment or installation of the first respondent as the Etsu Yampa of Ogudu was not in accordance with the traditional or customary procedure. The first respondent was, on that account, an imposition on the people of Ogudu by the second respondent.
Having not considered the evidence in this regard, the learned trial Judge, it was contended, was in error. He failed to assess and evaluate the evidence placed before him. Leaned Counsel cited and relied on the decisions in Fatoyinbo v. Williams (1956) SCNLR 274; Akinloye v. Eyiyola (1968) NMLR 92 and Salako v. Dosunmu (1997) 8 NWLR (Pt.517) 371.
It being the learned trial Judge’s primary duty to assess and evaluate the evidence as led, it was submitted at page 5 paragraph 6.10 of the brief that the decision, “is unreasonable, unfounded and not based on any precedence (sic) or supported by any authority.”
(And) “His Lordship’s outright shutting of eyes to the testimony of the plaintiff’s witnesses’ testimony is an error which has led to a miscarriage of justice.”
Dealing with his issue No.3 (supra), the contentions by the learned counsel in page 5, paragraphs 7.02 and 7.03 of the appellant’s brief in support thereof were:
Paragraph: 7.02:
“The learned trial Judge held and decided among others that failure of the plaintiff to call any of the traditional kingmakers to give evidence is fatal to the plaintiff’s case (and) created a vacuum which makes it difficult to believe that the witnesses of the plaintiff are witnesses of truth.”
Paragraph: 7.03:
“It is humbly submitted that the decision of the learned trial Judge is misdirected unfounded and baseless. The court is urged to so hold based on the following credible facts:
“1. The defendants did not specifically deny by their pleadings or testimonies in court that the appointment of the first defendant was wrongful null and void.
2. The defendants did not deny that there are laid down procedures which are in accordance with custom of Ogudu village for the appointment of Etsu Yampa of Ogudu.
3. The defendant did not deny that there are recognized ruling houses in Ogudu village and that the appellant is from Ibrahim Ruling House one of the two recognized ruling houses in Ogudu village.
4. The defendants did not deny that the first defendant is not from any known ruling house in Ogudu. This is a fact that even the sole defendant witness testified to under cross-examination by the appellant.”
Citing and relying on the decision in Salawu Olukode v. Alade (1976) 2 SC 183; National Investment Property Co. v. Thompson Organisation Co. (1969) 1 NMLR 99 for the proposition at paragraph 7.04 of the appellant’s brief that the judgment of the court below must be based on all admissible evidence properly admitted and based on the contention (supra) it was pressed on us, “to hold that the trial Judge acted on wrong principles of law in failing to consider and evaluate the evidence by the appellant before him.”
It was further contended in paragraph 7.05 of the appellant’s brief that a party to a suit was entitled to prove his case by or, in any lawful manner he wished, and to call any particular witness who he felt was material for him to prove his case. The learned trial Judge came under fire and was castigated, in the opinion of the counsel, for “approbating and reprobating all at the same time “when as it was submitted in page 6 paragraph 7.06 of the appellant’s brief as follows:
“We submit that it is improper and in fact wrong for the learned trial Judge who had accepted the testimony of the defence witness when the witness testified that, It is not the custom of Edu Local Government traditional council to have kingmakers in the nomination of village head” to have later held that “failure of the plaintiff to give evidence is fatal to the plaintiff’s case.”’
In conclusion, learned Senior Counsel in paragraph 8.05 of the appellant’s brief urged us to allow the appeal, set aside the judgment of the court below and, therefore, enter judgment for the appellant or, in the alternative to order a re-trial.
I have, carefully, considered the learned submissions by the senior counsel in the appellant’s brief. Before I go any further in my consideration of the submissions on the issues herein canvassed, I shall seek leave to dispel some misconception arising from the submissions by the learned Counsel in the appellant’s brief, perhaps not by way of criticism, for the purpose of elucidation to put the point.
Arising from and based on the submission in paragraphs 7.03 and 7.06 of the appellant’s brief, it does appear to me with respect to the learned Counsel, that the joint statement of defence by the respondents, (certain paragraphs of which I carried above) was not fully well appreciated. Assume, argumento, what indices (1-4) specified in paragraph 7.03 of the appellant’s brief (supra) be accepted (and I entertain no doubt whatsoever, that they are wholly and entirely unacceptable)! I may be stating the obvious that once a statement of defence clearly sets out the details of the case of the defendants which are opposed to the case pleaded by the plaintiff, that will and does constitute sufficient traverse.
