MOHAMMED SABA BIDA & ANOR. V. ALHAJI USMAN ABUBAKAR & ORS.
(2010)LCN/3803(CA)
In The Court of Appeal of Nigeria
On Monday, the 17th day of May, 2010
CA/IL/40/2007
RATIO
APPEAL: WHAT SHOULD A GROUND OF APPEAL ARISE
A ground of appeal must relate to the decision or judgment appealed against. Thus, a ground of appeal will not be competent if it is not related to or connected with the controversy between the parties see KABIRU V. IBRAHIM (2004) 2 NWLR (PT 757) 326. PER SOTONYE DENTON WEST, J.C.A
JUSTICE: SITUATION WHERE A CLAIM OF MISCARRIAGE OF JUSTICE WILL BE SUSTAINED
More over, a claim that there has been a miscarriage of justice can only be sustained where there are substantial errors in the adjudication, with the resultant effect that the party relying on such errors may likely have judgment in his favour. There is no miscarriage of justice or failure of justice where it is not shown that the decision reached is prejudicial or inconsistent with the substantial rights of a party. See Kraus Thompson Org Ltd v. uncial (2004) 9 NWLR (Pt 879) 631 @ 642, AMADI V- NN.PC (2000) 10 NWLR (Pt. 674) 76. PER SOTONYE DENTON WEST, J.C.A
CHIEFTAINCY ISSUE: DUTY OF A PERSON IN A CHIEFTAINCY MATTER
I agree with the position of the appellants’ counsel that all a person needs to do in a chieftaincy matter is to show that he belong to that family concerned, see OKULAYE & AWOSANYA (2000) FWLR (PT 25) 1666 AT 1686. PER SOTONYE DENTON WEST, J.C.A
JUSTICES
DALHATUL .D. ADAMU (OFR) PJ Justice of The Court of Appeal of Nigeria
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
Between
1. MOHAMMED SABA BIDA
2. ALHAJI ALIYU ABDULLAHI Appellant(s)
AND
1. ALHAJI USMAN ABUBAKAR
2. SULEIMAN ISSA
3. MOHHAMED JIYA USMAN
4. MOHAMMED ISSA
5. USMAN MOHAMMED Respondent(s)
SOTONYE DENTON WEST, J.C.A (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Kwara State delivered on 29th September, 2006 by Honourable Justice J.F. Gbadeyan granting all the reliefs of the Plaintiffs/Respondents except one.
The Appellants are represented by Adewale Olatunde Esq, while the Respondents are represented by O. J Adeseko Esq. The Respondents vide their Amended Statement of Claim in paragraph 27 prayed for the following reliefs.
1. A Declaration that the 1st Plaintiff is the authentic Village Head of Bacita having been duly nominated by the Bacita kingmakers and turbaned as Village Head of Bacita on the 9th April 1998.
2. A Declaration that the purported appointment of the 1st Defendant by the 2nd Defendant as the Village Head of Bacita is null, void and of no effect whatsoever.
3. AN ORDER of perpetual injunction restraining the 1st Defendant from paragraph(sic) himself as the Village Head of Bacita or acting in any way as the Village Head.
4. AN ORDER of injunction restraining the Defendants their agents, servants, and/or privies from disturbing the peace of Bacita in any way and from molesting the Plaintiffs in any form.
5. AN ORDER of perpetual injunction restraining the 2nd Defendant from interfering in any way with appointment of the Village Head of Bacita.
6. A claim of N1million (N1,000,000.00) as general damages for trespass, physical and psychological agony which the Defendants acting have caused the Plaintiffs.
7. A claim of Five Hundred Thousand Naira (N500,000.00) against the Defendant jointly or severally as special damages for the destruction of the f Plaintiff house and a sum of N250,000.00 and other proves taken from the 1st Plaintiff’s house by the Defendants and their agents.
The Appellants/Defendants filed a statement of Defence praying the trial court to dismiss the Respondents/Plaintiffs claim.
The learned trial judge in his judgment granted reliefs 1,2,3,4 and 5 and awarded N250,000 as general damages.
The Appellants not been satisfied with the judgment, filed Notice and olds of Appeal, praying this court to allow their appeal and dismiss the respondents’ case.
Upon the record of Appeal being transmitted to this court, parties their respective briefs in line with the rules of court. In the brief settled Adewale Olatunde Esq, on behalf of the Appellants six issues were formulated from the nine Grounds of Appeal filed by him which are herein under reproduced.
1. The learned trial judge erred in law in not considering the effect of the ruling (exhibit D1) wherein the court of competent jurisdiction held 1st respondent has not teen duly appointed viliage Head of Bacita
2. We learned trial judge erred in law in granting the reliefs 1-5 as contained in the judgment of the learned trial judge having regard to Exhibit D1 wherein a court of competent prison as ruled that the 1st claimant has not been appointed the village head, Bacita.
3. The learned trial judge erred in law by holding that there are kingmakers involved in the selection of a village head for Bacita while in the face of Exhibit D3 the claimant are estopped from asserting the existence of kingmakers.
4. The learned trial judge erred in law when he failed to adequately consider the case of the 1st Defendant regarding his relationship/link with late Etsuyankpa Zubair, the late village head Bacita, the said failure thereby occasioned miscarriage of justice.
5. The learned trial Judge erred in law (the error which occasions miscarriage of justice) when he failed to consider the divergent stands of the claimants’ case on the kingmakers as the claimants reprobated and approbated in the same case.
6. The learned trial judge erred in law when he held:
“However, considering the totality of the evidence, the physical claimants’ having are awarded the sum of N250,000.00 as general damages”
When the learned trial judge did not judicially exercise the discretion to award damages but based same on wrong and erroneous principles.
7. The learned trial judge erred in law and misdirected himself when he held,
“The plethoral of evidence show that there was disturbing influence by outsiders in affairs of Bacita leading to break down of law and order and damages to property as borne out by the several petitions from the community to the authorities and the police.
8. The learned trial judge erred in law by using/relying heavily on Exhibits 1, 3, 4 and 5 which are inadmissible in law when he held:
“The plethoral of evidence … By several petitions from the community to the authorities and the police.”
9. The trial court’s judgment is unreasonable, unwarranted and against the weight of evidence.
The following were the six issues deducted from the Grounds of Appeal.
1. Whether the learned trial adequately considered Exhibit D1, its effect aid the issue raised thereon in the Appellant’s address and whether the non consideration of same has not occasioned a miscarriage of justice to the Appellant.
2. Whether having regard to the inconsistent position of the Respondents (and their privy) on the existence or otherwise of kingmakers in the appointment of village head of Baota it was correct or proper for the learned trial judge to have held that there are kingmakers in the appointment of Estu Yankpa/village head of Bacita.
