HARUNA HARUNA III & ORS. v. ARZIKA BAWA KARAYE & ORS.
(2010)LCN/3827(CA)
In The Court of Appeal of Nigeria
On Friday, the 28th day of May, 2010
CA/S/90/2009
RATIO
APPEAL: PRINCIPLES UNDER WHICH AN APPELLATE COURT WOULD INTERFERE WITH THE FINDINGS OF A TRIAL COURT
The principles under which an appellate court would interfere with the findings of a trial court have been laid down in several authorities of this Court as well as the Supreme Court. Therein, it is settled that a decision of a trial Court consequent upon its proper appraisal of evidence excludes the Appellate court’s interference with the former’s decision merely for the purpose of arriving at a different conclusion from that arrived at by the trial court. Thus where the trial court’s evaluation of evidence is without blemish, the Court of Appeal is left without the powers of re-evaluating such evidence with the view to substituting the trial court’s unassailable verdict with its own. See Baloqun v Aaboola (1974) 10 SC 111, Woluchem & Ors v Gudi and Ors v. (1981) 5 SC 178 at 198.
It is a trite aspect of the same principles that the task of evaluating evidence and ascribing probative value to same is exceedingly within the province of the trial court that had enjoyed the advantage of seeing and listening to the witnesses on the basis of whose testimonies it arrived at its decision. Where the trial court’s decision does not necessarily flow from the evidence or the complaint does not hinge on the credibility of the witnesses, the appellate court is equally in the same position as the trial court to undertake the task of evaluating the evidence. Thus the Appeal court is very reluctant and slow in interfering with the trial court’s findings of facts. It does so only where compelled and on the basis of those errors which are apparent from the printed record of proceedings. Where it is manifest that the trial court’s judgment does not draw from the printed evidence or is the result of improper conclusions and inferences from the evidence, the Appeal court would rise to the occasion in the interest of justice to disturb, alter, reverse or set aside the lower court’s wrong findings of facts see Kuforiji v. Y.B. Ltd (1981) 6-7 SC 25 at 46 and Oyewole v. Akande (2009) 39 NSCOR 207 at 228. PER MUSA DATTIJO MUHAMMAD, J.C.A.
COURT: WHETHER THE COURT CAN MAKE DECLARATION OF RIGHT WITHOUT HEARING EVIDENCE OF CLAIMANT
It is now a well established principle of law that a court does not make declaration of right either on admission or in default of defence without hearing evidence provided by the claimant. PER MUSA DATTIJO MUHAMMAD, J.C.A.
EVIDENCE: WHETHER THE COURT CAN CHOOSE FROM THE EVIDENCE OF WITNESSES
It is the law that the court cannot pick and choose from evidence of such witnesses or to accredit one witness and discredit the other.
See Areha v. State (1982) S.C 78 at 88-89, Nansol v. State (1993) 6 SCNJ 152 and Ibekendu v. Ike (1993) 7 SCNJ 80. PER MUSA DATTIJO MUHAMMAD, J.C.A.
EVIDENCE: BURDEN OF PROOF IN A CLAIM FOR DECLARATION OF RIGHT
In a claim for declaration of right the onus, let me repeat, is on the Plaintiff to satisfy the court that he is entitled on the evidence brought by him to the declaration he seeks. Although at times the case of the defendant may strengthen his case, generally the Plaintiff must rely on the strength of his own case and not on the weakness of the defendant’s case. If the onus is not discharged, the proper judgment is for the defendant. PER MUSA DATTIJO MUHAMMAD, J.C.A.
JUSTICES
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
AHMAD OLAREWAJU Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
Between
1. HARUNA HARUNA III
2. HALIRU HARUNA III
3. ALHAJI ABUBAKAR ATIKU BUNU Appellant(s)
AND
1. ARZIKA BAWA KARAYE
2. GWANDU EMIRATE COUNCIL
3. THE EXECUTIVE GOVERNOR OF KEBBI STATE-ALH. MUHAMMED ADAMU ALIERO Respondent(s)
MUSA DATTIJO MUHAMMAD, J.C.A. (Delivering the Leading Judgment): By paragraph 13 of their amended statement of claim dated 20 but filed on 21st July 2005, the Appellants as Plaintiffs commenced Suit No.KB/HC/18/2005 at the Kebbi State High Court against the Respondents herein being the defendants then, jointly claiming the following reliefs:
“1. An order dismissing the defence of the Defendants in this suit in its entirety, for being an afterthought and abuse of the processes of this court with substantial cost against them.
2 A declaration that 1st and 2nd defendants are not eligible to contest, be selected or appointed as the district head of Jega with the title of Sarkin Kabin Jega.
3. An order setting aside and nullifying the selection and appointment of the 1st Defendant as the Sarkin Kabin Jega.
4. An order of the Court declaring that the selection and appointment of the 1st Defendant as the Sarkin Kabin Jega the district head of Jega as null and void and of no effect whatsoever.
5. An order returning the 3rd Plaintiff as duly selected and appointed Sarkin Kabin Jega, the district head of Jega.
6. An order of perpetual injunction restraining the 1st and 2nd Defendants, their ascendant and descendants to contest or be appointed as Sarkin Kabin Jega i.e the district head of Jega.
7. An order of perpetual injunction restraining the 3rd and 4th defendants, their agents, servants or privies from interfering in any way with the office of the 3rd Plaintiff upon his return by the court as the new district head of Jega.
