JAMES ACHILAKA V. OLIVER A. ATONKO (2011)

JAMES ACHILAKA V. OLIVER A. ATONKO

(2011)LCN/4622(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 14th day of June, 2011

CA/J/109/2005

RATIO

NATIVE LAW AND CUSTOM: CIRCUMSTANCES UNDER WHICH NATIVE LAW AND CUSTOM NEED NOT BE PROVED

Native Law and Custom are matters of evidence to be decided on facts presented before the court, unless it is of such notoriety and has been so frequently followed by the courts that judicial notice would be taken of it without proof of evidence. This evidence, usually based on tradition, must be founded on pleadings and proved in accordance with the Custom of a particular family or Community. See GIWA V. ERINMOLOKUN (1961) 1 ALL NLR (Pt.2) 264 and ONYEJEKWE V. ONYEJEKWE (1999) 3 NWLR (Pt. 596) 482. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.

PLEADINGS: WHETHER THE COURT CAN MAKE FINDINGS ON ISSUES RAISED OUTSIDE THE PLEADINGS

On the principles of bindingness of pleadings and that parties are not allowed to set up a case outside their pleadings, it was a waste of time for the Lower Court to consider that defence and make any findings on same. This court must and has indeed resisted the temptation of making a finding on an issue that is ‘not properly before it. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.

INTERPRETATION OF STATUTE: THE PROVISION OF SECTION 14(1) AND (2) OF THE EVIDENCE ACT WITH RESPECT TO WHEN A CUSTOM MAY BE ADOPTED AS PART OF THE LAW GOVERNING A PARTICULAR SET OF CIRCUMSTANCES

I wish to reproduce the provisions of S.14(1) and S.14(2). I think they are relevant. 14(1) A Custom may be adopted as part of the Law governing a particular set of circumstances if it can be noticed judicially or can be proved to exist by evidence: the burden of proving a Custom shall lie upon the person alleging its existence. 14(1) A Custom may be judicially noticed by the Court if it has been acted upon by a Court of superior or co-ordinate jurisdiction in the same area to an extent which justifies the Court asked to apply it in assuming that the persons or the class of Persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.

JUSTICES:

KUDIRAT M.O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

Between

JAMES ACHILAKA – Appellant(s)

AND

OLIVER A. ATONKO – Respondent(s)