3. Whether having regard to the State of pleadings and evidence led the failure of the learned trial judge to adequately consider the relationship of the 1st Appellant with Estu Yankpa Zubair for his entitlement to the throne did not occasion a miscarriage of justice to the 1st Appellant.
4. Whether having regard to the quality of evidence before the lower court, there was credible or admissible evidence to justify the award of damages jointly or severally in favour of the Respondents.
5. Whether the learned trial judge was not wrong on the purported external influence to justify his decision and whether same has not occasion (sic) a miscarriage of justice to the Appellants.
6. Whether the learned trial judge adequately and sufficiently weighed the totality of the evidence (oral and documentary) before finding for the Respondents and whether the finding is nor (sic) perverse.
The Respondents Counsel OJ. Adeseko Esq., in the Respondents brief of argument which was deemed properly filed served was granted by this court on 25/05/09, in which a preliminary objection which is contained on page 1-7 of the brief was raised. He however in the alternative formulated three issues which he felt are germane to the determination of the Appeal which are also reproduced here under.
ISSUEs NO 1.
Whether Exhibit D1 and D3 are legally inadmissible and or whether Exhibit D1 and D3 have any probative value and what is the effect by the trial court in refusing to make any pronouncement on the two exhibits. Grounds 1, 2 and 3.
ISSUE NO 2
Whether or not the trial court made adequate and proper finding of facts as regards the relationship of the 1st Appellant with Etsu Yankpa Zubair vis a vis his right (1st Appellant) to ascent to the throne as village head of Bacita and or whether the findings by the trial court as regards the right of the 1st Respondent as village head of Bacta is perverse and same should be disturbed by the Honourable court; grounds 4,5 & 9.
ISSUE NO 3
Whether or not there were sufficient pleading vis a vis the evidence placed before the trial court by the respondent to justify the award of genera, damages by the trial court. Ground 6,7 & 8.
The appellants vide his counsel adopted his appellants brief of argument and reply on point of law on 25/02/10; praying this court to allow the appeal, while the respondents vide their counsel adopted the respondent brief of argument on the same day with the appellants, on the 25/02/10.
In the determining this appeal, this court will appraise all the issues raised by parties whereafter all the issues will be determined. The issues as raised by the appellants will first be reviewed before that of the respondents.
ISSUE 1
Whether the learned trial adequately considered Exhibit D1, its effect and the issue raised thereon in the Appellant’s address and whether the non consideration of same has not occasioned a miscarriage of justice to the Appellant.
Arguing issue no 1, Adewale Olatunde Esq. the learned counsel to the Appellants submitted that Exhibit D1 was tendered during the cross examination, and from the record of proceeding, CW1 admitted knowing the late Issa Mohammed, the senior brother to the 1st claimant. The CW1 further admitted that the 2nd and 4th Claimants/Respondents in this appeal are the children of late Issa Mohammed; that upon the death of Issa Mohammed, the present 1st Respondent applied to be submitted for the late Issa Mohammed.
Counsel to the Appellant posited that the document admitted through CW1 as Exhibit D1 is a ruling of the High Court (Coram R.D. Elelu Habeeb J), wherein the court held that the 1st Respondent had not been duly appointed the Village head of Baccita, the ruling delivered on 28/6/199 was admitted as exhibit D1.
Appellants counsel further submitted that although CW1 stated under cross-examination that “we appealed the decision”, that the outcome of the appeal against exhibit D1 was not produced by the Respondents, and the only evidence before the trial court was that, at the date of the ruling, the 1st Respondent had been held not to be qualified. Counsel then concluded that since there is no superior ruling or judgment setting aside Exhibit D1, that issue estoppel is raised. Counsel cited the cases of ADEBAYO V. BABALOLA (1995) 7 SCNJ 306 at 319-320, AGBOGUNLERI V. DEPO (2008) ALL FWLR (PT. 408) 240 AT 256, A-F. 359 A-B; 267-268 H-B( 268 E-G and NOGA HOTELS INTATIONAL S.A. V. NICON HOTELS (2008) ALL PWLR (Pt. 4111) 840 at 876 D-G to emphasise the principle that where an issue of fact has been judicially determined; the party against whom the issue is resolved and his privies will be precluded from raising the issue subsequent proceeding.
Appellants counsel submitted further that the 1st Respondent having not appealed against Exhibit D1 is estopped from asserting that had been duly appointed or selected the village head of Bacita in 1997 and that if there was any anointment prior to the time Exhibit D. was made (which is latter than 1997) exhibit D1 has obliterated and nullified such appointment or s lection of the 1st Respondent as the village head of Bacita. Counsel submitted that it will amount to an abuse of judicial process to file as it now on appeal after failure to appeal against exhibit D1, since the issue decided in Exhibit D1 affected the status of the 1st Respondent and as such, the 1st Respondent is estopped from stating the contrary to Exhibit D1. Counsel cited the case of AGBOGUNLERI V DEPO (supra) at 255 A-F to make his point.
Counsel to the Appellants stated that in Exhibit D1, the issue decided was in respect if the 1st Respondent’s purported appointment as the village head of Bacita. The 2nd Appellant in this appeal was also the 2nd Defendant in Exhibit D1. The court that decided it was a court of competent jurisdiction. The decision was final. The fact relating to the previous suit or the ruling in question was raised in paragraphs 5,6, and 9 of the Amended Statement of Defence. Counsel cited the case of GOVERNMENT OF EKITI STATE V OJO (2006) ALL FWLR (PT. 331) 129 AT 1319 D-G and particularly the case of AGBOGUNLERI V. DEPO supra at 268 E-G to state that even if there was a filed appeal (which was not conceded) the Respondents will still be estopped from denying the truth of Exhibit D1.
Appellants counsel submitted that submissions were made on the effect of Exhibit D1 by counsel on both sides and made reference to pages 171-172 of the record of proceedings but that the trial judge completely failed to consider the submissions made by counsel on the effect otherwise of Exhibit D1.
Appellant counsel submitted that the failure of the trial judge to consider exhibit D1 has occasioned a miscarriage of justice and itemised the miscarriage of justice inter, alia-
(a) The 1st Respondent purport to have been, appointed the village head of Bacita in November 1997.
(b) It was upon the demise of Issa Mohammed (the Plaintiff in Exhibit D1) that 1st Claimant purport (sic) to have been appointed the village head of Bacita.
(c) The right to be substituted in the pending case was dependent upon a valid selection/appointment as village head of Bacita by the appropriate authority.
(d) A court of competent jurisdiction had ruled against the purported appointment and no appeal therefrom.