8. An order for the defendants to pay the cost of this action.”
As 1st Defendant, the 1st Respondent joined issues with the Appellants. He contested Plaintiffs claim and in paragraph 10 of his statement of defence and counter claim dated and filed on 17th October 2005 counter claimed as follows:-
“1. A DECLARATION that all the descendants of the 10 sons of Sheikh M. Buhari are eligible to apply, contest for the selection and be appointed Sarkin Kabin Jega.
2. A DECLARATION that the decision of the Jega Local Government Council and the Gwandu Emirate Council (3rd defendant) to confirm the eligibility and suitability of the 1st Defendant to apply, contest for the selection and be appointed Sarkin Kabin Jega, after thorough investigation cannot be inquired into by the Court.
3. A DECLARATION that the decision of the Executive Governor of Kebbi state (4th Defendant) to approve the appointment of the 1st Defendant cannot be inquired into by the Court.
4. N1m (One million Naira) SPECIAL DAMAGES being the cost of defending this suit.”
The 2nd and 3rd Respondents as 3rd and 4th defendants joined issues with the Appellants in their twenty five Paragraph joint statement of defence dated 7th but filed on 8th November 2005 also denied plaintiffs claim.
1st and 2nd Appellants with eight others testified to prove plaintiffs case.
1st Defendant, his father and uncle testify in defence and proof of Respondent’s counter claim. Other Defendants rested their case on that of the Plaintiff.
In a well considered judgment delivery on 11th October 2006 the court held thus:-
“1. That 1st Defendant having been found to be a descendant of Mallam Buhari is eligible to contest, be selected and appointed as the District Head of Jega with the title of Sarkin Kabin Jega.
2. That all the male sons and male descendants of Mallam eligible to contest and be appointed Sarkin Kabin Jega.
3. That the 1st Defendant was properly appointed as Sarkin Kabin Jega by the 4th Defendant on the recommendation of the 3rd Defendant in substantial compliance with the provisions of the law.
4. The 2nd Defendant is not eligible to contest, be selected and appointed as the Sarkin Kabin Jega.”
Consequentially, the court dismissed all the reliefs in paragraph 42 (1) to (7) of the Appellants amended statement of claim against the 1st, 2nd and 3rd Respondents.
The court however granted the relief in paragraph 7(1) a-d (5) of the Appellants’ amended statement of claim against the 2nd defendant to which extent it held Appellants’ claim had succeeded.
Dissatisfied, Appellants, the Plaintiffs at the court below, have appealed against the judgment by their amended notice of appeal filed on 19th June 2009 containing ten grounds. It is pertinent to observe that the 2nd Defendant at the lower court is not a party to the instant appeal.
Parties have filed and exchanged their briefs of argument including Appellant’s reply briefs ostensibly in response to fresh points addressed by the two sets of Respondents in their briefs. At the hearing of the appeal these briefs were adopted and relied upon by parties. Arguments contained in Appellants reply brief being repetitive of those contained in the Appellants brief shall be discountenanced in the determination of the appeal.
The issues distilled by the Appellants from their ten grounds of appeal read:
“1. Whether having regard to the state of pleadings and evidence adduced in support thereof it was proper in law for the trial court to have made the findings to the effect that there is nothing in law that prohibits the 3rd Defendant (2nd Respondent) to have reconsidered the nomination of the Sarkin Kabin Jega.
(Grounds 6 and 7)
2 Whether in all the circumstances of this case it can be said that the 1st Respondent was selected and or nominated strictly in accordance with the law as in Exhibits A and A1 and Section 7(2) of the Local Government Service Board Law of Kebbi State. (Grounds 8 and 9).
3 Whether on the state of pleadings, the evidence and the provision of the law, the 2nd and 3rd Respondents properly appointed the 1st Respondent as the Sarkin Kabin Jega.” (Grounds 1, 2, 3, 4, 5 and 10)
The 1st Respondent has adopted the foregoing issues distilled by the Appellants at paragraphs 3.01 – 3.02 of his brief as calling for determination of the appeal.
2nd and 3rd Respondents in addition to adopting Appellant 1st and 2nd issues have formulated a 3rd issue for the determination of the appeal paragraph 4.1 of their brief that reads:-
“Whether having regard to the reliefs sought by the Appellants, state of pleadings and evidence adduced in support thereof the 3rd Appellant will be entitled to be declared as the District Head of Jega (Sarkin Kabin Jega)(Grounds 5, 7, and 9)
It is proposed that this appeal shall be determined on the basis of a more composite issue that reads as follows:-
Whether on the state of pleadings, evidence and the law (s) applicable to the controversy m issue the court below is right to have held that 1st Respondent’s selection and appointment as the Sarkin Kabin Jega by the 2nd and 3rd Respondents has been properly made.