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the decision of the Benue State High Court, Vandeikya Division delivered on 12th March, 2004 in suit No: VHC/5/2003. The Respondent herein was the plaintiff of the Lower Court. In a statement of claim dated 13/2/2003, he sought for a series of declaratory and injunctive reliefs, They are:-
1. A declaration that by the Tiv Native Law and Custom of Eat and Give to Your Brother (Ya na Anigbian), the plaintiff ought to have been returned as the kindred Head of Mbaikyoluv Kindred having come from Mbanyel sub-kindred of Mbatseva Ruling House or Lineage who have never enjoyed the Chieftaincy at any time.
2. A declaration that, the 1st Defendant, having come from Mbanom who have had fair share of the Chieftaincy Institution was not qualified even to contest or be presented as a candidate at the selection of the Kindred Head of Mbaikyoluv Kindred
3. A declaration that the selection panel that conducted the selection exercise for the Kindred Headship of Mbaikyoluv Kindred on the 27/6/2002 had no right to constitute King Makers different from the ones properly constituted previously and thereby breached the procedures
4. A declaration that having been earlier unanimously selected as the Kindred Head of Mbaikyoluv Kindred, the plaintiff ought to have been confirmed by the selection panel.
5. An order returning the Plaintiff as the Kindred Head elect of Mbaikyoluv Kindred, and setting aside the purported selection of the 1st Defendant.
6. An order of injunction restraining the 2nd – 4th Defendant from recognizing the 1st Defendant as the Kindred Head elect or in any way according him Staff of Office or paying him salaries, stipends or allowances of that office till the determination of this suit.
7. An order of injunction restraining the 1st Defendant from parading himself as the Kindred Head elect of Mbaikyoluv Kindred.
The Appellant herein was the 1st Defendant before the Lower Court. In an amended statement of defence dated 16/07/20023 but deemed properly filed and served on 23/10/2003, he denied all the key and material averments in the statement of claim and indicated that at the trial, he would contend that District Headship Stool and Kindred Headship Stool are not the same and the process of fair sharing (Ya Na Angbian) they are not treated interwovenly but separately, thereby contesting the basis of the entire claim before the Lower Court. Other defendants also filed respective memoranda of appearance and defence. The 2nd, 3rd and 4th Defendants at the Lower Court are not concerned with this appeal. So issues having been duly joined, the matter proceeded to trial.
At the trial the Plaintiff/Respondent gave Oral Evidence as PW4 and also further relied on the Oral Evidence of PW1, PW2 and PW3. At the end of the Oral Evidence on behalf of the Plaintiff/Respondent, the 1st Defendant/Appellant gave Oral Evidence as DW1 and the defence continued with the additional evidence of DW2, DW3 and DW4. A number of documents were tendered and admitted in evidence through the various witnesses. Thereafter respective learned counsel took turns to address the Court at the end of which the matter was adjourned for judgment.
In a very well-considered Judgment, the learned trial judge found that the family of the 1st Defendant/Appellant had in the past enjoyed the Headship of the contested Traditional title while the family of the Plaintiff/Respondent had not had any chance and so were entitled to take their turn now under the Traditional Tiv principle of “Ya Na Angbian” – eat and give your brother. To crown his effort the learned trial judge held that:-
“the principle of “eat and give your brother” is of general application throughout the length and breathes of Tiv land; and having found that Mbanom has enjoyed some turns of Chieftaincy in the past but that their brothers in Mbanyel has (sic) never enjoyed or tasted any Chieftaincy turns; it is my opinion that the principle this time operates in favour of the Plaintiff regarding the Kindred Headship in contest.”
Upon this finding the Lower Court proceeded to grant all the reliefs in the claim of the Plaintiff/Respondent.
The 1st Defendant/Appellant was dissatisfied with the findings and decision of the Lower Court and appealed to this Court in a notice of appeal dated 17th March, 2004 but filed on 19/03/2004. The grounds of appeal and their particulars are hereby set out as follows:-
GROUNDS OF APPEAL
1. The decision of the Trial Court is unreasonable and unwarranted having regard to the weight of evidence adduced.
2. The Trial Court erred in Law when it entered Judgment in favour of the Respondent not withstanding his failure to establish that the principle of rotation (Eat and give your brother) ever applied or was in existence at Mbatseva sub-kindred of Mbakyoluv Kindred.
PARTICULARS OF ERROR
a. By S.14, 135 and 136 of the Evidence Act Cap. 112 burden of proving that such a Custom was in existence at Mbatseva was on the Respondent.
b. The evidence of Respondent that 3 persons had in the part occupied such Chieftaincy positions from Mbanam, while none benefited from Respondent side is confirmation that such a Custom was not proved to exist in the area.
c. The fact that majority of the Kingmakers voted in favour of the Appellant further confirm the non-existence of such a Custom in the area.
3. The Trial Court erred in Law when it held that Appellant had failed to establish the Tiv Native Law and Custom in which the elder son or unit benefits from Chieftaincy or any position first before the younger son or unit.
PARTICULARS OF ERROR
a. By S.75 of the Evidence Act Cap. 112, facts which are admitted need no further prove.
b. S.62 & 63 of the Local Government Establishment Law 2000 Benue State reinforced this Custom.
4. The Trial Court erred in Law when it held that the elders and kingmakers had unanimously selected the Respondent as the Kindred Head before the Appellant joined the race when such fact was not proved.
PARTICULARS OF ERROR
a. The Oral Evidence of the Respondent and his witnesses was at variance with his pleading.
b. It is Trite Law that evidence which is at variance with pleading go to no issue.
To argue the appeal, the Appellant filed a brief of argument dated 11th July, 2005, while the Respondent filed a brief of argument dated 15th August, 2005. From the 4 grounds of appeal, the Appellant formulated and argued 3 issues for the determination of this appeal. These issues are:-