(e) If the appointment purportedly made in 1997 was declared to be invalid in 1999 before the lower court can affirm that the 1st Respondent was duly appointed contrary to Exhibit D1, there must be positive evidence of subsequent appointment
(f) By the decision now appeal (sic), the learned trial judge has impliedly sat as a court of appeal over the decision in Exhibit D1.
(g) The ruling (Exhibit D1) is not a nullity to warrant same being set aside by a court of coordinate jurisdiction which the lower court whose judgment is now on appeal and the court that decided, Exhibit D1.
(i) (sic) The effect of Exhibit D1 op the purported appointment in November 1997 is like putting Something on nothing; the law is that it will amount to nullity.
Counsel referred the court to the case of SKEN CONSULT V UKEY (1981) 1 SC 6 at 13, MALFOY V UAC LTD (1962) AC 152 at 160 13, MALFOY V. UAC LTD (1962) AC 152 at 160.
This court was urged by Appellants counsel to hold that the failure of the lower court to consider the issue raised in the Appellants address before 4 lower court when counsel on both sides proffered argument for and against the effect of Exhibit D1, did occasion a miscarriage of justice and that this court should allow this appeal on this issue and the grounds from which same was framed.
This court was urged to so hold and to grant this appeal.
ISSUE 2
Whether having regard to the inconsistent position of the Respondents (and their privy) on the existence or otherwise of kingmakers in the appointment of village head of Bacita it was correct or proper for the learned trial judge to have held that there are kingmakers in the appointment in the appointment of Estu Yankpa/village head of Bacita.
Appellants counsel avers that from the records of proceedings it is clear that parties disagreed on the existence or role of kingmakers in the selection/appointment of a village head. Counsel further stated that it is trite law that the onus is on a party who asserts a fact to prove same and cited Section 135(1) and 137(1) of the Evidence Act; HILARY FORMS LTD. VS. M.V. MAHIRA (2007) ALL FWLR (PT.390) 1417 AT 1438 – 1439.
The Appellant’s counsel further cited the case of SOKWO V KPONGHO (2008) ALL FWLR (PT. 410) 680 at 706 E-F, where the supreme Court held that the onus is on the party alleging the particular custom to call credible evidence to establish its existence and ODUTOLA VS SANYA (2008) ALL FWLR (PT 400) 780 AT 795 F-G, where it was held that native law and custom is a matter for evidence.
Appellants counsel stated that position of law that a plaintiff can only succeed on the strength of his case and not on the weakness of the Defendant, since there is no counter-claim; counsel further cited the case of ODUTOLA V SANYA (SUPRA at 793 F-G) to state that if the Defendant’s evidence supports that of the plaintiff (which is not the case here) he is entitled to rely on same to fortify his case.
Appellants counsel stated that the Appellants joined issue with the Respondent by stating inter alia, that there were no kingmakers in the appointment/selection of a village head of Bacita as same was usually done by the generality of the people. The Appellants further stated that the purported kingmakers were the children of later Issa Mohammed or his brother or the children/brother of the 1st Respondent.
Appellants counsel stated that the 2nd witness under cross-examination admitted paragraphs 7,8,9, and 10 of the amended statement of defence. Counsel cited the case of AIBISHIR (2008) ALL FWLR (PT 415) 1681 at 1727 B-D to state that facts admitted by an opposing party need no further proof.
Appellants counsel then concluded that from the pleadings and evidence of the 3rd and 4th Claimants/Respondents, the following facts emerged.
(a) 2nd and 4th Claimants were children of the late Alhaji Issa Mohammed, the late village head of Bacita.
(b) CW1 is the son of the 1st Claimant
(c) CW1 (3rd Claimant) purportedly acted as a kingmaker to appoint/select his own father as the village head of Bacita.
(d) CW2 admitted that the generality of Ndejiko family will appoint the village head (it is no longer the kingmakers as pleaded and as stated in his written statement on oath.
(e) The 5th claimant who purport (sic) to be a kingmaker (who was not linked to either the 1st claimant or late Alhaji Issa Mohammed) did not give evidence at all.
(f) There was no independent evidence to prove the purported custom to justify the appointment or the composition of the kingmakers counsel cited the case of LAMBE V JOLAYEMI (2002) FWLR (PT 69) 414 AT 421 G-H, 431 C-F.
(g) At another breadth (sic) the claimants somersaulted by staring that it is the principal members of Ndejiko family that appoints the village head; page 8,7, paragraph 71, ii, iii and 192, lines 13-15 of the record.
(h) There is difference between an appointment by kingmakers and appointment by the generality of Ndejiko family or by the principal members.
(i) Evidence led is contrary to the pleading of the Respondents but it supported the Appellants case.
Counsel cited the case of KIMDY & ORS V GOR OF GONGOLA STATE (1988) 2 NWLR (PT.77) 445 AT 463 to state that evidence of a party which supports the case of the other side is always accepted as evidence against interest of the party and should not be rejected as contradictory and questionable. Counsel further noted that the late Alhaji Issa Mohammed, the late village head of Bacita whom the 1st Claimant/Respondent purport to succeed and who the 2nd -5th Respondents as kingmakers purported to have appointed, gave evidence on oath and confirmed that the appointment of a village head for Bacita is by the generality of the Bacita people; which can be seen at pages 153 – 155 of the supplementary record of proceedings. Thus, Appellants counsel submitted that it could not be said, as erroneously held by the learned trial judge that the Respondents proved the custom or practice of selection of a village head by the kingmakers. Counsel stated that where there are contradictions on material points, the court cannot decide which version to believe, and cited the case of IBEKEANDU VS IKE (1993) SCNJ 50; to make this point. Counsel to the Appellants further stated that the totality of the evidence led by the Respondents are contradictory and at variance with the pleadings. He further submitted that –
“an Etsu Yankpa is nominated or selected by the Ndejiko Ruling Family”
as stated on page 216, lines 19-16 of the records of proceedings.
Also, counsel to the Appellants stated that what was pleaded at the lower court was an appointment/selection by the kingmakers and that the lower court had no power to decide outside the pleadings, as parties and the court are bound by pleadings. Counsel cited the case of ISHENO V JULIUS BERGER NIG. PLC (2008) ALL FWLR (Pt 415) 1632 at 1647 F-H to state his position.”
Appellants counsel avers that to allow a party adduce evidence contrary to his pleadings is to allow a party make a different case at the trial from what he set out to prove; and the court is duty bound to disregard such extraneous evidence for not belonging to the issue raised. Counsel cited the case of SODIPO V OGIDAN (2007) ALL FWLR (PT 393) 67 at 86 D-F to make his point, and further cited the cases of AKANINWO V NSIRIM (2008) ALL FWLR (PT 410) 610 at 663 C-D and AMORI V IYANDA (2008) ALL FWLR (PT 416) 1864 at 1887 E to state that a party will not be allowed to approbate and reprobate at the same time.
