ABUBAKAR UMAR BANNURAM & ORS V. LINUS G. HILLARY & ANOR (2013)

ABUBAKAR UMAR BANNURAM & ORS V. LINUS G. HILLARY & ANOR

(2013)LCN/5839(CA)

In The Court of Appeal of Nigeria

On Monday, the 14th day of January, 2013

CA/J/236/2008

RATIO

COURT: WHETHER AN ISSUE NOT RAISED OR TRIED IN THE LOWER COURT CAN BE RAISED AT THE APPELLATE COURT

THE POSITION OF THE LAW ON DETERMINATION OF THE PRELIMINARY OBJECTION

In Nwadike V. Ibekwe & ors (1987) 12 S.C. 14 at 52 -56 also reported in (1987) 4 NWLR 718; Nnaemeka-Agu, JSC; relying on English as well as Nigerian cases on this vexed issue of the nature of Grounds of Law, facts or mixed law and facts; posited that in our system of jurisprudence in which the Judge is Judge and Jury, a misdirection occurs when the Judge misconceives the issues, whether of facts or law, or summarises the evidence inadequately or incorrectly. (Chidiak V. Laguda (supra)) referred. According to the learned Law Lord; “He (the Judge) may commit misdirection either by positive or by non-direction. But when his error relates to his finding it cannot properly be called a misdirection it could be an error in law…..” See also Eso, JSC who cited C. T. Emmery in vol. 100 L.Q.R., on the same issue in the celebrated case of Ogbechie V. Onochie & ors (1983) 3 S.C. 54 and explained the position of the law and the difficulties in distinguishing between Grounds of law from those of facts advising that what is required is to examine thoroughly the Grounds of Appeal to see whether they reveal a misunderstanding by the lower tribunal of the law, or a misapplication of the law to the facts already proved or admitted, in which case it would be a question of law. His Lordship then took the view that where however the grounds are such that would reveal or are grounds that would question the evaluation of facts by the lower tribunal before the application of the law, that would amount to question of mixed law and fact and that the issue of fact is easier to determine. See also Ifediora & ors. V. Ben Ume & ors (1988) 3 SCNJ (pt. II) 192 at 206. Speaking specifically on pure issues of facts Karibi-Whyte JSC in Metal Construction V. Miglore (1990) 2 SCNJ 20 at 26 held that:- “Like of Law, question of fact has more than one meaning. The first meaning is that a question of fact is any question which is not determined by a rule of law. Secondly, it is any question except a question as to what the law is. Thirdly, any question that is to be answered by the jury instead of by the Judge is a question of fact.” See further Anoghalu V. Oraelosi (1999) 10 SCNJ 1 at 12 -13 and Obatonyinbo V. Oshatola (1996) 5 SCNJ 1. From the dicta of their Lordships in the above cited cases, the Ground of Appeal is that of law and questions the application of law to proved facts or admissibility of inadmissible evidence in coming to its decision. However, whether the Ground is of mixed law and fact, it is a Ground of Appeal emanating from the final decision of the High Court of Taraba State sitting at first instance. The Appeal is therefore as of right by virtue of section 24(1) (a) of the Constitution of the Federal Republic of Nigeria 1999. Finally, before rounding up our determination of the Preliminary Objection it is necessary to recall what the Supreme Court said as regards the competence of a Ground of Appeal; that the mere fact that the Ground complains of misdirection of fact or error of law does not make it incompetent but the test is whether the impugned ground shows clearly what is complained of as error of law or error of fact and whether the other party is left in doubt as to what the complaint actually is. See Aderounmu V. Olowu (2000) 2 SCNJ 180 at 190 – 191. Per. IGNATIUS IGWE AGUBE J.C.A.

ON THE MEANING OF LOCUS STANDI

The term “locus standi” has been severally defined to denote the legal capacity of a person to initiate proceedings in a Court of law which capacity is synonymous with status, standing, title or authority to sue. It is also the right of a party to appear and ventilate his grievance(s) and to be heard on a question(s) before the law Court or the competence of such a party to seek redress in a Court of law and to assert a right which is enforceable at law. See the locus classicus case of Abraham Adesanya V. The President of the Federal Republic of Nigeria (1981) 5 S. C. 112 at 128 – 129; per Fatayi- Williams, CJN; Ogunsanya V. Dada (1992) 4 S. C. N. J. 162 at 168; Attorney- General Kaduna State V. Hassan (1985) 2 NWLR 453 at 496 and Adefulu V. Oyesile (1989) 5 NWLR 377 at 318. Per. IGNATIUS IGWE AGUBE J.C.A.

DETERMINATION OF THE ISSUE OF LOCUS STANDI

STATUTE OF LIMITATION: DETERMINATION OF THE PERIOD OF LIMITATION

JUSTICES

SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ABUBAKAR ALKALI ABBA Justice of The Court of Appeal of Nigeria

Between

1. ABUBAKAR UMAR BANNURAM
2. MURI EMIRATE COUNCIL
3. THE CHAIRMAN, LAU LOCAL GOVERNMENT AREA
4. THE COMMISSIONER FOR LOCAL GOVERNMENT AND CHIEFTAINCY AFFAIRS
5. THE HON. ATTORNEY GENERAL, TARABA STATE
6. THE GOVERNOR OF TARABA STATE Appellant(s)

AND

1. LINUS G. HILLARY
(For himself and on behalf of the Seven Clans constituting the Ruling House/King Makers of The Winlau Community, Lau District).
2. MR. SJIRA KUTEH Respondent(s)