To constitute a traverse, it is not necessary that every paragraph of the statement of claim should be specifically denied. That may very well be done. Well and good! But what is essential is that the case put forward by the defendant conflicts in material particulars with that put forward by the plaintiff and thus, puts the different material averments in issue. That the respondents’ joint statement of defence just did. See Ojo Ajao v. Opoola Alao (1986) 5 NWLR (Pt. 45) 802, (1986) 12 SC 193, 244.
Similarly, and arising from paragraph 7.06 of the appellant’s brief, it is doubtless that the language of the trial Judge in the judgment at page 46 was not well appreciated. By no means, with respect to the learned Senior Counsel, could it, as it would not, be said that the learned trial Judge “approbated” and “reprobated all at the same time”. No. The criticism of the learned trial Judge with respect, was undeserved. It was made ab irato; written, curreme calamo, with the pen running on and, unwittingly.
The above said, I shall remind myself that with regard to issues of credibility and confidence to be reposed on the testimony of witnesses an appellate court may take the view that not having seen, heard, watched the witnesses in the witness box, it cannot on cold printed evidence usurp the essential functions of the trial court. And with regard to findings of facts unless there be a case of misdirection made out, an appellate court should not come to different conclusion from the trial court on the evidence. See Chief Frank Ebba v. Chief Warri Ogodo (1984) 4 SC 84.
Guided by the principle above stated, I advert to the evidence as led by the witnesses on the crucial issue of the customary method or way or procedure for the appointment or an installation of Etsu Yampa of Ogudu. Firstly to the evidence by Shittu Ibrahim (P.W.1). Part of the testimony by the P.W.1 in-chief at page 30 of the record of appeal read, inter alia:-
“The procedure for selecting an Etsu, when an incumbent dies is for the two ruling houses to meet and decide on whom should be the next Etsu from the two ruling houses. After the deliberations the members of the two houses will inform the traditional kingmakers their choice. There are four kingmakers. These are Maiyaki (Balogun), Budeji, Ubandawaki and Waziri (Magaji). The kingmakers will then go and inform Etsu Tsonga that this new man the families choose is Ogudu’s town choice. In respect of the choice of the 1st defendant the kingmakers were not consulted.”
On the procedure for the appointment of Etsu Yampa, this was the version of the evidence by the P.W.2 (Yakubu Umaru) in-chief at page 31 of the record of appeal:-
“When an Estu dies, the two ruling houses will meet and deliberate on the next choice – after choosing some one we informed the kingmakers – Maiyaki, Udeji, Ubandawaki, and Magaji or Waziri. We shall tell these people our choice. The traditional kingmakers will then inform the Etsu Tsonga; who should then accept the people’s choice.”
Cross-examined the P.W.2 added at page 34 of the record as follows:-
“Since the time we have been having rulers more chief (sic) in our town … but the choice is always made by the people of the town through kingmakers.”
On his part, the appellant, qua P.W.3 testified in-chief at page 33 of the record thus:
“The two families would meet to select a candidate if there is a vacancy. The two ruling houses used to rotate. If one candidate is selected, the candidate would be presented at Tsonga to Etsu Tsonga for turbaning. The procedure was not taken in selection of the present Etsu Yampa – 1st defendant. The Etsu Tsonga did not allow us to choose. He picked his own who came from Niger.”
Cross-examined by counsel, he added at pages 34/35:
“It is not true that the Etsu Tsonga selected chiefs for us. We in our town used to make our choice and send the name to Etsu Tsonga … The Etsu does not have power (sic) to choose our king for us. He accepts the choice of our people – that is all he can do.”
On the part of the respondents, their sole witness (Alhaji Alhassan Jiya D.W1) at page 36 of the record of appeal had this to say:-
“In Edu/Patigi traditional council, if a stool of the village head is vacant, the people of the village will notify the recognized chief of that area who in this case is the Emir of Shonga (as spelt). It is the Emir who has the prerogative power to select the village head in his district. Jibril the 1st defendant was selected by the Emir of Tsonga as the head of Ogudu … It is not the custom of our area to have kingmakers at the village level. The choice of village head is that of the recognised and graded chief of the area. Kingmakers are made or available for recognized and graded chiefs and not for village heads … The 1st defendant is a village head and he is not a graded or recognized chief of the council.”
Cross-examined, the D.W1 added:-
“I do not know of any ruling house in Ogudu community… The 1st defendant in this case is a native of Ogudu in Kwara State.”