a. Whether the Trial Court was right to have held that the Tiv Custom of rotation (eat and give your brother), applied to the case at hand, inspite of evidence to the contrary.
b. Whether Trial Court was right to have held that the Tiv Custom in which the eldest son benefits first before the younger was inconsequential and cannot defeat the principle of rotation.
c. Whether the Trial Court properly and correctly evaluated the evidence before arriving at its findings and decision.
On behalf of the Respondent Learned Counsel also used a different style of language to formulate 3 issues for the determination of this appeal. They are:
1. Whether the Trial Court was right to give judgment in favour of the Respondent when he failed to prove that the principle of rotation known as “eat and give your brother” was applicable in Mbaikyoluv Kindred in this case (Ground 2).
2. Whether the Trial Court was correct to hold that the Appellant had failed to prove the Tiv Custom that the eldest son or unit benefits from any Chieftaincy or position first before the younger one (Ground 3.)
3. Whether the Judgment of the Trial Court is against the weight of evidence adduced before it (Ground 1.)
At the hearing of the appeal, learned counsel to the respondent, Mr. Ada drew the attention of the Court to a preliminary objection he argued in his brief. He particularly referred to paragraphs 3.00 – 4.05 at pages 1 – 5 of the brief. The notice of objection is in 2 parts. The 1st part seeks to challenge the competence of the Appellant’s brief of argument, because according to Mr. Ada of Counsel, it was filed out of time without the leave of Court. The 2nd part seeks to challenge grounds 3 and 4 of the grounds of appeal. Also with respect to ground 2, learned counsel had argued and submitted that no issue was raised out of it.
Learned Counsel Mr. Ada, quite in good time, and very appropriately in my view, saw the futility in proceeding to challenge the competence of the Appellant’s brief of argument. He withdrew and abandoned all his arguments and submissions in that behalf. With respect to the 2nd leg of the objection, I have carefully considered the entire grounds of appeal and the 3 issues formulated by the Appellant. I have also considered all the arguments of Mr. Ada of Counsel challenging the competence of grounds 2, 3 and 4. in my considered view, there is no difficulty in seeing that ground 2 of the grounds of appeal is directly related to issue one as formulated and argued in the Appellant’s brief. I also found it easy to see that issue 2 in the Appellant’s brief of arguments is directly proximate derivable from grounds 3 and 4 of the grounds of appeal. Mr. Ada of counsel in formulating his issue one also believes himself that he was doing so out of ground 2, while he purported to have formulated his issue 2 out of ground 3. Where then is the foundation for this leg of the preliminary objection? I cannot see any.
There is no merit in the preliminary objection and it is accordingly dismissed. I will now proceed to determine this appeal on its merit.
For all intents and purpose, the issues formulated by the parties are the same, and to that extent I will proceed to determine this appeal based on the issues formulated by the Appellant.
In arguing his issue one, learned counsel for the appellant Mr. Ayua relied heavily on the oral evidence of PW1, PW3 and PW4. But before going into the details of the evidence of these witnesses, Mr. Ayua of counsel sought to underscore the foundation of the case of the Appellant when he explained that the Trial Court was wrong to have held that the Tiv Custom of rotation or fair sharing applied to the facts and circumstances of this case. In his effort to impeach some of the findings of the Trial Court Learned Counsel endeavoured to show that there was evidence on record to the contrary that the principle of ‘eat and give to your brother” was applicable to the dispute between the parties herein.
According to Mr. Ayua evidence on record shows that the Tiv Customary principle of “eat and give to your brother” means equal sharing on rotational basis, and also that this Custom had been in existence and known to Mbaikyoluv Kindred for time immemorial. Learned Counsel however maintained that the Appellant woefully failed to establish that this Custom was applicable to Mbaukyoluv Kindred. He then recalled the well-defined and settled position of the Law that by virtue of S.14(1) of the Evidence Act whoever alleges the existence of a custom must prove it as a fact. Against this background, learned counsel maintained further that the Respondent failed to discharge the burden of proving the existence and application of this Custom to the facts of this case. He then went on to give 4 reasons why he believed that the Respondent had failed to establish a case to entitle him to a favourable verdict of the Lower Court.
In trying to underscore those 4 reasons, Mr. Ayua explained that Mbaikyoluv Kindred is divided into Mbatseva and Mbawelede units. He further recalled that it is a settled fact that 3 persons from Mbatseva had in the past occupied Chieftaincy positions against 2 occupied by Mbawelede. Against this background, learned counsel argued that there was evidence on record to the effect that the present stool now in dispute was zoned to Mbatseva family unit. While taking this argument to the next level Mr. Ayua added that it necessarily follows that Mbatseva family unit was entitled to occupy the Chieftaincy 4 times and 2 times for Mbaswelede. With this argument in view, he submitted that the customary principle of rotation was never followed in Mbaikyoluv Kindred. As a further re-enforcement to this submission, learned counsel pointed out that the Mbanom sub-unit of Mbatseva had in the past occupied the concerned Chieftaincy 3 times while the Mbanyel sub-unit had never benefited. While the appellant belonged to the Mbanom family sub-unit, the respondent belonged to the Mbanyel sub-unit.