IGNATIUS IGWE AGUBE J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of Honourable Justice J. F. Agya of the High Court of Justice Taraba State, sitting at Jalingo Division which Judgment was delivered on the 19th day of November, 2007 granting all the Reliefs sought by the Plaintiffs as per their Originating Summons. It would be recalled that the 1st Plaintiff in the lower Court by way of Originating Summons dated the 14th day of February, 2006 commenced action in representative capacity for himself and on behalf of the seven Clans constituting the Ruling House/King makers of Winlau Community, Lau District of Lau Local Government Area of Taraba State against Abubakar Umar Danburam, Muri Emirate Council; the Chairman Lau Local Government Council; The Commissioner for Local Government and Chieftaincy Affairs Taraba State; The Attorney-General and Commissioner for Justice, Taraba State and the Governor of Taraba State as 1st – 6th Defendants respectively.
The Originating Summons was subsequently amended by a motion dated 10th day of May, 2007. In the Amended Originating Summons; the Plaintiffs sought for the determination of the following Questions:-
1. Whether having regards to the provisions of section 3(1) & 3(2) and section 4(1) (2), (3) and section 7 of the Chiefs’ (Appointment and deposition) Law Cap. 26, Laws of Taraba State of Nigeria, 1997, the Taraba State Executive Governor can validly appoint a third class chief to rule Lau Chiefdom without due regard to the prescribed methods of the Law on the appointment of a person to the throne?
2. Whether the appointment of the first Respondent as the third class Chief of Lau Chiefdom by the Executive Governor of Taraba State is not ultra vires, null and void, same not being in accordance with section 3(1) and (2); section 4(1), (2) and Section 7 of the Chiefs’ (Appointment and Deposition) Cap. 26 Laws of Taraba State of Nigeria, 1997?”
The Plaintiffs also sought for the following Reliefs:-
“1. A DECLARATION that the purported appointment of the first Defendant/Respondent as the third class Chief of Lau Chiefdom is not in compliance with the prescribed position of the Law.
“2. A DECLARATION that the appointment of the first defendant/Respondent as the Lau Chief by the fourth Defendant/Respondent was illegal, null and void.
“3. AN ORDER setting aside the purported appointment of the first Defendant/Respondent as the third class Chief of Lau Chiefdom by the 6th Defendant/Respondent over Taraba State Television and NTA on 3rd November, 2006.
“4. AN ORDER ejecting or vacating the first Defendant/Respondent from the Royal House pending the appointment of a new third class chief.
“5. AN ORDER of perpetual injunction restraining the first Defendant/Respondent by himself his privies, agents or/and heirs from parading himself as the third class Chief of Lau.”
In support of the Originating Summons, the Plaintiffs deposed to an Affidavit of Forty paragraphs to which were annexed a bundle of documentary Exhibits marked Exhibits (A) (B) and (C). Exhibit A is the Legal Instrument Constituting the Commission of inquiry to the newly created Chiefdoms and Districts in Taraba State, by the 6th Defendant Governor of Taraba State; Exhibit B, a Memorandum on the mode of selection of the 3rd Class Chief of Lau Chiefdom submitted to the Commission of Inquiry by the Winlau Community of which the 1st plaintiff is the Kuh Lau or Village Head of Winlau while Exhibit C is a photocopy of ‘The Mirror’ Newspaper vol. 2 of 3rd July, 2006, where the 6th Defendant/Appellant expressed his desire to follow due process in filling vacant traditional stools in the State and ensuring the people of the Chiefdoms that the Government would not impose any body on the people without due regard to the prescribed method.
Upon being served with the Originating Summons, the 1st – 6th Defendants filed a Joint Counter-Affidavit against the Originating Summons to which they annexed Exhibits I and 2 payment Vouchers of the Salaries of the 1st plaintiff for the months of November and December, 2006 which the 1st Plaintiff as the Village Head of Lau, refused, neglected or failed to collect till the time of initiating the proceedings now on Appeal. From what can be gathered in page 71 of the Records the Defendants/Appellants also filed a Notice of Preliminary Objection dated 2nd day of April, 2007.
Upon receipt of the Defendants’ Counter-Affidavit and Notice of preliminary objection, the 1st Plaintiff’s Further And Better Affidavit In support of The originating summons dated 11th of April, 2007 was filed on the same date whereof upon receipt thereof a Further Additional Counter- Affidavit was filed on the 13th of July, 2007 by Bawa Ahmed Esq. the counsel from the learned Attorney-General’s Office, who was handing the case leave having been granted earlier on the 17th of May, 2007 for the 2nd Plaintiff as a co-plaintiff in the suit to be joint.
On the 19th day of July, 2007 the learned counsel for the plaintiff argued the originating summons and the learned counsel for the Respondents replied thereto after arguing his preliminary objection and the case was adjourned to 31st July, 2007 for Reply Address. However, on the 30th day of July, 2007, the 1st plaintiff filed a FURTHER AND BETTER AFFIDAVTT IN RESPONSE TO THE ADDITIONAL COUNTER-AFFIDAVIT OF THE DEFENDANTS with an annexure marked Exhibit ‘D’ which is the “WRITTEN SUBMISSION BY COUNSEL TO THE ADMINISTRATIVE COMMISSION OF INQUIRY INTO THE NEWLY CREATED DISTRICTS, CHIEFDOMS/EMIRATES IN TARABA STATE. BARRISTER EMMANUEL HALLAN GOWON HOLDEN AT GEMBU ON 21ST JUNE 2006.” See page 164 – 273 of the Records. There were also Motions and counter Motions and after the interlocutory skirmishes, after which the Plaintiffs were granted leave to file their Further And Better Affidavits in response to the Additional counter-Affidavit of the Defendants and thereafter Mr. Nzarga for the Plaintiffs proceeded to reply to the preliminary objection of the Defendants as well as on points of raw arising from the Reply of the Defendants to the Arguments of the plaintiffs on the substantive case. The case was then adjourned to 26/9/07 for further Reply Address.
Yet on the 25th day of September, 2007 the Defendants filed a Further Additional Counter-Affidavit IN RESPONSE TO THE PLAINTIFFS FURTHER AND BETTER AFFIDAVIT of nine paragraphs deposed to by Bawa Ahmed Esq. of the Attorney-General’s Chambers, Ministry of Justice, Jalingo. On the 26th day September, 2007 A. Y. Shitta Esq. (Chief State Counsel) with him Bawa Ahmed Esq. (Principal State Counsel) and S. I. Maifari Esq. (State Counsel I) for the Defendants, finally concluded their Reply to the Arguments of the learned Counsel for the Plaintiffs and the learned trial Judge adjourned the case to the 1st day of November, 2007 for Judgment but it was not until the 19th of November, 2007 that the Judgment was delivered. As said earlier in a well considered Judgment, the learned trial Judge found in favour of the Plaintiffs and granted all the Reliefs sought.
Aggrieved by the said Judgment, the Defendants/now Appellants gave Notice of Appeal with three Grounds as can be found at pages 177 to 181 of the Records.
For the avoidance of doubt, I shall reproduce the Grounds of Appeal hereunder albeit without their particulars.
“GROUNDS OF APPEAL:
1. The learned Trial Judge erred in law in holding that the appointment of the 1st Appellant as the 3rd class Chief of Lau by the Governor is Ultra vires, null and void for not being in accordance with section 4(1) and (2) of the Chiefs (Appointment and Deposition) Law Cap. 26, Laws of Taraba State, 1997.
2. The learned Trial Judge erred in Law and misconstrued the provisions of the Chiefs (Appointment and Deposition) Law Cap. 26, Laws of Taraba State, 1997 as affecting the appointment of the 1st Appellant as Chief of Lau when he held as follows:
“My understanding of the provisions is that the appointment and deposition of any person in Taraba State who is recognized as a Chief by the Governor of the state must be governed by the chiefs Law. This in my view, is irrespective of whether the person so appointed (in the case of appointment is being appointed to occupy the Chieftaincy stool for the very first time or he is succeeding a previous occupant.
3. The learned trial Judge misdirected himself on the facts and relied on irrelevant material and thereby cause to a wrong conclusion occasioning a serious miscarriage of justice when he held:
“It was no doubt in our attempt to comply with the provisions of section 4(1) of the Chiefs Law that the 6th Defendant immediately after the creation of additional Chiefdoms via the upgradement of traditional rulers order set up a commission of Inquiry to among other things identify and recommend the mode or method of selection/election of candidates for each of the vacant stools and Districts for gazetting. But instead of allowing this process to run its course the 6th Defendant arbitrarily, in my view, purported to appoint the 1st Defendant as the Chief of Lau. This was done without any order prescribing the method of such appointment as clearly provided by section 4(2) of the Chiefs Law thus putting the Cart before the horse…”
Upon transmission of the Record of Appeal to this Honourable Court the parties filed series of Applications which were accordingly disposed of to pave way for the hearing of the substantive Appeal. On the 27th day of June, 2012 it would be recalled; the Respondents filed a Notice of preliminary objection dated 26th June, 2012 pursuant to order 10 Rule 1 of the Court of Appeal Rules, 2011 challenging the competence of Issue Number Three (3) as contained in the 1st and 2nd Appellants, Brief of Argument and for the said issue to be struck out, the competence of Ground 3 of the Additional Grounds of the Amended Notice of Appeal and further that Ground 3 of the original Ground of Appeal is incompetent same being an issue of fact and as such should be struck out.
After the interlocutory skirmishes, the 1st and 2nd Appellants, Brief of Argument dated 5th March, 2012 and filed on the 8th day of March, 2012 was deemed filed on the 8th day of May, 2012. The 3rd – 6th Appellants’ Brief dated 5th of March, 2012 was filed on the 8th day of March, 2012 and upon being served, the 1st Respondent filed his Brief dated 26th June, 2012 on the 27th June 2012. The 1st and 2nd Appellants’ Reply Brief dated 4th July, 2012 was filed on the 5th July, 2012.
The facts of the case as can be gathered from the Records are that sequel to the proclamation of the Taraba State upgradement of Traditional Rulers and Creation of Districts Order, 2005, the 6th Appellant/Governor of Taraba State then His Excellency Reverend Jolly Nyame by the powers conferred on him by Section 2 of the Commission of Inquiry Law Cap.34, Laws of Taraba State, 1997; and all other powers enabling him in that behalf constituted by Instrument an Administrative Commission of Inquiry into the Newly Created Chiefdoms/Emirates and Districts in Taraba State.
The instrument (Exhibit A to the Originating Summons) Affidavit in Support issued under the hand of the Governor dated the 2nd day of May, 2006 had nine members with Dr. M. T. Liman as Chairman, and was expected to submit its Report within 10 (ten) weeks from the date of first sitting or at such time as the Governor may permit in writing.
The terms of Reference of the commission were as follows:
1. To identify any existing vacant Emirate/Chiefdoms and Districts in Taraba State.
2. To identify any existing gazette/orders and administrative procedure for the filling of such vacant stools recourse being had to any Government Committee report on Chieftaincy matters including Court Judgment where applicable.
3. To identify and recommend the mode or method of selection/election of candidate for each of the vacant stools and Districts for gazetting by Government where necessary.
4. To determine the existence or otherwise of kingmakers or other persons or group of persons responsible for the selection of such-Emirs/Chiefs and District Heads within the chiefdoms/Emirates.
5. To identify Ruling Houses within the Emirate/Chiefdoms in chronological order regard being had to rotational system where there are multiple major Ruling Houses within the Chiefdoms.
6. To identify Emirate/Chiefdoms and District have been resolved; and if not; whether such vacant stools can be filled amicably without further skirmishes in the area and make appropriate recommendation on what should be done to assuage the disputing Ruling Houses so as to ensure peaceful selection of the memo Emir/Chief and District Heads.
7. To sensitize the identified kingmakers group of persons to set in motion the through the Traditional Council for the port of Emir/Chief and District Heads in the Chiefdom/Emirate.
8. To liaise with the appropriate Traditional Council, Council of Chiefs/Emirs and the relevant Government Department in-charge of Chieftaincy matters in the State to expedite action on the selection process and ensure that the names of selected/elected candidates together with all minutes of meetings in respect of the selection exercise and recommendations with curriculum vitae of each candidate are forwarded to the Governor for appointment immediately.
9. To make any other recommendation that will assist the Government in ensuring peaceful co-existence and smooth appointment into the existing vacant stools in the State.
10. The committee shall submit its report to the convening authority within 10 weeks from the date of first sitting after inauguration.
In the course of the sitting of the Commission, the Winlau Community to which the Respondents belong and the Nyeh Development Association, Kunini Lau Local Government Area of Taraba State submitted a Memoranda which the 1st Respondent signed as the Kuh Winlau (Sarkin Lau) and 2nd Respondent as Ardido Lau Asali (See pages 96 – 99 and 135 -144 of the Records). For instance, in the Nyeh Development Association Memorandum of Kunini Lau Local Government dated 26th May, 2006, they opposed any attempt to bring in somebody somewhere who was not an indigene of Lau District as the District Head and even the present upgrading of Lau District to third class Status.
They informed the commission that Lau District was created since the advent of Colonial rule in 1917 and complained that “Since the creation of this district to date the people of the district have been marginalised whereby the District heads were imposed and transferred from Jalingo to Lau District with Headquarter in Kunini where the imposed District Heads reside”.
The gravamen of the 1st Appellant’s case is that he was prosecuting the suit in representative capacity for himself and on behalf of the seven Clans constituting Kingmakers and Ruling Houses known as Winlau, he being the Village Head of Winlau (Kuh Lau) and bona fide indigene and native of Winlau who were the first settlers of Lau since 1705. It is his further case that he was aware that before the Taraba State Upgradement of Traditional Rulers and creation of Districts (Order) 2005 was enacted as a Law of the State, Lau Local Government Area had no 3rd class Chief.
Following the enactment of the above Law/Order, the throne of Lau as 3rd Class chieftaincy remained vacant subject to being filled in accordance with the prescribed method by law.
As an indigene of Lau and current Kuh Winlau he is an interested person and a contender to the throne of the 3rd class Chief of Lau with himself as the major and strong contender. He also alluded to the Commission of Inquiry constituted as a result of the Upgradement of Traditional Rulers and Creation of Districts (Order) 2005 which Instrument he annexed as Exhibit A to the Affidavit in Support of the Originating summons adding that they submitted Exhibit (B) which is the mode of selection of 3rd Class Chief as was done by other Communities.
While he (1st Respondent) and Winlau people were awaiting the outcome of the Administrative Commission of Inquiry and Report and Recommendation submitted to the 6th Appellant/Governor over the Memorandum they submitted and in particular the final white paper on the Chiefdom selection and appointment of 3rd class Chiefs; the 6th Appellant arbitrarily named the 1st Appellant and appointed him to the throne of the 3rd class Chief of Lau on the 3rd of November, 2006 via Radio and Television announcement by the 4th Appellant with the Conspiracy of the 2nd and 3rd Appellants and without due regard to the prescribed method by Law and due process.
The 1st Respondent Claimed knowledge of the fact that the process of selecting the, 1st Appellant as 3rd class Chief of Lau was not followed as the law enjoined the 6th Appellant to observe and adhere strictly by it, moreso, as he was informed and verily believed that the 5th Appellant did not follow the process of selecting a person as 3rd Class Chief of Lau in accordance with custom and tradition of the Lau people in that the council of Kingmakers responsible for selection, coronation and blessing of the chief of Lau was completely ignored in the appointment of the 1st Appellant as 3rd class chief of Lau; he (the 1st Respondent) being familiar with the process of selection of a new chief in Lau and that the condition precedent was not fulfilled by the 1st Respondent.
Finally, the 1st Respondent claimed that prior to the appointment of the 1st Appellant, the 6th Appellant had promised in the Mirror Newspaper and assured citizens of Taraba State that due process would be followed in filling vacant traditional stools adding that persons would not be imposed on the people without due regard to prescribed methods. See Exhibit C to the supporting Affidavit of the Originating Summons.
The case of Shira Kuteh (2nd Plaintiff/Respondent) as can be gathered from pages 284 and 285 of the Records is that his father was the acting Village Head of Kunini Village after the death of Buba Beni in his capacity as the Waziri of Kunini before nominating Yahweh Waziri the present Village Head. It is his further claim that after the death of his (2nd Respondent’s) father, Yahweh Waziri gave him (the Respondent) the title of his (Respondent’s) father as the Waziri of Kunini Village and that by virtue of his status as the Waziri of Kunini and from the Royal Family, he is entitled and qualified to the seat of Kunini Village and Lau Chiefdom. He also averred that Buba Bamo used in the Originating Summons is a typographical error as the right name is Buba Benu. it would appear that the Originating Summons of the 2nd Plaintiff/Respondent and the Affidavit in support thereof are not part of the Record of proceedings. Also I have searched through pages 96 – 99 of the Records, 106 – 110 and 121 paragraph 19 of the Record of proceedings as alluded to by learned Counsel for the 1st and 2nd Appellants in pages 3 paras. 2.6 – 2.8 of their Brief and I cannot find any processes filed by the 2nd Respondents in respect of the learned Counsels’ submission.
Be that as it may, apart from the Preliminary Objection raised against the commencement of the suit by the Originating Summons procedure, and the contention that the Respondents lacked the locus standi to commence the suit, Bawa Ahmed Esq. of the Attorney-General’s Chambers, Ministry of Justice Taraba State who deposed to the facts relied upon by the Appellants on behalf of Mallam Danjuma Yerima, the District Scribe/Acting Secretary to the Lau Chiefdom through the information gathered from the latter on the 7th day of May, 2007; explained that there had been in existence the Office of the Village Head of Lau whose jurisdiction is limited to WINLAU community of Lau Local Government Area as well as the office the District Head of Lau whose jurisdiction extended to Kunini, Gomun, Bandowa, Yadang, Hausawa, Fulani, Jenjo, Joule, Shomo, Minda, Lau Asali (Winlau Community) amongst other ethnic groups with distinct history, culture language and traditions in the then Lau District.
It is their further case that there had never been any laid down procedure for the selection and appointment of the District Head of Lau as the appointment of a fit a proper person for that Office and that most District Heads were the exclusive preserve of the Emir of Muri. According to them, when the father of the first Appellant (Umaru Mohammed) was first appointed the District Head and posted to Lau there was no protest by win Lau community or any other ethnic group within the District and there was also no breakdown of law and order as a result of his appointment.
The Appellants also claim that there had never been in existence the Office of the Chief of Lau prior to the appointment of the 1st Defendant/Appellant and accordingly there was no laid down procedure for the selection and appointment of same. They maintain that what the 2nd – 6th Appellants had done in the appointment of the 1st Appellant is to upgrade the status of the District Head of Lau occupied by the father of the 1st Appellant before his demise to that of the chief of Lau.
In their view, the office of Village Head of Lau may be governed by Winlau native law and custom but that of the District Head of Lau and indeed 3rd class chief of Lau is not governed by same as the office of Village Head and District Head/Chief of Lau (now upgraded to 3rd class chiefs) are distinct and the appellation of the “Kuh Lau” is not known to the Appellants. They further claim that no one who ever occupied the village Head of Lau was ever appointed the District Head of Lau and that the office of Village Head of Lau is not affected by reason of the appointment of the 1st Appellant as 3rd crass chief/District Head of Lau as the two offices are separate both in status and functions.
The Appellants admit that they recognize and accord the 1st Respondent the status of the village Head of Lau and in recognition of his said position the 4th Appellant has continued to prepare payment vouchers for the payment of 1st Respondent’s salaries and other entitlements as village Head of Lau. Exhibits 1 and 2 the Vouchers for the months of November and December, 2006 which the 1st Respondent refused to collect till the date of initiation of proceedings were annexed to the Counter Affidavit of the Appellants.
In response to the claim of the 2nd Respondent, the Appellants stated on the contrary that neither the 2nd Respondent nor his father was ever appointed Ward or Village Head of Kunini B and at no time was the 2nd Respondent Wakili Kunini Village or a member of the Royal House also Buba Banu (Buba Benu) was never the Village Head of Kunini “B” between 1960 – 1970 as the position was not zoned to Anguwan Ndagwi Ruling Clan within the period, rather, that stool of the Village Head was zoned to Anguwan Ndagwai only in 1977 when Buba Benu Waziri was first installed as the gazetted Village Head of Kunini by the Muri Emirate Council and he died in 1982.
After the death of Buba Benu in 1982, the Appellants further claim, his younger brother Yawai Waziri, the present Village Head of Kunini “B” was installed the Village Head in 1984 by Muri Emirate Council, and accordingly, the 2nd Respondent has no personal interest in the Village Headship of Kunini let alone the Chief of Lau. By reason of the foregoing, the 2nd Respondent is described as a mere busy- body meddling into affairs that do not concern him.
It would be recalled that the 1st Respondent had averred in the Further And Better Affidavit In Support of the Originating Summons dated 19/7/2007 particularly in paragraphs 6, 7, 8, 9, 10, 11, 12, and 13 (at pages 281 – 282 of the Records that:-
(a) Before the creation of Lau Chiefdom, there was in existence the District Head of Lau residing in Kunini by name Hamman Adamu Yussa since 1996 on the throne as the Village Head and that the office of the District Head of Lau was created in 1976 with Headquarters and Office opposite the Area Court Lau Headquarter of Lau Chiefdom and Local Government Council whose jurisdiction extended to the Towns and Villages under the present 7 (seven) Districts created by the 2nd – 6th Appellants in 2005 contrary to the few Areas mentioned in paragraphs 6(ii) of the Defendants/Appellants Counter-Affidavit.
(b) Between 1976 and 1996, when Lau existed as a District, there was no laid down procedure for the selection and appointment of District Head of Lau except what was imposed on the People of Lau by the Muri Emirate Council but that in 1996 owing to protests and continued complaints made to the Government of former Gongola State and Taraba State by the Winlau Community, and other Communities the Government allowed the representatives of each of the Clans in Winlau Community and other ethnic groups in Lau together with other Village Heads and Ardidos who constituted the Kingmakers to select a District Head of their choice for approval by the Muri Emirate Council. This was/is still the recognized and accepted procedure for the selection and appointment of the District Heads of Lau by native Law, Customs and Traditions of its people.
(c) Beginning from 1976, the Respondents traced the tree of succession of District Heads as imposed on them as follows:-
1. Mallam Galadima Saidu 1976 – 1978: stayed at Lau District Office Lau.
2. Kachalla Mohammed 1978 – 1982: refused to stay in Lau and was reposted to Mutum Biyu by Muri Emirate.
3. Mohammed Umaru 1982 – 1996: Owing to protests and complaints by Winlau Community against his appointment, he was moved to Kunini and made it his District Office Headquarter instead of Lau Town as it used to be.
4. Hamman Adamu Yussa 1996 – 2005: stayed in Kunini instead of Lau Town as District Headquarter.
(d) By the custom and Tradition of the Lau people it is the current Head of Lau in the Person of Hamman Adamu Yussa who should have Occupied the stool of Lau Chiefdom but since the Chiefdom is now a creation of legislation, the stool is vacant subject to be filled in accordance with the prescribed mode by law.
(e) The District Head of Lau before the creation who is the said Hamman Adamu Yussa and who was supposed to be upgraded to the status of the chief of Lau Chiefdom was not so upgraded, rather, the 1st Appellant who had never occupied the seat of District Head in Kunini District was so appointed.
(f) Lau Chiefdom is a creation of legislation by the Taraba State House of Assembly to exist as an entity separate and distinct from other Chiefdoms.
(g) The proposed appointment and imposition of the 1st Defendant as the 3rd Class Chief of Lau has personally affected the 1st Respondent’s interest to the throne of the Chiefdom which he is a contender and he would not allow the forceful imposition of the 1st Appellant who had never occupied the seat of the District Head to be appointed by the 6th Appellant from nowhere.
In the Further Additional Counter-Affidavit in response to the Further And Better Affidavit in Support of the Originating Summons, Mr. Bawa Ahmed of the Attorney-General’s Chambers, Ministry of Justice, further deposed to the following facts in paragraphs 4 to 8 (i) – (iv) thereof thus:-
1. That Barrister E. H. Gowon is one of the Counsels in the Attorney-General’s Office and was assigned as Counsel to the Administrative Commission of Inquiry into the Newly Created District Chiefdoms/Emirate Councils in Taraba State.
2. That the said Barrister Gowon made written submissions as Counsel to the Commission at the conclusion of proceedings which was exhibited to the Plaintiff/Respondent’s Further And Better Affidavit as Exhibit D.
3. That the said Commission of Inquiry was yet to submit its Report to the State Government let alone for same to be accepted and Government White paper issued.
4. That he was informed by Mallam Danjuma Yerima and he verily believed him that:-
(i) the defunct Lau District was part and parcel of Muri Native Authority;
(ii) the native law and Custom of the Native Authority was operational throughout the areas covered by the Native Authority including the defunct Lau District.
5. That Augustine Shonlanko, Secretary Bureau for Local Government and chieftaincy Affairs, Jalingo informed him on 14/09/07 and he verily believed him that:-
(i) The Taraba State Executive Council at its Council conclusion 4th meeting approved the creation of additional Traditional/Emirate Councils, Chiefdoms, Districts and Villages including Lau Chiefdom. A copy of the Exco conclusions was Exhibited and marked “A”.
(ii) Consequent upon the said Exco Conclusion the 4th Appellant raised a Memorandum to the 6th Appellant forwarding the names of nominees who had been duty selected/elected by the Kingmakers to fill the vacant stools in the newly created 3rd class chiefdoms including Lau chiefdom. A copy of the Memorandum Ref. No. GHJ/LG & CA/S/76/111/335 of 10/10/2006 and the 6th Appellants Approval of Appointment of the 1st Appellant as the 3rd Class Chief of Lau was Exhibited and marked “B”.
(iii) Based on the approval of appointment of the 1st Appellant by the 6th Appellant on 3/11/06 as the 3rd Class Chief of Lau, the 4th Appellant caused a letter of Appointment Ref. No. GHJ/LG & CA/S/260/237 of 09/11/06 to be issued and served on the 1st Defendant. A copy of the Letter was tendered and marked Exhibit C.
(iv) The 1st Appellant was then presented with a staff of Office as 3rd Class Chief of Lau on Thursday 25th January, 2007 by the 6th Defendant at a colouful ceremony witnessed by his subjects.
It was against the afore stated facts that the learned trial Judge predicated his Judgment after learned counsel on all sides had addressed him on their respective positions. Now, in the Brief settled by Jika Tukur Abubakar Esq. of J. T. Abubakar & Co. on behalf of the 1st and 2nd Appellants, the learned counsel has formulated two issues couched in the following terms:
“1. WHETHER OR NOT THE TRIAL JUDGE HAS MISDIRECTED HIMSELF AND THEREBY CAME TO WRONG CONCLUSION WHEN HE HELD THAT THE RESPONDENTS HAVE THE LOCUS STAND, TO INSTITUTE THE ACTION CONSIDERING THE AVAILABLE EVIDENCE, (DISTILLED FROM ADDITIONALGROUND 1).
“2. WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN THE CASE SAME BEING STATUTE BARRED.”
As for the Brief settled by J. D. Yakubu Esq. (Director of Civil Litigations), Attorney-General’s chambers, Ministry of Justice, Taraba State for the 3rd – 6th Appellants; the two issues formulated for determination by the learned counsel for the 1st and 2nd Appellants were adopted but he added a third issue which is: “whether the 6th Appellant in appointing the 1st Appellant as the 3rd class chief of Lau acted within the confine of Law?”
On the other hand, the learned counsel for the 1st Respondent in the Brief settled by F. D. Nzarga Esq. raised three issues as reproduced hereunder as follows:-
“1. Whether the 1st Respondent Has The Locus Standi To Institute This Action Against the Appellants?
“2. Whether the 1st Appellant as a Traditional Ruler (The Third Class Chief of Lau) Fall within the Definition of Public Officers to Benefit under the Public Protection Act As well As The 2nd, 3rd, 4th, 5th and 6th Appellants Law Are Too To Be Protected?
“3. Whether the 6th Appellant in Appointing The 3rd Class Chief of Lau Taraba State, is Bound By The Provision of Section 4(1) (2) of the Chiefs (Appointment And Deposition), Law Cap. 26 Laws of Taraba State, 1997? And Whether the Appointment of the 1st Appellant by the 6th Appellant was in Compliance With the Prescribed Law?”
ARGUMENTS OF LEARNED COUNSEL TO THE 1ST RESPONDENT AND THE REPLY THERETO BY THE LEARNED COUNSEL TO THE 1ST AND 2ND APPELLANTS ON THE 1ST RESPONDENT’S PRELIMINARY OBJECTION.
Before delving into the Arguments of the learned Counsel on the substantive issues for determination, it is necessary to recall that the learned Counsel for the Respondent incorporated the argument of his Notice of preliminary objection in page 4 para. 1.01 to page 6 paragraph 3.03 of the Respondent’s Brief.
On GROUND ONE of the Objection which is against the competence of Issue Number 3 of the 1st and 2nd Appellants’ Issues for determination, he submitted that the said issue Number 3 is at variance with Grounds 1, 2 and 3 of the Original Notice of Appeal and without nexus with those Grounds since the arguments in paragraphs 13.6 to 14.4 of the Appellants’ Brief dwelt extensively on Exhibit D which was admitted in the lower Court through subpoena Duces Tecum contained in pages 274 -275 of the Records. The Appellants he noted, never appealed against the admission of the said document and cannot therefore rely on such a submission herein. Also the learned Counsel for the 1st Respondent further noted, Exhibits A and B which were rejected by the Court below as inadmissible and which the Appellants sought to rely on at page 25 of their Brief of Argument have no nexus with the Issue formulated and the Grounds of Appeal or particulars of Grounds 1, 2 and 3 of the Original Ground of Appeal. For the above reasons, he relied on the cases of Ezemba V. Ibeneme (2004) 4 WRN? Lines 10 – 45 para. 9 – 10; and Ojeaba V. Omatsoye (1999) NWLR (pt. 608) 591, 598 paras. B – C; to urge us to strike out Issue Number 3 as same is incompetent and at variance with Grounds 1, 2 and 3 of the Original Grounds of Appeal.
On GROUND TWO of the Objection which questions the competence of Ground 3 of the Additional Grounds of Appeal, by reason of the Ground not emanating from the judgment of the lower Court and the fact that the document referred to as HAM No. 003 in Ground 3 of the Additional Notice of Appeal does not form part of the Record of Proceedings before the lower Court, the learned Counsel for the 1st Respondent urged us to strike out the said Ground 3 since it is alien to the Judgment of the lower court and issues have not been joined or formulated nor argument proffered on that Ground. References were made to Order 6 Rule 3 of the Court of Appeal Rules 2011 and the cases of Kweki v. Ebele (2005) 15 WRN 49, Ratio 5; Saraki V. Kotoye (1992) 9 NWLR (pt. 246) 156 at 184; Owners of MVGH V. Smurfi Cares Nig Ltd. (2007) 44 WRN 76 lines 30 – 35; Emespo J. Cont. Ltd. V. Corona (2006) 28 WRN page 198 lines 5 – 15; to further urge us to hold that the Ground has been abandoned and should accordingly be struck out.
On Ground 3 of the Preliminary Objection which relates to the competence of Ground 3 of the original Notice of Appeal on an issue of fact for which leave was not obtained to argue same, it was submitted that it is settled law that where a party chooses to appeal against any Issue of fact in the judgment of the lower Court, leave of the Court is a necessary precondition before the Appellant can argue same but that in respect of Ground 3 of the Appellant’s Original Notice and Grounds of Appeal no such leave was sought or granted before it was argued.
It was his further contention that the Ground along with its particulars are purely an issue of fact and attack on the findings of the trial Court which required leave from the Court below or herein before its argument and leave is mandatory on the authority of Unongo V. Akume (2001) 11 WRN 90 lines 30 – 35. Finally, learned Counsel for the 1st Respondent pointed out that the duty lies on the Appellate Court to strike out the Grounds found to be of facts, or mixed law and facts where the requisite leave was not obtained before argument. Nwadike V. Ibekwe (2004) 24 WRN 70 lines 15 – 25 was relied upon in so submitting.
In the Reply Brief of the 1st and 2nd Appellants dated 4th July, 2012, but filed on the 25th July, 2012, the learned Counsel for the 1st and 2nd Appellants on Ground ONE of the Objection, relied on the authorities of Senate President V. Nzeribe (2004) 9 NWLR (pt.878) 251 at 272 and Inakoju V. Adeleke (2007) 143 LRCN 1 page 343 lines 8 to 344 lines 1-5, 352 lines 20-353 lines 1-25 to 354 lines 1 – 8 of the Records to submit that issue Number 3 is distilled from Grounds 1, 2 and 3 of the Original Grounds of Appeal and they having appealed against the final decision of the lower Court on the Preliminary Objection and the substantive, suit together the trial Judge had considered and relied extensively on Exhibit D to cloth the Respondents with locus standi to institute the action. The learned Counsel went on to repeat his argument in the substantive issue on the nature of Exhibit D and its portrayal of double standards, inconstancies, it not being a public document and the trial Court’s reliance on it, which is not the object of the Preliminary Objection.
He further cited sections 15 and 26 of the Court of Appeal Act which empower this Court to admit or reject evidence hitherto rejected arguing that this Court has full jurisdiction over the whole proceedings as if the proceedings have been instituted in the Court of Appeal as the Court of first instance. Citing Olarenwaju V. Ogunleye (1997) 1 SCNJ 144 at 152 and Mohammed V. Kayode (1994) NWLR (pt. 343) 260 and Nwadike V. Ibekwe (1987) 4 NWLR (pt. 67) 718, the learned Counsel for the 1st and 2nd Appellants submitted that a ground of appeal which complains that the trial Judge admitted inadmissible evidence and acted upon is a ground of law and no prior leave of the Court is required before filing same even though it raises issues of facts provided it is challenging admission or rejection of evidence just like an issue on legal interpretation of deeds or documents.
Relying on Nicholas Ogidi V. Chief Daniel (1999) 10 NWLR (pt.621) 42 at 69; Owonyin V. Omotosho (1961) 2 SCNLR 57; he posited that the Appellate Court has inherent jurisdiction to exclude and discountenance the document even though learned Counsel at the trial did not object to its being admitted in evidence. Mallam Yahaya V. Mogoga C. WACA 132 at 133; ELF Nigeria Ltd V. Sillo (supra); Ugbala V. Okorie (supra), IBWA Ltd V. Imona Nig Ltd. (2000) 11 NWLR (pt. 679) at 620; were relied upon to assert that their Grounds 1, 2, 3 of the Original Grounds of Appeal are of right and since they were filed within 90 days statutory period they are grounds filed against a final decision and not against interlocutory Ruling. Section 241 (1) 1999 Constitution (Amended) was cited to reiterate that the Appeal is as of right.
It was further argued by the learned Counsel for the 1st and 2nd Appellants that Issue 3 as argued is distilled from Grounds 1, 2, and 3 and the particulars of the Original Grounds and Ground 1 question and disagree with the Judge’s consideration of section 4 (1) of the Taraba State Chiefs Law. He maintained that Ground 2 further elucidates the distinction between sections 4(1) and 4(2) of the Law which requires input from the Commission of Inquiry, Exhibit D and the like. In respect of Ground 3, he was of the view that they are complaining of the lumping together of the provisions of sections 4(1) and 4(2) of the Chiefs law of Taraba State by the trial Court, thus, their Grounds of Appeal 1, 2, 3 reveal a misunderstanding by the trial Judge of the law or misapplication of it to the facts already proved or admitted and accordingly are Grounds of Law.
As for Ground 3 of the Preliminary Objection, the learned Counsel for the 1st and 2nd Appellants also relied on section 241(1) (b) of the 1999 Constitution to submit that it is an Appeal as of right as it was made within 90 days statutory period and no further leave is needed to file it. The Ground according to him questions the incisive intelligence of the trial Judge in holding that the Commission of Inquiry was established by the 6th Appellant to satisfy section 4(2) of the Chieftaincy Law of Taraba State while the situation in section 4(2) of the Law is not applicable to the facts of this case for the reasons stated in learned Counsel for the 1 – 6th Appellants’ argument on the substantive issues.
He therefore maintained that where there is a statutory description of facts and the lower Court determines the facts as found in a case to have answered the statutory description and satisfying the statutory criteria, a question challenging that finding will amount to a question of Law. It was therefore submitted that the facts found by the trial Court rather support the legal description given to section 4(2) and not section 4(1) of the Chiefs (Appointment and Deposition) Law 1997 Cap. 26, Laws of Taraba State and the question whether the Court properly construed the facts as falling within the description of Section 4(2) of the Law is a question of Law. We were therefore urged to discountenance the learned counsel for the 1st Respondent’s Preliminary Objection and allow the Appeal.
DETERMINATION OF PRELIMINARY OBJECTION.
GROUND ONE: OBJECTION AS TO THE COMPETENCE OF ISSUE NUMBER 3 OF THE 1ST AND 2ND APPELLANTS, ISSUES FOR DETERMINATION:-
Here the contention of the learned Counsel to the 1st respondent is that Issue Number 3 of the 1st and 2nd Appellants’ Brief is at variance with Grounds 1, 2 and 3 of the Original Grounds of Appeal more particularly where the learned Counsel for the Appellants dwelt extensively on Exhibit D which was admitted through subpoena Duces Tecum; the rejection of Exhibits A and B by the Court and that these arguments have no nexus with the issue formulated, the Grounds of Appeal and the particulars of Grounds 1, 2 and 3 of the Original Grounds of Appeal.
I had earlier set out the Original Grounds of Appeal as couched by the learned Counsel for the 1st and 2nd Appellants albeit without their particulars but it suffices to say that the Grounds of Appeal complain of error of law committed by the learned Trial Judge when he held that the appointment of the 1st Appellant by 6tn Appellant as the 3rd Class Chief of Lau is ultra vires, null and void for not being in accordance with section 4(1) and (2) of the Chiefs (Appointment and Deposition) Law Cap 26, Laws of Taraba State, 1997.
The particulars of this Ground are stated as follows:-
(a)That the Taraba State Governor was not bound by the provisions of section 4(1) and (2) of the Chiefs (Appointment and Deposition) Law, Cap. 26, Laws of Taraba State 1997 as the said section does not pertain to the 1st Appellant who is the pioneer Chief of Lau.
(b) Section 4(1) and (2) of the said Law is only relevant in appointment of a successor upon the death, resignation or deposition of a Chief.
(c) The situation envisaged by section 4(1) and (2) of the Law is yet to occur in respect of Lau Chieftaincy and the said section is irrelevant in the appointment of the 1st Appellant.
As for Ground 2 thereof, it also complains in the main, of the commission of an error in law by the learned trial Judge’s misconstruction of the provisions of the Chiefs (Appointment and Deposition) Law of Taraba State, 1997 as affecting the appointment of the 1st Appellant as Chief of Lau by holding that his understanding of the provisions of that law is that the appointment and deposition of any person in Taraba State who is a recognized Chief shall be governed by the Chiefs Law irrespective of whether the person so appointed (in the case of appointment) is an appointee for the first time to occupy a Chieftaincy stool or he is succeeding a previous occupant.
The particulars of that Ground are stated thus:-
1. The 1st Appellant was appointed a first pioneer Chief of Lau Chiefdom.
2. The provisions of the Chiefs law of Taraba State Cap. 26, are clear and unambiguous and relate only to appointment of successor upon the death, resignation of a Chief.
3. The provisions of the Law particularly on the procedure for appointment of a successor can only come into effect and become relevant when there is an already existing Chief and such Chief dies or resigns or is deposed.
Finally, Ground 3 of the Original Grounds of Appeal complains of misdirection by the learned Trial Judge on the facts and reliance on irrelevant material thereby coming to a wrong conclusion and occasioning a serious miscarriage of justice by holding that it was in the attempt at compliance with the provisions of section 4(2) of the Chiefs Law that the 6th Defendant/Appellant set up the Commission of Inquiry immediately after the creation of additional Chiefdoms via the Upgradement of Traditional Rulers Order to amongst others identify and recommend the mode or method of selection/election of candidates for each of the vacant stools and Districts for gazetting but instead of allowing this process to run its course, the 6th Appellant arbitrarily purported to appoint the 1st Defendant/Appellant as the Chief of Lau which appointment was done without any Order prescribing the method of such appointment as clearly provided by section 4(2) of the Chiefs Law, thus putting the cart before the horse.
The particulars of this Ground are stated to be that:
(1) The setting up of the Commission of Inquiry by the Governor/6th Appellant was clearly as held by the trial Court an attempt to identify and make an order in terms of section 4(2) of the Chiefs Law for the purposes of appointing successors to reigning Chiefs who die, resign or are deposed, a situation which is yet to occur in Lau Chiefdom.
(2) Had the trial Court properly adverted its mind to the fact that the whole exercise of determining the mode and making an order in terms of section 4(2) of the Chiefs Law is for purposes of appointing successors upon the death, resignation or deposition of a Chief, he would not have held as he did that the Governor put the cart before the horse in so for as the appointment of the 1st Appellant as pioneer Chief of Lau is concerned.
It is against the above Grounds and particulars that the learned Counsel for the 1st and 2nd Appellants at page 23 of the 1st and 2nd Appellants’ Brief formulated ISSUE 3:
“Whether the Appointment of the 1st Appellant As The 3rd Class Chief of Lau By The Executive Governor of Taraba State is in Accordance With Sections of The Chiefs (Appointment and Deposition) Law of Taraba State, 1997?” In paragraphs 13.1 to 13.5 of page 23 of the 1st and 2nd Appellants Brief, the Learned Counsel for the 1st and 2nd Appellants articulated the arguments in support of the issue and rightly noted in paragraph 13.1 before delving into the history of the case in subsequent paragraphs, that the appointment of the 1st Appellant as 3rd Class of Chief of Lau, by the 6th Appellant is the crux of the matter in this Suit/Appeal and that the examination of its legality becomes paramount.
Turning to Exhibit D of the 1st Respondent which was admitted and Exhibits A and B of the Appellants which were rejected in Evidence, Ground 3 of the Original Grounds has complained that “the learned trial judge misdirected himself on facts and relied on irrelevant materials.” Part of the submission of the learned Counsel for the 1st and 2nd Appellants is that the written submission of Barrister Gowon to the Commission of Inquiry has not yet attained the status of a public document so as to be admissible in evidence and relied upon by the Court below in coming to his decision that the 1st and 2nd Respondent possessed the relevant locus standi to initiate the suit and warranting the Court to void the appointment of the 1st Appellant.
On the other hand, the contention of the learned Counsel for the Appellant by the Ground of Appeal is that if the Court had taken into consideration Exhibit A (the Executive Council decision after considering the memorandum on mode of selection of the 1st Appellant) along with other 3rd Class Chiefs and Exhibit B which culminated in the issuance of Exhibit C (the letter of approval of appointment of the 1st Appellant as 3rd Class Chief of Lau Chiefdom); the decision of the learned trial Judge would not have arisen, more so, when the admissibility of Exhibit C would not have been possible without Exhibits A and B which were wrongly rejected. I am therefore of the view that the issue formulated in respect of Grounds 1- 3 of the Original Grounds and the argument advanced on this issue are relevant and have a connecting nexus with each other.
There is no doubt that all issues must perforce be formulated and must arise from Grounds of Appeal and the particulars of such grounds. Furthermore, the cases of Ezemba V. Ibeneme (2004) 4 WRN? 10 – 45 paras. 9 – 10 and Ojeagba V. Omatsonye (1999) 6 NWLR (pt. 608) 591 and 598 paras. B – C must have so decided that where issues are not formulated from Grounds of Appeal, the Grounds are deemed abandoned and such Grounds or Ground should be struck out. The arguments proffered on issue Number 3 are not at variance with Grounds 1, 2 and 3 as those arguments relate to the misconstruction of the Taraba State Chiefs Law of 1997 as well as the reliance placed on irrelevant materials by the learned trial Judge in holding that section (1) and (2) of the law was applicable to the appointment of the 1st Respondent. I shall therefore discountenance this Ground of the 1st Respondent’s preliminary objection.
GROUND 2 OF THE OBJECTION: THE 1ST RESPONDENT’S OBJECTION TO THE COMPETENCE OF GROUND 3 OF THE ADDITIONAL NOTICE OF APPEAL SAME BEING INCOMPETENT.
Ground 3 of the Additional Grounds which the learned Counsel for the 1st Respondent has pilloried as being incompetent in that it does not arise from the decision of the learned trial Judge states thus:-
“The learned trial Judge erred in law by (sic) only upon the provisions of the Chief (Appointment and Deposition) Law Cap. 26, Laws of Taraba State, 1997, conducted the trial the same law being unconstitutional.”
As for the particulars thereof; they are stated as follows:-
a. The Chiefs (Appointment and Deposition) Laws of Taraba State, Cap. 26, 1997 upon which the trial was premised was not initiated by a Bill of the legislature, (sic) part into law and assented into law by the Governor of Taraba State, thus occasioning a miscarriage of justice.
b. The procedure for passage of the Chiefs (Appointment and Deposition) Law Cap 26, Laws of Taraba State 1997 is incompetent, unconstitutional having not been in conformity with section 100 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
c. That the certified True Copy of the Taraba State House of Assembly Resolution of second session No. 43 dated Tuesday, 20th March, 2001 in Motion HAM No. 003 Titled: “BRINGING INTO FORCE THE REVISED TARABA STATE LAWS 1997,” is not a law, and not sufficient and enabling procedure to bring into force the Chiefs (Appointment and Deposition) Law Cap. 25 Laws of Taraba State 1997 into Law of Taraba State”.
There is no doubt as the learned Counsel to the 1st Respondent has rightly argued on the authorities of Ikweki V. Ebele (2005) 15 WRN at 49 and Saraki V. Kotoye (1992) 9 NWLR (pt. 246) 156 at 184; that it is trite that a Ground of Appeal must relate to the decision and should constitute a challenge to the ratio decidendi of the Court from which the Appeal emanated as Grounds are/and should not be formulated in nubibus but must arise from the judgment appealed against. A look at the entire proceedings of the lower Court would clearly show that there was no where the learned trial Judge decided nor was any issue of the constitutionality or otherwise of the Chiefs (Appointment and Deposition) Law of Taraba State, raised, decided, or joined by the parties in the Court below.
Thus, the reliance placed on the case of Owners of MVGH V. Smurfi Cares Nig. Ltd. (2007) 44 WRN 76 line 30 – 35 (S. C.); is quite apposite for it has been held that a Ground of Appeal is the error of law or fact alleged by an Appellant as the defect in the judgment of the Court appealed against and relied upon to set aside the said Judgment. The Grounds of Appeal are the reasons for challenging the decision of a Court by an aggrieved party and accordingly must be fixed and circumscribed within an issue in controversy. Just as the Ground of Appeal must be based on the Issue(s) joined by the parties and on the ratio decendi, so should an issue formulated by an Appellant in the Appellate Court also emanate from the Ground of Appeal. See Metal Construction (W.A.) Ltd. V. Miglore (1990) 1 NWLR 299 at 311 per Karibi- Whyte, JSC; Ejiwhomu V. Edok Eter Ltd. (1986) 5 NWLR (pt. 39) 1, Adejumo V. Ayantegbe (1989) 3 NWLR (pt. 110) 417 and Adeogun V. Olaogun (2008) 17 NWLR (pt. 1115) 149 at 158 paras. C – D.