The contradictory nature of the Respondents evidence can be seen by the testimony of late Alhaji Issa Mohammed, maintained on oath before the competent court vide Exhibit D3, where he stated the selection of a village head of Bacita is by the generality of Bacita people, while his successor and his children are claiming that the appointment is not made by the generality of the people of Bacita but by the kingmakers which includes a son acting as a kingmaker to appoint his own father (the position of the 3rd in this appeal).
Counsel to the Appellants then stated that Exhibit D2 is against the interest of the Respondents but rather fortified the Appellants case, he cited the case of NWABUBA VS EMEUO (1988) 5 SCN3 154 at 165. Counsel urged the court to hold that the appointment of the village head of Bacita is by the generality of the people as corroborated in Exhibit D2 and CW2.
Appellants counsel stated that the fact that there were no kingmakers in the selection process is fortified by the status of the so-called kingmakers as shown in the case on appeal, as made up by the children of the immediate past village head and the 1st Claimant. Moreover the evidence on the custom was led by the 2 witnesses who asserted same. There were no independent witnesses. Counsel cited the case of OYEDIRAN V ALEBIOSU II (1992) 7 SCNJ 187 at 193-194 he further relied on the principle of law that the duty to prove and lead satisfactory evidence to warrant the grant; of declaratory and equitable relief is on the plaintiff, even if no statement of defence has been filed he cited the case of NETWORK SECURITY LTD V DAHIRU (2008) ALL FWLR (PT 419) 475 at 498 F-G to make his point.
This court was urged to resolve issue No. 2 in the negative and to allow the appeal and to hold that in the light of the inconsistencies in the Pleadings and the evidence led by the Respondents, it was incorrect for the learned trial judge to have held that there were kingmakers who validly appointed the 1st Respondent as the village head of Bacita in November 1997.
APPELLANTS’ ISSUE NO 3
Whether haying regard to the State of pleadings and evidence led, the failure of the learned trial Judge to adequately consider the relationship of the 1st Appellant with Estu Yankpa Zubair for his entitlement to the throne did not occasion a miscarriage of justice to the 1st Appellant
Counsel to the Appellants commenced his argument on issue 3 by submitting that the failure of the trial judge to adequately consider the relationship of the 1st Appellant with Estu Yankpa Zubair for his entitlement to the throne did occasion a miscarriage of justice.
In the amended statement of claim, the Respondent pleaded that the 1st Appellant was not a native of Bacita, they claimed he is from Kudu, near Bida (apparently because he lived there).
Counsel to the Appellants further stated that the Respondents pleaded that Ndejiko is the sole ruling house of Bacita where al, the previous village heads came from via paragraphs 8,9 and 10 of the amended statement or claim at page 65 of the record of proceeding, of which the appellants Joined issue with the Respondents on this issue of non-qualification of the 1st Appellants pages 91-92 of the record.
Appellants counsel stated that it is he who asserts that must prove, also, the onus is on the respondents to prove their case notwithstanding the weakness of the defence, and that from a perusal of paragraph 9 of the reply on pages 11-114 of the record of proceeding; the evidence to substantiate the pleadings are scanty. Appellants counsel further mentioned paragraphs 13,14 and 32 of the written statement on oath of CW1 at pages 71 and 72 of the record and paragraph 15 of the written statement on oath of CW2 at page 88 of the record of proceedings to adumbrate his point, while counsel stated that the appellant apart from joining issue with the Respondents, they called evidence to substantiate their assertion. Counsel referred the court to the following paragraphs and pages from the record of proceedings to make his point: written statement on oath of the 1st Appellant at page 74-76 of the written statement oath of Mallam Issa Mohammed at page 77, paragraph 5 and 6 of written statement on oath of Mohammed Issa (the father of the 1st Appellant at page 79 of the supplementary record.)
Counsel further submitted that it is trite law, that evidence not pleaded even if extracted in cross-examination is inadmissible and cited the cases of NWABUBA & ORS V. ENEMUO & ORS (1988) 5 scnj 154 at 167, ISHEIMO V JULIUS BERGER PLC (2008) ALL FWLR (PT. 415) 1632 at 1653 D-F.
Furthermore, counsel to the Appellants stated that the initial case of the Respondents was that the 1st Appellant was not qualified to be appointed the village head because he is from kudu, near Bida, later, the emphasis shifted to the 1st Appellant not being entitled because he is not a direct male survivor of Estu Yankpa Subairu.
Appellant counsel further stated that from the evidence of DW5 especially during cross-examination, it is not in doubt that the 1st Appellant, though his evidence and other witnesses offered cogent and credible evidence to establish that there was blood linkage to Estu Yankpa Subairu who is also a member of Ndejiko family.
Counsel cited the case of OKULAYE V AWOSANYA (2000) FWLR (PT 25) 1666 AT 1686 to fortify his position that all a person need do in a chieftaincy matter, is to show (by evidence) that he belong to that family concerned. Counsel then submitted that the 1st Appellant has established his right to be appointed the village head of Bacita with credible evidence led showing his relationship with Ndejiko family, moreso since the Respondents have not amended their pleadings to assert that the stool is exclusively meant for direct male children of Ndejiko family. Also, that there is no contrary evidence to show that Estu Yankpa Subairu and the mother of DW5 were not of the same parents.
Appellants counsel finally submitted that there were enough evidence before the learned trial judge showing the membership of the 1st Appellant as belonging to the Ndejiko family and failure to consider the evidence on this crucial issue occasioned a miscarriage of justice, as he mis-applied the case of OKULATE V AWOSANYA supra and ODUNTAN V AKIBU supra, relied on at page 217 of the record. This court was urged to so hold, to resolve this issue in favour of the Appellants and to allow the appeal on this issue.
APPELLANTS’ ISSUE 4 Whether having regard to the qualify of evidence before the lower court, there was credible or admissible evidence to justify the award of damages jointly or severally in favour of the Respondents.
Counsel to the Appellants stated that issue 4 cover grounds 6 and 8 of the grounds of appeal. Counsel stated that the claim of the Respondents on the purported intrusion of Bacita by some people as pleaded in paragraph 15, 16, 17, 18, 21 and 24 of the amended statement of claim at pages 66-67 of the main record, and deposed to in paragraphs 18,19,20,21,22,23,24,25,26,27,28 and 29 of the written statement on oath of the 3rd Respondent at pages 71-72 or 92 – 93 of the main record. Also stated in the written statement on oath of the 4th Respondent, particularly in paragraphs 12,13,15,16 and 20 at pages 88-89 (or 109-110) of the main record. Documents tendered in this respect are Exhibits 1-5.