Now, where the P.W.1 and the P.W.2 said that the procedure for the appointment or installation of an Etsu Yampa of Ogudu was that (1) the two ruling houses would meet and select the Etsu Yampa elect and, (2) thereafter, inform the four named kingmakers of their candidate and, (3) the kingmakers, in turn, present or/inform the Etsu Tsonga for installation or turbaning, but the P.W.3 said, no the procedure was that (a) the two ruling houses would meet, select and appoint the Etsu Yampa elect and, (b) present him to the Etsu Tsonga for installation or turbaning, then, immediately in my respectful opinion, a contradiction emerges and becomes obvious in the evidence by the P.W.1 and P.W2 on the hand, and the evidence by the P.W.3 on the other hand.
Secondly, where the PW.3 stated that the choice or selection and appointment of the Etsu Yampa elect of Ogudu was the responsibility of the two ruling houses but the P.W.2 testified, when cross examined (see page 34) that:-
“The choice is always made by the people of the town through kingmakers.”
Again a contradiction emerges in the evidence by the P.W.3 and the P.W.2.
The effect of these contradictions on the procedure for the appointment or installation of Etsu Yampa, in my respectful opinion, will be disastrous. But how? They would have the effect of destroying the case of the appellant wholly and entirely, knocking the bottom off their case, and have the effect of leaving the case of the respondents firm, solid and monolithic. See Mogaji & Ors. v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt. 7) 393.
I, now, advert, firstly, to section 135 sub-sections (1) and (2) of the Evidence Act, Cap. 112, Laws of the Federation, 1990. It stipulated:-
“135(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exists.”
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”
Now, whether or not there be the kingmakers stated nominee in Ogudu village and, who, under the custom, play any role in the appointment of an Etsu Yampa of Ogudu, is a question of fact requiring to be proved by him or those who made the assertion. And no kingmakers came forward to testify that they were such kingmakers in Ogudu village. And there is the aphorism, apposite in the con of this appeal. “If you do not say, I am. No one says, thou art”. No such kingmakers, as pleaded and, testified to by the appellant’s witnesses were identified in court to the court. And if they did not say, “We are”. Who would ever say, “Thou art”.
But there was the evidence by the D.W.1 to the effect that it was not the custom to have kingmakers at the village headship level. There was on the pleading by the statement of claim and the evidence along that line by the appellant and his witnesses (and this was at the back of the dispute and controversy between the parties) that the second respondent breached the custom in appointing the first respondent the Etsu Yampa of Ogudu.
Indeed, according to the P.W.1, “in respect of the choice of 1st defendant, the kingmakers were not consulted.” Per P.W.2 in support of the evidence by the P.W.1 the first respondent “was not presented to Etsu Tsonga by kingmakers.” Evidence in proof of the existence of the kingmakers, (and they were no ghosts but men of flesh and blood) and, whether or not the second respondent breached the customary method or, procedure in appointing the first respondent the Etsu Yampa of Ogudu was vital and material. Evidence in proof of the alleged breach by the second respondent would necessarily be given by the kingmakers, sese ipse – themselves. The question may be asked: Why was such material evidence on the crucial issue kept back and or withheld? I shall decline to record my obvious answer to the poser (supra).
But what was the learned trial Judge’s handling of the evidence as led by the parties? This was how he expressed himself at page 46 of the record of appeal:-
“Failure of the plaintiff to call any of the traditional kingmakers to give evidence is fatal to the plaintiff’s case because, if the traditional kingmakers play such vital link between the two ruling houses and the second defendant rejected the kingmakers’ choice then the evidence to that effect is material to the plaintiff’s case. Lack of such an important piece of evidence has created a vacuum which makes it difficult to believe that the witnesses of the plaintiff are witnesses of truth. It also goes to give credibility to the evidence that (in) the appointment of a village head, there is no use of traditional kingmakers as a village head is not a recognized or graded chief.”
The learned trial Judge, therefore, impliedly rejected the evidence of the appellant and his other witnesses and, disbelieved them that any customary procedure in the appointment of the first respondent as the Etsu Yampa of Ogudu by the 2nd respondent was ever breached. Hence, he dismissed the appellant’s claim.
I have no difficulty whatsoever in holding that the learned trial Judge was right. I confess my complete agreement with his final conclusion.
I, now, proceed to record my resolution of each of the issues (supra) for determination.
Each of the issues ought, ex necessitate, to be resolved in favour of the respondent and, eo ipso, against the appellant.
In the final analysis, the appeal is doomed to fail. It fails accordingly.
The judgment of the court below on the 21st January, 2001, is hereby affirmed by me. The appeal is dismissed accordingly.
