MOHAMMED HUSSEINI & Anor v. MOHAMMED NDEJIKO MOHAMMED & Ors(2005)

MOHAMMED HUSSEINI & Anor v. MOHAMMED NDEJIKO MOHAMMED & Ors

(2005)LCN/1705(CA)

In The Court of Appeal of Nigeria

On Thursday, the 10th day of March, 2005

CA/IL/48/2003

RATIO

ACTION: WHETHER A PARTY TO AN ACTION IS BOUND TO TESTIFY IN PERSON IN HIS CASE

A party to an action is not bound to testify in person, provided he has other witnesses to prove his case and demolish his opponent’s case. If the evidence led by the plaintiffs in this case met the requirements just highlighted, then it was totally immaterial that the 2nd plaintiff did not testify in person. Therefore, the question as to who had the burden of calling him or of explaining his failure to be in court was totally irrelevant. PER IKONGBEH, J.C.A.

JUSTICES

MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE Justice of The Court of Appeal of Nigeria

ABOYI JOHN IKONGBEH Justice of The Court of Appeal of Nigeria

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

Between

MOHAMMED HUSSEINI
2. H.R.H. ALHAJI SAIDU KAWU HALIRU
(Emir of Lafiagi) Appellant(s)

AND

MOHAMMED NDEJIKO MOHAMMED
2. NDEJIKO ABUBAKAR (NDEJIKO)
3. MAMA JIYA (TSADA)
4. MAMA GANA (MAJIN-DODO)
5. MOHAMMED GANA (MADAWAKI)
(For themselves and on behalf of Zambufu Traditional Counsellors) Respondent(s)