In a further effort at re-enforcing his position, learned counsel referred to the evidence of PW1 and PW3 and submitted that the Mbanyel family sub-unit had acquiesced to the domination of the Chieftaincy by the Mbanom family sub-unit. While referring to Exh. 4 as well as the oral evidence of the Appellant and those of PW2 and PW4. Learned Counsel explained that the Appellant was the popular choice of the kingmakers by a majority of 5 votes against the 3 votes of the Respondent. The mere fact that the process of selecting who to occupy the Chieftaincy title being subjected to voting by designated kingmakers, learned counsel argued, supports the case of the Appellant that the Tiv Custom of sharing by rotation was not applicable to the Chieftaincy in this appeal.
In an effort to discredit some of the oral evidence on record, learned counsel Mr. Ayua pointed out that the evidence of PW1, PW3 and PW4 on the principle of sharing by rotation was full of material conflicts and therefore ought to be discountenanced. He referred to the case of AWOPEJO V. STATE (2000) 8 NSCQR 312 where the Supreme Court held that where there is material contradiction of evidence on a point, a Court should not act on such evidence.
In conclusion, Mr. Ayua explained that for a Custom to be valid it must be binding and accepted to the people of the area of its application and operation. With this in mind, he then maintained that the mere fact that the principle of rotation is of general application under Tiv Custom was not enough. While assuming, but not conceding the universal applicability of the principle of rotation amongst the Tiv people, learned counsel emphasized that members of the Mbanyel family sub-unit had since waived their right to the title having allowed Mbanom family sub-unit to occupy it several times without any protest. According to learned counsel it was too late for the Respondent to now wake up and seek to assert any such right. He referred to the cases of FASADE V. BABALOLA (2003) 109 LRCN 1406 at 1424 and INSPECTOR KAYODE V. ODUTOLA (2001) 6 NSCQR 723 of 747. He urged the Court to resolve this issue in favour of the Appellant and to further allow this appeal.
In his response Learned Counsel to the Respondent began with a remark by way of an emphasis that the Trial Court was correct to give Judgment in favour of the Respondent by holding that the principle of rotation known as “eat and give to your brother” was applicable not only in this case but in the Tiv Nation as a whole. In his attempt to identify the hallmarks of this matter, Learned Counsel referred to paragraphs 12, 13, 14, 15 and 25 of the statement of claim and paragraphs 3(c) and 6 of the reply to the Appellant’s statement of defence as well as Exh. 3, and then explained that the gravamen of the Respondent’s case before the Lower Court was that the principle of rotation or sharing of Chieftaincies was applicable in Tiv land , generally and more particularly in Mbayongo District and Mbikyoluv Kindred.
Also, while referring to paragraphs 8, 9 and 11 of the statement of claim and paragraphs 3(a), (b), (c) of reply to the Appellant’s statement of defence, learned counsel explained that the Respondent pleaded and adduced evidence that the Mbanyel family sub-unit had never occupied the disputed Chieftaincy Stool while the Appellants Mbanom family sub-unit had occupied the Chieftaincy several times and that based on the Tiv principle of “Ya na Angbian” it was the turn of the Respondent’s family. He added further that because the Respondent alone was presented from the Mbanyel sub-unit/Kindred, he ought to have been returned and Mbanom sub-unit would not have even been qualified to present a candidate for the Kindred Headship. Added to his submission that the Appellant had admitted some of the key averments that underscored the case of the Respondent, Learned Counsel had also argued that the oral evidence of the Appellant at lines 20 – 21 on page 76 of the record fully supports the case of the Respondent. He urged the court not to allow the Appellant to approbate and reprobate on the existence and applicability of the “eat and give your brother principle” of rotation to the facts and circumstances of this case.
In continuation of further arguments, Learned Counsel maintained that there was no material contradiction in the oral evidence of the witnesses of the Respondent. With reference to S.14(2) of the Evidence Act and the decision of this Court in GAADI AMOGO V. VINGIRYO GBAGAM (unreported) Appeal No CA/J/154/88 decided on 19/03/1990. Learned counsel submitted that the Tiv Custom or principle of “eat and give your brother” has been judicially noticed. On the question of waiver of rights, Learned Counsel argued that any such fact was not pleaded and no evidence of such was adduced. It was therefore against the Respondent’s right to fair hearing for counsel to the Appellant to surreptitiously smuggle the issue into the case at the stage of final address. According to Learned Counsel, if it was a special defence it should have been specifically pleaded in line with O. 25 rr. 5(1) and 6(1), (2) of the Benue State High Court (Civil Procedure) Rules 1988. In conclusion, Learned Counsel referred to and distinguished the cases of FASADE v BABALOLA (Supra) and KAYODE V. ODUTOLA (Supra) from the facts and circumstances in this appeal and maintained that they are totally inapplicable. He urged Court to resolve this issue against the Appellant.
For a very proper understanding of what will follow soon, I think it is better to highlight some essential facts. From the pleadings and the evidence this case arose from a dispute between 2 Kindred families. The parties in this appeal belong to these 2 families. At the centre of the dispute is the Kindred Headship of Mbakyoluv in Mbayongo District of Vandeikya Local Government of Benue State. The Kindred Headship of Mbakyoluv is a right between members of the Mbawelede and Mbatseva family units. Each of these 2 family units is divided into 2 sub-units.
For the Mbawelede, the sub-units are Mbakyombo and Mbabuun, while for Mbatseva, they are Mbanon and Mbanyel. Recent events show that the title moves from one direction to the other between Mbawelede and Mbatseva families. Also, according to the plaintiff/Respondent Mbanom family sub-unit had virtually monopolized and consistently occupied the Headship whenever it was the turn of Mbatseva. Before some of the events that led to this action, and for reasons which do not appear clear or well defined, from the claim of the Plaintiff/Respondent the Mbanyel family sub-unit had never occupied the Kindred Headship of Mbaikyoluv.