I shall make no order for costs.
PATRICK IBE AMAIZU, J.C.A.: The law is that the burden of proving a particular fact is on the party who seeks to rely on it and who will fail where such evidence is not adduced.
In the present suit, the plaintiff now the appellant averred in paragraphs 20-21 of the statement of claim as follows:-
“20. In case of a vacancy exists on the stool of Etsu of Yampa, the next family who will be the family to represent the Etsu which hold a meeting and agree on a candidate (sic).
21. The candidate so agreed upon will be put across to the other ruling house and the 2 ruling houses will then present the candidate so selected to Etsu elect to the chiefs in council of Ogudu namely Balogun, Udoji, Ubandawaki and Mogaji.
22. The chiefs in council will then present the Etsu of Tsonga for turbanning.”
The appellant did not adduce credible evidence in support of the above procedure. That being the case, I agree with Nsofor, J.C.A., that the appeal has no merit. It is accordingly dismissed.
I abide by the consequential orders, including the order on costs contained in the lead judgment.
WALTER SAMUEL NKANU ONNOGHEN, J.C.A.: I have had the advantage of reading, in draft, the lead judgment of my learned brother, Nsofor J.C.A. I agree with his reasoning and conclusion, that the appeal lacks merits and should be dismissed.
Even though, the respondents filed no respondents’ brief in this appeal there are sufficient materials on record, particularly the pleadings, evidence, judgment of the lower court and the appellant’s brief to justify the conclusion that the appeal is devoid of any merit.
The primary issue before the lower court, judging from the pleadings and the evidence on record is: what is the procedure, according to the customs and traditions of Ogudu village, for the appointment and/or installation of an Etsu Yampa of Ogudu village. Whereas the appellant pleaded inter alia:-
that his ancestor, founded Ogudu Town and was the 1st ruler thereof, while the second ruling house is that of Dendolu which alternate the occupation of the stool of Etsu Yampa of Ogudu, between them and that it was the turn of his family – Ibrahim Ruling House to produce the next Etsu Yampa of Ogudu; that the 1st respondent does not come from either of the ruling houses neither did the process of his selection or appointment follow the customs and traditions of the people.
That where a vacancy exists in the stool of Etsu the custom is for the ruling house, which is the next to fill the vacancy to meet and select a candidate who would be presented to the other ruling house who will in turn present the Etsu – elect to the Chiefs in council of Ogudu. That the chiefs in council will then present the candidate to the Etsu of Tsonga for turbaning and that Chiefs-in-Council were never consulted before the 1st respondent was presented as Etsu Yampa of Ogudu – see paragraphs 4, 6, 8, 9, 18, 19, 20, 21, 22 and 23 of the statement of claim.
The respondents presented a completely different case and denied all the material averments in the statement of claim.
They contended that the qualification for the throne of Etsu Yampa of Ogudu is loyalty to the Etsu Tsonga and not rotation. That the Emir has the reserved power to appoint any village head within his domain which he has been exercising without let or hindrance. That the power to decide who become the Etsu Yampa of Ogudu rests with the Emir of Tsonga.
It is trite law that he who alleges must prove and usually the burden of proof is primarily on the plaintiff. Now, whereas the respondents testified to the fact that there were no kingmakers in respect of the stool of Etsu Yampa of Ogudu the appellant testified to the contrary but never called any of the alleged kingmakers to testify as to the fact that they exist in relation to that stool and that all the traditional or customary procedures necessary for the selection of an Etsu Yampa of Ogudu were duly followed in the present case as regards the choice of the appellant.
I therefore, agree with the conclusion of the learned trial Judge at page 46 of the record that:-
“Failure of the plaintiff to call any of the traditional kingmakers to give evidence is fatal to the plaintiff’s case because, if the traditional kingmakers play such vital link between the two ruling houses and the second defendant rejected the kingmakers’ choice then the evidence to that effect is material to the plaintiff’s case.
Lack of such an important piece of evidence has created a vacuum which makes it difficult to believe that the witnesses of the plaintiff are witness of truth. It also goes to give credibility to the evidence that the appointment of a village head, there is no use of traditional kingmakers as a village head is not recognized or graded chief.”
For this and other reasons, contained in the said lead judgment of Nsofor, J.C.A. I too, dismiss the appeal as lacking in merit and abide by the consequential orders made therein, including the order as to cost.
Appeal dismissed.
Appearances
Aliyu Salman, SANFor Appellant
AND
Respondents absent and not representedFor Respondent