Learned Appellants Counsel’s overriding contention in this appeal is that the answer to the foregoing issue is necessarily in the negative. He submits that both the applicable law, Local Government Service Board Law, CAP 87, Laws of Kebbi State 1996, and Exhibit A the procedure for the selection and appointment of District Heads have not been complied with in the selection and appointment of the 1st Respondent by the 2nd and 3rd Respondents as contained in Exhibit L. Learned counsel contends that the onus of proving compliance with the two squarely rested on the 2nd and 3rd Respondents and the burden remains undischarged. Exhibits D, E, F, G, H, J, K and L the lower court inferred compliance with the law and Exhibit A from are documentary evidence trial clearly fail to establish such compliance. It is argued that none of the Respondents led oral admissible evidence to show that 1st Respondent is not only an indigene of Jega but also a member of one of the ruling houses and therefore an heir to the vacant stool as required in Exhibit Al. The testimonies of DW1 and DW2 are clearly devoid of this vital fact Exhibits E and El, the report of the committee set up by Emir Muhammad Bashir Illiyasu to reconsider 1st Respondent’s illegibility to vie for the vacant stool after he had been found not entitled by an earlier committee does not help the cause of the Respondents. The report, it is contended, shows that 1st Respondent hails from Sabon Sara village of Karaye district which is outside Jega district that Exhibit A requires a contestant for the stool of the Sarkin Kabin Jega must come from. A person who is neither an indigene of any of the districts that constituted Jega nor a descendant of any of the five ruling houses cannot be selected, considered and appointed to the traditional office of the Sarkin Kabin Jega. 1st Respondent’s appointment, Learned Appellants’ counsel submitted, is ab initio void. He relies on Sections 137 and 139 of the
Evidence Act and the cases of Akibu v. Oduntan (7000) 13 NWLR (Pt.685) 446 at 480 and Emegokwue v. Okadiabo (1973) 4 SC 113 at 117.
Learned Appellants Counsel further argues that the 2nd and 3rd Respondents had jointly pleaded in their statement of Defence that following 1st Respondents protest against the finding that he was not a descendant of Mallam Buhari from any of the five ruling houses by a committee instituted by Emir Al-Mustapha Jokolo, another committee instituted by Emir Muhammed Bashar Illiyasu had reviewed the earlier finding and established 1st Respondent’s right to contest the vacant stool. 2nd and 3rd Respondents learned Appellants’ counsel submits, failed to lead evidence to prove the fact that 1st Respondent had, subsequent to the earlier finding, been reconsidered and found illegible. Having abandoned this aspect of their case, the lower court’s finding from page 140 line 22 to page 141 line 3 that 1st Respondent’s suitability to contest had subsequently been reconsidered by the 2nd Respondent is erroneous. Learned Counsel relies on Horicon Ltd v. Wasurum (1987) 4 NWLR (Pt 646) at 653 and Punch Nig. Ltd v Eyitene (2001) 17 NWLR (Pt.741) 228 and urges that the finding be set-aside. It is further contended by learned Appellants’ counsel that the lower court is wrong to have made the inference of 1st Respondent’s right to contest the vacant stool of Sarkin Kabin Jega for an added reason: Appellants were not heard by the committee that reconsidered 1st Respondent’s illegibility for the vacant stool. A matter which concerned them having been heard behind them constitutes a breach of their right to fair hearing. Any proceeding so conducted, on the authority of Section 36 of the 1999 constitution and the decision in Re: Jaja (1993) 2 NWLR (Pt.375) 65, being a nullity cannot be relied upon.
Finally, learned Appellants’ Counsel submitted that Appellants had, with leave of the lower court, amended their statement of claim. They also led evidence in proof of their amended statement of claim. The evidence as to 1st Respondent and his ancestors hailing from Sabon Sara village outside Jega district remains unchallenged. In any event, the Respondents having not amended their statement of defence, following the amendment undertaken by the Appellants on their statement of claim, could not have led evidence in refutal of Appellants’ case. Respondents had not joined issues with the Appellants. The lower court had erred in finding for the Respondent who in law should have been deemed to have admitted Appellants claim. Relying on Apena v. Aiyetohi (1989) 1 NWLR (Pt.95) 85 at 89 and Odua Investment Co. Ltd v. Talabi (1997) 10 NWLR (Pt.523) 1 at 50, learned Appellants’ counsel has urged us to allow the appeal, set-aside the decision of the lower court and its place enter judgment for 3rd Appellant by returning him as the duly selected and appointed Sarkin Kabin Jega.
Responding, learned counsel to the 1st Respondent started by supporting the lower court’s findings on 2nd Respondent’s reconsideration of its disqualification of the 1st Respondent while under the leadership of the former Emir, Jokolo. The subsequent step taken by the 2nd Respondent of constituting a new committee to reconsider the issue following 1st Respondent’s petition, it is argued, was the most sensible thing to do since 1st Respondent that was not heard before the wrong disqualification was subsequently heard before the decision affecting him was taken culminating in his being recommended to the 3rd Respondent for the appointment. The contention by learned Appellants’ counsel that the court’s finding on 2nd Respondent’s reconsideration of 1st Respondents eligibility does not draw from the evidence on record, learned 1st Respondent counsel argues, is belied by Exhibits D and D1 as well as E and El. Though conceding that 2nd and 3rd Respondents had filed a joint statement, learned counsel submitted that the law does not make it mandatory on the Respondents to testify in view of the evidence already led by the Appellants through PW3 and PW4 on the issue of reconsideration of 1st Respondent’s eligibility by a committee set-up by the 2nd Respondent. The 1st Respondent had through DW1, DW2 and DW3 also led evidence in that regard. Appellants who did not make a case at the lower court that 1st Respondent’s selection by the 2nd Respondent was done contrary to natural justice cannot, further argues learned 1st Respondent counsel, make such a case presently. In any event, the Appellants had been heard during the reconsideration process.