The Appellants denied the claim of the respondents as evidenced in paragraphs 24, 26 and 29 of the amended statement of defence at pages 71-72 of the supplementary record; and the written statement on oath of the 1st Appellant especially paragraphs 14,15,17 and 18 at pages 75-76 of the supplementary record.
Counsel submitted that the 1st appellant was not cross examined on his denial of involvement (or the 2nd Appellant) in the various criminal acts alleged in the amended statement of claim. Also, that none of the witnesses who gave evidence for the appellants was ever cross-examined to throw light on the alleged acts; neither did the 1st Respondent (the centre of the attack) testify to say his loss, nor personally identify the extent of damage suffered.
Counsel to the Appellants submitted that the offences alleged are criminal offences under the Penal Code, they include attempt to commit culpable homicide, mischief, stealing criminal trespass among other and by virtue of section 138 (1) of the Evidence Act, the proof is beyond reasonable doubt. Also, that under sections 138 (2) of the same Act, the duty of proving the guilt or wrongful act is on the person who asserts. Thus the duty was on the Respondents, of which same was never discharged.
Counsel submitted that the learned trial judge was wrong in awarding damages of N250,000.00 to the Respondents, as same was based on inadmissible evidence which has occasioned a miscarriage of justice. The counsel noted that the police officer in charge of Bacita police station was never called, yet hearsay evidence was relied upon by the trial judge as part of
“the plethora of evidence show that there was disturbing influence by outsiders in the affairs of Bacita leading to break down of law and order and damages to property as borne out by the several petitions from the community to the authorities and the police” – page 218 of the record.
Counsel also submitted that there was no admissible documentary evidence the learned trial judge could have used to award damages as part of the plethora of evidence.
Counsel stated that at the lower court there were exhibits 1-6, these were copies of document that are public documents within section 109 of the Evidence Act. From pages 195-196, it can be adduced that Exhibit 1-5 are copies, and as copies, and as copies, they have to meet the requirements of section 111 of the Evidence Act by being certificated as Certified True Copies. Exhibits 1-5 failed to comply with section 111 of the Evidence Act. Also, by the provision of section 97(1) (e) and (f), and section 37 (2) (c) of the Evidence Act, only a Certified True Copy of a public document and no other secondary evidence is admissible. Counsel cited the case of NWABUOKU V ONWORDI (2006) ALL FWLR (PT 331) 1236 at 1252 C-F, B-D as authority to state that Exhibits 1-5 has been rendered inadmissible by law.
Appellants counsel conceded that Exhibits 1-5 were tendered and admitted without objection, but that it is trite law that parties cannot give consent to admission of a document which the Evidence Act clearly provides is inadmissible, the court will ignore the so-called consent and rule the document is inadmissible. Counsel referred the court to the case of UGWU V ARARUME (2007) ALL FWLR (PT 377) 807 at 869 D-E while in ETAJAYA V OLOGBO (2007) ALL FWLR (PT 386) 584 at 615 B-D, the apex court held that even though the opposing party did net object, the non-objection cannot confer any right on the trial judge to ascribe any probative value to that inadmissible document. Counsel further referred the court to the cases of A-G LEVENTIS PLC V AKPU (2007) ALL FWLR (PT 388) 1024 at 1047 AND NTUKS V NPA (2007) ALL FWLR (PT 387) 800 at 826-827 G-B on this point.
Appellants counsel then urged this court to interfere by setting aside the judgment of the trial court on awarding damages, because it was premised on pie wrong application of law. Also, Appellants counsel claimed that the Respondents did not link the acts complained about to the Appellants, who cannot be held vicariously liable for the conduct of the dangerous crowd and policemen who allegedly seized the key to the central mobile from the 1st Respondent. To find the Appellants liable, the Respondents must prove that the Appellants authorized or approved their conduct; of which there is no evidence to show that the so-called assailants were agents of the Appellants, to make the appellants liable for their acts.
Counsel further stated that the Respondents did not have any special right to the use of central mosque more than any other resident of Bacita to entitle them to an award of general damages, as the respondents did not plead or prove to be the Chief Imam or designated officials to manage or control the central mosque to retain the key. Counsel also stated that the evidence relied on by the learned trial judge to award general damages look incredible, because it would be incredible to believe that policemen would escort the 1st Appellant to do such acts purportedly done and would the Appellants become liable for the act of the police performing their statutory duties by dispensing the Respondent when they relocated to another place for the jumat prayer?
Counsel further stated that it would be incredible to believe that the 1st Respondent lost properties worth N500.000.00 yet he failed to give evidence of same in court. Also, that there was no mention of the assailants and no evidence of arrest and prosecution of the assailants sent by the 2nd Appellant purportedly sent to kill the 1st Respondent in November, 2002; all of which formed the basis of the totality of the evidence that led to the award of N250,000.00. Counsel also stated that there was no evidence led on damage to the ‘house’ of the physical claimants, if there is any feeble evidence led at all, it was in respect of the alleged destruction of the 1st Respondent’s house. Therefore, the inference of the trial judge on the damages to houses is based on wrong principles of law as same was never supported by pleadings and evidence led by the Respondents’
Appellants counsel stated that the object of awarding damages is to compensate the Plaintiff for wrong done to him. He cited the case of SPDC V. OKONEDO (2007) ALL FWLR (PT 368) 1104 at 1138.
Appellants counser explained that the trial judge dismissed prayers numbers 1-5. Claim no 6, which was for general damages never pleaded or referred to any house, but was for trespass, of which no evidence was lead to show the trespass committed in the house of the 2nd – 5th Respondents. Curiously the learned trial judge awarded damages for damages to ‘houses’, the question is whose houses?. Claim 7 was formulated in form of special damages which must be strictly proved. There was no evidence of such prove which led to the dismissal of claims 1-5.
Counsel then concluded that the trial court had no jurisdiction to award general damages to, Respondents in a case which they did not present to court.
Appellants’ counsel also stated that while it is the duty of the learned ‘trial judge to assess and award general damages in deserving cases, the Court of Appeal will not normally interfere, however, in deserving cases like the one on appeal, where the trial judge assessed and awarded damages based on wrong principles of law as highlighted above, this court is enjoined to interfere and set same aside the case of SPDC V OKONEDO (supra) page 1139 was cited and relied upon.