Thus, an issue not raised or tried in the lower Court should or ought not be raised at the Appellate Court without the leave of either the Court of first instance or the Appellate Court. Grounds of Appeal and issues raised there from must be traced to the decision from which the Appeal arose. See IBWA V. Imano Construction (Nig) Ltd. (1983) 3 NWLR 633.
The above general proposition of the law notwithstanding, it has long been settled by a plethora of authorities that a Ground of Appeal or point involving a substantial point of law either substantive or procedural can be raised for the first time provided it does not entail eliciting of fresh evidence. See Shonekan V. Smith (1964) 1 ALL NLR 168; Akpena V. Barclays Bank of Nigeria & ors (1977) 1 S. C. 47 Osho V. Akpe (1998) 6 SCNJ 139 at 150; Management Enterprises Ltd V. Otusanya (1987) 2 NWLR 179 and Abaye v. Ofili (1986) 1 NWLR 134.
In the case at hand, the question of unconstitutionality of the Chiefs (Appointment and Deposition) Law of Taraba State, 1997; is a substantive Ground of Law which does not require calling of evidence and accordingly can be raised for the first time and argued herein. However, it would appear that no issue was formulated from the said Ground or was any argument advanced in that respect upon a careful perusal of both the Brief of Argument of the 1st and 2nd Appellants and their Reply Brief. Having not formulated any issue on the Ground nor had any argument(s) been advanced in respect thereof, the Ground is deemed abandoned as rightly submitted by the learned Counsel for the 1st Respondent and that Ground (Ground 3 of the Additional Grounds) is hereby struck out on the authority of Emespo J. Const. Ltd. V. Corona (2006) 28 WRN 198 at lines 5 – 15 ably cited by the learned Counsel for the 1st Respondent. See further Atoyebi V. Governor Oyo State (1994) 5 SCNJ 62 at 78.
Are V. Ipaye (1986) 3 NWLR 415; Melwani V. Feed Nation (No. 1) (1986) 5 NWLR 587 and Dabup V. Kolo (1993) 12 SCNJ 1 at 12.
Ground 2 of the 1st Respondent’s Preliminary Objection therefore succeeds.