It follows, therefore, that the lower court’s finding that ensued from available evidence in respect of an issue the Appellants were equally heard upon cannot be interfered with. Learned counsel relied, on Wayo Ugwa v. Tsowu Abashi (2008) 4 NWLR (Pt 1077) 303 at 318-319.
On the entire case, it is submitted that all the Exhibits admitted by the lower court irrespective of who tendered them should suffice as proof of any aspect of the matter in controversy in the case. Thus where documents were admitted through PW3 and PW4 and the Exhibits, B & B1, C and C1, and Dl E and El, F and F1, G and G1 all go to confirm the eligibility of the 1st Respondent, the evidence called by 1st Respondent that was further accepted and believed by the lower court might even be superfluous.
There is abundant evidence before the lower court, both oral and documentary, contends 1st Respondent counsel, justifying the court’s finding that each male descendant from the ten ruling houses in Jega are eligible notwithstanding the fact that all the previous rulers of Jega had come from five of the ten ruling houses. Such a finding submits learned counsel, cannot, on the authority of Woluchem v Gudi (1981) 5 SC 291. Oba Makimisebi and Anor v Prince Ehuwa & Ors (2007) 2 NWLR (Pt.1018) 385 at 433, and Akpagbue v. Ogu (1976) 7 SC 63, be perverse. He urges that we resolve the issue against the Appellants and dismiss the appeal.
Learned counsel for the 2nd and 3rd Respondent similarly challenged Appellants’ complaints on the lower court’s findings on 2nd Respondent’s reconsideration of 1st Respondent’s eligibility. Evidence abounds in the record of proceedings, he argues, justifying the court’s findings. He points at Exhibit D1 at page 186 and the testimonies of PW3 and PW4 at pages 95 to 98 of the record of proceedings as such evidence the Respondent could fully rely upon either to establish their case or demolish the case of the Appellants that led the evidence. Learned counsel to the 2nd and 3rd Respondents further submits that it is not open to the Appellants to rely on the weakness of the case of the Respondents as they can only succeed on the strength of their case. He further submits that granted there was the lapse the Appellants alluded to which is not conceded, the Appellants must further establish that the court’s wrong finding had caused a miscarriage of justice for the lapse to count. Having not done so, it is argued, Appellants cannot be indulged by allowing the appeal on the basis of such a lame complaint. Learned Counsel referred to the decisions in Iheanacho v. Chiaere (2004) 19 NSCQR 177 at 179. Adeniran v. Aloa & Anor (2001) 8 NSCOR 484 at 486, Oaun Sina & Ors v Matanmi (2001) (Pt.1) NSCOR 1 at 1 and Fatumbi v Alanlove (2004) 18 (Pt 11) NSCQR 810 at 813 and urged that the issue be resolved against the Appellant and the appeal dismissed.
Appellants’ singular complaint in this appeal is to the lower court’s findings of fact on the 1st Respondents’ eligibility for appointment to the vacant stool of Sarkin Kabin Jega by the 3rd Respondent on the recommendation of the 2nd Respondent. The gravamen of Appellant’s contention is that these findings do not draw from the evidence led by parties in the matter that gave birth to this appeal. He asks that we interfere with the wrong findings.
The principles under which an appellate court would interfere with the findings of a trial court have been laid down in several authorities of this Court as well as the Supreme Court. Therein, it is settled that a decision of a trial Court consequent upon its proper appraisal of evidence excludes the Appellate court’s interference with the former’s decision merely for the purpose of arriving at a different conclusion from that arrived at by the trial court. Thus where the trial court’s evaluation of evidence is without blemish, the Court of Appeal is left without the powers of re-evaluating such evidence with the view to substituting the trial court’s unassailable verdict with its own. See Baloqun v Aaboola (1974) 10 SC 111, Woluchem & Ors v Gudi and Ors v. (1981) 5 SC 178 at 198.
It is a trite aspect of the same principles that the task of evaluating evidence and ascribing probative value to same is exceedingly within the province of the trial court that had enjoyed the advantage of seeing and listening to the witnesses on the basis of whose testimonies it arrived at its decision. Where the trial court’s decision does not necessarily flow from the evidence or the complaint does not hinge on the credibility of the witnesses, the appellate court is equally in the same position as the trial court to undertake the task of evaluating the evidence. Thus the Appeal court is very reluctant and slow in interfering with the trial court’s findings of facts. It does so only where compelled and on the basis of those errors which are apparent from the printed record of proceedings. Where it is manifest that the trial court’s judgment does not draw from the printed evidence or is the result of improper conclusions and inferences from the evidence, the Appeal court would rise to the occasion in the interest of justice to disturb, alter, reverse or set aside the lower court’s wrong findings of facts see Kuforiji v. Y.B. Ltd (1981) 6-7 SC 25 at 46 and Oyewole v. Akande (2009) 39 NSCOR 207 at 228.
In the instant case, learned Appellants’ counsel contends in the main that the lower court had drawn wrong inferences from ascertained facts and proceeded further to incorrectly apply the Local Government Service Board Law, CAP 87, Laws of Kebbi State 1996 as well as exhibit A the guidelines for the selection and appointment of the Sarkin Kabin Jega.