IKONGBEH, J.C.A. (Delivering the Leading Judgment): The appellants before us were the defendants before the High Court of Kwara State sitting at Ilorin. The respondents, as plaintiffs, had taken out a writ of summons against them claiming –
1. A declaration that the 1st defendant under the age long custom and tradition of Zambufu has no right whatsoever to ascend the throne as the Zhitsu of Zambufu.
2. A declaration that under the native law and custom relating to the selection and appointment of Zhitsu of Zambufu, the 1st defendant’s family is not a ruling house in Zambufu.
3. A declaration that the appointment and/or turbaning of the 1st defendant by the 2nd defendant on or about the 12th day of November, 1991 as the Zhitsu of Zambufu is illegal, null and void and of no effect whatsoever as same is against the age long custom and tradition of Zambufu relating to and in connection with the appointment of Zhitsu of Zambufu.
4. A declaration that the 1st plaintiff is the dully selected and appointed Zhitsu of Zambufu by the majority of Zambufu traditional counsellors or king-makers is in accordance with the custom and tradition of Zambufu relating to and in connection with the selection and appointment of Zhitsu of Zambufu.
5. An order commanding and/or directing the 2nd defendant to turban or install the 1st plaintiff as the duly selected and appointed Zhitsu of Zambufu by the majority of Zambufu traditional counsellors or King-makers.
6. A perpetual injunction restraining the –
i. 1st defendant from parading or presenting himself as the Zhitsu of Zambufu;
ii. 2nd defendant, his servants, agents, privies or any person or persons however from recognising, dealing or relating with the 1st defendant as the Zhitsu of Zambufu.”
As can be seen from their claims, the plaintiffs’ challenge to the appointment and turbaning of the 1st defendant was based on two main grounds. First, they alleged that the 1st defendant was not qualified to aspire to the stool of Zhitsu or traditional ruler of Zambufu, he not being one of the two ruling houses in Zambufu.
Secondly, they complained that, even if he was qualified, the manner of his selection and turbaning was contrary to the procedure laid down by their custom and tradition.
Each side called four witnesses in support of its case. After taking written addresses from counsel for the parties the learned trial Judge, A. A. Adebara, J., delivered his judgment on 29/11/2002 substantially in favour of the plaintiffs. He had considered the following five issues, which were canvassed before him:
“1. What is the Native Law and Custom guiding the selection and/or appointment of a Zhitsu of Zambufu?
2. Whether or not the 1st defendant is from a ruling house in Zambufu to be eligible to contest the stool of Zhitsu of Zambufu?
3. Whether or not the purported appointment of the 1st defendant as the Zhitsu of Zambufu is proper and in accordance with the native law and custom of Zambufu?
4. Has the 1st plaintiff been properly selected and appointed as the Zhitsu of Zambufu?
5. Whether the plaintiffs are entitled to the reliefs sought by them?”
He resolved in favour of the plaintiffs the two crucial questions, which were those raised in Issues 2 and 3, namely, whether or not the 1st defendant was from a ruling house and, therefore, qualified, and, secondly, whether or not his installation was in accordance with the customary procedure. On the first issue, he found that both sides were agreed on what the custom relating to the selection and turbaning of the Zhitsu was. Based on what he found that custom to be, he came to the conclusion that the selection exercise as it related to the candidates, whom he found to be qualified for the contest, excluding the 1st defendant, of course, was incomplete. He consequently ordered that the exercise be completed as it relates to those two candidates, namely, the 1st plaintiff and another person, with whom we are not really concerned in this appeal. Thus, he did not fully resolve the fourth and fifth issues fully in favour of the plaintiffs, who have, however, not appealed against that aspect of the decision.
Aggrieved, the defendants have appealed to this court. Out of the nine grounds of appeal filed on behalf of the appellants Mr. N. K. Ajide formulated the following 5 rather verbose, repetitive and, in some cases, irrelevant issues for determination:
“1. Whether in the light of glaring contradictions in the evidence of the plaintiff/respondents’ evidence before the trial court, the trial court was not in error in holding that the two named ruling houses by the respondents were the two known ruling houses in Zambufu thereby effectively making it impossible for the 1st appellant to vie for the stool or Zhitsu of Zambufu? – grounds 1 and 6.
2. Whether the trial court was right in shifting the onus of proof on the defendants/appellants regarding whether a vital witness and party to the suit, that is the 2nd plaintiff/respondent, was sick and incapable of attending court to give material evidence?
3. Whether the trial court was right in granting consequential order, ordering the 2nd appellant to appoint one out of two candidates, namely, Mohammed N. Mohammed that is the 1st respondent and one Ibrahim Ndakogi who was not a party to the suit and who never participated in the proceedings of the trial when that was not the case of the plaintiffs/respondents before the trial court neither was such a relief sought, and after the trial court had refused two principal reliefs relating to the consequential order?
4. Whether the trial court was right in holding that there is established Native Law and Custom regarding the selection and appointment of Zhitsu of Zambufu when the evidence before the court were (sic) contradictory and when there is no known Native Law and Custom of Zambufu which has assumed notoriety to make the court to take judicial notice of it? – Grounds 4,8 and 9.
5. Whether the court was right in holding that the 1st appellant is not a member of any ruling house in Zambufu when such holding was based on hearsay evidence?”
Chief W. Olanipekun, SAN., for the respondents, formulated the following 4 issues:
“i. Whether the learned trial Judge was not right in nullifying the purported appointment of the 1st appellant by the 2nd appellant as the Zhitsu of Zambufu?
ii. Whether the learned trial Judge has not made the right findings with regard to or in connection with the roles of the traditional councilors of Zambufu in the selection and or appointment of a Zhitsu of Zambufu?
iii. Whether the learned trial Judge was not right in making a consequential order in favour of the plaintiffs?
iv. Whether the onus to disprove the state of health of the 2nd plaintiff/respondent does not lie on the defendants/appellants?”
I must observe straightaway that the fourth issue in the respondents’ brief, which raises the same question as does issue 2 in the appellants’ brief, is totally irrelevant to the resolution of this appeal. What the learned trial Judge said or did not say about the fact that the 2nd plaintiff did not testify has no relevance to his decision appealed from. This is so, considering the case made before him by each side in its pleadings and the evidence led in support thereof. What should be of concern to us is whether or not the evidence before him justified his decision. A party to an action is not bound to testify in person, provided he has other witnesses to prove his case and demolish his opponent’s case. If the evidence led by the plaintiffs in this case met the requirements just highlighted, then it was totally immaterial that the 2nd plaintiff did not testify in person. Therefore, the question as to who had the burden of calling him or of explaining his failure to be in court was totally irrelevant.
Another preliminary observation that I must make is that the real issues for determination in this appeal are not as many as counsel for parties have made them. Considering the parties’ cases before the trial Judge and his decision thereon, I think only three issues arise in this appeal, namely,
1. Whether or not the learned trial Judge was right in his conclusion that the 1st appellant was under the custom and tradition of Zambufu, not qualified to vie for the stool of Zhitsu of Zambufu?
2. Whether or not the Judge was light in his decision that, even if the 1st appellant was qualified to contest the stool, his selection and turbaning as such was not in accordance with the custom and tradition of Zambufu, and should, therefore, be declared a nullity?
3. Whether or not the Judge was right in making the consequential orders he made in favour of the respondents?
The first issue that I have identified, which raises the same question as the first, fourth and fifth issues formulated on behalf of the appellants is, without question, the most crucial one. If the 1st appellant was not in the first place qualified to contest, then the question whether or not the correct procedure had been followed in appointing and turbaning him would not arise. I must observe, however, that the appellants’ counsel did not give it the attention that it deserves. He spent more time on the secondary question whether or not the correct procedure had been followed in turbaning the 1st appellant. On the crucial question he made only one point, namely, that the evidence of PW2, on which, according to learned counsel, the learned trial Judge based his decision that the 1st appellant was not qualified to contest, was hearsay and, therefore, inadmissible. On this basis, learned counsel has urged us to resolve this issue in favour of the appellants.