GROUND 3: OBJECTION TO THE COMPETENCE OF GROUND 3 OF THE ORIGINAL NOTICE OF APPEAL SAME BEING AN ISSUE OF FACT.
I have already set down the arguments of Counsel on both sides and also reproduced Ground 3 of the Original Grounds of Appeal in the course of our consideration of the first arm of the Preliminary Objection. There is no need to reproduce same here again. In Chidiak V. Laguda (1964) 1 ALL NLR 160, the Supreme Court defined misdirection to mean where a judge misconceives the issues, or summarises the evidence inadequately or incorrectly or makes a mistake of law. Their Lordships added that provided there is some iota of evidence to justify a finding, it cannot be properly described as misdirection. See Oyinloye V. Esikin (1999) 6 SCNJ 278 at 287 which followed Chidiak’s case. The Ground in question complains of misdirection by the Judge on the facts and also reliance on irrelevant materials in coming to a wrong conclusion which occasioned a miscarriage of justice. Looking at the Ground prima facie as it is couched one may be tempted to hold that it is one of admixture of facts and law particularly where it complains of reliance on irrelevant materials and misdirection on the facts by the Court below.
Thus the argument of the learned Counsel for the 1st Respondent is quite weighty particularly having regard to the decisions in the landmark cases of Unongo V. Akume (2004) 1 WRN 90 at lines 30 – 35 on the need to obtain leave to file a Ground of Appeal on issues of fact or mixed law and fact, and Nwadike V. Ibekwe (2004) WRN 70 lines 15 – 25; where the Supreme Court held that those Grounds of facts or mixed law and fact ought to be struck out for being incompetent since no leave of the Appellate court was sought to file them.
The learned Counsel for the 1st Appellant has cited section 241(1) (b) of the Constitution of the Federal republic, 1999 to submit that their Appeal is as of right and that the Ground in question is a Ground of Law simpliciter. Section 241(1)(b) provides that:
“(1). An appeal shall lie from decisions of the Federal High Court or a High Court as of right in the following cases-
“(b).Where the ground of Appeal involves questions of law alone, decisions in any civil or criminal proceedings.”
In Nwadike V. Ibekwe & ors (1987) 12 S.C. 14 at 52 -56 also reported in (1987) 4 NWLR 718; Nnaemeka-Agu, JSC; relying on English as well as Nigerian cases on this vexed issue of the nature of Grounds of Law, facts or mixed law and facts; posited that in our system of jurisprudence in which the Judge is Judge and Jury, a misdirection occurs when the Judge misconceives the issues, whether of facts or law, or summarises the evidence inadequately or incorrectly. (Chidiak V. Laguda (supra)) referred. According to the learned Law Lord; “He (the Judge) may commit misdirection either by positive or by non-direction. But when his error relates to his finding it cannot properly be called a misdirection it could be an error in law…..”
See also Eso, JSC who cited C. T. Emmery in vol. 100 L.Q.R., on the same issue in the celebrated case of Ogbechie V. Onochie & ors (1983) 3 S.C. 54 and explained the position of the law and the difficulties in distinguishing between Grounds of law from those of facts advising that what is required is to examine thoroughly the Grounds of Appeal to see whether they reveal a misunderstanding by the lower tribunal of the law, or a misapplication of the law to the facts already proved or admitted, in which case it would be a question of law.
His Lordship then took the view that where however the grounds are such that would reveal or are grounds that would question the evaluation of facts by the lower tribunal before the application of the law, that would amount to question of mixed law and fact and that the issue of fact is easier to determine. See also Ifediora & ors. V. Ben Ume & ors (1988) 3 SCNJ (pt. II) 192 at 206. Speaking specifically on pure issues of facts Karibi-Whyte JSC in Metal Construction V. Miglore (1990) 2 SCNJ 20 at 26 held that:-
“Like of Law, question of fact has more than one meaning. The first meaning is that a question of fact is any question which is not determined by a rule of law. Secondly, it is any question except a question as to what the law is. Thirdly, any question that is to be answered by the jury instead of by the Judge is a question of fact.” See further Anoghalu V. Oraelosi (1999) 10 SCNJ 1 at 12 -13 and Obatonyinbo V. Oshatola (1996) 5 SCNJ 1.
From the dicta of their Lordships in the above cited cases, the Ground of Appeal is that of law and questions the application of law to proved facts or admissibility of inadmissible evidence in coming to its decision. However, whether the Ground is of mixed law and fact, it is a Ground of Appeal emanating from the final decision of the High Court of Taraba State sitting at first instance. The Appeal is therefore as of right by virtue of section 24(1) (a) of the Constitution of the Federal Republic of Nigeria 1999.
Finally, before rounding up our determination of the Preliminary Objection it is necessary to recall what the Supreme Court said as regards the competence of a Ground of Appeal; that the mere fact that the Ground complains of misdirection of fact or error of law does not make it incompetent but the test is whether the impugned ground shows clearly what is complained of as error of law or error of fact and whether the other party is left in doubt as to what the complaint actually is. See Aderounmu V. Olowu (2000) 2 SCNJ 180 at 190 – 191. In this Appeal, the Respondent and Counsel have not complained of being misled by the Ground of Appeal as couched. On the whole, I am of the view that the Ground of Appeal is challenging the final decision of a Court of first instance and is therefore as of right. This Ground of Preliminary Objection accordingly fails. In the final analysis the Preliminary Objection succeeds only in part.
ARGUMENT OF ISSUES
In the determination of this Appeal, I shall adopt the two Issues formulated by the 1st – 5th Appellants as well as the 3rd Issue formulated by the learned Counsel for the 1st Respondent.
ISSUE NUMBER 1 “WHETHER OR NOT THE TRIAL JUDGE HAD MISDIRECTED HIMSELF AND THEREBY CAME TO WRONG CONCLUSION WHEN HE HELD THAT THE RESPONDENTS HAVE THE LOCUS STANDI TO INSTITUTE AND MAINTAIN THE ACTION CONSIDERING THE AVAILABLE EVIDENCE, (ADDITIONAL GROUND 1)”
Arguing this Issue the learned Counsel for the 1st and 2nd Appellants posited firstly that the learned trial Judge was wrong in so holding that the Respondents had locus standi to institute the action in view of available evidence. He went on to state the determinants of locus standi which according to him are whether the Respondent’ case is justiciable, whether there is dispute between the parties and that the Respondents must show that they had sufficient legal interest in the matter for which they were seeking redress in Court. The learned Counsel went on to summarize the claim of the Respondents as well as the facts culminating in the suit being initiated and subsequent Appeal to this Court.
He alluded to pages 7-8 and paragraphs 5, 6, 7, 10 and 38 of the Affidavit in Support of the Originating Summons and further to pages 61-62 of the Records paragraphs 6(i), (ii), (xii), (xiv), and (xv) of the Appellants’ Counter-Affidavit to submit that the Respondents cannot aspire to be District Heads of Lau or any other Chiefdom as it is not of their lineage. As for Exhibit D to the Affidavit in Support of the Originating Summons, the learned Counsel for the Appellants condemned it as postulating double standards as it went against only the appointment of 1st Appellant whose person and Chieftaincy stool is in similar situation, category and ranking with the rest of the Chiefs contending further that the genealogy of past District Heads of Lau all point to 2nd Appellant’s Royal Family all being appointed and posted by the 2nd Appellant up to the 1st Appellant.
He also pointed out that it is the foregoing line or order that other Chiefdoms, the reigning District Heads continue as Chiefs of the new Chiefdoms, and the 1st Appellant was also appointed because his deceased father was the last District Head of Kunini. Pages 112-113 of the Records and paragraphs 5(a) (b) (c) of the Counter-Affidavit of the Respondents dated 15th May, 2007, were relied upon in support of their above argument. It was their further submission that the Respondents not being progenies of the 2nd Appellant nor from the family of any District Heads of Lau District, they were not accorded any standing and/or interest to sue.
The learned Counsel for the Appellants maintained that the 5th Appellant followed/adopted this pattern in appointing persons to all Chiefdoms especially vacant stools in the absence of laid down procedures or instrument for such appointments. Placing reliance on the case of Daramola V. A. G. Ondo State (2000) 7 NWLR 476 – 477; the learned Counsel still on the issue of locus standi and misdirection by the Court; asserted that from the pleadings of the 1st and 2nd Respondents, it cannot be discerned how they can have interest or a common interest over an established system that is not theirs, has super-imposed theirs, is totally out of their reach, and outside their own structure and systems.
In the view of the Appellants, the 6th Appellant’s action has not infringed on the Respondents’ family interests or has affected their interest adversely since according to learned Counsel, the Respondents are foreign to the 4th to the 6th Appellants. On the Memoranda submitted by the Respondents, the learned Counsel argued that the 2nd Respondent as Kuh-Nye Kunini and Ex-Wakili of Kunini “B” (1/2) Village Unit was only interested in District Headship of Kunini and not 3rd Class Chief of Lau Chiefdom while the 1st Respondent as Kuh Winlau 1/3 Village Unit of Lau had prayed the Commission for the 3rd Class Chief of Lau, and that the Report of the Commission of Inquiry was neither signed nor submitted to the 4th – 6th Appellants so the Appellants do not know of it as it is non-existent and as such inchoate, still-born, and not conferring any right of action on the Respondents.
Relying again on Ilori V. Benson (2000) FWLR (pt. 26) 1844 Ratio 5; the learned Counsel for the Appellants argued that from the averments of the Respondents they are from different and separate Villages and Tribes with varying languages and do not belong to one Ruling family and as such do not have a common interest in the Chieftaincy matter let alone whose interest or rights were denied, yet the Court below wrongly upheld their locus standi to maintain the action. He also took the view that the learned trial Judge did not evaluate the evidence on the 2nd Appellant being the progeny of the 1st and the fact that the 2nd Appellant is the Emir of Muri and Head of Mafindi Royal Family who had ruled over all the newly created Chiefdoms from his domain and that it was from that family that the 6th Appellant had to fall back for rescue or last resort upon the failure of the Commission of Inquiry to produce a Report to the Government on the Terms of Reference.
Accordingly, in the view of the learned Counsel, the learned trial Judge wrongly admitted Exhibit “D” in evidence and used same to uphold the Genealogy of the Village Headship of the 1st Respondent as an established system of Traditional Administration in Lau Chiefdom while refusing to consider the genealogy of the District Heads that ruled Lau as averred by the Appellants which refusal has occasioned a miscarriage of justice on the Appellants. We were therefore urged to reverse the decision of the lower Court in this regard on the authorities of Daramola V. A. G. Ondo State (supra) at 448 and 453; Otumbari V. Iwuala (2000) FWLR (pt. 17) 32; page 272 of Exhibit D of the Record of Proceedings on the heterogeneity of the Lau People; pages 22, 29 and 72 (b) of the Records on the non-existence of Council of Kingmakers responsible for selection, coronation and blessing of the Chief of Lau or new Chief of Lau now.
Citing again page 22 – 24 of the Records and page 49 of the Memorandum submitted by the Winlau Community to the Commission of Inquiry (prayer 3 thereof), the learned Counsel for the Appellants further asserted that the 1st Respondent merely wishes to be upgraded from their status as fragmented Village Heads of their 1/3 Village Units to the status of Chief of Lau, and not a claim for his right. Furthermore, in Exhibit C to the Affidavit in support, there is no laid down procedure for selection/appointment of Chiefs/Emirs as is acclaimed in Exhibit D by the Respondents. Further references were also made to page 18-3? of the Records, pages 314-315 paragraphs 4, 5, 6, 7(i) (ii) (iii) of the Records; sections 66, 57, 65 and 77 of the Evidence Act and the case of Shell Petroleum Dev. Co. V. Ferah (1995) 3 NWLR iyo?; Sections 109, 112 of the Evidence Act and also the case of Umegbai V. Aiyembola (2002) FWLR (pt. 132) at 198 A-D; in submitting that Exhibit D written by Barrister Gowon is the opinion of the Barrister to the Commission and not to Government and not a public document which ought to be certified before its admissibility.
On the authority of Torti V. Ukpabi and pages 313 of the Records, the learned Counsel for the Appellants pointed out that Exhibit D ought to be rejected as only a certified copy thereof ought to be admitted and relied upon by the Court and that whereas the Court admitted Exhibit D from the Respondents it rejected Exhibits A and B of the Further And Better Additional Counter-Affidavit of the Appellants in spite of their relevance to the facts in issue. According to them, their (Appellant’s documents) are public documents whether they are certified copies or not submitted to Court and their rejection had shut the eyes of the Court to the sequential events that led to the issuance of Exhibit “C” thereto.
The learned Counsel for the Appellants finally observed that the Respondents were not considered as candidates in Exhibits A and B of the Appellants’ Affidavit dated 25th September, 2007; as they did not meet the criteria for eligibility and status of 3rd Class Chief of Lau or of post 3rd Class Chief of Lau (Ilori V. Benson (supra) Ratio 4 and pages 313 -315 of the Record of proceedings were alluded to in finally urging us to allow the Appeal and reverse the findings of the lower court for improper evaluation of evidence on the issue of locus standi.
ARGUMENT OF LEARNED COUNSEL FOR THE 1ST RESPONDENT ON ISSUE NUMBER (ONE) “WHETHER THE 1ST RESPONDENT HAS THE LOCUS STANDI TO INSTITUTE THE ACTION AGAINST THE APPELLANTS”
Reacting to the arguments of the learned Counsel for the Appellants, Mr. Nzarga defined the term locus standi in Chieftaincy matters and referred us to the case of Ladejobi V. Oguntayo (2004) 18 NWLR (pt. 904) 173 – 174 paras. H-D. He submitted that in determining whether the 1st Respondent had locus standi to institute this action the only process to look at is the affidavit in support of the Originating Summons, and the averments therein contained. He then listed the four Affidavits relied upon by the 1st Respondent which are dated 31st May, 2007; 19th July, 2007 at page 280 – 283, 19th July, 2007 at page 284 – 285 of the Records and that dated 30th July, 2007 contained on pages 161-163 of the Records as well as Exhibits A, B, C, D, annexed to the Affidavit in support as contained in page 130 – 133, 134 – 144 and 145, which the 1st Respondent relied on to establish his case.
Learned Counsel then submitted that for effective determination of the Respondent’s locus standi, the crucial paragraphs of the Affidavit in support are 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 16, 18, 19, 20, 21, 22 and 24 as contained in page 124 -129 of the Records, paragraph 13 of the Further and Better Affidavit in support (page 283); paragraphs 5 and 6 of the Further And Better Affidavit in response to the Further Additional Counter-Affidavit of the Appellants at page 285 of the Records and paragraphs 8 and 9 of the Further And Better Affidavit in Response to the Additional Counter-Affidavit at page 162 of the Record of proceedings i.e. before Exhibit D.
From the facts that gave life to the Respondent’s institution of this action, learned Counsel recalled that the Respondent claims to be the village Head of the Seven Clans constituting the Ruling House/King Makers of the Winlau Community i.e. from the Royal House to the throne and a strong contender to the vacant seat of the 3rd Class Chief of Lau before the imposition of the 1st Appellant on the throne. Eleso V. Govt. Ogun State (1990) 2 NWLR (pt. 133) 444 paras. A – C. refers. Furthermore upon the issuance of Exhibit “A” the instrument constituting the Commission of Inquiry, the Respondent’s Community had submitted Exhibit “B” of which he is a signatory and that by virtue of Exhibit “D” at page 186 of the Record of proceedings, the Counsel to the Commission had found amongst other concrete historical foundation of their claim to the ruler ship of Lau Chiefdom and for the recognition of four Ruling Houses for Lau Chiefdom (page 187 of the Records refers).
It was the learned Counsel for the 1st Respondent’s further submission from the foregoing and on the authority of Ladejobi V. Oguntayo (2004) 18 NWLR (pt. 904) 173 paras G. H; that the issue of locus standi does not depend on the success or merits of the case but whether the Plaintiff has sufficient interest or legal right in the subject matter of the dispute. In the instant case, he was of the view that the Respondent has a legal interest to protect both for himself and the Ruling House he is representing and therefore has locus standi to challenge the unlawful imposition of the 1st Appellant and the arbitrary disregard to due process for gazetting of the Ruling Houses and selection of candidate notwithstanding. Ladejobi V. Oguntayo (supra) at page 178 paras. D- G. refers.
He conceded that in the determination of the Respondent’s locus standi to institute the action, there are two tests as earlier stated by the learned counsel for the 1st and 2nd Appellant. Placing reliance on Busari V. Oseni (1992) 4 NWLR (pt. 237) 557 at 587 para. E – H and paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 18, 20, 22 and 23 of the Affidavit in support of the Originating Summons, he submitted that the burden placed on the Respondent to disclose that his claim is justiciable, has been discharged having shown that he has sufficient legal interest in the stool and that his civil rights and obligation are threatened and adversely affected. Relying again on Odeneye V. Efunuga (1990) 7 NWLR (pt. 164) 618 at 638 – 639 paras. H – B and H and section 6(6) (b) of the 1999 Constitution, he maintained that the 1st Respondent has shown that he has a right to protect which has been infringed upon by the imposition of the 1st Appellant as the 3rd Class Chief of Lau without recourse to law.
On the issue raised by the 1st and 2nd Appellants in paragraphs 12.5, 12.9, 13.4; 13.10; 14.1 and 14.3 of their Brief of Argument, he referred to Exhibit A page 127 of the Records and paragraph 7.9 of page 12 of the same Brief of Argument to submit that it is clear that the 1st Respondent was a stranger to the Stool of 3rd Class Chief of Lau and therefore the failure of the 6th Appellant to comply with the machinery set in place and the prescribed law for selection of the candidate for the throne and their imposition of the 1st Appellant, clothed the 1st Respondent with the locus standi to seek remedy in the Court of law.
In response to the Arguments of the learned Counsel for the Appellant in paragraphs 8.2, 9.0, 9.1, 9.5, 10.1, 10.2, 10.3, 10.4, and 10.5 at pages 12- 18 of the 1st and 2nd Appellants’ Brief the learned Counsel for the 1st Respondent contended that those arguments are at variance completely with Issue One (1) and has no nexus with the Grounds and particulars of Ground 1 (ONE) of the Notice of Appeal. On the strength of the Supreme Court decisions in Ezemba V. Ibeneme (2004) 40 WRN 31 lines 10 – 45; pages 9 – 10 Ratio 8 and as recently restated in Stephen Onowhose & 5 Ors V. Peter Ikedi Odiuzo (1999) 1 S. C. 40 to 45 per Ogwuegbu, JSC, we were urged to discountenance the said arguments.
RESOLUTION OF ISSUE NUMBER ONE (1). The term “locus standi” has been severally defined to denote the legal capacity of a person to initiate proceedings in a Court of law which capacity is synonymous with status, standing, title or authority to sue. It is also the right of a party to appear and ventilate his grievance(s) and to be heard on a question(s) before the law Court or the competence of such a party to seek redress in a Court of law and to assert a right which is enforceable at law. See the locus classicus case of Abraham Adesanya V. The President of the Federal Republic of Nigeria (1981) 5 S. C. 112 at 128 – 129; per Fatayi- Williams, CJN; Ogunsanya V. Dada (1992) 4 S. C. N. J. 162 at 168; Attorney- General Kaduna State V. Hassan (1985) 2 NWLR 453 at 496 and Adefulu V. Oyesile (1989) 5 NWLR 377 at 318.