Learned counsel submitted that the onus of proving compliance with the applicable law as well as the guidelines contained in Exhibit A remains that of the Respondents 2nd and 3rd Respondents. These Respondents, learned counsel further positioned, had failed to prove that 1st Respondent, who was found by an earlier committee to be unsuitable for the appointment, had subsequently been reconsidered and found otherwise.
I am unable to agree with the Learned Appellants’ counsel. The reliefs sought by the Appellants against the Respondents are declaratory. The Respondents by their counter-claim also sought for similar reliefs. Both sides by virtue of their respective claims had the duty of calling evidence to substantiate the content of their pleadings. Theirs were two separate invitations to the lower court to make a declaration on the legal position of the eligibility and appointment of the 1st Respondent as the Sarkin Kabin Jega by the 2nd and 3rd Respondents. It is now a well established principle of law that a court does not make declaration of right either on admission or in default of defence without hearing evidence provided by the claimant. In the instant case, it follows, both sides will merit the declaration they prayed the lower court on the basis of the evidence they supplied the court. They succeed entirely on the strength of their respective cases and not on the weakness of the defence thereto.
Either party would be entitled to judgment for what he claimed and proved by the evidence he supplied the court. See Aja v Okoro (1991) 7 NWLR (Pt.203) 260 at 282. Dabup v. Kolo (1993) 9 NWLR (Pt.317) 254. Okedara v Adebava (1994) 6 NWLR (Pt 349) 157 and Odumeru v. Adenuaa (200) 12 NWLR (Pt 682) 466 at 476-477.
The argument of learned Appellants counsel that the lower court had erred in not giving them judgment inspite of the failure of the Respondents to prove 1st Respondent’s suitability for the vacant stool subsequent to the latter’s earlier disqualification by a committee constituted by the 2nd Respondent is, given the foregoing authorities, therefore, hollow. It remains Appellants burden to prove that 1st Respondent’s disability had persisted thereby making his subsequent appointment as the Sarkin Kabin jega by the 3rd Respondent on the recommendation of the 2nd Respondent a breach of the Local Government Service Board Law, CAP 87 Laws of Kebbi State, 1996 and Exhibit A.
The lower court on the basis of the evidence available to it has found the Appellants not entitled to the reliefs they claimed, a decision which the Appellants insist is wrong. Is it? One thinks not.
In the determination of the matter before it after counsel addresses, the court distilled three issues as worthy of its consideration. The issues read:-
(1) Whether 1st and 2nd Defendants are descendants of Mallam Buhari, the founder of Jega district and eligible to contest the stool of Sarkin Kabin Jega.
(2) Whether the 1st Defendant was properly and validly selected and appointed the Sarkin Kabin Jega by the 3rd and 4th Defendants.
(3) Whether the Defendants have proved their counter-claim to entitle them to the reliefs sought therein.
It needs to be stated at this point that of the three foregoing issues formulated and considered by the lower court only the first two are relevant to the instant appeal and even then as they pertain only the 1st Respondent herein. Not only that the 2nd defendant at the court below is not a party to this appeal, the decision of the lower court flowing from the third issue it distilled for its consideration in the determination of the controversy between the parties is outside the purview of the appeal. That aspect of the court decision has not been appealed against.
Now, Appellants as plaintiffs averred in paragraphs 7 and 8 of their amended statement of claim that Mallam Buhari was the founder of Jega and its first ruler. The names of others who ruled Jega between him and the last Sarkin Kabin Jega are also stated as having come exclusively from the five ruling houses founded by Buhari’s five sons. The Appellants further averred in paragraphs 11-20, both numbers inclusive, and paragraph 41 of their amended statement of claim, that 1st Respondent is not a descendant of Mallam Buhari through any of letter’s five children who had become Sarkin Kabin Jega and whose families exclusively produced subsequent rulers of Jega. More specifically, Appellants asserted that 1st Respondent is not from the lineage of Aliyu Sabon Sara the son of Mallam Buhari. Instead, it is averred that 1st Respondent’s father Bawa Karaye or Bawa Dariye is the son of Mamman Auwaii a descendant of Yakubu Babarbare of Giwa Tazo.
In paragraph 3, 4 and 7(a) of his statement of defence, the 1st Respondent joined issue with the Appellants. Therein, he asserted his eligibility to the vacant stool of Jega and further averred that Mallam Buhari had ten male children from whom emerged ten ruling houses with descendants from any of the ten ruling houses being eligible for appointment to the throne of Sarkin Kabin Jega. 1st Respondent averred that he is the son of Sarkin Karaye Muhammadu Bawa, the grand son of Mamman Dangaladima and great grand son of Mallam Ali the son of Sheikh Mallam Buhari the founder of Jega district.
The Appellants insisted in paragraphs 4(e) 5(a) and 6(a) of their reply to 1st Respondent’s statement of defence and counter claim that rulers of Jega after the reign of its founder had come from the five ruling houses established Mallam Buhari’s five male children. The Appellants restated that 1st Respondent’s father is not the son of Dangaladima, the son of Maman AN, the son of Mallam Buhari.