The first question that immediately suggests itself is whether indeed the learned trial Judge based his decision on the evidence of PW2 alone as alleged on behalf of the appellants. The follow-up question would, of course be whether, if there was other evidence beyond that of PW.2, such evidence sufficed to justify the Judge’s decision. To answer these questions it is necessary, first, to see how the Judge dealt with the issue, which was the second of the five issues he dealt with. His consideration of, and decision on it are on pages 187-195 of the record. The case of the respondents in their statement of claim and reply to the statement of defence was that the 1st respondent was not qualified to vie for the stool because he did not belong to any of the two ruling houses, namely, the Jinu or Dzumu or Dzunu and Gbasa or Gbaza houses, as the two houses are variously referred to in the record. The appellants in their statement of defence agreed that there are only two ruling houses and that the 1st respondent hails from the Gbasa or Gbaza ruling house. With respect to the other house, it was their case that it is known as Ginda and not what the respondents claimed it to be. According to the appellants, the 1st appellant hails from the Ginda House through the line of Mohammed Kolo, of whom the appellants to be alleged him a great-grandson. It was their case that one Mohammed Nupayinko Nopanyiko, as he was variously called, allegedly the first settler of Zambufu, founded the Ginda house.
As to which of the two sides proffered a more credible evidence regarding who first settled in Zambufu, the learned trial Judge observed, commented and held at pages 189 – 190 of the record:
“The 1st defendant who claimed that he is of Ginda ruling house of Zambufu, traces the root of Ginda ruling house to one Mohammed Nupayinko whom he alleged was the 1st settler in Zambufu. That it was after they had settled that Maaji Bunu came during the reign of 6th Zhitsu and was received with open hands. He also testified that Maaji Gbasa followed and he too was openly received. It is however noted that the defendants had pleaded in paragraph 5 of their statement of defence that the first two settlers in Zambufu were Ginda and Gbasa. No doubt the evidence led by the defendants that the first settler was the leader of Ginda ruling house called Mohammed Nupayinko followed by Maaji Bunu during the reign of 6th Zhitsu and finally followed by Maaji Gbasa is at variance with the defendants’ pleadings. They therefore go to no issue. I disregard the evidence accordingly. See Alhaji Otam & Sons Ltd. & Ors. v. Audu Idris & Anor. (1999) 4 SCNJ 156; (1999) 6 NWLR (Pt. 606) 330; The Shell Petroleum Dev. Co. (Nig.) Ltd. v. Kwameh Ambah (1999) 12 SCNJ 152; (1999) 3 NWLR (Pt. 593) 1; Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290; (2001) FWLR (Pt.32) 12.
It therefore follows from the above that the only version of evidence before me as to the first settlers in Zambufu is that led by PW1 and P.W.2 which is in line with the plaintiffs’ pleading that the first two settlers in Zambufu were Jinu and Gbasa who were brothers and the said evidence is not patently and obviously improbable. I believe and accept the evidence. See Modupe v. State (1988) 4 NWLR (Pt.87) 130 at 137.” (Italics mine).
The first point to note here is that the learned Judge did not base his decision solely on the evidence of P.W.2. He based it, firstly, on the fact that the evidence proffered by the appellants in proof of the assertions in their statement of defence was at variance with their pleadings. Secondly, he based it on the evidence, not only of PW2, but also of PW1, and the fact that the evidence of the two witnesses was in consonance with their pleading that the first settlers were Jinu and Gbaza, who were brothers. A look at the pleadings of the parties and the evidence proffered in proof thereof easily shows the justification for the Judge’s conclusion on the point. In paragraphs 8 and 9 of their statement of claim, the respondents pleaded that –
“8. The plaintiffs aver further that Zambufu was founded in about 1730 A.D by two brothers namely Jinu or Dzunu and Gbasa.
9. Jinu was the first Majin of Zambufu and after his reign, he was succeeded by his brother Majin Gbasa who is the great-great-grand father of the 1st plaintiff herein.”
In proof of these assertions P.W.1 testified at pages 89 – 90 of the record that –
“There are no other ruling houses apart from Jinu and Gbasa. The Chief of Zambufu is called Maaji before but now beating Zhitsu. The founded of (sic) Zambufu are Majin Jinu and Majin Gbasa. The name of the first Chief of Zambufu was Maji Jinu. He was succeeded by Maji Gbasa. Maji Jinu and Maji Gbaza are brothers.”
It can be seen that this testimony is completely in line with the pleadings just highlighted. The pleadings of the appellants on this point is in paragraphs 5 and 6 of their statement of defence as follows:
“5. The defendants deny paragraph 8 and state further that the first two settlers at Zambufu are Ginda and Gbasa.
They were not brothers i.e., not related.
6. The defendants deny paragraph 9 of the statement of claim and state further that the first Majin of Zambufu was Mohammed Zhitsu Nopanyiko. He was succeeded by Umaruko. They were both from Ginda ruling house.”
And what was the evidence in support of these averments? At pages 122 – 123, the 1st appellant, who testified as DW1, stated:
“My family was the direct first settlers of Zambufu. My family migrated from a place called Atagara. When they were coming they first settled at a place called Raba. From Raba, they again settled at Etsu. They moved again and settled at Oku. They moved downward from Oku until they got to the Bank of River-Niger i.e., Gutu. When they wanted to cross to the other side of Niger River, there was no canoe or any other thing to carry them. The head of the family by name Mohammed Nupayinko due to his divine prowess told them that he would enter into the bush and anything that came out shall be instrument that would carry them to the other bank of the river. He did entered into the bush and a crocodile emerged. It was this crocodile that carried the members of the family to the other side of the river. From the river bank, they moved to the present place called Zambufu beside a stream. The name Zambufu was got from the wife of the leader of the family whose name was Fatima. Her trade was to prepare local pulp called Zambu. Travellers passing by used to buy Zambu from her. The name means a town where local pulp (Zambu) is made. The leader of the first settler Mohammed Nupayinko was from Ginda ruling house.” (Italics mine).
The 1st appellant clearly did not appear able to make up his mind whether the founder of Zambufu was the man called Ginda who, together with Gbasa, was the first settler as averred in paragraph 5 of the statement of defence, or the man called Mohammed Nopanyiko as claimed in evidence. Were Ginda and Mohammed Nopanyiko one and the same person? Did Mohammed Nopanyiko and Gbasa arrive together as claimed in the statement of defence or did they come one after the other as claimed in evidence. The appellants shed no light at all on these grey areas. In the circumstances, the learned trial Judge was, in my view, clearly justified in rejecting the appellants’ case and accepting the respondents’ to the effect that Jinu and Gbaza were the first settlers and started the chieftaincy stool.
On whether or not the appellants satisfactorily established the 1st appellants’ link to any of the two ruling houses the learned trial Judge observed, commented and found at pages 190 – 195:
“Evidence abound in this case from PW.1 – PW.4 that the 1st defendant is not from any of the two ruling houses in Zambufu. The defendants would not agree. The plaintiffs through PW1 and PW2 led evidence that 1st defendant is from Kada family of which Mohammed Kada was their progenitor. That the founder of 1st defendant family came with crocodile from which the family derived its name Kada as crocodile means ‘Kada’ in Hausa. PWI and PW2 also testified that though there is a Ginda House in Zambufu but it is not a ruling house.
PW.2 said that 1st defendant is not from Ginda house.
Also, it was led in evidence before me that the relationship of the 1st defendant to Ginda house is maternal through Azunkwo Kashi who had her third marriage to a man in Ginda house. Tracing the historical root of the first defendant PW 1 testified that Shaba Kada was the 1st defendant’s grandfather while Makun Eba was his father. Mohammed Kada was married to one Azunkwo Kashi, their marriage produced Shaba Kada. Shaba Kada in turn begat Makun Eba while Makun Eba gave birth to Mohammed Hussein (the 1st defendant).
The net effect of the above is to say that Mohammed Kada was the 1st defendant’s great grandfather. Shaba Kada was his grandfather while Makun Eba was his father. PW.1. Evidence also revealed that after the death of Mohammed Kada, his widow Azunkwo Kashi got remarried in the house of Ndejiko Kola Gaya to one Nda Mudan and begat Ndejiko Showoya. Upon the death of Nda Mudan, Azunkwo Kashi remarried the third time at Ginda house to Etsu Kolo, the then leader of the youths where she begat Nnakwa Wodu. Nnakwa Wodu the daughter of Etsu Kolo got married to Zhitsu Idris Legbo, the 10th Zhitsu of Zambufu from Gbasa ruling house. He said it was this Nnakwa Wodu that brought the 1st defendant and his father to her matrimonial home for care because there was no one to look after them. He added that none of the three houses where Azunkwo Kashi married, i.e., Kada House, Ndejiko House and Etsu Kolo House is a ruling house in Zambufu, and Zhitsu Idris Legbo house where the 1st defendant and his father lived under the case of their sister (Nnakwa Wodu) is not their father’s house. These piece (sic) of evidence were also corroborated by the evidence of PW.2 who testified in the same vein. PW2 added that Zhitsu Mohammed Kolo was his own great grandfather and not the grandfather of the 1st defendant. Tracing his relationship with Zhitsu Mohammed Kolo, he said that Zhitsu Mohammed Kolo gave birth to Zhitsu Usman Kolo and Mohammed Jiya Kuti.