The Appellant belongs to Mbanom sub-family of Mbatseva while the Respondent belongs to Mbanyel sub-family. With the death of the last substantive Kindred Head of Mbaikyoluv, Mr. Agber Ifan, the title now in dispute became vacant and needed to be filled. Agber Ifan was from Mbawelede family. Based on the so far established pattern of succession, the title was to move to Mbatseva. For the first time Mbanyel sub-family unit presented a candidate for consideration and selection as Head of Mbailyoluv Kindred. It was the Respondent that was this anointed candidate. At the initial stages it looked as if he was going to clinch the title without much opposition. In fact, he was said to have been so selected and had even started acting in that capacity before some of the Kingmakers sought to challenge the selection of the Respondent, MF. Oliver Otonko.
As a result of this challenge by way of a petition both the Vandeikya Local Government and the Tiv Traditional Council got involved in the matter. This involvement led to series of meetings and investigations/re-selections. The Appellant, Mr. James Achilaka seemingly found favour in the eyes of those who appeared to be the Kingmakers. The Respondent could not believe this change of fortune and being aggrieved, he approached the Lower court for relief.
The plaintiff /respondent built and prosecuted his claim on the basis of being a direct male descendant of Mbaikyoluv and therefore being fully entitled to vie for and occupy the Kindred Headship of Mbaikyoluv on the application of the Tiv Custom of rotation and fair sharing of chieftaincy. In local parlance it is called “Ya na Angbian” or eat and give to your brother.”
The 1st Defendant/Appellant advanced his case on the basis and belief that the Kindred Headship was exclusive to Mbanom family sub-unit of Mbatseva on the principle of the eldest child partaking in whatever was available.
Upon the pleadings and the evidence before it as well as the issues formulated by respective Learned Counsel, the Lower Court found that the principle of “eat and give to your brother” is the modality used under Tiv Native Law and Custom in selecting or appointing Chiefs.
From the entire circumstances of the instant appeal, the Tiv Native Law and Custom on succession to chieftaincy titles is called to question. Native Law and Custom are matters of evidence to be decided on facts presented before the court, unless it is of such notoriety and has been so frequently followed by the courts that judicial notice would be taken of it without proof of evidence. This evidence, usually based on tradition, must be founded on pleadings and proved in accordance with the Custom of a particular family or Community. See GIWA V. ERINMOLOKUN (1961) 1 ALL NLR (Pt.2) 264 and ONYEJEKWE V. ONYEJEKWE (1999) 3 NWLR (Pt. 596) 482.
In paragraphs 5 and 6 of his amended statement of defence the 1st Defendant/Appellant pleaded that:-
5. “Mbatseva had 2 sons namely Mbanom (elder) and Mbanyel (youngest) and the Elders/Kingmakers resolved that it was the turn of Mbatseva to produce o Kindred Head -”
6. 1st Defendant shall contend that under Tiv Custom, the eldest son inherits or benefits from appointments, selection or distribution of posts first before the younger ones thus it was the turn of Mbanom to produce a Kindred Head as the post was coming to Mbatseva for the first time.” (Underlining mine for emphasis.
For the Appellant, this is the crux of the matter. In what appears to me to be his oral evidence in support of these key and material averments, the 1st Defendant/ Appellant told the Lower Court as follows:-
“I Know Agber Ifan. He is deceased. He was the Kindred Head of Mbaikyoluv. He hailed from Mbowelede. After his death somebody had to take over the Kindred Headship. The elders of Mbaikyoluv met and resolved that since the late Kindred Head was from Mbowelede, the Person to take over from him should come from Mbatseva. After the discussion by the elders they said Mbanom should present the Kindred Headship candidate. The elders said that the people of Mbatseva had never enjoyed the Kindred Head Stool and that since it was the turn of Mbatseva to enjoy it. Nom who is the senior son of Tseva should take it.” (Lines 23 – 32 at page 74 of record of appeal).
Also, in paragraph 8 of the amended statement of defence, the 1st Defendant/Appellant averred that:-
8. “The 1st Defendant concedes to the principle of fair sharing which practice is followed in Mbayongo District. The 1st Kindred Head Mr. Agber Ifan was from Mbawelede and now it is the turn of Mbatseva to produce kindred Head Mr. Agber Ifan was from Mbawelede and now it is the turn of Mbatseva to produce a Kindred Head.”
At the end of his evidence – in chief, the 1st defendant/appellant said:-
“The Tiv principle of Ya Na Angbian or eat and give to your brother is applicable to Mbakpoluv.” (Lines 20 – 21 at page 76 record of appeal).
In his response to cross-examination, the Appellant told the Lower Court that:-
“It is true that nobody from Mbanyel has (sic) ever enjoyed any Chieftaincy Stool.” (Lines 11 – 12 page 77 of record of appeal).
While acknowledging Binda Adasu as being from Mbanom family, the Appellant denied that Binda Adasu was a Kindred Head. He extended the same denial to Angur Agena, Adamgbe Adasu etc. in his response to cross-examination, DW3 acknowledged both Binda Adasu and Angur Agena as being from Mbanom and Chief as well. Also, in his evidence in chief DW3 testified thus:-
“We told the Plaintiff to wait that Mbanom is the elder son of Mbatseva. That after taking our turn we shall give to Mbanyel.” (Lines 28 – 30 of Page 80 of record.)
This evidence of DW3 clearly shows some acknowledgement that Mbanyel was entitled to occupy the title of Kindred Headship on the principle of rotation or sharing of accrued or vested Chieftaincy Title. It is furthest from the truth for the Appellant to aver and give evidence that the title of Kindred Headship was coming to Mbatseva for the first time after the death of Agber Ifan because there was ample evidence on record from DW2 and DW3 that Binda Adasu, Ademgba Adasu, Angur Agena, were all Kindred Heads or Chief s of one time and they were all Mbanoms of Mbatseva. Also, Learned Counsel Mr. Ayua had in some of his arguments advanced positions contrary to this. So Counsel never believed his Client to that extent.