To prove this aspect of their pleadings, the Appellants called ten witnesses principal among whom are PW1, PW2, PW3, PW4, PW5, and PW6. These witnesses while giving their evidence in chief kept within Appellants’ pleadings that only persons from the five ruling houses whose parents were also kings of Jega are entitled to the throne. Under cross examination, however, they dithered and clearly fumbled. PWl at pages 81- 82 while being cross examined inter alia stated as follows:-
“I don’t know if Mallam Buhari had 20 children but I know that 5 children inherited him as kings of Jega. To the best of my knowledge, Mallam Buhari had 10 male children I know Maliki the son of Haruna the first who was Haliru’s father. I know that the said Maliki was never the District head of Jega Haliru the son of Maliki was also never made the District head of Jeaa. I know Haruna son of Haliru, son of Maliki and he is my father. It is true that even if a person’s father did not become the king, his son will also not become king.
It is true the 3rd Plaintiff is the son of the Sarkin Kabi Muhammadu Dodo. It is true that Sarkin Kabin Moh’d Dodo’s grand father is Sarkin Kabin Musulimu. The father of Sarkin Kabin Muhammadu is one Dangaladima Ibrahim who was never the Sarkin Kabin Jega”
(Under lining mine for emphasis)
PW11, like PW1, in his evidence in chief testified in reference to the 1st Respondent at page 88 of the record of appeal thus:-
The 5 ruling families of Jega have been ruling since 1818 to date. Since that time nobody outside the 5 ruling houses became the Sarkin Kabin Jega except this one who was brought the 1st defendant is not acceptable to me because he is not a descendant of Mallam Buhari”
Again like PW1, PW11 under cross examination at page 91 of the record of appeal faltered and stated as follows:-
“I don’t know if Mallam Buhari had children besides the five T mentioned. It is true the person ruling Basaura is from Buhari family. It is true the District head of Basaura is not from any of the 5 ruling families of Buhari I earlier mentioned. The District head of Basaura is a descendant of Buhari… It is true that the 5 children of Buhari became kings of Jega because they were children of Mallam Buhari. Any person who is the son of Mallam Buhari equally has the same right to the throne.”
And there is the entire testimonies of PW3 and PW4, Public Servants and custodians of all the documentary Exhibits relied upon by both sides in support of their respective cases. PW3 at page 96 of the record of appeal testified as follows:-
“I am aware that as a result of protests by some candidates, Gwandu Emirate Council appointed a committee to screen the candidates. I am aware that Arzika Bawa Karaye who was a contestant his qualification was contested. I am aware that Arzika Bawa Karaye produced witnesses before the committee who on Oath gave evidence and his qualification was cleared…
I am satisfied based on the evidence I gave that Arzika Bawa Karaye is a descendant of Buhari and qualified to contest the throne.
I am also satisfied that every due process was followed in the appointment.
It is true Exhibit A and A1 are old Circulars under the old Sokoto State under Military Governor…I am aware of Kebbi State Local Government Law 2000. I am aware that the law prescribes the District head can be appointed.”
Through PW4, 2nd Respondent’s secretary and custodian of its documents, the following were tendered by the Plaintiffs and admitted in evidence.
“1. The position of Gwandu Emirate Council with respect to appointment to the throne to Sarkin Kabin Jega addressed to the Hon. Chairman Jega Local Government dated 19th April, 2005 in Hausa as Exhibit B and English translation as Exhibit B1.
2. Special meeting of Gwandu Emirate Council held on 22/5/05 and 23/5/05 at 11.00 a.m. in Hausa as exhibit C and English translation Exhibit C1.
3. A special meeting of Gwandu Emirate Council held on 20/7/05 at 11:00 a.m in Hausa as exhibit D and English translation Exhibit D1.
4. Investigation on the illegibility or otherwise of Alhaji Bawa Karaye (Majority Leader) and Alhaji Hasssan Sayau to the throne of Sarkin Kabin Jega in Hausa as Exhibit E and the English translation as Exhibit El.
5. A letter addressed to Hon. Chairman Jega Local Government on the illegibility to contest the throne of District head of Jega dated 11/7/05 in Hausa as Exhibit F and the English translation as exhibit Fl.
6. A letter of illegibility to contest the throne of District Head of Jega addressed to Alh. Muhammadu Arzika Bawa Karaye dated 11/7/05 in Hausa as Exhibit G and the English translation as Exhibit G1.
PW6 also stated in his evidence in chief that 1st Respondent is not a descendant of any of the five ruling houses founded by the children of Sheikh Buhari and so not eligible to contest. He was unlawfully installed. Under cross examination at page 102 of the record he however stated this much:-
“It is true Buhari left 10 male children and out of them 5 ruled Jega. It is true the other 5 children too have the right to rule Jeaa. Their descendants also have the right to rule. It is true Aliyu Sabon Sara is among the 10 children of Mallam Buhari. I don’t know the number of children Alivu Sabon Sara left behind. What I said about the family affirmity of Bawa Babarbare is history which I heard. I don’t know the number of children Maliki left behind. I will not be surprised If I am told that you are a descendant of Aliyu Sabon Sara because the family can spread many places. Mamman Awwali is now dead. He spent his life at Tungar Mamman I do not know when he died.”
(Under lining mine for emphasis)
The testimonies of PW7, 8, 9 and 10 are not any better than what has been recounted so far.