Counsel then submitted that the trial court, having failed to properly evaluated the evidence before awarding the general damages and having adopted wrong approach thereto; this court was urged to interfere and set same aside. The cases of OLUMESAN V OGUNDEPO (2002) FWLR (PT 95) 377 at 387 D-E, G; 390 E; GUINESS NIG PLC V BOSE STORES LTD (2007) ALL FWLR (PT 393) 163 at 181 D-G LION BANK PLC V AMAIKOM (2007) ALL FWLR (PT 417) 85 was cited to buttress his position.
Counsel urged this court to allow the appeal and set aside the award of general damages which was jumped up under the claim for special damages-which was not proved ab initio.
APPELLANTS ISSUES NO.5 and 6
Whether the learned trial judge was not wrong on the purported external influence to justify his decision and whether same has not occasion (sic) a miscarriage of justice to the Appellants. &
Whether the learned trial judge adequately and sufficiently weighed the totality of the evidence (oral and documentary) before finding for the Respondents and whether the finding is nor (sic) perverse.
Counsel to the appellants stated that the two issues will be argued together, and that they derive their source from grounds 7 and 8 of the grounds of appeal.
Counsel submitted that the trial judge was wrong in the evaluation of the evidence on the so-called external influence in the affairs of Bacita and same occasioned a miscarriage of justice. That the case of the Respondents according to their amended statement of claim is that the 2nd Appellant is the head of Tsaragi District in Edu Local Government and Bacita village is one of the Villages under Tsaragi district. The village head is to be escorted to the palace of the 2nd Appellant to pay homage to him. It was further alleged that the 2nd Appellant appointed the 1st Appellant the village head of. Bacita, which led to various petitions. The scanty evidence to sustain the pleadings are as contained in paragraph 6,7,12,15,16,18,21 and 26 of the written statement on oath of the 3rd Respondents at pages 7-72 of the main record and paragraphs 7(v), 9,10, and, 12 of the written statement on oath of the 4th Respondent at pages 88-89 of the main record.
Counsel stated that issue was joined by the Appellants in their amended statement of defence and evidence led in accordance with their pleadings. Counsel referred this court to paragraphs 2,3,4,9,11,12,13,14,15 and 28 of the amended statement of defence at pages 69-72 of the supplementary record, for the evidence of the 1st Appellant and paragraphs 2,3,4,6,9 and 10 at pages 74-76 of the supplementary record.
Counsel then concluded that from the state of pleadings and the evidence, both oral and documentary, the parties to the suit now on appeal asserted and proved the role of other persons or authorities in the valid appointment of the village head for Bacita.
The counsel further stated that to put the issue of external involvement in the appointment /recognition beyond doubt, the Edu Local Government vide a letter dated 9/2/2001 wrote the Edu/Patigi Traditional Council to inter alia, approve the appointment of some village heads of which the 1st Appellant was just one. Furthermore, counsel submitted that (Exhibit D2, D4 and D5 confirms the stand of the Appellants that such appointment will go through the 2nd Appellants the Edu/Patigi Traditional Council and the Edu Local Government will give final approval.
Counsel further submitted, that by the state of pleadings, the involvement of the following person, body or authority is not in doubt.
1. The 2nd appellant (even if for homage as pleaded by the Respondents or approval as pleaded by the Appellants).
2. The Edu/Patigi Traditional Council (for acceptance of notification of appointment as pleaded by the Respondents or for further approval as pleaded by the Appellants)
3. Edu Local Government, for noting and recognition as pleaded by the Respondents or for final approval of appointment as pleaded and demonstrated in KIMDEY & ORS V GONGOLA STATE GOVERNMENT & ORS (1988) 5 SCNJ 28 at 56, evidence by the Appellants.
Counsel then cited the case of 59 to submit that Where there is oral as well as documentary evidence over an issue, the documentary evidence should be used to assess, the evidence, as it is the hanger to assess oral evidence. In the light of the above, counsel submitted that Exhibits D2, D3, D4 and D5 ought to have been used as hanger to assess the oral evidence before the court, and being in permanent nature, are more credible.
Counsel further stated that the learned trial judge relied on inadmissible documentary as well as oral (hearsay) evidence based on the petitions purportedly written to various people, offices or institutions, and that inadmissible evidence cannot be used to sustain the conclusion of the court. Counsel also submitted that the judgment of the learned trial judge is preserve and unsupportable having regard to the totality, of the weight to be attached to the evidence before the trial judge.
Counsel mentioned that one crucial issue was whether the 1st Respondent who claimed to have been appointed since 1997 could be said to have been appointed having regard to the ruling tendered as Exhibit D1 wherein it was held that he had not duly been appointed the village head of Bacita. The ruling was delivered in June, 1999 and no appeal was filed.
Counsel claimed that Exhibit D1, (the evidence on oath of the immediate past village head of Bacita and the brother to the 1st Claimant/Respondent the evidence of extracted during cross-examination unequivocally supported the consistent position of the appellants that the selection of the village head is by the generality of the people of Bacita; of which is clearly an admission in law. Counsel cited the case of UBA PLC V JARGABA (2007) ALL FWLR (PT 380) 1419 fit 1436 G-H to support his assertion. Counsel further stated that the 4th Respondent made an admission against interest vide the case of IBEKENDU VS IKE (supra) and KIMDEY V GONGOLA STATE GOVERNMENT & ORS (SUPRA) on which the case of the Respondents in the alleged custom collapsed. Counsel also stated that the Respondents have the onus to prove the custom, the custom that the kingmakers will appoint a candidate from Ndejiko family, while also stating that the generality of Ndejiko family will select the village head from Ndejiko family through credible evidence unless frequent proof of same has been made, to attain the legal status of notoriety as to be judicially noticed. Counsel cited the case of MAFIMISEBI V EHUWA (2007) ALL FWLR (PT 355) 562 at 601 F.H. to make his point.
Counsel then submitted that based on this issue of not proving the custom, the judgment of the lower court affirming the purported appointment under a flawed customary practice cannot be sustained and urged this court to hold the decision of the lower court perverse.
Counsel stated that from the judgment of the lower court, it is apparent that the learned trial judge did not consider the documentary evidence tendered by the Appellants, such as Exhibits D1, D3, D4 and D5 and that the trial judge either by commission or omission failed to consider these documentary evidence which were pleaded, admitted and where not made by law, in the evaluation of evidence or even in the consideration of the case of the Appellants. Counsel submitted that this failure is perverse, did occasion a miscarriage of justice and as such, the judgment should be set aside.
Appellants counsel submitted that there were defects in the consideration of the totalling of the evidence before the court, that the judgment did not demonstrate a dispassionate consideration of the issues raised and canvassed before the lower court, the facts given to substantiate the above claim are
(a) The weight attached to Exhibits 1,2,3,4 and 5. These exhibits are made inadmissible by section 97 (2)(c) of the Evidence Act because they are copies of public document which the trial judge had a duty to expunge from the record at the state of judgment.