In his paragraph 12 of the statement of claim, the Plaintiff/Despondent averred as follows:-
12. “The Plaintiff states that elders and Kingmakers selected him as stated above on the basis of the age long Tradition and Custom of Tiv people including Mbayongo District and Mbaikyoluv Kindred of “eat and give to your brother” (which in Tiv means “YANA ANGBIAN.)”
In the course of trial PW1 told the Lower Court thus:-
“After the death of Agber Ifan, it was the turn of Mbanyer to present a candidate for the Kindred Head but people from Mbanom also presented. They were told that it was not their turn. Those of us from Mbanyer then came together and selected the plaintiff. We went into discussion and arrived at the decision that it was the turn of Mbanyer people to present a Kindred Head. Those of us who took this decision were people from Mbanyer. We the Kingmakers from both sub-Kindred sat and took the decision – In Tiv land and in Mbayongo and Mbaikyoluv when there is a chieftaincy vacancy we call elders-Kingmakers and relations together and decide who to enjoy the vacant seat. We presented the plaintiff who we earlier selected but subsequently Mbanom component also presented the 1st Defendant.” (Page 61 record of appeal).
While being cross-examined by learned counsel Mr. Ayua for the 1st Defendant/Appellant, PW1 said:-
“- – – the Principle of “Ya Na Angbian” Eat and give to your brother or rotational principle has been in existence in Mbaikyoluv since time immemorial. It is true that the principle of “eat and give to your brother” is a rotational principle. The normal thing that is supposed to happen in this principle is that if Mbanom eats once, Mbanyel should also eat once and the rotation continues. Even though the principle supports the rotation of one to one, three people that I named earlier had enjoyed the chieftaincy from Mbanom without any from Mbanyel because our ancestors did not protest. We have now seen the importance of the stool and want to operate the principle and be part of it.” (See lines 2 – 12 page 63 of record of appeal)
On the part of PW3, he told the Lower Court that:-
“We were not sharing things before but because Mbanom has been enjoying Chieftaincy positions for quite some time we asked for our turn.” (Lines 23 – 25 Page 66.)
The oral evidence of the Plaintiff /Respondent as PW4 remained consistent and fully supportive of all the material averments in the statement of claim. This Position can be contrasted with the haphazard and unreliable oral evidence adduced by the 1st Defendant/Appellant. Indeed there were outright falsehoods in the evidence of the defence witnesses. For example, it was clearly untrue for the Appellant to tell the Court that Mbanorn had never occupied the Kindred Headship of Mbaikyoluv or that Agber Ifan was the first Kindred Head of Mbaikyoluv. Even Learned Counsel to the Appellant, Mr. Ayua, had argued contrariwise.
The 1st Defendant/Appellant made a very feeble and futile attempt to defend the claim of the plaintiff/respondent. The Appellant and his witnesses even tried to approbate and reprobate, kind of blowing hot and cold in the same breathe when they were caught saying that succession to Chieftaincies was by seniority among male descendants of Mbanom and also conceding in both the pleadings and oral evidence that the principle of rotation or sharing among family sub-units was not unknown in Mbayongo District. The oral evidence of PW1 both in chief and while responding to the robust and vigorous cross-examination of Learned Counsel Mr. Ayua at pages 61, 63 and 66 and fully highlighted hereinabove remained credible and worthy of being acted upon by the Lower Court. There is therefore ample and sufficient evidence before the Lower Court to show that the Plaintiff/Respondent was of one point acceptable to the Kingmakers as the preferred candidate to be appointed Kindred Head of Mbaikyoluv. There was also evidence that he had started to act in that behalf and was so recognized by the Vandeikya Local Government. From the documentary evidence Exhibit 2 dated 2nd March, 2001, being a letter reference no. VTC/CH/53/5. 2/VO/111/126 from the Vandeikya Traditional Council supports the selection of the Plaintiff/Respondent as a Kindred Head. Also, Exh. 3 support the case of the Respondent. It is the minutes of a meeting held on 15/01/2001 Exhibit 4 supports the case of the Appellant. It is the minutes of meeting held on 21/03/2000. Exhibit 6, minutes of meeting held on 27/06/2002 supports the selection of the Appellant. None of these documents, taken together or separately is helpful towards a meaningful settlement of the dispute between the parties herein. The need to fall back and rely on oral evidence becomes very appealing and compelling. Before relying on the oral evidence of PW1, PW2 and PW4, the Learned Trial trudge had accepted their evidence as credible and more probable in the circumstance. Further reliance on the case of GAAD1 (supra) was an Icing on the cake. S.132(1) of the Evidence Act allows for documentary evidence to be jettisoned in favour of oral evidence.
Learned Counsel to the Appellant had canvassed the issue of waiver of a right by Mbanyel family both at the Lower Court and before, this court. Let it be noted here that there is no issue of waiver joined by the parties in their respective pleadings, Also, no direct evidence of that fact was given by any of the witnesses. On the principles of bindingness of pleadings and that parties are not allowed to set up a case outside their pleadings, it was a waste of time for the Lower Court to consider that defence and make any findings on same. This court must and has indeed resisted the temptation of making a finding on an issue that is ‘not properly before it. Respective Learned Counsel had referred to S.14 of the Evidence Act and some of the decided cases on it. For emphasis, I wish to reproduce the provisions of S.14(1) and S.14(2). I think they are relevant.
14(1) A Custom may be adopted as part of the Law governing a particular set of circumstances if it can be noticed judicially or can be proved to exist by evidence: the burden of proving a Custom shall lie upon the person alleging its existence.
14(1) A Custom may be judicially noticed by the Court if it has been acted upon by a Court of superior or co-ordinate jurisdiction in the same area to an extent which justifies the Court asked to apply it in assuming that the persons or the class of Persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration.