The 1st Respondent, his father and uncle testified against Appellants case and in proof of his counter claim against the Appellants, 1st Respondent in his evidence in chief at page 106 of the record stated as follows:-
“What I want to say is that Mallam Buhari the son of Abdulsalami Baginbane or Nagimbana gave birth to Mallam Aliyu Sabon Sara and Mallam Aliyu Sabon Sara gave birth to Mamman and Mamman Dangaladima gave birth to my father Bawa Karaye and my father has been the District Head of Karaye since 1997 March to date. I am a descendant of Buhari and eligible to contest the throne of District head of Jega. I know that the defendants (sic) are also the descendants of Buhari.”
(Under lining mine for emphasis)
1st Respondent continued his testimony in chief by stating that following the death of the last Sarkin Kabin Jega he applied to the 2nd Respondent to contest the vacant throne. At that time the 2nd Respondent was under the former Emir Jokolo. 2nd Respondent wrote Exhibit B1 in reply to his application disqualifying him on the grounds that he was not from any of Jega’s five ruling families. On receipt of Exhibit B1, himself and four other representatives of the remaining five children of Buhari who never ruled Jega petitioned the 2nd Respondent asserting that Mallam Buhari the founder of Jega had ten male children all of whose descendants are eligible to contest the throne of Jega. Jega Local Government council also made a similar representation to the 2nd Respondent stating that 1st Respondent was qualified to contest the vacant stool. The 2nd Respondent under the chairmanship of the Emir that replaced Almustapha Jokolo, Emir of Gwandu Muhammadu Iliyasu, constituted a committee that reviewed his disqualification per Exhibit B1. Exhibit B1 he told the court, unilaterally issued by the former Emir. Following the committee’s support, 2nd Respondent decided he was qualified and wrote him Exhibit G1. On the basis of the same report, 2nd Respondent per Exhibit D1 and through the Ministry for Local Government and Chieftaincy Affairs, recommended the 1st Respondent for appointment as the Sarkin Kabin Jega to the 3rd Respondent. Exhibit L is the letter of his appointment following 3rd Respondent’s approval of 2nd Respondents recommendation. 1st Respondent maintained this testimony when he was cross examined. Being unshaken, his evidence remains uncontroverted.
DW2 and DW3 maintained the same trend in their testimonies. DW2, 1st Respondents father, on being cross examined at page 111 of the record persisted as follows:-
“It is true my mother is the daughter of Sarkin Aski Yahaya. The house I live at Karaye is not the house of the Sarkin Aski you call my father. There is no Babarbare among the rulers of Jega. Whoever is the descendant of Mallam Buhari is a Bagimbane and the mark on my face is that of Gimbanawa. My tribal mark is not that of Kambari Bareberi. It is that of Gimbanawa and I am a descendant of Mallam Buhari and not that of Yakubu Babarbare. I am the son of Mamman Dangaladima the son of Aliyu Sabon Sara the son of Mallam Buhari.”
The recounted state of parties pleadings and evidence inform the lower court’s findings, firstly, see page 135 of the record, as follows:-
“There is evidence in the testimony of PW1 Haliru Haruna Jega under cross examination that Mallam Buhari had 10 male children and the descendants of all the 10 children are elilgible to contest the stool of Sarkin Kabi. There is also evidence in the testimony of PW2 Haruna Haruna 111 that besides the 5 children of Mallam Buhari who inherited him as Sarkin Kabin, Mallam Buhari had others who are now rulers of Basaura and Sabon Sara. There is further evidence in the testimony of PW6, Yahaya Haruna Jega that Mallam Buhari had 10 male children out of whom 5 became Sarkin Kabi.”
From the foregoing, the lower court inferred thus:
“It is therefore apparent and clear that Mallam Buhari had more than 5 male children but only 5 of them were opportuned to become Sarkin Kabin Jega and those who did not become Sarkin Kabin and their children and grand children are eligible to contest the throne of Sarkin Kabin Jega in with the pleadings of the 1st Defendant, the Plaintiffs in my view failed to prove the custom or tradition that only 5 children of Mallam Buhari and their lineage are entitled to contest and become the Sarkin.
As to the root of affinity of the 1st Respondent, the lower court found evidence in the testimony of PW3 and the documents further tendered and admitted in evidence through PW4 to the effect that 1st Respondent was not only properly screened but found to be a descendant of Mallam Buhari and eligible to contest the stool of Sarkin Kabin Jega. The court found Appellants evidence from these witnesses materially contradictory to the testimonies of PW1, PW2, PW6 and PW9 thereby making preference of the one over the other impossible. In preferring the evidence of the 1st Respondent on this issue, the court at page 139 of the record held as follows:-
In the whole it will be seen that the evidence of the plaintiffs’ witnesses as to the root of affirmity of the 1st defendant is materially contradictory. For example PW9 said the father of Mamman Auwali is called Sani, PW6 said he is called Sarkin Aski Tawaye, PW1 said he is called Sarkin Aski Rafi, some remained adamant while PW3 and PW4 said the 1st defendant is a descendant of Malam Buhari. The issue therefore is which of the version is to be believed. It is the law that the court cannot pick and choose from evidence of such witnesses or to accredit one witness and discredit the other.
See Areha v. State (1982) S.C 78 at 88-89, Nansol v. State (1993) 6 SCNJ 152 and Ibekendu v. Ike (1993) 7 SCNJ 80.