Mohammed Jiya Kuti gave birth to Zhitsu Mohammed Jiya while Zhitsu Mohammed Jiya gave birth to Zhitsu Mohammed Yissa (his own father).”
On the other hand, with a bid of proving that 1st defendant is from a ruling house in Zambufu, the defendants pleaded in paragraphs 11 and 20 of their statement of defence that he is from Ginda ruling house and he is the great grandson of Zhitsu Mohammed Kolo of Ginda ruling stock. The defendants are in effect saying that Zhitsu Mohammed Kolo was the great grandfather of the 1st defendant. The evidence produced by the defendants in respect of the above averments came from DW.1 and DW.2. They said that Mohammed Kolo who was the 8th Zhitsu of Zambufu begat 1st defendant’s father, Hussein Yissa. Expatiating, they said Azunkwo Kashi got married to Mohammed Kolo after the death of her first husband from Ndejiko family. She begat two children from Mohammed Kolo namely, Mohammed Shaba, who in turn gave birth to 1st defendant’s father and Awawu Nnakwa, a female. This in my view show that it is not true that Mohammed Kolo begat the 1st defendant’s father. The marriage between Azunkwo Kashi and her first husband produced Showoya. Though 1st defendant said his family is not known by any other name other than Ginda, he made a roundabout turn when he added that Kada was the name given to their ancestor for divine prowess.
However, DW.3 said Mohammed Kolo was the grandfather of the 1st defendant. It is to be noted however that both DW.1 and DW.2’s evidence are to the effect that Mohammed Shaba was the 1st defendant’s grandfather. Their evidence are therefore in contradiction to each other. He also said that the name of the 1st defendant’s great grandfather was Mohammed Kolo. However, under cross-examination he said Eba Yissa was the father of Makun Eba meaning that Eba Yissa was the grandfather of 1st defendant since Makun Eba was the 1st defendant’s father. Here, he has again contradicted himself as he had earlier said that Mohammed Kolo was the grandfather of 1st defendant. What I need to decide now is whether the 1st defendant was the great grandson of Mohammed Kolo, a one time Zhitsu of Zambufu. If he is, then the 1st defendant could be said to be from a ruling house irrespective of whether it is Gbasa or Ginda since both parties agreed that Mohammed Kolo was once a Zhitsu of Zambufu. On this, I need to observe that the evidence tendered by DW.1 – DW.3 as regards the relationship of the 1st defendant with Zhitsu Mohammed Kolo is confusing. In one breadth, DW.1 said Mohammed Kolo beg at his father, in another breadth, he said Mohammed Shaba beg at his father while Mohammed Kolo begat Mohammed Shaba. DW.3 did not fare better. He said Mohammed Kolo was the grandfather of the 1st defendant. In another breath, he said Mohammed Kolo was the great grandfather of the 1st defendant and yet in another breadth he said Makun Eba (the father of 1st defendant) was begat by Eba Yissa. All these contradictions did violence to the averments of the defendants in their pleading that 1st defendant was the great grandson of Mohammed Kolo. On the other hand, I prefer the evidence of PW1 and PW2 that Mohammed Kolo who reigned as the 7th Zhitsu was from Gbasa ruling house. I believe the evidence of PW2 that Zhitsu Mohammed Kolo begat Usman Kolo and Mohammed Yissa Kuti. I believe also that Mohammed Jiya Kuti gave birth to Mohammed Jiya who in turn begat Mohammed Yissa – the 1st plaintiff’s father.
My believe is strengthened by the evidence of PW.3, one Mohammed Jiya who gave evidence that Mohammed Kolo who reigned as the 7th Zhitsu was his maternal great grandfather. His evidence corroborated that of PW.2. He said Mohammed Kolo beg at Usman and Jiya Kuti. Usman was the 9th Zhitsu of Zambufu. He gave birth only to Nnadisa (a female) who in turn begat his own father Mohammed Jiya. He denied the 1st defendant being a descendant
of Zhitsu Mohammed Kolo. This witness as well as PW1 were nor cross-examined on this aspect of their evidence by the defendants.
Rather, they chose to call evidence of their own which were not only confusing but contradictory as noted above.
“Be it noted that the plaintiffs asserted that the 1st defendant’s house name in Zambufu is Kada and that Mamman Kada was the founder. The 1st defendant himself agreed though with hesitation that Kada was the name given to their ancestor from divine prowess. He agreed that Kada is an Hausa word meaning crocodile. I find the denial by the 1st defendant and DW3 that their house is not Kada but Ginda as an attempt to put wool on the face of the court. From 1st defendant (DW.1) evidence that Kada (an Hausa word meaning a man with crocodile) was given to their ancestor for his divine prowess in addition to telling the court that the family rode on Kada (Crocodile) across river Niger to pass to Zambufu and with the admission by DW.2 that there is Mamman Kada house in Zambufu when 1st defendant grandfather himself was called Shaba Kada proves beyond any peradventure that 1st defendant is from Kada family in Zambufu and I so hold. I do not believe the attempt by the 1st defendant to say that he is from Ginda House in Zambufu let alone believing that Ginda is a ruling house in Zambufu. It is also my finding that Mamman Kada was the ancestor of the 1st defendant. He got married to Azunkwo Kashi who begat Shaba Kada who in turn begat Makun Eba, the first defendant’s father.
I therefore find that 1st defendant is not related to Zhitsu Mohammed Kolo as claimed, rather it is my finding that Zhitsu Mohammed Kolo was the great grandfather of the 1st plaintiff. I believe that the father of the 1st defendant contested along with the 1st plaintiff’s father for the vacant stool of Zhitsu in 1967. It is however my finding from the evidence before me that his candidatureship was rejected by the Zambufu traditional counsellors because he was not from any of the ruling houses. In view of this, one can see the rationale behind the rejection of the candidatureship of the 1st defendant by the Zambufu traditional counsellors. By the 1st defendant’s own showing, he said the names of the contestants must, under the Zambufu native law and custom, be forwarded to the 2nd defendant through the Ndejiko of Zambufu. He admitted that his name was not forwarded to the 2nd defendant through the Ndejiko. I find that his name was not forwarded by the Ndejiko because he was found not to belong to any of the ruling houses in Zambufu. I do not believe the testimony of DW. I that the Emir of Lafiagi in 1967 choose and turbaned the 1st plaintiff’s father contrary to the wishes of the people who preferred his own father. The evidence of DW.2 is very clear in this regard that if a candidate is agreed upon at the house of Ndejiko, the Emir of Lafiagi has no power to impose his own candidate.
I also accept the evidence of PW4, Ibrahim Kolo, a member of Jinu family who asserted as untrue the allegation of the defendants that there is no Jinu ruling house in Zambufu. He gave the names of Zhitsu that has so far reigned from Jinu ruling house in line with plaintiff pleading thereby corroborating the evidence of PW.1. This witness was not taken up under cross-examination on his testimony that there is Jinu ruling house and that he came from the said ruling house. On the whole, I find as a fact that the two ruling houses in Zambufu that are eligible to present candidate for the stool of Zhitsu are Jinu and Gbasa. I find also that 1st defendant having been shown not to have come from either of these two ruling houses but from Kada house is in my judgment not qualified to vie for the stool of Zhitsu of Zambufu.
It is to be noted that succession to chieftaincy title based on family rights simply connotes the person to succeed to a family title must belong to the family concerned. See Okulate v. Awosanya (2000) 2 NWLR (Pt. 646) 530; (2000) 1 SCNQR 149. In the case at hand, the title of Zhitsu of Zambufu resides in two families only. They are Jinu and Gbasa ruling houses.
Since it is my finding that 1st defendant does not belong to any of the two ruling houses, he is not qualified to be appointed as Zhitsu of Zambufu.” (Italics mine).
Reading from the portion of the judgment just set out, it can be seen that the learned Judge did not rely on only the evidence of PW2. He also relied on the evidence of PW1, PW3, PW.4 and the evidence of the 1st defendant (DW.1) himself and his witness, DW.2.
He also took into consideration the fact that the evidence proffered by the appellants was not quick in tune with their pleadings.