The Respondent had pleaded and adduced evidence that the Tiv Custom of “Ya na Angbian” exists and is applicable to the disputed between the parties. The Appellant on the other hand pleaded the existence of and applicability of another Tiv Custom that the elder son takes first before the younger ones. The case of the Respondent before the Lower Court remained absolutely consistent and greatly unshaken by whatever was thrown of it by the opposite parties. I am however unable to say that the Appellant discharged the burden of disproving established facts before the Lower Court satisfactorily. The case of the Appellant is full of unresolvable material contradictions and outright falsehoods.
In its judgment the Lower Court relied on the unreported decision of this court in GAADI AMOGO & 3 ORS. V. VINGIRYO GBAGAM & 5 ORS. (supra). The Lower Court relied heavily on this decision to arrive at its decision. This same case has been referred to at paragraph 5.08 on page 5 of the Respondent’s brief before this Court. It was referred to in the context of s.14(2) of the Evidence Act. Learned Counsel avoided any reference to this decision even after fully well knowing that the Lower Court principally relied on it to arrive at its decision. No reference was made of all to this decision in the Appellant’s brief. No attempt was made to distinguish it or to show that it was not applicable to the facts and circumstances of this matter. This is absolutely curious. I tried to satisfy my curiosity by taking a very hard and detailed look at this decision.
I am fully satisfied that this decision arose from the same area of Benue State, i.e., Vandeikya Local Government Council, and more particularly Mbayongo District. It arose out of a dispute as to the rightful Kindred to succeed to the title of Clan Head, which became vacant after the death of Binda Adasu in 1981. After all said and done this Court held in that case that Mbayongo Clan as an entity is a component of the Tiv ethnic group upon which the Tiv Customary Laws and Norms are binding. The court added further that Mbayongo Clan cannot exempt themselves from the Tiv principle of “Ya na Angbian” in the selection and appointment of Traditional Rulers. The Binda Adasu in that appeal appears to me to be the same Binda Adasu that was mentioned by several witnesses in this appeal when oral evidence was being recorded at the Court below.
In arriving at its decision the Lower Court, in my view, fully considered the evidence before it and applied the Law properly as pronounced by this Court in the case of GAADI AMOGO v. VINGIRYO GBAGAM (supra) to the facts and circumstances in the instant appeal. I do not see any good reasons to interfere with or disturb any of the findings of the Trial Court on the existence and applicability of the Tiv Customary principle of “Ya na Angbian.” This issue must and is hereby resolved against the Appellant.
On issue 2, Learned Counsel explained that the Tiv Custom which allowed the eldest son to benefit first before the younger son exists and was fully applicable to the circumstances of the instant appeal. According to Learned Counsel to the Appellant by virtue of this Custom, Mr. Achilaka, the Appellant, having come from Mbanom (eldest child) was entitled to be selected as the Kindred Head first and not the Respondent who hails from Mbanyel (younger child.) Learned Counsel maintained that there was ample evidence before the Lower Court, including an admission by DW1 of pages 74 and 76 of the record, to enable the Lower Court to uphold and apply the Tiv Customary principle of the elder person succeeding to a title. Failure to do this, Learned counsel maintained, weighed heavily on the mind of the Court to uphold the claim of the Respondent, thereby occasioning a miscarriage of justice of the Appellant. He urged the Court to overturn and reverse that particular finding of the Lower Court.
Without going into the fuller and more detailed arguments of learned counsel to the Respondent on this issue. And based on what I had earlier on said in this judgment, there is no doubt that the 1st Defendant/Appellant failed to prove that with respect to the selection or appointment of a kindred Head, there exists a Custom in Tiv land that the eldest son enjoys a preferential treatment over the younger members of family sub-units. This issue must also be resolved against the Appellant and I accordingly so do.
Because all the arguments on issues 1 and 2 center principally on the question of evaluation of evidence and having determined issues one and two as I did, I do not see any good or useful purpose of going into the arguments of respective Learned counsel on issue 3. I absolutely believe that any arguments or submissions therefore must be taken to have been subsumed in issues 1 and 2 above. The question in issue 3 must be answered in the negative and resolved against the Appellant. This appeal totally lacks merit and it is dismissed. The Judgment of the Benue State High Court, Vandeikyo Division delivered on 12th March, 2004 in Suit No: VHC/5/2003 per Ogwiji, J is hereby affirmed. I order for N50,000 costs against the Appellant in favour of the Respondent.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the benefit of reading before now, the judgment of my learned brother, A.A.B. Gumel, JCA just delivered. His Lordship has painstakingly considered and ably resolved the issues in contention in this appeal.
I agree entirely with his reasoning and conclusion that by virtue of the principle of rotation known as “eat and give your brother” applicable in Tiv Land and more particularly in Mbayongo District of Vandeikya Local Government Council which custom was judicially noticed by this court in the unreported decision in Gaadi Amogo Vs Vingiryo Gba Gam in Appeal No: CA/J/154/88, delivered on 19/03/1990, and having regard to the evidence before the court that it was the turn of the respondent’s Mbanyel sub-unit to occupy the Kindred Headship not having benefited from any kindred Headship in the past, that the principle operated in the respondent’s favour.
I also find no merit in the appeal. I accordingly dismiss it and abide by the consequential orders contained in the lead judgment including the order for costs.