In the case of Attorney-General V. Hassan (supra) at pages 522 and 533; Oputa JSC, held that “the legal concept of standing or locus standi is predicated on the assumption that no Court is obliged to provide a remedy for a claim in which the applicant has a remote, hypothetical or no interest.” His Lordship also held the view in Thomas V. Olufosoye (1986) 1 NWLR 669 at 691 that ‘locus standi’ is simply the right of appearance in a Court of justice to litigate an issue for people do not appear in Court for the fun of it but either to establish their right or to defend that right against any injury.
Per Obaseki, JSC on his part in that same case opined that:- “In determining the issue of locus standi, the Court must constantly bear in mind that its judicial powers is being invoked and matters in which the judicial powers can be exercised are by the provisions of the section 6(6) (b) of the Constitution of the Federal Republic of Nigeria 1979 (now 1999) expressly stated to “extend to all matters between persons or between government or authority and any person in Nigeria and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”
It has also to be noted that the concept of locus standi is inextricably connected to cause of action. In other words, to be possessed of locus standi to initiate legal proceedings there must be factual situations like: the existence of a primary right of the 1st Respondent which was actually violated by the Appellants; or the threatened violation of that right which violation the 1st Respondent was/is entitled to restrain or prevent as in the case of actions or suits for injunctions; or it may be that there are some doubts as to some duty or right, or that that right is beclouded by some apparent adverse right or claim, which the 1st Respondent in this case is entitled to have cleared up. See Black’s Law Dictionary 7th Edition by Bryan Garner et al at page 214; Edwin Bryant in his tilted “The Law of pleadings under the codes of Civil Procedure” 2nd Edition at page 170; cited in the above quoted page of Black’s Law Dictionary; Alhaji Kusada V. Sokoto N. A. (1968) 1 ALL NLR 379 at 381 – 382; Lasisi Fadare V. A. G. Oyo State (1982) 4 S. C. 1 at pp 6 – 7, per Aniagolu, JSC; Egbe V. Adefarasin (1987) NWLR (pt 47) 1 at 20.
In Accord Party (AP) & 4 Others V. The Governor of Kwara State & 2ors Appeal No. CA/IL/15/2008 delivered on 8th June 2009 by the Court of Appeal, Ilorin Division at page 29, I reasoned that by its very nature, cause of action is a sine qua non to the vesting of locus standi and that the two must co-exist simultaneously and be vested in a party to an action in order for the court to be seised of the requisite jurisdiction to entertain the party’s claim. The cases of Afolayan v. Ogurinde (1990) 1 NWLR 369 at 382 – 383; Adimora V. Ajufo (1988) 3 NWLR 1; Berger V. Omogui (2001) 6 NSCQ R 1062 at 1072 – 1076 and Mrs. F. O. Labode V. DR. Geoffrey Otubu & Anor (2001) 5 NSCQR 722 at 741 – 745; inspired me in so holding and I adopt my said position herein once more.
Furthermore, at page 36 of that Judgment I had posited that in line with a galaxy of authorities, the court in the determination of whether a party is seised of the locus standi for his case to be heard and determined as in this case, the lower Court would only be concerned with the questions for Determination and the Reliefs sought on the originating summons and in particular, the affidavits in support thereof which are akin to pleadings in ordinary suits initiated by writ of summons. See Boothia Maritima Inc v. OT & T.A. Ltd. (2001) 8 NWLR (pt. 716) 534 at 543; Inakoju V. Adeleke (2007) 4 NWLR (pt. 1025) 423 and Global Transport Oceanica S. A. & Anor. v. Free Enterprises Nig. Ltd. (2001) 12 WRN 136 at paras. 15 – 25; per Kalgo, JSC.

As was rightly submitted by the learned counsel for the 1st and 2nd Appellants and conceded by the learned counsel to the 1st Respondent, in order to establish that he has locus standi the 1st Respondent ought to show from his pleadings that he has sufficient interest or legal right in the subject matter of the dispute (in this case the 3rd Class Chieftaincy Stool of Lau Chiefdom). See Daramola V. A. G. Ondo State (2000) 7 NWLR 476 – 477. Secondary, he ought to show that their collective right or interests were in jeopardy or had been violated by the acts of the Appellants and thirdly, that they had justiciable cause of action. See Ojukwu v. Ojukwu (2008) 18 NWLR (pt. 1119) 439; A. G. Lagos State v. Eko Hotels Ltd. (2006) 18 NWLR (pt. 1011) 378 and Nyame v. F. R. N. (2010) 7 NWLR (pt. 1193), Busari V. Osein (1992) 4 NWLR (pt. 231) 587.

Again, it has been settled by motley authorities past and recent that two classes of persons possess the locus standi to initiate chieftaincy proceedings and they include a candidate or contestant to the stool and the family or Ruling House of that Chieftaincy. See Eleso V. Govt. Ogun State (1990) 2 NWLR (pt. 133) 420; Odeneye V. Efunuga (1990) 7 NWLR (pt. 164); Agboola V. Agbodamu (2009) 37 WRN 59 and Adekunle V. Adelugba (2011) 16 NWLR (pt. 1272) 154 at 176 – 179 paras. B – E per Abba Aji JCA (as he then was). Finally, before determining whether from the pleadings of the 1st Respondent, he possessed the legal capacity to initiate the proceedings now on appeal, it is pertinent to note as was decided in Daniyan V. Iyagin (2000) 8 NRN 44 following the Supreme Court decision in Owodunmi V. Registered Trustees of C.C.C. & Anor (2000) 2 WRN 29; (2000) 6 S.C.N.J. 399; that locus standi denotes the legal capacity or status to institute proceedings and does not depend on a chance of success in the suit but the condition or nature of the suit. From the foregoing decisions and principles enunciated therein the learned Counsel for the 1st Respondent was therefore on sound footing when he cited the case of Ladejo V. Oguntayo (2004) 18 NWLR (pt. 904) page 178 paras G – H which reinforced this principle of law that:-
“Where the Court Conceives that the plaintiff is somehow connected to a dispute in which he feels that he should exercise his right of access to the Court to protect his own interest or indeed group interest, he should not be shut out as long as it can be discerned from the pleadings that he had protectable interest of some sort. It is desirable and in fact essential that a party should be given as much latitude as possible and the opportunity to canvass his cause. A Plaintiff ought not to be chased out peremptorily from the temple of justice because the Court is not strongly satisfied that he has not shown a strong connection and interest in the matter.” See Odeneye V. Efunuga (supra) per Belgore, JSC (as he then was); Fawehinmi V. Akilu (1987) 4 NWLR (pt. 66) 797; Fawehinmi V. The President FRN (2007) 14 NWLR (pt. 1054) 75 at 336 paras H – E; Alamieyieseigha V. Igoniwari No. 2 (2007) 7 NWLR (pt. 847) 554; per Galadima, JCA (as he then was) and Elendu V. Ekwouoba (1995) 3 NWLR (pt. 380) 70 at 74; which have tended to depart from the anachronistic and narrow concept of sufficiency of interest as the basis for conferment of locus standi on a party.
Against the foregoing background, it is now apt to look at the pleadings of the 1st Respondent in order to determine whether prima facie he had the locus standi to challenge the appointment of the 1st Appellant by the 2nd to the 5th Appellants as the 3rd Class Chief of Lau Chiefdom. In this wise, it is necessary to have recourse to the four Affidavits of the 1st Respondent.
Beginning from the AFFIDAVIT IN SUPPORT OF THE AMENDED ORIGINATING SUMMONS Sworn to by the 1st Respondent (Muhammadu Bado Ibrahim) and dated 31st Day of May, 2007 at pages 123 – 129 of the Records; from the depositions in Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 16, 18, 19, 20, 21, 22 and 24 as enumerated by the learned Counsel for the 1st Respondent; it is clear that the 1st Respondent being the Village Head of Winlau (Kuh Lau) who was appointed to the throne since 1982 and a bona fide indigene of Winlau who were the first settlers of Lau since 1705 claimed to be an interested person and a major contender to the throne of the 3rd Class Chief of Lau in the Lau Chiefdom which was not in existence until the enactment or promulgation of the Taraba State Upgradement of Traditional Rulers and Creation of Districts (Order), 2005.
The 1st Respondent also claimed that with the creation of the Lau Chiefdom there was a vacancy to that throne which ought to be filled in accordance with the prescribed method by law. He has also shown that as a result of the promulgation of the 2005 Order earlier cited an Administrative Commission of Inquiry was inaugurated or constituted by the 6th Appellant (the Governor of Taraba State) by an instrument annexed to the Affidavit in support and marked Exhibit A.
Also, the 1st Respondent has averred that his Winlau Community in Lau Local Government which he is the Kuh Lau (Village Head) thereof as an interested party also submitted a memorandum on the mode of selection of the 3rd class chief of Lau as was done by other communities following the directive of the 6th Appellant and the request by the commission of Inquiry. The Memorandum is also annexed to the Affidavit and marked Exhibit B.
He, the 1st Respondent as an interested party to the throne of the 3rd class chief of Lau chiefdom, and the Wilau people and entire people of the Lau Local Government Area while they awaited and are still awaiting the outcome of Administrative commission of Inquiry Report and recommendation submitted to the 6th Appellant and the release of the final White Paper on the Chiefdom Selection and appointment of the 3rd class chief of Lau; the 6th Appellant arbitrarily named and appointed the 1st Appellant to the throne of the 3rd class chief of Lau. The said appointment was said to have been made by an announcement over the Radio and Television Networks by the 4th Appellants with the conspiracy of the 2nd and 3rd Appellants without due regard to the prescribed method by law and due process as enjoined the 6th Appellant to observe and adhere strictly, the 1st Respondent also claimed.
Furthermore, he has claimed that the procedure for selecting the 1st Appellant as 3rd class chief of Lau, was not followed in accordance with the customs and tradition of the entire people of Lau the mode of selection which would have included the council of king makers who were responsible for section, coronation and blessing of the chief of Lau which also was ignored, to his 1st Respondent’s knowledge.
This is in spite of the promise by the 4th Appellant in the Mirror Newspaper of July, 2006 (Exhibit C to the Affidavit in Support of the originating summons) that the State Government would follow due process in filling the vacant traditional stools in the state and would not impose any body on the people without due regard to the prescribed method. In paragraph 13 of the Further And Better Affidavit in Support of the Originating Summons contained in page 283 of the Records, the 1st Respondent further deposed to the fact that the purported appointment and imposition of the 1st Defendant as the 3rd Class Chief of Lau has personally affected his interest to the throne of the Chiefdom of which he is a contender to the seat but has not been allowed by the forceful imposition of the 1st Defendant who has never occupied the seat of the District Head but was appointed by the 6th Defendant from nowhere.
See further the 1st Respondent’s depositions in paragraphs 8 and 9 of the Further And Better Affidavit in Response to the Additional Counter-Affidavit filed by the Defendants/Appellants at page 162 of the Records which is also to the effect that:
“9. That myself and the 2nd Plaintiff are entitled to the seat of Lau Chiefdom and are from two Clans that are entitled to the seat of Lau Chiefdom and also from contenders to the seat,” having tendered Exhibit D dated 21st June, 2006.
As for the 2nd Plaintiff/Respondent, see the deposition of the 1st Plaintiff/Respondent on his behalf in paragraphs 18 – 23 of the Affidavit in Support which averred that he (the 2nd Respondent) is an indigene of Kunini from the Royal House and a strong contender and interested person to the throne of the 3rd Class Chief of Lau and is so entitled to that throne. Furthermore, the 2nd Respondent was the Wakili of Kunini Village before the recent revocation of his title by the present Kuh Nyeh due to the fact that he (the 2nd Respondent) is a strong contender and person interested in the throne of the 3rd Class Chief of Lau. Moreover, the Kuh Nyeh (Village Head of Kunini) from 1960 – 1970 named Buba Bamo was the 2nd Respondent’s father’s uncle and that after the demise of Buba Bamo his (2nd Respondent’s father), was to become the next Village Head, but declined and instead submitted the name of his uncle Yahweh Waziri and by virtue of these facts the 2nd Respondent is amongst those entitled to the throne of the 3rd Class Chief of Lau.
From the above antecedents and similar compliant to that of the 1st Respondent’s that the Appellants (particularly the 5th/Governor) did not adhere strictly to the Custom, Tradition and the Chiefs (Appointment and Deposition) Law of Taraba State in the appointment of the 1st Appellant, the 2nd Respondent amply demonstrated that he is an interested party with the requisite locus standi and cause of action to initiate the proceedings leading to this Appeal. See also paragraphs 5 and 6 of the Further and Better Affidavit of Shirah Kuteh (the 2nd plaintiff/Respondent) in Support of the Originating Summons and in Response to the Further Additional Counter-Affidavit of the Appellants.
Apart from the above averments which have conferred locus standi on the 1st and 2nd Respondents to institute this action as well as justiciable disputes; in Exhibit ‘D’ at pages 185 – 186 of the Record of Appeal, Barrister E. H. Gowon, the Commission’s Counsel found out that the Respondents “are the original inhabitants of Lau, thus the appellation “Lau Asali in reference to them. That they established traditional ruling structure in Lou which exists up till date. That both the colonialists and the Muri Emirate conspired in the course of time to whittle down the power and status of the stool. That with time and when Lau became a District, the Emir of Muri began to post District Heads to Lau. That it was one of such District Heads that moved his abode to Kunini for reasons that he felt unsecured in Lau.”
He then went on to submit thus:-
“I submit that the Winlau people have established concrete historical foundation to their claim to the Rulership of Lau and by extension their claim to the rulership of Lau Chiefdom stool is firmly rooted in history.” Based on the above findings the learned Counsel to the Commission then recommended that there should be four recognized Ruling Houses for the Chiefdom Viz:- (a) Kami House; (b) Winchi House; (c) Gah House from Lau Axis; and (d) Ngamdina House from Kunini axis; and that Ascendancy should be rotational.
From the foregoing, I am therefore in complete agreement with the learned Counsel to the 1st and 2nd Respondents and more particularly on the authorities of Ladejo V. Oguntayo (2004) 18 NWLR (pt. 904) 173 paras G-H; Busari V. Oseni (1992) 4 NWLR (pt. 237) 557 at 587 paras E-H; and Odeneye V. Efunuga (supra) and all other authorities I had earlier cited and analysed; that the 1st and 2nd Respondents who claim to be indigenes, stakeholders and from the Royal Families of Lau Chiefdom were seised with the locus standi to initiate the proceedings in the lower Court culminating in this Appeal since they claim that they are the appropriate persons entitled to be appointed as the 3rd class Chief of Lau by historical antecedents. Furthermore, having claimed that their rights to the throne/stool of the 3rd Class Chief of Lau had been breached by the imposition of a complete stranger in the person of the 1st Appellant on the Lau Community by the Governor of Taraba State/6th Appellant in spite of his earlier promise not to do so but to observe due process in the appointment of Chiefs to occupy the vacant stools in the State, there is/was a cause of action warranting the Appellants to institute the action in the lower Court. This is notwithstanding whether this claim would eventually succeed or not. The first issue is therefore answered in the negative and Issue Number 1(one) is resolved in favour of the Respondents and against the Appellants.
ISSUE NUMBER TWO (2) “WHETHER THE 1ST APPELLANT AS A TRADITIONAL RULER (THIRD CLASS CHIEF OF LAU FALLS WITHIN THE DEFINITION OF PUBLIC OFFICERS SO AS TO BENEFIT UNDER THE PUBLIC OFFICERS (PROTECTION) ACT AS WELL AS THE 2ND, 3RD, 4TH, 5TH AND 6TH APPELLANTS WHETHER BEING INSTITUTIONS BEING CREATED BY LAW ARE TOO ENTITLED TO THE PROTECTION.
On this issue the contention of the Appellants is that by virtue of section 3(1), 4(1) (6) and 9 of the chiefs (Appointment and Deposition) Law Cap. 20, Laws of Northern Nigerian, and the Gongola State Legal Notice No. 3 of 1983; sections 89, 90, 91 – 101 of the Local Government Law 2000 of Taraba State which establishes the offices of the 1st and 2nd Appellants, the 1st and 2nd Appellants are creations of Law and their Status recognized by the Governor.
Furthermore, they have further argued that section 162 of the Constitution of the Federal Republic of Nigeria, 1999 establishes the Federation Account while section 163(6) thereof establishes the state Joint Local Government Account respectively and 1st and 2nd Appellant receive their salaries, Grants, Estacodes and other emoluments from the Government and Local Governments respectively accordingly, their appointments are permanent and pensionable. Thus, in his view the action of the Government in appointing the 1st Appellant, the office of the 1st Appellant as 3rd Class Chief of Lau chiefdom and the person of 1st Appellant have all come under the protection of the public officers protection Law and that any action brought after three months from the date of commission of the acts the subject matter of this Appeal, is statute barred.
Learned counsel for the Appellants have alluded to the fact that the appointment of the 1st Appellant by the 4th – 6th Appellants took place on the 3rd of November, 2006, while the 1st and 2nd Respondents brought their action on the 26th February 2007. They have cited LGP v. Olatunji 21 NCR 52; Yabugbe v. COP (1992) 4 NWLR (pt. 234) 152 at 176 per Uwais, JSC; (as he then was); Amata v. Omofuna (1997) 2 NWLR (pt. 4) 93, and Ibrahim v. Judicial service commission (1998) 14 NWLR (pt. 584) 150; to buttress the fact that the court below lacked the jurisdiction to entertain the 1st and 2nd Respondents’ suit now on appeal in that the same was instituted outside the limitation period and therefore was a nullity. Forestry Research Institute of Nigeria V. L. A. E. Gold (2007) 11 NWLR (pt. 1044) 1 per Aloma M. Mukhtar, JSC; (as he then was), was cited in calling on the Court to allow the Appeal.
Arguing per contra, the learned Counsel for the 1st Respondent cited the 5th Schedule Part 1 of the Constitution of the Federal Republic of Nigeria 1999 Constitution which defines the term: “Public Officer”; Part II of the 5th Schedule of the 1999 Constitution which specifies Public Offices of the Public Officers and the case of Eze V. Okechukwu (2003) FWLR (pt. 140) 1732-1733 paras G – C per Iguh, JSC; to submit that the Office of Traditional Ruler has not been envisaged expressly or impliedly and as such the 1st and 2nd Respondents cannot consider themselves to be Public Officers.
Further reliance was placed on Section 2 of the Public Officers (Protection) Law Cap. III Vol. 3, Laws of Northern Nigeria and its applicability together with the case of Garba V. Shaibu (2001) FWLR (pt. 56) 731 paras. D – E; Akapiki V. Government of Rivers State (1991) 8 NWLR (pt. 211) 604 – 605 paras. H – C; to submit that the 1st Appellant (assuming he is a Public Officer) did not do any act in execution of any public duty either by way of neglect or default to warrant the protection of the Law as far as the appointment made in breach of Section 4 of the Chiefs Appointment and Deposition Law Cap. 26, Laws of Taraba State, 1997; which the 1st Respondent sought to be set aside for being null and void. Yare V. Nunku (1995) 5 NWLR (pt. 394) 151 – 152 paras. D – C.
As for the 2nd to 6th Appellants, the learned Counsel for the 1st and 2nd Respondents had placed reliance on Nwankanma V. MILADMIN Abia State (1995) 4 NWLR (pt. 388) 201 paras. A- B and page 188 and Tafida V. Abubakar (1992) 3 NWLR (pt. 230) 523 paras E – F per Katsina Alu JCA; to submit that the 2nd – 6th Appellants not being persons but institutions created by statute are not covered by the Protection Act as the action against an office is against the person holding the office for the time being who may not necessarily be the wrong doer.
On the whole, the learned Counsel to the 1st Respondent asserted that the Respondent was not caught by the Statute of limitation relied upon by the 1st and 2nd Appellants as the Respondent has all the time been diligent in prosecuting his case by fling same 10 days after the cause of action arose through suit Numbers TRSJ/79/2005 and TRSJ/246M/2006 against the Appellants before it was struck out and reopened and assigned to a different Judge with suit No. TRSJ/13/2007 between the same parties, same subject matter and Reliefs sought. For the above submission he cited page 13 paragraph 32 of the Records and the case of PWT Nig. Ltd. V. JBO INT’L (2011) ALL FWLR (pt. 564) 34 paras. A – F; to buttress the above contention and urged us to hold that the Appellants’ submission in pages 19 – 21 paragraphs 11.0 – 11.18 is a complete misconstruction of the law as the Code of Conduct does not apply to traditional institutions neither is the 1st Appellant a Public Officer to be recognized under the 5th Schedule Parts I and II of the 1999 Constitution and that not even Part II, Item 12 sought to be relied upon by Appellants can avail them.
RESOLUTION OF ISSUE NUMBER TWO (2).
In resolving this issue, it is necessary to have recourse to the constitutional provisions and the Statutes cited and relied upon by learned Counsel on both sides in order to determine whether the 1st and 2nd Appellants nay the 3rd to 6th Appellants are covered by the Public Officers (Protection) Law or Act and whether the suit of the 1st and 2nd Respondents was statute-barred. Beginning from the 5th Schedule part II of the Constitution of the Federal Republic of Nigeria 1999, Public Officers for the purposes of the Code of Conduct are listed to include: “(13). Chairmen, Members and Staff of Local Government Councils”. No Traditional Ruler be he an Emir, King or Chief is mentioned as Public Officer and although Sections 162 and 163(6) of the Constitution provide for the maintenance of the Federation Account by the Federal Government of Nigeria and the State Joint Account by the Federating States, there is no indication that by virtue of this provisions and payment of stipends to Traditional Rulers, they have become Public Officers to be bound by the Code of Conduct for Public Officers nor have the Traditional Rulers become pensionable Officers of State on Permanent appointments by the Public Service Commission’s of the Federation or States.
If anything, they (Traditional Rulers) are appointed or recognised at the pleasure of the Governors and their appointments can be terminated or they can be de-stooled or de-recognized or deposed at will by the Governor.
As regards the Chiefs (Appointment and Deposition) Law Cap. 26, Laws of Taraba State, 1997, Section 2(1) thereof defines “Chief to mean a person for the time being recognized by the Governor as a Chief and includes on Emir”. I have scanned through the sections of that Law but cannot find anywhere it is provided that upon appointment or recognition, they (Chiefs or Emirs) have become Public Officers. This is notwithstanding the fact that by Section 8 of the Law, any person appointed on or after the 1st day of October, 1963, as a Chief or Head Chief, shall as soon as possible after the appointment, take oath as set out in the schedule to the Law, before the Governor or such other person as the Governor may appoint.