Looking at the pleadings and the evidence before the court, one cannot fault the learned trial Judge. Quite a part from the fact that the respondents proffered evidence, supported to some extent, I must say, by the evidence of the 1st appellant and DW2, which tended to show that the 1st appellant hails from the Kada family and not the Ginda family as he claimed, the appellants did not proffered any straight forward evidence of his link to any of the two ruling houses, namely, Gbasa, upon which both sides are agreed and Ginda or Bunu or Jinu, or whatever the second House is called. The appellants claimed that the 1st appellant is linked to the Ginda ruling house through Mohammed Kolo. The onus was therefore, on them to prove, on a balance of probabilities, not only how the 1st appellant is linked to Mohammed Kolo, but also how Mohammed Kolo was linked to the other ruling house by whatever name it is called, the 1st respondent being from the Gbasa ruling house.
The evidence of his link to Mohammed Kolo, as given by him did not quite tally with the pleading in paragraph 11 of the statement of defence wherein the defendants pleaded that –
“11. The defendant vehemently deny paragraph 18 of the statement of claim and state further that the first defendant is from Ginda ruling house and is the great-grand son of Zhitsu Mohammed Kolo who was from Ginda ruling house.”
The evidence of the 1st appellant on page 122 of the record is as follows:
“I am connected with Mohammed Kolo. He begets my father. He was also the 8th Zhitsu of Zambufu. Mohammed Kolo is the husband of one woman called Azunko Kashi.
He was not the 1st husband of Azunko Kashi. Her 1st husband was the present Ndejiko family who she gave birth to Showoya. After the birth of Showoya, the 1st husband died and later got remarried to Mohammed Kolo.
She had two children for Mohammed Kolo – a male and a female. The name of the male child was Mohammed Shaba, who later gave birth to my father. The name of the female child was Awawu Nnakwa.”
After this rather detailed account of the chain that linked him to Mohammed Kolo, who from the account, was his great grandfather he went on at page 127 to say that –
“There were other ancestors of mine apart from Zhitsu Mohammed Kolo that were Zhitsu. They are Zhitsu M. Legbo and myself. Zhitsu Mohammed Legbo was also my grandfather. I know the meaning of grandfather.”
How can Mohammed Legbo be his grandfather if Mohammed Shaba begat his father? Although he testified, as we have seen, that he knew the meaning of grandfather, one might give him the benefit of the doubt and take it that he had used “grandfather” synonymously with “ancestor”. That has, however, not helped to clear the air regarding his alleged link to Mohammed Kolo. As if enough damage had not already been done to the appellants’ case, DW.3 had to throw more spanners in the works. Quite contrary to the evidence of the 1st appellant, which was, as we have seen, that Mohammed Kolo, his great grandfather, was the 8th Zhitsu of Zambufu, DW.3, unequivocally in his evidence-in-chief at page 133 of the record stated that –
“The name of the 1st defendant grandfather is Mohammed Kolo. Mohammed Kolo was never a Zhitsu in Zambufu but his father was. Mohammed Kolo’s father was the great grandfather of the 1st defendant… The name of Mohammed Kolo’s father was also Mohammed Kolo. The name of the wife of Zhitsu Mohammed Kolo was Azunkwo Kashi.”
As against the contradictory and, as the learned Judge rightly pointed out, confusing, evidence proffered by the appellants, the respondents led evidence that the 1st appellant had an ancestor known as Kada and that their house is known as Kada House. Although the 1st appellant under cross-examination initially denied that his family was known by any other name than he was later forced to admit at least one important fact stated by the plaintiffs’ witnesses, and as found by the Judge, namely, that the 1st defendant was linked to Kada. See page 126 of the record where he admitted that –
“Kada is a name given to our ancestor for divine prowess.”
As I said earlier on, on the state of the pleadings and evidence, the learned trial Judge was perfectly justified in his decision that the 1st appellant was not qualified to vie for the stool of Zhitsu of Zambufu, not being from any of the two ruling houses. Not only did he fail to show satisfactorily that he hails from one of the two ruling houses, but also the respondents proffered enough evidence to show, on the balance of probabilities, that he did not. I must, therefore, resolve this issue against the appellants.
Ordinarily this should have ended the matter. I will nevertheless tackle the second issue, which is whether or not the proper procedure was Followed in turbaning and installing the 1st appellant as the Zhitsu of Zambufu. Based on the evidence of PW.1 and PW.2 and that of DW.1 and DW.2, the learned trial Judge came to the conclusion at p. 187 of the record that –
“Under the native law and custom of Zambufu relating to the selection and appointment of Zhitsu, that the traditional counsellors are gathered in the house of Ndejiko with the members of the two ruling houses and the community after the various contestants have shown their intention to vie for the stool. If an agreement is reached as to a single candidate by the traditional counsellors and the ruling houses among the contestants, the name is forwarded to the 2nd defendant whose duty is to turban the candidate without demur. I need to add that the traditional counsellors has the right to determine whether any of the contestant is eligible to contest and the only yardstick for this is whether the contestants belonged to any of the two recognised ruling houses in Zambufu. However, if no agreement is reached at the house of Ndejiko, the names of all the eligible contestants are forwarded to the 2nd defendant by the Ndejiko of Zambufu and having regard to my earlier decision, the 2nd defendant will appoint as the Zhitsu the most suitable among the candidates forwarded to him.
From the foregoing therefore, I hold that both the traditional counsellors and the 2nd defendant has a role to play in the selection and appointment of Zhitsu under the native law and custom of Zambufu.”
He came to the ultimate conclusion at pages 195 – 196 that-
While expatiating on the native law and custom regulating the selection and appointment of Zhitsu, the 1st defendant DW.1 testified under examination-in-chief that the whole town would gathered in the house of Ndejiko where the contestants would be shown to the whole community. He also said later the Ndejiko will present the names of the candidates to His Royal Highness, the Emir of Lafiagi (the 2nd defendant), who will, with the consent of his traditional counsellors/kingmakers choose one of the best candidates among the contestants. He added that the procedure stated above were followed in his appointment as the Zhitsu of Zambufu.
However, while being cross-examined, he re-stated that the position of the custom of Zambufu is that the Ndejiko of Zambufu will send the names of the contestants to the 2nd defendant but the Ndejiko did not send his name to the 2nd defendant. I believe this piece of evidence which tallies with that of the plaintiffs witnesses in some material respect. Therefore, on the showing of the 1st defendant, the aspect of the Zambufu native law and custom which requires that the names of the contestants are to be forwarded to the 2nd defendant by the Ndejiko of Zambufu has not been complied with. I have not been told that this aspect of the custom can be waived, neither is there any pleading nor evidence that it can be waived. I therefore hold that the appointment of the 1st defendant by the 2nd defendant when his name has not been forwarded to the 2nd defendant by the Ndejiko the person recognised under the tradition and custom of Zambufu to do so, is contrary to the native law and custom of Zambufa and therefore improper.”
In the face of the first portion of the judgment just set out on this point, learned counsel for the appellant still found it possible to complain that “the trial court never determined the proper role and function of the traditional counsellors in Zambufu before he (sic) concluded and arrived at its decision and judgment on the matter.” I find this complaint rather strange, to say the least. The learned Judge certainly determined the role of the traditional counsellors as can be seen from the judgment.
In any case, it is clear to me that the appellants’ counsel missed the real point here. As the learned trial Judge pointed out, both sides are agreed that the correct procedure in appointing a Zhitsu is for the name of a sole candidate or, if there are more than one, the names of such candidates, to be sent to the 2nd appellant by the Ndejiko.
After considering the evidence before the court, I must resolve this issue against the appellants. The trial Judge was right in his conclusion that the correct procedure was not followed in turbaning the 1st appellant.
This brings me to the final point canvassed. The complaint here is that the consequential orders made in favour of the respondents were not in tune with the decision of the court. Having read the entire record I find no merit in this complaint. The Judge found that under Zambufu tradition and custom the 2nd appellant was obliged to pick one name from among the names forwarded to him. He found also that the 1st plaintiff and another candidate were the ones qualified to contest and whose names should have been forwarded. He was, in my view, therefore, tight in ordering the 2nd appellant to pick one out of the two. I do not see how such order should give the right of complaint to the 1st appellant, who has been found not to be qualified.
On the whole, I see no merit in this appeal, which is accordingly dismissed. The decision of the trial Judge is affirmed. The appellants are to pay costs of N10,000.00 to the respondents.