UCHECHUKWU ONYEMENAM, J.C.A.: I had a preview of the judgment of my learned brother A.A. GUMEL JCA, which he has just delivered, I agree with his reasoning and conclusion.
The learned counsel for the appellant submitted that the trial court was wrong when it held that the appellant had not proved the Tiv custom which allowed the eldest son to benefit first before the younger son and even if such custom exist, it is not applicable to this case. See page 115 lines 28 – 34 and page 116 lines 1 – 21.
At paragraph 5 of the 1st defendants (appellants) statement of defence, he averred as follows:
The 1st defendant/appellant as DW1 gave evidence to this effect at page 74 lines 29 – 32. The respondent who was the plaintiff did not deny this custom. In fact it was corroborated by PW1 who is one of the kingmakers of Mbanyer which is respondent’s part of the lineage. PW1 at page 63 lines 12 – 14 under cross-examination said:
“It is true that Mbatseva had two sons Mbanom and Mbanyer and that Mbanom is older than Mbanyer It is true that in the custom the elder child takes share before the younger one.”
This custom which was not only undisputed was clearly admitted and as such needed no further proof.
It is the law that facts admitted needs no proof. See Section 75 of the Evidence Act cap: Bello V. Aruwa (1999) 1 NWLR (PT. 615) 454 CA. Elders are custodians of customs. PW1 in his evidence said,
“I am one of the king makers in the kindred. We are about 8 kingmakers in the kindred. Those who petitioned the Tor Tiv over the issue are those of us who are kingmakers from Mbanyer which include myself, Tsengankaan, Faku, Zaagee viashima and others..when the people of Mbanom said they were the elderly son of Mbatsevia and that the should enjoy the stool of the kindred head first, I told them that they had enjoyed it several times. ….in the chieftaincy dispute between the plaintiff and 1st defendant, my candidate is the plaintiff.”
See page 61 lines 2 3, lines 32 – 33, page 62 lines 1 – 2 and lines 13 – 15,
The learned trial Judge no doubt believed in the credibility of the evidence of PW1 because he referred to it frequently.
PW1 as seen from his evidence is a kingmaker from Mbanyer of Mbatseva kindred and of Mbaikyoluv kindred at large. From the record when there is any share of inheritance or chieftaincy PW1 represents his subunit of the larger Mbaikyoluv kindred. His evidence as to the custom of Mbatseva is weighty. The learned trial Judge picked and relied on his other evidence except this particular piece of evidence. With such admission more so when it could work against his candidate the plaintiff the fact that it is true that in Tiv custom the elder son takes share before the younger one did not need further proof. See Awote v. Owodunni (No.2) (1987) 2 NWLR (Pt.57) 367. The learned trial Judge erred in law when he held that this custom was not proved since in law facts admitted need no further proof. Although I have held that the custom of an elder son takes first was proved, the meaning and implications ascribed to it by the appellant who was the defendant at the lower court does not flow from the principle of the fair share of eat and give to your brother which is equally Tiv custom. See Gaadi Amogo & Ors V. Vingiryo Gbagam & Ors (unreported) suit No. CA/J/154/88. The custom of eat and give to your brother and the custom of the elder child takes first before the younger one both flow from natural justice and fair play and do not run amuck. They operate to achieve the same goal of what is fair among siblings to avoid rancour caused by greed. This is where the position of Mbanom kindred differ from the Mbanyer kindred.
The dispute was, whose turn it was, the Mbanon or Mbanyer owing to the “yana anbian” custom. There was an over whelming evidence as properly captured by the trial Judge that ‘Mbanom had previously enjoyed the chieftaincy positions that fell on Mbatseva while Mbanyer had not enjoyed any.
The issue was not the fact that Mbanon as the first child should take first according to custom but that Mbanon was no longer following the four sharing principle as their attitude become greedy. The dispute is the extent of the custom “yana angbian” which enjoins equitable rotation of eat and let your brother eat vis-a-vis the elder child takes before the younger. The Mbanyer people accept the fact that when there is any inheritance or chieftaincy the Mbanom lineage will take first as the elder but that Mbanom cannot continue to have a share without Mbanyer on the ground that the things to be shared are each new on its own so that Mbanyer has to wait until there is a second chance of what Mbanon has shared from. In the clearest term the dispute is Mbanyer contends that by the principle of “yana angbian if there are two new inheritance or positions Mbanom will as the elder choose 1st while Mbanyer takes the other but Mbanom contents that once the things to be shared are two new positions Mbanom takes the two as the elder while Mbanyer waits for such position to arise again for them to take their share.
This in my opinion is a misconception on the part of the Mbanom (appellants) kindred. It does not flow with the principle of equity and fair play which is the reason behind eat and give your brother “yana angbian” I therefore find the findings of the lower court on this proper and apt when he said at page
“As already stated there is ample evidence that Mbanom had before now enjoyed some chieftaincies. That each chieftaincy that comes to Mbatseva newly, they must first enjoy it will not be in the interest of the principle of “eat and give your brother.” That will not be in the spirit of fair sharing.”
See page 115 lines 31 – 34
From the fore going, therefore I hold that although the learned trial Judge erred when he found that the Tiv custom of elder child takes first before the younger one was not proved however that finding did not occasion a miscarriage of justice because the elder child who had severally enjoyed the chieftaincy positions without giving the younger one a chance was living parallel to “ya na angbian” which makes it imperative that the younger one Mbanyer be given a chance, It is on this that I find the judgment of the lower court not to be a miscarriage of justice, in that although there was error but the decision was right. See Amadi V. N.N.P.C. (2000) 6 SC (Pt 1) 66; N.B.C. PLC V. Olarewaju (2007) 5 NWLR (Pt 1027) 255.