Part IX of the Local Government Law, (Cap. 80), Laws of Taraba State, 1991 however provides in Section 73(1) thereof that: “The Governor may by Order establish for an Emirate or a Traditional Area an Emirate Council or, as the case may require, a Traditional Council;” which shall consist of the persons mentioned in subsections 2(a) to (d) thereof and by subsection(3) of section 73: “Any person appointed under subsection (2) may be removed by the Governor.” The Law also provides that where the Order so provides, a Council set up under that part of the law, shall be a body corporate by the name designated in order to have perpetual succession and common seal, power to hold land to sue and to be sued. Section 75(1) to (3) spell out the functions of the Traditional Rulers or authorities while section 75B provides for emoluments to be paid to recognized traditional Rulers which emoluments or allowances shall be charged upon and paid out of the fund established in Paragraph (C) of subsection (2) of Section 77 of the Law.
For the avoidance of doubt, Section 77(1) stipulates that: “The Council shall establish and maintain a fund from which there shall be defrayed all expenditure incurred by the Council.
(2) There shall be paid and credited to the fund:-
(a) Such moneys as shall be supplied to the Council by the Local Government or Local Governments in its area, and
(b) Such moneys in the way of grant – in – aid as may be made to it by the State Government; and such sums referred to in paragraph (a) above shall, in the case where the Local Government area is coterminous with the Emirate/Traditional Council be determined in such proportion as the Commissioner may deem equitable.
(3) There shall be paid to every President and members of the Emirate/Traditional Council (not being the Chairman of a Local Government Council) such salaries and allowance as the Governor may determine and such amount payable shall be charged and paid out of the fund established under subsection (1) of this section.”
Under section 77(4) and (5), of the Law, the Traditional Council is mandated to submit to the Commissioner and the contributing Local Government not later than 31st December, in each financial year an estimate of expenditure and income during the next preceding financial year. The Councils also are expected to keep proper Accounts and Records which shall be audited as soon as may be after the end of every financial year by auditors approved by the Commissioner. These provisions however do not confer or clothe the Traditional Rulers with the garb of Public Officers as envisaged by the Constitution nor do they make their appointments pensionable. See sections 92, 93 – 95 of the Law. On the whole, I agree with the submissions of the learned Counsel to the 1st Respondent that the learned Counsel for the 1st and 2nd Appellants has misconstrued the purport of the provisions of the Constitution and statutes cited to confer the 1st and 2nd Appellants with the status of Public Officers which they are not. See Eze V. Okechukwu (2003) FWLR (pt. 140) 1732 – 1733 paras G – C per Iguh, JSC;

Section 2 (a) of the Public Officers (Protection) Law Cap. 115, Laws of Taraba State, 1997; which has been relied upon by the Appellants (1st and 2nd) nay 4th – 6th Appellants provides thus:-
“2. Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Law or any Public duty or authority, or in respect of any alleged neglect or default in the execution of any such Law, duty or authority, the following provisions shall have effect:-
(a) The action, or prosecution shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of or in case of a continuance of damage or injury, within three months next after the ceasing thereof; Provided that if the action, prosecution or proceeding be of the instance of any person for a cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison.”
The above provisions of the Public Officers (Protection) Law or Act have been the subject of a host of decisions in both this Court and the apex Court. See the locus classicus of Ibrahim V. Judicial Service Committee of Kaduna State (1998) 14 NWLR (pt. 584) 1 (S.C.) and Fajimolu V. Unilorin (2007) 2 NWLR (pt. 1017) 74; where it was variously held that for the section afore quoted to avail any person, he must establish the following conditions namely:- (a) that the person against whom the action is commenced is a public Officer or a person acting in the execution of Public duty within the meaning of the Law and the Constitution; and (b) that the act done by the person(s) in respect of which the action is instituted is an act done in pursuance or execution of any law, public duty or authority or in respect of an alleged neglect or default or in the execution of any such law, duty or authority. See CBN V. Ukpong (2006) 13 NWLR (pt. 998) 555.
It has also been settled by a plethora of decisions that section (2(a) of the Public Officers (Protection) Law/Act), can only be invoked in favour of public officers or persons who at all material times acted within the confines of their public duty or Office but once they step outside the bounds of their public authorities and/or act outside the colour of their Offices or employment and/or outside their constitutional duties, they automatically lose protection of the law. See Unilorin V. Adediran (2007) 6 NWLR (pt. 1031) 498; Egbe V. Alhaji (1990) 1 NWLR (pt. 128) 546 S.C, Utih V. Egorr (1990) 5 NWLR (pt. 154) 771; Ekeogu V. Aliri (1991) 3 NWLR (pt. 179) 258 and Ibrahim V. JSC (1998) 14 NWLR (pt. 584) 1.
Thus, to benefit from the protection of the law, the Public Officer must act or have acted in good faith and without malice as the Law does not cover acts done without any semblance of any legal justification (Unilorin V. Adeniran (supra)). Malice can be inferred if and where it is established that the Public Officer performed his duty with ulterior motive such as to injure the Plaintiff or under the cover of the Office to do an act contrary to, or not authorized by the law or his public duty. See Unilorin V. Adeniran (supra).

For purposes of the application of the Public Officers (protection) Law or Act which is a statute of limitation, time starts to run from when the cause of action accrued and a cause of action accrues from the date the factual incident giving rise to the institution of the action, proceedings or prosecution arose. Furthermore, in determining the limitation of action, the pertinent question to ask is when time begins to run and time begins to run when there is party who can sue and another party to be sued and all the factual situations to warrant the institution of the action have occurred and which must be proved by the Plaintiff in order to succeed in his claim. See N.I.I.A. V. Ayanfulu (2007) 2 NWLR (pt. 1018) 246; Lasisi Fadare V. A. G. Oyo State (1982) 4 S.C. 1; Humbe V. A. G. Benue State (2006) 3 NWLR (pt. 649) 419 and Board of Trade V. Gayzer Lime Co. Ltd. (1927) A. C. 610. See further per Oputa JSC, in Fred Egbe V. The Hon. Justice J. A. Adeferasin (1987) 1 SC 1 at 36 – 37 who held that:-
“A cause of action is said to be statute barred if in respect of it, proceeding cannot be brought because the period laid down by the Limitation Law or Act had elapsed. How does one determine the period of limitation? The answer is simple – by looking at the writ of Summons and the Statement of Claim alleging when the wrong was committed which gave the Plaintiff a cause of action and by comparing that date with the date on which the Writ of Summons was filed. This can be done without taking oral evidence from witnesses. If the time on the writ is beyond the period allowed by the limitation Law, then the action is statute barred.” See Savannah Bank of Nigeria Ltd. V. Pan Atlantic Shipping and Transport Agencies Ltd & Anor (1987) 1 SC 198 at 312 -313″
Going by the authorities above cited and upon a careful perusal of the Originating Summons and the Affidavits in support thereof which are the pleadings, the Respondents averred in Paragraphs 32, 33 and 34 that the Respondents had earlier instituted suits Numbers TRSJ/79/2005 and TRSJ/246M/2006 which were struck out on 14/2/2007. In paragraph 34 of the Affidavit in support (page 13 of the Records), the Plaintiff/Respondents also deposed to the fact that the 1st defendant/Appellant was appointed on 3rd November, 2006 as 3rd Class Chief of Lau. See also page 4 of the Records where Relief 4 of the Originating Summons prayed for an order setting aside the purported appointment of the 1st Appellant as 3rd Class Chief of Lau announced by the 4th Defendant over the Taraba Television and the Nigeria Television Authority (NTA) on 3rd November, 2006.
As for the date of filing the suit, even though at page 4 of the Records, the originating process (the Questions for determination and the Reliefs Sought) i.e. the Originating Summons is dated 14th day of February, 2006, the date of filing as per the endorsement at page 5 is 16th February, 2007. Thus by simple arithmetical calculation and a juxtaposition of the date of accrual of cause of action which is 3/11/2006 as against 16/2/2007 when the action was commenced; the action prima facie was/is statute barred in favour of the 3rd – 6th Appellants by thirteen days.
However, since it would appear that the Respondent had earlier filed two suits between the same parties and with same subject matter which were struck out on the 14th of February, 2007, the Respondent had filed his action within the statutory period for bringing the action and accordingly was not caught by the Public Officers (Protection) Law. The cases of Yabugbe V. COP (supra); Amata V. Omofuna (supra), Shell Petroleum Development Co. (Nigeria) Ltd. V. Abel Isaiah (2001) 11 NWLR (pt. 723) 168 and F.R.I.N. V. L.A.E. Gold (2007) 11 NWLR (pt. 1044) 1; per Mukhtar JSC (as he then was); may have been decided on their particular facts and circumstances but are inapplicable to the facts and circumstances of this case.
On whether the 3rd to 6th Respondents are covered by the Public Officers (Protection) Law; there is no doubt that by virtue of Section 318 of the Constitution of the Federation, Part I of the Fifth Schedule (paragraph 19 thereof and Part II paragraphs 4, 6, 7 and 13); the Chairman of Lau Local Government Area, the Commissioner for Local Government and Chieftaincy Affairs; the Honourable Attorney General of Taraba State and the Governor of Taraba State; are all Public Officers as entrenched in the Constitution of the Federal Republic if Nigeria 1999 and ought to have been covered by the Public Officers (Protection) Act/Law, assuming the Respondent initiated the proceedings beyond the limitation period which is not the case.