ABDULLAHI, J.C.A.: I have read before now the lead judgment just delivered by my learned brother Ikongbeh, J.C.A., and I agree with him that the appeal lacks merit and ought to be dismissed. The appellants, who were defendants at the lower court, in view of the contradictory evidence they adduced at the trial deserved not to get judgment in their favour. The respondents as plaintiffs at the lower court adduced sufficient evidence in support of their claim which warranted the trial Judge to give judgment in their favour.
For this reason and the fuller reasons ably stated in the lead judgment, I also see no merit in this appeal and same is accordingly dismissed. I abide by the order as to costs contained in the lead judgment.

MUNTAKA-COOMASSIE, J.C.A. (DISSENTING): I read the judgment of my learned brother John Ikongbeh just delivered by him, I regret that I am unable to agree with his reasoning and conclusions which be has emphatically presented. I respectfully dissent.
This is a very clear appeal and the circumstances of which call for either non-suiting the plaintiffs or ordering for a retrial in the overall interest of justice.
In this appeal, the respondents in their brief of argument dated 17th August, 2004, and filed on 18/8/2004 filed notice of preliminary objection challenging issue No.1 formulated by the appellants in their brief of argument dated 5/7/2004. The ground of objection inter alia is to the effect that since the appellant abandoned ground 5 of their grounds of appeal contained in the amended notice of appeal of 27th May, 2004, they cannot possibly, in law, canvass the complaint made in the abandoned ground.
The issue canvassed in the notice of preliminary objection must be looked into and resolved before we embark on the treatment of the appeal proper. Two issues stand clearly in the preliminary objection which must first be determined one way or the other. Since the respondent relied heavily on their preliminary objection and gave notice of it or move same it is our duty to canvass it. Oforkire v. Maduike (2003) 5 NWLR (Pt. 812) 166; (2003) FWLR (Pt. 147) 1090 SC; O.P.I.C. v. Atunrase Petroleum & Allied Products Ltd. (2003) FWLR (Pt. 140) 1800. The two issues I alluded to are:
“(1) Whether there is a ground of appeal upon which the appellant did not formulate any issue?
(2) If that is so, whether the appellants in their brief of argument made use of the complaint contained in the ground of appeal so abandoned?”
It is clear from the record available, especially appellants’ brief of argument wherein 5 issues are formulated for determination that none of the issues so formulated founded upon ground 5 of the appellants’ grounds of appeal as contained in their amended notice of appeal.
I agree with the respondent that it is trite law that a ground of appeal upon which no issue is formulated is deemed abandoned. The case cited by him is also apposite, namely Henkel Chemicals (Nig.) Ltd. v. A.-G. Ferrero & Co. Ltd. (2004) FWLR 1078; (2003) 4 NWLR (Pt. 810) 306 at 318. Where this court per Salami, J.C.A., held that
“It is settled that a ground of appeal from which no issue had been identified is deemed abandoned and liable to striking out. See Ojegbe & Anor. v. Kent Omatsone & Ors. (1999) 6 NWLR (Pt. 608) 591; 597-598…”
That position has been amply supported by the case cited by the appellants herein, viz, Ukariwo Obasi & Anor: v. Eke Onwuka & Ors. (1987) 3 NWLR (Pt. 61) 364; (1987) 7 SCNJ 84.
In addition, it is for this court to examine whether or not issue one formulated by the appellants and argument proffered thereto can stand with the grounds of appeal upon which it is formulated.
For this purpose I reproduce issue 1 as follows:
”That whether in the light of glaring contradictions in the evidence before the trial court, the trial court was not in error in holding that the two named ruling houses by the respondents were the two known ruling houses in Zambufu and as result of the holding disqualified 1st appellant from being regarded as a member of any recognized ruling houses in Zambufu thereby effectively making it impossible for the 1st appellant to vie for the stool of Zhitsu Zambufu – ground 1 and 6″.
Argument on issue 1 is on pages 3 – 12 of the appellants brief of argument. See pages 202 – 203 and 205 of the records of proceedings for grounds 1 and 6. The two grounds deal generally with evaluation of evidence; to my mind, it has nothing to do with construction of document which ground 5 of the grounds of appeal on page 205 of the record talks about. As a matter of fact, the particulars of error provided under ground 5 leaves no body in doubt as to the purpose of the ground. It has nothing whatsoever to do with issue number one formulated by the appellants. The objection is misconceived, same is overruled.
In a nutshell, it is necessary to reproduce the claims of the plaintiffs now respondents as follows:
1. Declaration that the 1st defendant under the age long custom and tradition of Zambufu has no light whatsoever to ascend the throne as the Zhitsu of Zambufu.
2. A declaration that under the native law and custom relating to the selection and appointment of Zhitsu of Zambufu, the 1st defendant’s family is not a ruling house in Zambufu.
3. A declaration that the appointment and/or turbaning of the 1st defendant by the 2nd defendant on or about the 12th day of November, 1991 as the Zhitsu of Zambufu is illegal, null and void and of no effect whatsoever as same is against the age long custom and tradition of Zambufu relating to and in connection with the appointment of Zhitsu of Zambufu.
4. A declaration that the 1st plaintiff is the duly selected and appointed Zhitsu of Zambufu by the majority of Zambufu traditional counsellors of King makers in accordance with the custom and tradition of Zambufu relating to and in connection with the selection and appointment of Zhitsu of Zambufu.
5. An order commanding and/or directing the 2nd defendant to turban or install the 1st plaintiff as the duly selected and appointed Zhitsu of Zambufu by the majority of Zambufu traditional counsellors or kingmakers.
6. A perpetual injunction restraining the:
(i) 1st defendant from parading or presenting himself as the Zhitsu of Zambufu.
(ii) 2nd defendant, his servants, agents, privies or any person or persons however from recognizing, dealing or relating with the 1st defendant as the Zhitsu of Zambufu.
The learned trial Judge entered judgment for the plaintiffs. As can be gleaned from the above that the case of the plaintiffs now respondents is that the 1stplaintiff being a member of Gbasa ruling house of Zambufu is the proper and qualified person to ascend the throne of Zhitsu of Zambufu and not the 1st defendant now 1st appellant who is not a member of any ruling house in Zambufu and that the 2nd defendant/appellant wrongly appointed the 1st defendant/appellant as Zhitsu when in fact he has no power or authority to so appoint him.
The case of the 1st defendant/appellant is that he is eligible to contest the throne of Zhitsu of Zambufu and that he is properly appointed by the 1st defendant/appellant.
Briefs were filed and exchanged. The appellants formulated five issues for determination while the respondents distilled four issues for our consideration of the appeal.
Having considered the record of appeal and the respective briefs, I think three issues are adequate for the consideration of this appeal.
I formulate the following three issues thus:
“1. Whether the existence of two ruling houses in Zambufu has been conclusively proved by any of the parties?
2. Whether the 1st appellant is entitled to be appointed as Zhitsu of Zambufu. If the answer is in the affirmative, whether the 2nd appellant properly appointed him?
3. Whether the consequential order made by the trial court is in accordance with the case of and the reliefs sought by the respondents as the trial court?”
I think these issues are relevant to the grounds of appeal and I did that in order to narrow the issues in controversy in the interest of accuracy, clearity and brevity. See Musa Sha v. Kwan (2000) 8 NWLR (Pt. 670) 685; (2000) FWLR (Pt.11) 1798 per Iguh. J.S.C. on page 1815. See also (2000) 5 SCNJ 1. As to whether this court has the power to formulate or re-formulate an issue or issues, I hold that this court has such power.
Firstly, rules of this court allowed us to do so. See also the cases of S.D.C. Cementation (Nig.) Ltd. v. Nagel & Co. Ltd. (2003) 4 NWLR (pt.811) 611; (2003)FWLR (Pt. 156) 861/876 paragraph A per Ogbuagu, JCA. relying on the statement of Uwaifo, J.S.C. in the case of Musa Sha (Jnr.) & Anor. v. Kwan & 4 Ors. (2000) 5 SCNJ 1 at page 127; (2000) 8 NWLR (pt. 670) 685.
Treatment of the issues
Issue 1:- See pages 6 – 12 of the appellants’ brief and pages 14 – 15 of the respondent’s brief. I think from the pleadings and evidence of the parties before the trial court, there is no dispute about the fact that there are two ruling houses in Zambufu. Both appellants and respondents also agree that the 2nd respondent is a member of Gbasa ruling house. What is in dispute, in my respectful analysis, is the name of the 2nd ruling house, namely, is it Jinu or Ginda?
Before I delve into proper consideration of this all important appeal I consider it necessary to clarify the position of the pleadings of the parties at the lower court. Consistently, I produce in extenso, the finding and holding of the trial court on the issue which will be found from the last paragraph of pages 155-156 thus:
“It is necessary at this juncture to clarify the position of the parties pleadings before the court. Going by the records before me, there is the plaintiffs statement, of claim of 34 paragraphs filed on 4/5/92. Following the trial court ruling on 4/5/93 the defendants file their (sic) joint statement of defence dated 3/5/93 on the said 3/5/93. On 10/12/99, this honourable court granted leave to the plaintiffs to file reply to the joint statement of defence of the defendants and ordered that the said reply to statement of defence filed on 1/11/99 be deemed as having been duly and properly filed and served.
However, on 2/2/2000, this court also granted leave to the defendants to amend their statement of defence. The record have (sic) however showed that the defendants did not file an amended statement of defence. The position therefore stand to be that the statement of defence before the court is that dated and filed on 4/5/93”.
From the above finding of facts and holding of the trial court, any allusion or reference to joint amended statement of defence, as was as being done in the respondents’ brief of argument, is incorrect. The joint statement of defence filed by, the appellants herein as additional record is the authentic document for the purpose of this appeal.
On the existence of Gbasa ruling house not being disputed, I hold that it does in fact exists. On the question of the name of the second ruling house the trial court on pages 188 – 190 of the record found and filed thus:
“In paragraph 1 of their statement of defence, the defendants admitted the fact that the 1st plaintiff is a native of Zambufu and a descendant of Maaji Gbasa ruling house. They, equally admitted in the said paragraph 1 that the title of the village head of Zambufu was formerly Maaji before it was changed to Zhitsu. However, the defendants, while conceding that there are two ruling houses in Zambufu, denied the plaintiffs’ averment that the two ruling houses were Jinu and Gbasa. Father, (sic) they averred that the two ruling houses are Ginda and Gbasa. They averred that Maaji Bunu is not a ruling house in Zambufu. This is the combination of their averments in paragraph 3 and of their statement of defence. They also alleged in paragraph 5 that the first two settlers at Zambufu were Ginda and Gbasa and that they were neither brothers nor related, and in paragraph 11, they averred that the 1st defendant is from Ginda ruling house of Zambufu.”
As regards the evidence offered on either side to prove the averments in their pleadings, PW.1 – PW.4 gave evidence to the effect that the 1st plaintiff is a native of Zambufu and is from Gbasa house. As shown earlier this fact was equally admitted by the defendants in their pleadings. It is trite that what is admitted need no further proof See Egbunike v. A.C.B Ltd. (1995) 2 NWLR (Pt.375) 34. I therefore find that the 1st plaintiff is a native of Zambufu and is from Gbasa ruling house. It is therefore unquestionable that the 1st plaintiff is emitted as of right to aspire to the stool of Zhitsu of Zambufu.
Both sides are agreed that there are two ruling houses in Zambufu, while the plaintiffs said in their evidence before us through PW.1- PW.4 that the two ruling houses are Jinu and Gbasa; the defendants however through the testimonies of DW3 said the two ruling houses are Ginda and Gbasa. From the foregoing, I find as a fact that there is a ruling house in Zambufu called Gbasa and that 1st plaintiff is a descendant of the said Gbasa ruling house. What is left to be determined is the name of the second ruling house – whether it is Jinu as claimed by the plaintiff or Ginda as alleged by the defendants.