(b) That the trial judge was out to demolish the case of the Appellants all cost. That at pages 212-215 of the main record the trial judge concentrated on the negative evaluation of the lease for the Appellants who had no counter claim before proceeding to give judgment to the Respondents.
(c) That the trial judge ignored the contradictions and incredible evidence of the Respondents such as the 3rd Respondent being kingmaker appointing his father. Also, that the review of the Respondents case took only 14 lines (page 212 lines 10-23 of the main record) when about 3 pages were devoted the case of the Appellants. Counsel stated that this cannot be a correct evaluation of the evidence before the lower court.
(d) That the trial judge ignored the evidence that the 1st Appellant became entitled to the title through Estu Yankpa Subair whose mother was of the same parents with the mother of the father of the 1st Appellant.
(e) That the learned trial judge descended into the arena of conflict by relying on facts not pleaded and which were inadmissible. Such as the founder of Bacita, the 7 Compounds in Bacita as seen on page 217 lines 2-3. Counsel cited the case of ELUMESAN V OGUNDEPO (2002) FWLR (PT 95) 377 at 386 F-G to make his point.
Counsel submitted that the judgment of the lower court did not reflect the result of a dispassionate consideration of issues raised before the lower court and cited the cases of DALEM NIG LTD V OKALU INTERNATIONAL LTD (2002) FWLR (PT 96) 501 at 541 C-D; OJOGBUE V NNUBIA (1972) 6 SC 227 and ATOYEBI V GOVERN0R OF OYO STATE (1994) 5 SCNJ 62 at 83.
Counsel further stated that the judgment of the trial court is perverse and supported his claim with the authority of IROKO V UKA (200fe) 20 WRN 41 at 55-56, KOLAWOLE V OLORI (unreported) Appeal No. CA/IL/90/2006 at 57, delivered by this court on 18th march, 2008. Thereafter the Appellants counsel urged this court to set aside, the decision of the lower court as same is unsupportable, perverse and occasioned a miscarriage of justice to the Appellants; and to dismiss the respondents suit in its entirety.
Appellants counsel urged this honourable court to allow the appeal and dismiss the Respondents case.
PRELIMINARY OBJECTION AS RAISED BY THE RESPONDENTS.
O.J. Adeseko Esq., the learned Counsel who settled the brief of the Respondents, raised the following preliminary objections.
(a) That by the combined effect of sections 241 and 242 of the 1999 Constitution, particularly section 241(1) (b) and going through the grounds of appeal as couched by the appellant, they are at best facts and or of mixed law and facts. Hence the Appellant needed the leave of the trial court or this honourable court before they can validly file this appeal and no such leave was sought and obtained before this appeal was filed.
(b) By Order 6 Rule 2 and 3 of the Court of Appeal Rules, 2007 the grounds of appeal must not be vague, general and must disclose a reasonable ground.
ARGUMENTS ON PRELIMINARY OBJECTIONS
The objections relates to the failure on the part of the Appellants to obtain leave of the trial court or this honourable court before filing their appeal. Sections 241 and 242 of the 1999 Constitution of the Federal Republic of Nigeria make provision for cases when leave is required before an appeal shall be filed from the decision of the High Court to the court of appeal. Counsel stated that section 241(b), does not require leave where the grounds of appeal involves question of law alone in any civil or criminal proceedings.
The Respondents’ counsel submitted that all the grounds as couched by the Appellants did not involve question of law alone but facts or at best of mixed law and facts irrespective of the fact that the Appellants christened the grounds as erred in law. He cited the following cases as his authority; TIBURRY VS OGUNNIYI (1988) 1 NSCR 531, AKWIWU VS SOGONUGU (1984) 5 SC 184 At 186.
Also, that all the grounds of appeal as couched by the Appellants relate to the complain for the assessment or evaluation of evidence and documents such as Exhibit D1 and D3 by the trial court, which will need or require examination of documents such as Exhibits D1 and D3 before arriving at its decision, he relied on CALABAR VS. EKPO (2008) 11 NJSC 144 at 144-145 & 147.
In examining the grounds of appeal and their inherent defect, Counsel stated that that ground is not a question of law alone for this reason the leave of the court is needed. While ground two is at best of mixed law and facts which requires the leave of this Honourable court before such can be filed. For ground three, Counsel submitted that there is no finding by the trial court upon which this ground of appeal can be anchored on. There is no holding by the trial court as regards the existence of kingmakers in the judgment. Order 6 Rule 2 & 3 of the Rules of this Honourable court. See BELLO VS ARUNA (1999) 8 WLR (PT 615), CALABAR V EKPO (SUPRA) at 148.
Counsel further submitted that ground four would be at best, of mixed law and facts, as the Appellants are complaining of inadequate finding of facts by the trial court. The respondents’ counsel also submitted that ground five is not related to its particulars and bothers on facts or mixed law and facts.
Respondents’ counsel submits that ground six is flawed because, without the leave of the court the appellants cannot question the use of the discretion by the trial court for the award of damages. While grounds seven requires; the leave of the court to be sought and obtained. Also that the particulars are not related with the grounds, particularly, particulars 3,4 and 5.
Finally Counsel submitted that grounds eight is vague and the particulars are not related to the said ground; while ground nine is a general ground which cannot be used to attack a specific findings or issue (see pgs 219-225 of the record).
The respondents’ counsel, submits that the body of the grounds of appeal cannot be considered in isolations of its particulars. See CBN & ANOR VS OKOJIE & ORS (2002) 9, MADUEKE & ORS (2003) 13 NSCQR 339 at 345, 347-348.
The Respondents’ counsel relied on the case of ANOGHALU V. ORAELOSI (1999) 13 NWLR (PT 634) 297 (P. 119) paras A-G, a supreme court decision which states what constitutes question of law, question of fact and question of mixed law and facts. While he cited the case of UGBOAJA VS SOWEMIMO & ORS (2008) 10 MJSC 2005 at 119 – 121 per IN ONNOGHEN JSC, to list the principles the court should be guided by, in determining whether a ground of appeal is of law, or fact, or mixed law and fact.
The Respondents’ counsel, therefore submits that applying the above principles to the grounds of appeal in the instant appeal, it is obvious that the ‘complaint’ of the Appellate are grounds of facts or at best mixed law and facts for which the leave of other the trial court or of this court, must first be sought and obtained before such grounds of appeal can be competent by section 241(1) of the 1999 Constitution.