In Ibrahim V. JSC (supra) and CBN V. Adedeji (supra), their Lordships of the apex Court and this Court had held that the words “any person in Public Office” as stipulated in the Public Officers (Protection) Act/Law does not only refer to natural persons or persons sued in their personal names but extend also to artificial persons sued by their Official names. See N.I.I.A. V. Ayanfulu (2007) 2 NWLR (pt. 1018) 246 and Nwaogugu V. President, Federal Republic of Nigeria (2007) 6 NWLR (pt. 1030) 237. It is also pertinent to note that the Supreme Court had long laid to rest the controversy as to whether Public Offices are protected by the Protection Law, as canvassed by the learned Counsel for the 1st Respondent while citing the cases of Nwakanma V. Military Admin Abia State (supra), Tafida V. Abubakar (supra) per Katsina Alu JCA (as he then was) and Alakipi V. The Governor of Rivers State (supra) including the case of Asogwa V. Chukwu (2003) 4 NWLR (pt. 811) 540; which are now out of tune with current jurisprudential realities and therefore bad Law these having been overruled by the provisions of Paragraphs 3, 4, 6, 7, etc of Part II to the 5th Schedule to the Constitution of the Federal Republic of Nigeria, 1999.
For instance even before the enactment of the 1999 Constitution, the Supreme Court had held in Ibrahim V. JSC Kaduna State (supra); that although the title of the Public Officers (Protection) Law implies a law to protect “Public Officers” and not “Public Offices”, government positions such as the Attorney-General, Permanent Secretary, Inspector- General of Police etc.; although “Public Offices” are none the less, “Public Officers in Law” and therefore protected. See further paragraphs 9, 10 and 14 of the Fifth Schedule to the Constitution, the case of Abubakar V. Governor Gombe State (2002) 17 NWLR (pt. 797) 533 and section 3(1) of the Interpretation Law, Cap 69, Laws of Taraba State 1997 which defines “Public Officer” or “Public Department” as extending to and including every Officer or Department invested with or performing duties of a Public Nature whether under the control of the President or of the Governor of a state or not; F.M.B. v. Olloh (2002) 9 NWLR (pt. 475) S.C; Oloruntoba – Oju V. Lawal (2003) 17 NWLR (pt. 848) 67 CA and Nwosu V. Imo State Environmental Sanitation Authority (1990) 2 NWLR (pt. 135) 688 S.C.
From the foregoing authorities and analyses, I am of the candid view that the 3rd to 6th Appellants are Public Servants/officers who ought to have benefited from the Public Officers (Protection) Law, had the suit been instituted by the Respondents outside the limitation period. However, as I had held earlier and in line with the case of PWT Nig. Ltd. V. JBO INT’L (2011) ALL FWLR (pt. 564) at 341; ably cited by the learned Counsel for the 1st Respondent, the 1st Respondent was diligent in prosecuting his case timeously before it was struck out on 14/2/2007 and the present suit now on appeal filed between the same parties and for the same Reliefs claimed in the suit earlier struck out as can be gleaned at page 13 paragraph 32 of the Record of Proceedings.
Also, it would be recalled that in the Affidavit in Support of the Motion dated 2nd day of October, 2011 and filed on the 12th day of October, 2011, by the 1st and 2nd Respondents praying the Court for leave to adduce further Evidence, two (2) documentary Exhibits were annexed thereto. Exhibit A is the Originating process in suit Number TRSJ/79/2006 dated and filed on 13th day of November, 2006, which buttresses the fact that the 1st Respondent had commenced action against the Appellants ten (10) days after the accrual of the cause of action on the 3rd day of November, 2006, by the doctrine of relating back to the date the first suit was commenced against the Appellants. On the authority of PWT Nig. Ltd. V. JBO INT’L (2011) ALL FWLR (pt. 564) 34 paras. A – F and others earlier cited, therefore this issue is also resolved against the Appellants.
ISSUE NUMBER 3: “WHETHER THE 6TH APPELLANT IN APPOINTING THE 3RD CLASS CHIEF OF LAU, IS BOUND BY THE PROVISION OF SECTION 4(1) (2) AND (3) OF THE CHIEFS (APPOINTMENT) AND DEPOSITION LAW CAP. 26, LAWS OF TARABA STATE AND IF THE ANSWER IS IN THE AFFIRMATIVE, WHETHER THE APPOINTMENT OF THE 1ST APPELLANT BY THE 6TH APPELIANT WAS IN COMPLIANCE WITH THE PRESCRIBED LAW?
The submissions of the learned Counsel to the 1st and 2nd Appellants in respect of the above cited sections of the Chiefs (Appointment and Deposition) Law in sum are that the appointment of a 3rd Class Chief is the prerogative of the Governor/6th Appellant more so when the Lau 3rd Class Chiefdom is not of customary Law but a creation of an administrative act and there is no instrument regarding the appointment of a 3rd Class Chief yet. It is his further submission that from a Community reading of sections 3 and 4 of the Chiefs Law of Taraba State, three categories of appointments are envisaged thus:-
1. A customary Law appointment of a Chief who is to succeed a dead, resigned or deposed Chief like that of a son/brother to a father/uncle in which case there was a reigning Chief who may have died or was deposed and there is in existence a Royal Family and king makers and an order prescribing the mode of appointment/ascension which procedure for succession to the throne is guided by section 3 of the Law. Kimdey V. Military Governor of Gongola State (1988) 2 NWLR (pt. 77) 445 refers.
2. The appointment of Chiefs whose Chiefdoms have not originated from Customary Law, but have been created by legislative or administrative act of a competent authority as provided for under Section 4(1) (a) of the Chiefs (Appointment and Deposition) Law, as in Chiefdoms created newly borne out of socio-political developments. Learned Counsel noted that it is only after these appointments have been made that every of the features of Royalty, Royal Family, Kingmakers, instruments, or Order, mode and procedure of future appointments are put in place and then forwarded to the State Council of Chiefs, who present it to the Executive arm of Government and then later to the legislature for passage into law (section 4(2) of the Law refers). He maintain and that once the proposed procedure is passed into law, then there is an instrument or Order prescribing the mode of future appointments which are gazetted. (Section 100(1) and (2) of the Constitution refers).
3. As for the third category, the learned Counsel for the 1st and 2nd Appellants observed that the appointment of successor to the Chief in the new Chiefdom will then have to follow the entire process and procedure of any laid down instrument of an Order prescribing the mode of appointment and the appointee must be a royalty and belong to a Royal family with kingmakers and all other in-house selection process as envisaged by section 4(2) of the Law. Learned Counsel also expressed the view that apart from section 4(1) of the law which is category 2 type of appointment, all the others governed by section 3 or section 4(2) speak of successor of a dead, resigned or deposed Chief and accordingly submitted that the 1st Appellant was not inheriting and/or succeeding any 3rd class Chief of Lau. Page 361 lines 15 – 48 under paragraph 6 of the Record of proceedings was referred to in finally submitting on this point that section 4(1)(a) of the Taraba State Chieftaincy Law does not depend on any input from the Commission of Inquiry (Exhibit D) for the Governor to make appointments.
On the contention by the Respondent that the 3rd Class Chiefdom stool was vacant before the appointment of the 1st Appellant, he submitted per contra that the 1st Appellant was appointed in accordance with section 4(1) of the Law and that Sections 3, 4(1) (a) and 4(2) of the Law read together completes the circle of appointments of Chiefs under the prevailing law. It was further submitted that the 1st Appellant and all other 3rd Class Chiefs are recognised by the Governor under Section 4(1) (b) of the Law. Still on the question of vacancy, he asserted that vacancy can only exist when a Chief is dead, resigned, or deposed and a successor is to be appointed not on creation of Chiefdom, and the period that has elapsed before a Chief for the Chiefdom is appointed.
The learned Counsel for the 3rd – 6th Appellants has also argued in the same vein after X-raying the circumstances that threw up this action now on Appeal submitting that the 1st Appellant is the pioneer 3rd Class Chief of the newly created Lau Chiefdom and that as at when he was so appointed, there were no laid down procedures for the selection and appointment of the Chief of the new Lau Chiefdom.
Furthermore, he maintained, the 1st Appellant’s appointment was not a succession to a hitherto existing 3rd class Chief of Lau who either died or was deposed or resigned and given the prevailing scenario, the 6th Appellant had the prerogative to appoint any person as the 3rd Class Chief, (such person which could include the 1st Appellant, the 1st Respondent or any other person interested or fit and proper) to occupy the stool. Thus in accordance with section 4(2) of the 1999 Constitution, the 6th Appellant acted in accordance with the Law in appointing the 1st Appellant to give life to the Appointment of Traditional Rulers and Creation of Districts (Order) 2005 which Order does not provide for the method of appointing such 3rd Class Chief of Lau and which the 6th Appellant failed, refused and/or neglected to follow.
Accordingly, learned Counsel posited that the 6th Appellant is not guilty of noncompliance with the provisions of the Taraba State Upgradement of Traditional Rulers and Creation of Districts (Order) 2005 and as such the cases of Alhaji Galaudu V. Alhaji Sani A. Kamba (2005) 15 NWLR (pt. 895) 31 at 55 and Festus Bidapo Adesanoye V. Prince Francis Adewole (2007) 4 WRN 1 at 24 – 27 which the learned trial Judge placed reliance on in faulting the appointment of the 1st Appellant by the 6th Appellant are distinguishable on both facts and circumstances in that the two cases dealt with succession to existing stools with extant laws regulating the methods of their successions, whereas the present case deals with a Chieftaincy created for the first time with the law creating it providing no method of ascension.
In this regard, he took the view that the Taraba State Chiefs (Appointment and Deposition) Law Cap. 26 does not apply in strictu sensu in view of the arguments earlier canvassed by the learned Counsel for the 1st and 2nd Appellants that the 3rd Class Chief of Lau does not originate from Customary Law but a creation of Legislation or administrative act of a competent authority and same was recognized by the Governor. He went on to explain the purport of the Chiefs (Appointment and Deposition Law as earlier canvassed by the learned Counsel to the 1st and 2nd Appellants citing Kimdey V. Military Governor of Gongola State (1988) 2 NWLR (pt. 77) 445, to buttress his contention that the appointment of the 1st Appellant is not governed by Sections 3 and 4 of the Taraba State Chiefs Law nor does Section 4 (7) thereof apply in appointment of the 1st Appellant by the 6th. From the totality of all their submissions we were urged to answer the question in the affirmative and resolve the issue in favour of the Appellants.
Reacting to the submissions of the learned Counsel to the 1st and 2nd and 3rd to 6th Appellants, the learned Counsel for the 1st Respondent on this issue, prefaced his argument with the reproduction of the provisions of section 4(1) (2) and (3) of the Chiefs (Appointment) Law of Taraba State, 1997 as well as Section 2 (1) of thereof which defines a Chief as meaning any person for the time being recognized by the Governor as a Chief and includes Emirs, submitting that the law envisages in Section 4(2) of the Chiefs (appointment and Deposition) Law Taraba State which is in pari materia with the Chiefs (Appointment and Deposition) Law, Cap. 20, Laws of Northern Nigeria, 1963, that:-
(a) The 6th Appellant/Governor of Taraba State is enjoined to make an order prescribing the method of appointment of a Chief;
(b) The 6th Appellant has to identify in the Order persons who are entitled to make the appointment or selection of the candidates.
(c) The persons entitled to make the Appointment/Selection have to select the candidates and present them to the 6th Appellant,
(d) The 6th Appellant has to give time and the order within which the appointment shall be made.
(e) The discretion lies on the 6th Appellant after strict compliance with the prescribed method as contained in the said Order to approve the said appointment of the candidate presented to him.
The learned Counsel submitted that section 4(2) of the Chiefs Law uses the word “prescribed” which means to adhere strictly to the Order made by the 6th Appellant prescribing the method of appointment by those entitled to appoint in accordance with the provision of any order so made before approval by the 6th Appellant of the appointed. Accordingly, learned Counsel argued on the authorities of Fawehinmi V. IGP (2000) 7 NWLR (pt. 665) 428 at 481 paras. G – H; and LSDPC V. Adeyemi (2005) 8 NWLR (pt. 927) 362 para. E; that the law should be given its plain and literal meaning where the words of the legislature are plain and unambiguous.
Referring us again to section 4(1) (a) of the Law, and paragraph 10 of the Respondent’s Affidavit at pages 282 and 315 of the Records; and paragraph 8(1) of the Appellant’s counter Affidavit, he argued that parties agree that the 3rd Class Chief of Lau Chiefdom is a creation of legislation by virtue of the Taraba State Upgradement of Traditional Rulers and Creation of Districts (Order), 2005 (page 124 paragraph 5 of Record of proceedings refers) and that pursuant to the enactment of that Order, the 6th Appellant constituted the Commission of Inquiry some of the terms of reference which he reproduced.
According to learned Counsel, with the promulgation of the Order of 2005, the Chieftaincy Stool of Lau became vacant by virtue of the fact that the Order came into effect on January 2005 while the purported appointment of the 1st Appellant was in November, 2006 by Exhibit C to the Appellants’ counter-Affidavit (page 315 paragraph 8 (iii) of the Records refers). To fill the vacant stools including that of the 3rd Class Chief Lau, the 6th Appellant set up the Commission of Inquiry in compliance with the provision of section 4(1) and (2) of the Chiefs (Appointment and Deposition) Law of Taraba State but instead of adhering strictly to the requirements of that law, the 6th Appellant went ahead to arbitrarily appoint the 1st Appellant.
It was therefore submitted from the foregoing that the 6th Appellant was bound to by Section 4(2) of the Chiefs Law of Taraba State and where the action of the 6th Appellant as in this case runs contrary to the prescribed provision of the law, it is null and void for non-compliance. To buttress this submission, he cited Galaudu V. Kamba (2004) 15 NWLR (pt. 895) 31 at 55 paras D-G and further contended that on the authorities of Araka V. Egbue (2003) 33 WRN 18 lines 10 -20 per Tobi, JSC; Kimdey V. Governor of Gongola State (supra) per Karibi- Whyte, JSC at page 464 para A – H; it is absurd for the Appellants to contend that the 6th Appellant is not bound by section 4(2) of the Chief (Appointment and Deposition) Law, Laws of Taraba State and then seek to hide under the principle and doctrine of covering the field and expediency, when the statute has provided for a mode of doing an act which the 6th Appellant deliberately ignored.
On the contention by the Appellants that section 4(2) of the Law deals with existing stools of which vacancies have occurred as a result of death, resignation or deposition, he maintained that the learned Counsel for the Appellants’ argument in this respect is wrong and misconceived in that the 3rd Class Chieftaincy was in existence since 2005 and vacancy had existed since the promulgation of the Taraba State Upgradement of Traditional Rulers and the Creation of Districts (Order), 2005 while the appointment of the 1st Appellant was by virtue of Exhibit C of page 315 para. 8 (iii) of the Record of proceedings and page 25 paragraph 14.5 of the 1st Appellant’s Brief of Argument.
The learned Counsel insisted that any Chieftaincy stool created by legislation comes into being from the date of promulgation and gazetting of the Emirate or stool and the stool is to be occupied in accordance with the prescribed provisions of Section 4(1) and (2) of the Chiefs Law whether it is being occupied for the first time or vacancy occurs by death, resignation or deposition. On the submission by the learned Counsel for the (1st and 2nd) Appellants in paragraphs 14.2, 14.5, 14.6 and 14.9 of the 1st and 2nd Appellants’ Brief that the 6th Appellant can usurp for himself the responsibility prescribed by section 4 of the Chiefs Law 1997; and that the appointment is the prerogative of the 6th Appellant without following due prescription, the learned Counsel for the 1st Respondent posited that this is wrong as the law is clear on the authority of Galaudu V. Kamba (2004) 15 NWLR (pt. 895) 31 at 55 D – G; that where the law prescribes the way and manner of doing an act anything done to the contrary is null and void.
The learned Counsel also drew our attention to the arguments of the Appellants at page 29 paragraph 15. 5 of 1st and 2nd Appellant’s Brief still on the doctrine of covering the field and the same learned Counsel for the Appellants’ contrary position at pages 27 – 29 of their Brief that the appointment of the 3rd Class Chief of Lau is governed by section 4(1) (a) of the Chiefs (Appointment and Deposition) Law of Taraba State 1997 while at page 11 paragraph 4.8 of the 3rd – 6th Appellants’ Brief of argument they argue on the contrary that the 6th Appellant is not bound by the said Law, which positions are confusing and the Appellants are approbating and reprobating.
On the contention by the learned Counsel for the 1st and 2nd Appellants that section 4(1) (a) of the Chiefs (Appointment and Deposition) Law of Taraba State envisages the appointment of the Chiefs first before putting the procedure and instrument of selection in place (pages 27 – 28 paragraph 14.10 of the 1st and 2nd Appellants’ Brief); the learned Counsel for the 1st Respondent submitted that this is wrong and misconceived as the prescribed mode of selection is done by putting the necessary instrument in place in strict compliance with the Law before appointment can be approved by the Governor whether the Chieftaincy is newly created as in this case or occurs as a result of death, resignation or deposition.
As for the argument of the learned Counsel for the 1st and 2nd Appellant’s on page 24 paragraphs 13.6 to 13.10 of their Brief which dwells extensively on Exhibit D the document admitted through subpoena Duces Tecum (pages 274 – 275 of the records); learned Counsel for the 1st Respondent again asserted that the Appellants never appealed against the admission of the document as well as the rejection of Exhibits A & B to the Counter – Affidavit of the Appellants and the arguments of the learned Counsel to the 1st and 2nd Appellants in these respects at page 25 paragraph 14.2 to 14-44 of their brief have no nexus with the Grounds of Appeal and issues formulated by the Appellants and should therefore be struck out on the authority of Ojeagbe v. Omatsoye (1999) NWLR (pt 608) 591- 598 paras B – C.
Turning to the Arguments of the learned Counsel to the 3rd – 6th Appellants, the learned Counsel to the 1st Respondent also reproduced the provisions of section 4(1) (a) and (b) Laws of Taraba State 1997 under which the 6th Appellant appointed the 1st Appellant and submitted that it is never in dispute that section 4(1) and (2) of the Chiefs (Appointment and Deposition) Law, 1997 governed the appointment of the 1st Appellant and that it was in course of complying with the provision of section 4 (2) of the Law, that the 6th Appellant constituted the commission of Inquiry and saddled it with the responsibility of selecting the chief as required by the enabling Law but that the 6th Appellant did not wait for the Commission to complete its lawful duty as required by the law and instead usurped the powers of selecting/appointing any person as chief or Head chief and thereby appointed the 1st Appellant. He argued that even though the 3rd Class stool of Lau Chiefdom came into existence with the promulgation of the Taraba State upgradement Order, 2005, yet the selection, appointment and approval of any person into a vacant stool is governed by the chiefs (Appointment and Deposition) Law, 1997 it being the only enabling Law that covers such appointment which the 1st Appellant is not immuned to.
Referring to the purport of the phrases “the GOVERNOR MAY APPROVE as successor of such chief or head chief, as the case may be, any person APPOINTED IN THAT BEHALF BY THOSE ENTITLED To APPOINT…” as contained in section 4(2) of the Law, it was his further submission that by those provisions, the Governor is robbed of the prerogative of making such appointment under our circumstance, but to approve the appointment made by those entitled to appoint. By the 6th Appellant usurping the powers of those entitled to appoint the 1st Appellant the learned counsel for the 1st Respondent further asserted, he has acted outside the confines of section 4(1) and (2) of the Chiefs (Appointment and Deposition) Law of Taraba State, 1997. This, he noted, is confirmed by the submission of counsel to the 3rd -6th Appellants in page 13 lines 6 – 10 of their Brief of Argument.
On the whole the learned counsel for the 1st Respondent finally took the view that since there is no other Law in Taraba State governing the appointment of Chiefs apart from the Chiefs (Appointment and Deposition) Law of Taraba State, 1997; this Appeal should be dismissed with substantial costs as same is lacking in merit for the Appellants have failed to furnish this Court with any other purported appropriate law that justifies the appointment of the 1st Appellant.
RESOLUTION OF ISSUE NUMBER 3:
In resolving this issue which has been the subject of very elaborate arguments on the part of all the learned counsel, it is gratifying to note that each has cited the provisions of the Chiefs (Appointment and Deposition) Law to advance the course of their respective clients. Therefore the resolution of the Issue shall turn on the interpretation and purport of those provisions of the Law as to whether or not they apply to the appointment of the 1st Appellant as the 3rd Class Chief of Lau. Section 4(1) of the Chiefs (Appointment and Deposition) Law, Cap. 26, Vol. 1, Laws of Taraba State, 1997 provides thus: – “The provisions of section 3 shall not apply to the office of a Chief or head Chief which –
(a) Has not originated from customary law but has been created by legislation or administrative act of a competent authority;
(b) Is recognised as such by the Governor;
but the provisions of subsections (2) and (3) of this section shall apply thereto”.
By the above provisions of section 4(1) (a) and (b) it is unequivocally clear that they relate to the Office of Chief or head Chief created by Legislation or administrative act of a competent authority. The provisions also apply to Chiefs recognised as creation of Legislation or administrative act of a competent authority. Thus, section 3, of the Law applies to the appointment of a person to the office of a Chief or Head Chief which originated from customary law not recognised by the Governor.
Subsections (2) and (3) of section 4 thereof which are applicable to appointment of Chiefs otherwise than in accordance with customary Law provides inter alia:-
“(2) Upon the death, resignation or deposition of any chief or head chief of any kind described in subsection (1) the Governor may approve as the successor of such Chief or head Chief, as the case may be, any person appointed in that behalf by those entitled to appoint in accordance with the provisions of any order made by the Governor prescribing the method of appointment of such a Chief or head Chief and if no appointment is mode before the expiration of any interval prescribed in any such order, the Governor may himself appoint such a person as he may deem fit and proper to carry out such duties incidental to the
Chieftaincy as it may be necessary to perform.
(3) In the case of any dispute the Governor, after due inquiry and consultation with the persons concerned in the selection, shall be the sole Judge as to whether any appointment of any chief or head chief has been in accordance with any such order”.
Upon a critical appraisal of the provisions of subsections (2) and (3) of section 4 above cited they can only be applicable with all intents and purposes, where there is death, resignation or deposition of an incumbent Chief or head Chief such that a vacancy is created in which case the Governor may approve as the successor to that vacant stool a person appointed in that behalf by those entitled either as Royal family, king makers or Council of Chiefs, to appoint such a successor in accordance with the provisions of any order made by the Governor prescribing the method of appointment of such a Chief or head Chief. By the same token, if no appointment is made before the interval prescribed in any such Order, the Governor may appoint such a person as he may deem fit and proper to carry out the duties incidental to the Chieftaincy as it may be necessary.
Going by these provisions, the analysis of the learned Counsel for the 1st and 2nd Appellants and indeed the submissions of learned Counsel for the 3rd – 6th Appellants are very instructive and represent the true purport of the provisions of subsection (1) and (2) and (3) of section 4 of the Chiefs (Appointment and Deposition Law of Taraba State. Thus I agree with the submission of the learned Counsel for the Appellants that Section 4(2), of the Law presupposes that there had been in existence a Chieftaincy stool created by the Order or Instrument of the Governor prescribing the modalities for the selection and appointment of such a Chief and where the Chief or Head Chief has upon death, resignation or deposition created a vacancy to the stool, then, the modalities for succession as spelt out in the already existing Order or instrument made by the Governor shall be strictly followed to appoint a successor to the throne.
Where however, the interval spelt out in the order for a successor to be appointed to fill the vacant stool elapses, then the Governor may exercise his prerogative or discretion to appoint a successor to that chieftaincy for the purpose of discharging such duties incidental to the chieftaincy. By subsection (3) of section 4 of the Law in the case of any dispute as to the appointment of such a successor, then the Governor shall be the sore Judge as to whether any such appointment of any Chief or Head Chief has been in accordance with any such order, after the Governor must have duly conducted inquiry and consultation with the persons concerned in the selection of such a successor.
With the greatest respect therefore to the learned Counsel to the 1st Respondent, the case of the appointment of the 1st Appellant is not within the purview of section 4(2) and (3) of the Chiefs (Appointment and Deposition) Law as the chiefdom of Lau or 3rd crass chief thereof had never been in existence. This fact has been conceded by the Respondents in paragraph 4.04 of the 1st Respondent’s Brief that the 3rd Class stool of Lau came into existence by the promulgation of the Taraba State Upgradement of Traditional Rulers and creation of Districts (Order) 2005.
However, contrary to the submission of the learned Counsel to the 1st Respondent, there was no pre-existent vacancy in Lau Chiefdom as a result of the death, resignation or deposition of a hitherto reigning Chief or Head Chief which needed succession so as to warrant the application of section 4(2) of the Chiefs Law of Taraba State. Although after the promulgation of the Upgradement of Traditional Rulers and Creation of Districts (Order), 2005, vacancies existed which necessitated the setting up of the commission of Enquiry to find out the modalities for the filling of such vacancies, what the Respondents were craving for (see page 282) of the Records) is for their current District Head of Lau in the person of Hamman Adamu Yusa who should save occupied the stool of Lau Chiefdom to be so appointed to fill the vacant stool but having discovered now that the stool is a creation of legislation subject to be filled in accordance with the law, the said Hamman Adamu Yusa was not considered.
This development did not also bring their case within the purview of section 4(2) of the Chiefs Law of Taraba State which in the main pertains to the appointment of successors to existing stools upon the demise, resignation or deposition of an incumbent Chief or Head Chief appointed by legislation or administrative act of a competent authority or is recognised by the Governor. Section 4(2) of the Law can only come into effect upon the demise, resignation or deposition of the pioneer 3rd Class Chief of Lau and subsequent successors and I so hold in my humble view. In fact at page 167 of the Records Gowon Esq. (the learned State Counsel for the Administrative Commission of Inquiry in Exhibit D to the Affidavit in support of the originating summons noted that: “there is yet no instrument in existence in respect of 3rd class stools”. Again at page 26 of Exhibit D (page 186 of the Records) Mr. Gowon remarked thus:-
“There is apparent confusion as to the settlement, as between Lau and Kunini should be the repository of Lau Chiefdom Headquarters and the stool. This is reflected in Exhibits 109, 109A, 110, 112, 115, 119, 120 and 121 before the Commission. This confusion is, no doubt, brought about by the provisions of the Taraba State Upgradement of Traditional Rulers and the Creation of Districts (Order) 2005; while section 4 of the Order provides inter alia: “the old districts predating the creation of the State are hereby Upgraded to 3rd class status. They are Kunini Lau Local Government….” the said areas are therefore declared as Chiefdoms. Schedule II of the said Order which provides the list of the names of the newly created 3rd Class Chiefs/Chiefdoms and so headed provides for Muri Emirate Council to this effect in respect of Lau Local Government” No reference is made to Kunini. This confusion is what has led members of the two settlements to contest for the headquarters of the Chiefdom as well as the sole rulership of the Kingdom.”
The learned counsel then called for amendment of the order by the House of Assembly pending which these two settlements must find accommodation for each other in matters respecting the recognized Houses. From the foregoing, there is no doubt that the Respondents are like a house divided within itself, and are the architects of their misfortune. Whereas in this case, the Lau people are not decided on who should be their 3rd crass chief, the Governor in the absence of any Instrument by the order of 2005, could use his absolute discretion and prerogative to appoint any person he deems fit and proper to occupy the stool of the 3rd crass Chief of Lau until the Respondents have put their house in order.
I therefore agree with the submission of the learned counsel to the 3rd – 6th Appellants and indeed counsel for the 1st and 2nd Appellants that by virtue of section 4(2) of the Constitution of the Federal Republic of Nigeria, 1999; the Governor/6th Appellant did not act ultra vires his power but merely gave bite to the Taraba State Upgradement of Traditional Rulers and Creation of Districts (Order) 2005 which does not provide for the method of appointing the 3rd Class Chief of Lau for the newly created Lau Chiefdom.
I agree further that the learned trial Judge erred in law by placing reliance on Alhaji Galaudu V. Alhaji Kamba (supra) and Ade-Sanoye v. Prince Adewole (2007) 4 NWLR 1 at 24-27 as well as Kimdey v. Military Governor of Gongola State (supra) to some extent, in faulting the appointment of the 1st Appellant by the 6th Appellant as those decisions were based on succession to existing stools with existing Laws regulating the modalities for such succession, whereas the present case relates to chieftaincy stool newly created without modalities for appointment of the occupant.
On the reliance placed by the Respondents on the case of Fawehinmi v. IGP (supra) and LSDPC v. Adeyemi (supra), the cases were decided on sound principles and they rather support the case of the Appellants. There are galaxies of decisions by the apex Court on the principle of interpretation of statutes as enunciated in the cases above cited. For instance see Chukwu Obaji V. The State (1965) 1 ALL NLR 209 at 274; per Eso, JSC of blessed memory in A.G. Ogun State v. Aburuagba & Ors (1985) 4 S.C. (pt. 1) 288 – 383; Awolowo v. Shagari (1979) 6 – 9 S.C. 51; per Karibi – Whyte, JSC in Savannah Bank of Nigeria Ltd v. Pan Atlantic Shipping and Transport Agencies Ltd. & Anor (1987) 1 S.C. 198 at 294.
In International Bank of West Africa v. Imano (Nig) Ltd & Another (1988) 7 SCNJ (pt.11) 326 at pages 344-345; the erudite and Emeritus Judicial Icon (Karibi – Whyte, JSC); put it succinctly thus:- “It is a fundamental rule of interpretation of statutes that where the words are clear and unambiguous, they should be construed as they are and given their ordinary plain meaning. See Jammal Steel Structures Ltd. v. A.C.B. Ltd. (1973) 1 All NLR (pt. 2) 208. It is not in such circumstances permissible to go beyond what the words themselves actually convey and to consider what other things they are capable of and could mean. This is because where the provision is unambiguous and clear, they contain the intention of the law maker and no words inferred aliunde are required to discover the intention which have been fully expressed in the words used. This is the literal rule and the golden method of interpretation”. See further the recent decisions of Emeritus Tobi, JSC; in Abubakar V. Yar’Adua (2008) 19 NWLR (pt. 1120) 1 at paras. E-F, 135 paras. D-H; Ugwu V. Ararume (2008) 2 CCLR 215 at 262 paras. 20 -25 (2007) NWLR (pt. 1048) 367 at 438 paras. A-C; Buhari v. INEC (2008) 19 NWLR (pt. 1120) 246 at 344 paras F-H, and Araka v. Egbue (2003) 3 WRN 18 line 10 – 20 per Tobi, JSC; ably cited by the learned Counsel for the 1st Respondent.
Following this golden rule of interpretation of section 4(1) (2) (3) of the chiefs (Appointment and Deposition) Law Cap. 26, Laws of Taraba state, it is rather the 1st Respondent who has tended to rewrite the statute by going beyond the words used and inferring other meanings that the provisions are capable of and could mean which he can ill afford to do in the face of all the authorities cited above. I reiterate that the provisions of sections 4(2) and (3) of the Law do not envisage the appointment of a pioneer Chief as in the case of the 1st Appellant. Assuming but not conceding that section 4(2) and (3) apply, the Governor acted upon the Memorandum forwarded to him by the 4th Defendant/Appellant the Commissioner for Local Government and Chieftaincy Affairs, Taraba State after due consultation with stake holders.
In fact paragraphs 8 (i) (ii) (iii) and (iv) of the Further Additional Counter-Affidavit in Response TO THE PLAINTIFFS FURTHER AND BETTER AFFIDAVIT says it all:-
“(i) That the Taraba state Executive council at its Council conclusions 4th (2004) meeting approved the creation of additional Traditional/Emirate Councils, Chiefdoms, Districts and Villages including Lau Chiefdom. A copy of the Exco conclusions is hereby attached as Exhibit ‘A’
“(ii) That consequent upon the said Exco Conclusion, the 4th Defendant raised a memorandum to the 6th Defendant forwarding the names of nominees who have been duly selected/elected by the Kingmakers to fill the vacant stools in the newly created 3rd class Chiefdoms including Lau Chiefdom. A copy of the Memorandum Ref. No. GHJ/LG & CA/76/111/395 of 10/10/2006 and the 6th Defendant’s approval of appointment of the 1st Defendant as the 3rd Class Chief of Lau is attached and marked Exhibit ‘B’.
“(iii) That based on the approval of appointment of the 1st Defendant by the 6th Defendant on 3/11/06 as the 3rd Class Chief of Lau, the 4th Defendant caused a letter of Appointment Ref. No. GHJ/LG & CA/S/260/237 of 09/11/2006 to be issued and served on the 1st Defendant. A copy is hereby attached as Exhibit C.
“(iv) That the 1st Defendant was then presented with a Staff of Office as the 3rd Class Chief of Lau on Thursday 25th January, 2007 by the 6th Defendant at a colourful ceremony witnessed by his subjects.”
Indeed in the celebrated case of Kimdey V. Military Governor of Gongola State (1988) 2 NWLR (pt.77) 445 at 448, Karib-Whyte, JSC; who delivered the lead Judgment of the Supreme Court had laid to rest the question of illegality of the exercise of the Governors discretion to appoint a fit and proper person to occupy a vacant stool, where there is no subsidiary Legislation in place when he held:
“The appointment of the 8th Respondent could have been made under the Chiefs (Appointment and Deposition) Law, Cap. 20. There is no evidence that the Order was made by the Governor in Council. However, notwithstanding this defect, the appointment having been made by the Military Governor, was valid and in compliance with the provisions of section 4(2) of the Chiefs Law already reproduced.”
To buttress my earlier stance on the intendment of section 4(2) of the Chiefs (Appointment and Deposition) Law, Cap. 26, Laws of Taraba State, His Lordship in the concluding paragraph of his lead Judgment appositely posited inter alia:-
“Section 4(2) enables the Governor – in – council to make an order approving persons entitled to appoint in accordance with such order, the successor of such a Chief or head Chief in the event of vacancy created by death, resignation or deposition. The Governor may in his absolute discretion in the absence of such persons, appoint the chief in similar circumstances. This was what happened in this case. The appointment of Alhajji Jibir Grema is in accordance with the provisions of the law and is valid and legal.”
In our instant case although the Governor set up a commission of Inquiry to amongst other terms, identify any existing Vacant Emirate/Chiefdoms and Districts in the state, identify any existing gazette/orders and administrative procedure for the filling of such vacant stools recourse being had to any Government committee Report on Chieftaincy matters including Court Judgments where applicable; the mode or method of selection/election of candidate for each of the vacant stools and district, for gazetting by the Government where necessary as can be gleaned from the respective affidavits of the parties, the Recommendations of the commission have not been submitted or accepted by Government nor has any white paper been Published by Government in this regard. Thus to obviate the vacuum that would have been created, the Taraba State Executive Council met and approved the creation of additional Traditional/Emirate Councils, Chiefdoms, Districts and Villages including Lau Chiefdom. Consequent upon the Exco conclusion, the Commissioner for Local Government and Chieftaincy Affairs raised a memorandum to the Governor forwarding the names of nominees who have been duly selected/elected by kingmakers to fill the vacant stools in the newly created 3rd Class Chiefdoms including Lau Chiefdom. Pursuant to the approval of those nominees including the 1st Appellant by the 6th Appellant/Governor, the 1st Appellant was duly appointed in exercise of his undoubted absolute discretion.
There is no evidence that the Respondents made any representations to the Governor as the sole Judge in whatever dispute that must have arisen from the appointment made by the Governor. See section 3 of the Chiefs (Appointment and Deposition) Law.
On the whole I am of the considered view that it was rather the Respondents who jumped the gun by rushing to Court rather than first petitioning the Governor to resolve the dispute which would have arisen from the appointment of the 1st Appellant in accordance with section 4(3) of the Chiefs Law. I therefore hold the further view that the appointment of the 1st Appellant by the 6th Appellant/Governor of Taraba state is not illegal, ultra vires, null and void as purported by the court below nay the Respondents since the Governor acted in compliance with the law assuming that the law applies to the appointment of the 1st Appellant in the exercise of the Governors discretion.
Before rounding up this Judgment let me briefly comment on the rejection of Exhibits A and B which were sequential to the issuance of Exhibit ‘C’ (the letter of Appointment of the 1st Defendant). Having perused the Record of proceedings, I agree completely with the position taken by the learned trial Judge in rejecting Exhibits A & B to the Further Additional Counter-Affidavit in that they are uncertified True copies of Public documents which are inadmissible in evidence by virtue section (97)(2)(C) of the old Evidence Act 2004. The authority of Chief Gani Fawehinmi V. IGP (2000) 7 NWLR (pt. 665) 481 at 525; per Oguntade, JCA (as he then was); cited and relied upon by the learned trial Judge in rejecting the documents is very apposite. See further Kabo Air Ltd. v. INCO Ber Ltd. (2003) 6 NWLR (pt. 816) 327 – 339. Anatogu v. Iweka (1995) 8 NWLR (pt. 415) 547; Jadesinmi v. Okotie Eboh (No. 2) (1986) NWLR (pt. 16) 264 and the locus classicus of Minister of Lands Western Nigerian V. Dr. Nnamdi Azikiwe (1969) 1 ALL NLR 49; Omoniyi v. Omotosho, (1961) 1 ALL NLR 384 and Ojo V. Adejobi (1986) 1 S. C. 479.
In any case with the admissibility of Exhibit C, the situation of the case has not changed, as there is no dispute that the 1st Appellant was appointed by the 6th Appellant in exercise of his undoubted discretion and I had earlier held that this was done in consultation with the State Executive Council and Stake Holders of the Lau chiefdom. This Issue is therefore resolved in favour of the Appellants and in the light of the foregoing; the Appellants’ Appeal shall succeed in part. However, since Issue Number 3 is the most crucial in this Appeal, l am minded to set aside the Judgment of the lower court finding and holding that the appointment of the 1st Defendant as 3rd Class Chief of Lau by the 6th Defendant is ultra vires, null and void for not being in accordance with section 4(1) and (2) of the Chiefs (Appointment and Deposition) Law; Cap. 26, Laws of Taraba State 1997.
I further set aside the Declarations/Orders of the learned trial Judge granting the Respondents all the Reliefs sought and make no order as to costs.