I need to observe at this stage that even though the defendants were asserting the names of the two ruling houses in Zambufu to be Ginda and Gbasa, there is no where they specifically denied the existence of Jinu as a ruling house in their pleadings. Rather a close reading of paragraphs 3, 4 and 8 of the defendants statement defence and the evidence of DW1 shows that they were denying the existence of Maaji Bunu as a ruling house in Zambufu. I am afraid; there is no basis for this. The plaintiffs did not assert that Maaji Bunu is a ruling house in Zambufu. For the avoidance of doubt, PW1, PW2, PW3 and PW4 testified that Jinu is a ruling house in Zambufu. Indeed, both PW1 and PW2 gave the number of Maaji/Zhitsu that had been produced by the Jinu ruling house of Zambufu to be to date. Ibrahim Kolo who testified as PW4 told the court that he is from Jinu family of Zambufu.
The 1st defendant who claimed that he is of Ginda ruling house of Zambufu traces the root of Ginda ruling house to one Mohammed Nupayinko whom he alleged was the 1st settler in Zambufu. That it was after they had settled that Maaji Bunu came during the reign of 6th Zhitsu and was received with open hands. He also testified that Maaji Gbasa followed and he too was openly received. It is however noted that the defendants had pleaded in paragraph 5 of their statement of defence that the first two settlers in Zambufu were Ginda and Gbasa.
“No doubt the evidence led by the defendants that the first settlers was the leader of Ginda ruling house called Maaji Bunu during the reign of 6th Zhitsu and finally followed by Maaji Gbasa is at variance with the defendants’ pleadings. They therefore go to no issue. I disregard the evidence accordingly. See Alhaji Otaru & Sons Ltd. & Ors. v. Audu Idris & Anor. (1999) 6 NWLR (Pt.606) 330; (1999) 4 SCNJ 156; The Shell Petroleum Dev. of Nigeria Ltd. v. Kwameh Ambah (1999) 3 NWLR (Pt. 593) 1. (1999) 2 SCNJ 152 and Bamgboye v. University of Ilorin (2001) FWLR (Pt.32) 12; (1999) 10 NWLR (Pt.622) 290.
It therefore follows from the above that the only version of the evidence before me as to the first settler in Zambufu were Jinu and Gbasa who were brothers and the said evidence is not patently and obviously improbable. I believe and accept the evidence. See Modupe v. State (1988) 4 NWLR (Pt.87) 130 at 137.”
(Italics mine for emphasis)
However the above finding and holden of the trial court cannot simply be said to have conclusively resolved the issue of existence of two ruling houses.
The next question is whether the number of Zhitsu who had ruled from each of the two ruling houses is ascertainable with some degree of certainty. The plaintiffs pleaded the existence of two ruling houses in Zambufu in two of their paragraphs namely, paragraphs 5 and 6 of the statement of claim as follows:
“5. The plaintiffs aver that there are two ruling houses in Zambufu namely, Majiu Jinu or Izumu and Mahin Gbasa houses.
6. The two ruling houses referred to in paragraph 5 (supra), are the only ruling houses entitled to produce candidates to ascend the throne of Zhitsu or village head of Zambufu. See page 8 lines 21 – 25 of the record”.
In reply to paragraphs 5 and 6 of the afore quoted part of the plaintiffs/respondents statement of claim, the defendants/appellants averred in paragraphs 3 and 4 of their statement of defence thus:
“3. The defendants deny paragraph 5 of the statement of claim and state further to, that the two ruling houses in Zambufu are Ginda Ruling house and Majin Gbasa ruling house. That Majin Dunu is not a ruling house. It only produces Zambufu masquerade called “Ndakogboya” i.e., “Iganu” being the custodian of the masquerade. No traditional ruler has ever been appointed from Majin Bunu in the entire history of Zambufu.
4. The defendants admit paragraph 6 only to the extent that Majin Gbasa ruling house and Ginda are the two ruling houses in Zambufu, Majin Bunu cannot produce any traditional ruler. The 1st plaintiff is from Majin Ginda”.
On its finding concerning the pleadings of the plaintiffs/respondents and the defendants/appellants, vis-a-vis the names of two ruling houses alleged by the parties, the lower court held as follows:
“I need to observe at this stage that even though the defendants were asserting the names of the two ruling houses in Zambufu to be Ginda and Gbasa there is nowhere where they specifically denied the existence of Jinu as a ruling house in their pleadings. Rather a close reading of paragraphs 3, 4 and 8 of the defendants’ statement of defence and the evidence of DW1 shows that they were denying the existence of Maaji Bunu as a ruling house in Zambufu. I am afraid, there is no basis for this. The plaintiffs did not assert that Maaji Bunu is a ruling house in Zambufu.”
The above detailed findings by the learned trial Judge is an eloquent language in its full victorian connotation.
Paragraphs 3 and 4 of the statement of defence (supra) clearly, in my view, deny the existence of Jinu ruling house in Zambufu. They both admitted, without more, the existence of Gbasa ruling house, this therefore shows that the learned trial Judge already made his finding on the issue of name of the alleged two ruling houses in Zambufu even before going into details and evaluation of evidence of both parties before him.
The averments in paragraphs 3 and 4 of the joint statement of defence do not, in any way, support the finding of the trial court that the appellants did admit the existence of Jinu House as the ruling house. This clear denial calls for prove of existence of Jinu ruling house in clear term to qualify as the second ruling house in Zambufu. That has been forthcoming.
Furthermore, PW.4, a respondents’ witness testified to the effect that his ruling house has produced 3 Zhitsu to date. He went on to give the name of the Zhitsu as Jinu, Kalu and Alhassan. The witness also said that as at the time he was given evidence, he was 56 years old. And that since he was born no Zhitsu has been chosen and appointed from Jinu Ruling house. And that each time a candidate from Gbasa ruling house showed interest in the stool of Zhitsu, Jinu would not contest. I refer to page 120 of the record of proceedings.
I discovered that paragraphs 3 and 4 of the joint statement of defence do not admit that Jinu house is 2nd ruling house in Zambufu and I so hold. Going by the evidence of PW.4 above, it is more probable that no Zhitsu has in fact ever been produced and appointed from the alleged Jinu ruling house. For 56 years to date no Zhitsu has come from Jinu, the custodian of masquerade. By the way, what was the age of the Jinu dynasty? It has not been canvassed before the trial court, therefore it is by the way.
The author of exhibit 3 i.e., the 1st respondent puts the number of Zhitsu from Gbasa ruling house at 7 as opposed to 8 found by the trial court. From the foregoing and other pieces of evidence on the record, the ascertainable number of Zhitsu from the so-called Jinu ruling house cannot be given. This couples with the evidence of PW.4 to the effect that for 56 years Jinu ruling house has not produced a Zhitsu there is no doubt that the notion that Jinu ruling house does exist is only a figment of imagination of PW4 or a fiction. The evidence from the plaintiffs/respondents rather tend to show that there is only one ruling house, i.e., Gbasa ruling house. It therefore follows, as a simple logic, that since both the appellants and respondents agree that there are two ruling houses in Zambufu there remains a second ruling house that must be proved to be in existence. Proved by whom?
I think I will agree with the finding of the learned trial Judge to some extent that the 1st appellant has not been able to prove that his ruling house is Ginda. The respondent then took undue opportunity/advantage on this weakness to strengthen their case. This should not be allowed. It has become trite that the plaintiffs cannot rely on the weakness of the defence to sustain their claim. And since it is trite law that plaintiff must succeed on the strength of his case and not on the weakness of the defence the rule in Kodilinye v. Odu (1935) 2 WACA 336 must apply in this case. In Kodilinye v. Odu (supra) Webber CA, Siena Leone says
”The onus lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff in this case must rely on the strength of his own case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment is for the defendant.”
The defendants’ weakness is that they failed to produce credible evidence to specifically prove that his ruling house is Ginda. Even though it was mentioned in their pleadings and some evidence, it is not a situation where the case for the defendants be ignored. We should not forget also that the plaintiffs/respondents’ case hinges, as it were, on the existence of two ruling houses in Zambufu, their claim must fail if they failed to prove the existence of the second ruling house. See Densy Ind. Ltd. v. Uzokwe (1998) 9 NWLR (Pt. 567) 569. This court in the above case applied that rule per Salami, J.C.A. at p. 585 paras. A-G.
The 1st issue therefore most be answered negatively against the respondents herein. It is therefore premature to hold that the 1st appellant is not a member of any ruling house and I so hold.
On the issue No.2 whether the 1st appellant is entitled to be appointed as Zhitsu of Zambufu depends largely on the resolution of issue No.2 as well as whether or not the traditional counsellors of Zambufu are kingsmakers or advisers to the Zhitsu of Zambufu.
This much the trial court found to be important when it held on page 181 of the record thus.
“The determination of the existence of kingsmakers is important because if they exist they are no doubt to be the body that would be responsible for the selection and appointment of Zhitsu.”
However, the learned trial court could never anywhere in clear terms, resolve the issue before arriving at its decision. In the light of this failure or omission or even lacuna, coupled with the fact that the clear identity of second ruling house of Zambufu has not been established, it is not safe to declare that the 1st appellant is not entitled to be appointed Zhitsu of Zambufu by the 2nd appellant. I so hold.
On the 3rd and last issue formulated by me, I observe that on pages 199 to 200 of the record the learned trial Judge made the following consequential order as follows:
“Following what I said when resolving issue No.4 that as at 1991, the time of contest, the only qualified candidates that have applied for the stool of Zhitsu of Zambufu, 1st defendant, Mohammed Hussein, having been shown and established not to have come from any of the recognized two ruling houses in Zambufu (i.e. Jinu and Gbasa) are, Mohammed N. Mohammed, the 1st plaintiff and Ibrahim Ndakagi both of whom were shown to come from Gbasa ruling house. The contest that led to the institution of this case was in 1991, over eleven (11) years ago. Having nullified the appointment of Mohammed Hussien as Zhitsu of Zambufu, I hereby make a consequential order that the Ndejiko of Zambufu (the 2nd plaintiff) should present the names of the remaining two contestants, i.e., Mohammed N. Mohammed (the 1st plaintiff herein) and Ibrahim Ndakogi to the 2nd defendant, His Royal Highness, the Emir of Lafiaji, who will appoint the most suitable among the two as the Zhitsu of Zambufu.”
Both counsel addressed this issue in their respective briefs. Their submissions have been considered by me. It is my observation that relief 4 of the respondents’ claim was turned down by the trial court.
That relief reads:
“A declaration that the 1st plaintiff is the duly selected and appointed Zhitsu of Zambufu by the majority of Zambufu traditional counsellors or kingmakers in accordance with the custom and tradition of Zambufu relating to and in connection with the selection and appointment of Zhitsu of Zambufu.”
Since the above relief has been refused, and it is not the case of the respondents that the 2nd appellant should select and appoint one of two candidates as the Zhitsu of Zambufu, it is an error of judgment and wrong for the trial court to have made such an impertinent and brazen consequential order as the said order (dished out does not form the main claim of the respondents. In the overall interest of justice, I will not allow the plaintiffs now respondents to have another bite of the cherry, rather I will order for a retrial. Appeal is, out of necessity, allowed. I order that matter be reverted back to the Hon. Chief Judge of Kwara State for onward assignment to another Judge of the High Court for retrial de novo. The appellants in my judgment is entitled to costs which I assessed at five thousand Naira (N5,000.00)to be awarded in favour of the appellants.
Above are my reasons why I was unable to reconcile my understanding of the law, with the reasoning and conclusions of my learned brother John Ikongbeh.