On the other hand there is the evidence of DW1, DW2 and DW3 in support of the pleadings of the 1st defendant that he is the son of Muhammadu Bawa Karaver DW21 the son of Mamman Dangaladimar son of Mallam Aliyu or AN, son of Mallam Buhari the founder of Jega District. DW3 Ibrahim Marafa, an Undisputable descendant of Mallam Buhari gave clear evidence that DW2 is the younger brother of his father and are both the descendants of Mallam Buhari through Aliyu Sabon Sara. The traditional history given by the 1st defendant is strong and cogent, it was properly pleaded and evidence led on it, there is no competing story in it, it is straight and reliable in nature without any internal conflict, the traditional history of the 1st defendant would accordingly be accepted on the basis of its strength and cogency and I so hold.
Having so determined the first issue it formulated for the determination of the dispute it is asked to resolve, it applied itself to the second issue. At Page 143 of the Print record, the lower court has this to say:
It is apparent from the totality of the evidence adduced by the plaintiffs, particularly in the evidence of PW1, pW2, PW5 to PW10 that the only complaint therein was as to the qualification of the 1st defendant to inherit the stool of Sarkin Kabin Jega. None of the witnesses gave as to the procedure followed in making the appointment in the circumstances, it is trite law as rightly submitted by learned DPP in his address that an averment in pleadings is no evidence and can never be so construed. On the contrary such averment has to proved by evidence subject however, to admission by the other party. Where such averment is not admitted and no evidence is called in proof thereof the averment is deemed as abandoned. See Akinfosile v. Ijose (1960) 5 FSC 192, Ayodele James vs. Mid-Motors Co. Ltd (1978) 11 and 12 S.C. 31 at 63.
In the circumstances paragraphs 27 and 28 of the Plaintiffs’ amended statement of claim are hereby deemed abandoned having not been supported by evidence.”
The decision of the lower court on the basis of the foregoing finding cannot certainly be faulted. In a claim for declaration of right the onus, let me repeat, is on the Plaintiff to satisfy the court that he is entitled on the evidence brought by him to the declaration he seeks. Although at times the case of the defendant may strengthen his case, generally the Plaintiff must rely on the strength of his own case and not on the weakness of the defendant’s case. If the onus is not discharged, the proper judgment is for the defendant.
In the instant case not only have the Appellants not proved their claim PW3 and PW4 and the Exhibits tendered and admitted through them show that 1st Respondent is eligible to contest the vacant stool and his appointment to the stool by the 3rd Respondent following the recommendation of the 2nd Respondent was in compliance with the necessary law and convention. It is presumed that no person declares anything against himself except it is true. The Respondents in the instant case are entitled to rely on the admission of their opponents as an admission against interest to defeat Appellants claim. See Ipinlaiye 11 v. Olukotun (1996) 6 NWLR (Pt 453) 148, Onisaodu v. Elewuju (2006) 13 NWLR (Pt 998) 517, Eigbe v N.U.T (2008) 5 NWLR (Pt.1081) 604 and I.N.E.C v. Oshomhole (2009) 4 NWLR (Pt 1132) 607 at 663.
Beyond that it must be restated that in civil cases the burden of proof is not static. Though it initially lies on the Plaintiff, it may shift to the Defendant and vice versa. In the instant case at the close of their case the Appellants have not discharged the initial burden the law placed on them to justify any shift of the burden to the Respondents to rebut the case that has not been made out. This must have informed the decision of the 2nd and 3rd Respondents who wisely and effectively rested their case on that of the Appellants. A judgment entered against the Appellants who have not adduced evidence in the discharge of the initial burden of proof the law places on them must persist. The lower court’s judgment that ensued on the evidence on record and the court’s application of correct principles must therefore endure. See Abiodun v. Adehin (1962) 2 SCNLR 305, Odunukwe v. Administrator General East Central State (1978) 1 SC 25, Awoyale v. Ogunbiyi (No.2) (1986) 2 NWLR (Pt.24) 626, Kate Enterprises Ltd v. Daewos Nigeria Ltd (1985) 2 NWLR (Pt.5) 116 and Itauma v. Akpe Ime (2000) 12 NWLR (Pt.680) 156 at 178 and 180. This explain the resolution of the lone issue in this appeal against the Appellants. Finding no merit in their appeal, it is hereby dismissed. I affirm the decision of the lower court. Respondents are entitled to costs of the appeal hereby assessed at N20,000.00 against the Appellants.
AHMAD OLAREWAJU BELGORE, J.C.A.: I had the privilege of reading in draft, the judgment just delivered by my learned brother M. D. Muhammad JCA. I agree with his reasoning and conclusion. I also dismiss the appeal for lack of merit and abide by the consequential orders contained in the lead judgment including order as to cost.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have previously perused the judgment of my Lord, Musa Dattijo Muhammad, JCA, just delivered. In his characteristic manner and in the said leading judgment, his Lordship has adroitly, brilliantly, lucidly and painstakingly dealt with the sole composite issue, formulated for resolution of this appeal. I most respectfully adopt all the reasoning and conclusion as mine. I accordingly find the appeal as lacking in merit. I also dismiss it and abide by the consequential orders in the said lead judgment, inclusive of costs as assessed therein.
Appearances
Murtala A. Yusuf Esq.For Appellant
AND
Yahaya Mahmood Esq.
Illo Katune Sanusi, D.P.P Ministry of Justice, Kebbi StateFor Respondent