SOTONYE DENTON WEST J.C.A.: I had the pleasure of reading in draft the Judgment of my learned brother Justice I.I. Agube (JCA) just delivered. I am quite at home with the reasonings and conclusions therein. In concurrence, I posit that locus standi is a legal term which denotes, the capacity or competence to initiate a suit in a court of law. It is predicated upon the fact that there must be a cause of action, before the legal capacity to sue comes into play.
It therefore means that when a cause for a legal action arises, it is the person whose rights or interest has been affected that has the competence to commence the legal action.
It is a trite law that a party intending to challenge or take any legal steps to protect any interest before a court must have and demonstrate his locus standi on the matter. This requirement of the law which is now constitutionally recognized in Section 6(6) (b) of the Constitutional of the Federal Republic of Nigeria 1999 (as amended) provides as follows:-
“The judicial powers vested in accordance with the foregoing provisions vested by this section shall extend to all matters between persons or between government or authority, and to all actions and proceedings, relating thereto, for the determination of any question as to the civil rights and obligations of that person”
See. Salisu Yahaha V. The State (2002) NSCQLR Vol. 9 page 36, Boothia Maritima INC. V. OT & T.A Ltd. (2001) 8 NWLR (Pt. 716) 534 at 543, Inakoju V. Adeleke (2007) 4 NWLR (pt. 1025) 423; Abraham Adesanya V. President, Federal Republic of Nigeria (1981) 5 SC 112 at 129, Fawehinmi V. Akilu (1987) 4 NWLR 797.
In A.G Fed. V. A.G. Abia & 35 Ors. (2001) SCQLR page 544 per A.G. Karibi-Whyte JSC, locus standi was defined to mean the legal right of a party to an action to be heard on litigation before a court of law or tribunal. That the expression encompasses the legal capacity to institute, initiate or commence an action in a competent court of law or tribunal, without inhibition, obstruction or hindrance from any person or body whatsoever including the provision of any existing law.
Moreso, that locus standi raises the question whether the person whose standing is in issue i.e. the proper person to seek an adjudication of the issue.
It is not whether the issue itself is justiciable; or whether the case was likely to succeed the issue is whether the Plaintiff has sufficient legal interest, that is, whether there is a breach of the civil rights and obligations of the Plaintiff.
The factors to be considered in determining locus standi are;
i. The Plaintiff must be able to show that his civil rights and obligations have been or is in danger being violated or infringed, and
ii. The Plaintiff must have a justiciable dispute with the Defendant.
See. Adesanya V. President, Federal Republic of Nigeria (supra).
In view of the above, I am in the same tune of reasoning with my learned brother that the 1st and 2nd Respondents have the locus standi to initiate the proceedings at the lower court culminating in this appeal.
Thus, with the fuller reasons adduced in the lead Judgment, I too allow the appeal in part and I abide by all the orders including order as to cost made therein.

ABUBAKAR ALKALI ABBA, J.C.A.: I agree.

Appearances

J. D. Yakubu Esq. DLC Taraba State for the 3rd to 6th Appellant with him S. R, Ishaya Snr. State Counsel I Ministry of Justice Taraba State.For Appellant

AND

F. T. Nzarga 1st Respondents
A. D. Bambur Esq. 2nd RespondentsFor Respondent