Appeal dismissed.

ADDENDUM
In Chambers
Parties absent.
Court: Judgment in this case was among four other judgments that were delivered on 10/03/2005 by Ikongbeh, J.C.A., alone. Muntaka-Coomassie, J.C.A., was indisposed and so could not sit. Abdullahi, J.C.A. was on special assignment at the Court of Appeal, Abuja.
All the five judgments, three of which were written by Ikongbeh, J.C.A., and the other two of which was each written by Muntaka-Coomassie and Abdullahi, JJ.C.A., had to be delivered on that day as their lapsing dates were fast approaching with no further sitting days in-between. It therefore became incumbent on Ikongbeh, J.C.A., being the only one on the ground, to deliver them alone.
Because of his indisposition, and because he had received copies of the judgments late, Muntaka-Coomassie, J.C.A. could not read them as thoroughly as he should have. It was sometime during the night of the same day as the judgments were delivered that he was able to read them more thoroughly. It was upon such reading that he became convinced that he could not support the lead judgment of Ikongbeh, J.C.A., in this particular case and set about writing a dissenting judgment. All three Justices were able to meet on 11/03/05, using the opportunity of the brief visit from Abuja by Abdullahi, J.C.A., and decide on putting out these observations as an addendum to the judgment of 10/03/05.

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