The Respondents’ counsel then urged this Honourable Court to strike out all the grounds of appeal for being incompetent. As, once there is no ground of appeal upon which the appeal filed by the Appellants can be anchored, same should be stuck out. He cited the cases of CCB & 1 ORS VS. EKPARI (2007) 29 NSCQR 175, GLOBAL TRANS & ANOR VS FREE EWT NIG (2001) 3 NSCQR 487.
Respondents Counsel then proceeded by arguing the Respondents Brief.
RESPONDENTS’ ISSUES NO 1
Whether Exhibit D1 and D3 are legally inadmissible and or whether Exhibit D1 and D3 have any probative value and what is the effect by the trial court in refusing to make any pronouncement on the two exhibits. Grounds 1, 2 and 3.
The respondent’ s counsel submits that Exhibit D1 was the ruling in suit KWS/50/94; between ALHAJI ISSA MOHAMMED V. HIS ROYAL HIGHNESS, ALHAJI ALIYU AUDU NDAKPATATA (ETSU OF TSARAGI) and part of the proceedings in this suit is Exhibit D3. These two exhibits relate to the same proceedings by Section 34 of the Evidence Act.
Respondent’s counsel submits that Exhibit D1 is the ruling for an amendment in suit KWS/50/94 which is an interlocutory application for substitution after the demise of the plaintiff in the said suit.
Exhibit D3 is the evidence of one Alhaji Issa Mohammed who is the plaintiff that challenged the appointment of the 2nd defendant as a representative of the 1st defendant in Bacita also in the same suit. Even the evidence of one Alhaji Ndadama Ndajola who is a witness for the Appellant’s at trial court, confirmed this.
Counsel stated that, from these exhibits, it is not the issue of the appointment of village head that is being challenged in suit KWS/50/1994 but the appointment of one Alhaji Saliu as the Hakimi for Bacita. It is therefore submitted that the issue before the court is different from the issue contested in suit KWS/50/1994 and to that extent Exhibit D1 and D3 are not admissible as they are not relevant to the case at hand, counsel cited the cases of DADA V. BANKOLE (2008) 33 NSCQR (PT.1)AT 206-207, SHANU ANOR V. AFRIBANK PLC (2002) 11 NSCQR 54 AT 75 AND 231.
Counsel posed a question on the effect of the trial court not making any pronouncement on inadmissible evidence that has been admitted. He cited the case of DUROSARO VS AYORINDE (2005) 21 NSCQR 701 at 711 where the supreme court has, this to say at page 717 of the report per D.O. Edozie JSC “it is not permissible to treat evidence in previous proceedings as one of truth”.
ALADE V ABORISHADE (1960) SCN LR 398, (1960) 5 FSC 167, 171; ASUQUO UDO ENANG & ANOR V EDEM UDO EKANEM & ORS (1962) 1 ALL NLR 530 where, where the court stated that inadmissible evidence admitted without objection, of the trial, the failure of party to object will not prevent its inadmissibility from being raised and determined on appeal. In ALADE V OLUKADE (1976) 10 NSCC, 3435, this court held that a court is expected in all proceedings before it to admit and act therefore, if a court should inadvertently admit inadmissible evidence, it is duty bound not to act upon it.
Respondents’ counsel therefore submits that since exhibits 1&3 are not admissible the trial court is not duty bound to make any pronouncement on those exhibits. We therefore urge my lords to resolve this issue in favour of the respondents.
Counsel questioned the probative value of Exhibits 1&3 assuming it was admissible.
The Respondents’ counsel submit that Exhibit D1 is the ruling for amendment for substitution which was refused in suit No. KWS/50/94 and Exhibit D3 is evidence of the proceedings in the same suit, wherein the plaintiff challenged the appointment of a representative from another village to his domain by the 2nd defendant. Whereas, in the present suit the respondents are claiming among others a declarations that the 1st Respondent is the authentic village head of Bacita having being duly nominated by the Bacita kingmakers and turbaned as village head of Bacita on the 17th April, 1998 and as can be seen from Exhibit D3 (Page 154 of the record), that one Issa Mohammed is challenging the appointment of the 2nd defendant in that proceeding who is not from Bacita but from Tsaragi as the representative of the 1st Defendant in that suit.
Counsel concluded that the issue in suit No. KWS/50/94 and the issue in the present case before this court are quite different; hence this court was to hold that Exhibit D1 and D3 do not have any probative value.
RESPONDENTS’ ISSUES NO 2
Whether or not the trial court made adequate and proper findings of facts as regards the relationship of the 1st Appellant with Etsu Yankpa Zubair vis a vis his right (1st Appellant) to ascent to the throne as village head of Bacita and or whether the findings by the trial court as regards the right of the 1st Respondent as village head of Bacita is perverse and same should be disturbed by the Honourable court; grounds 4, 5 & 9.
Respondents Counsel submitted that the trial court made adequate and proper finding of facts as regards the relationship of the 1st Appellant with that of Etsu Yankpa Zubair vis a vis his right to ascend to headship as this can be seen from the judgment of the trial court.
The Respondents’ counsel, submits further that even from the pleading and evidence placed before the trial court by the parties, it is crystal clear that no other person has been the Etsu Yankpa except from the patrilineage.
The respondents’ counsel urged this court not to disturb the finding of facts by the trial court as the findings are not perverse. He relied on the cases of IWUOHA & ORS VS NIGERIAN POSTAL SERVICES (2003) 14 NSCQR (PT. 1) 253 at 282, SALIBA VS YASSIN (2002) 9 NSCQR 179 at 194, GOLDAY VS COOPERATIVE BANK (2003) 13 NSCQR 243 at 557 to buttress his position.
Counsel further submitted that the trial court having reviewed and evaluated the evidence of the parties found as a fact, the following:
1. That Ndajiko was, the founder and the 1st settler.
2. That there is only one ruling house, which is Ndajiko ruling family house.
3. That it is the ruling house of Ndajiko that selects Etsu Yankpa that is the village head of Bacita and the selection is on patrilineage.
4. That alter the nomination the people would now accompany the nominee to the 2nd Defendant for homage.
5. That it is Ndajiko family affairs to select Etsu Yankpa of Bacita from male members of the family in order of seniority.
6. That it is not the role of Etsu Tsaragi, 2nd Appellant to nominate or select Etsu Yankpa of Bacita but that whoever is appointed or selected is to pay homage to him.
The Respondents’ counsel urged my lords not to disturb the above finding as the findings by the trial court has not been shown to be perverse.
Counsel then stated that it is crystal clear that ascending to the throne as Etsu Yankpa is by Ndajiko family alone, and hence they constitutes themselves as a kingmaker and in order of seniority. He relied on the authority of MAFIMISOBI VS EUWA (2007) 29 NSCQR (PT 1) 410 at 455-450.
Counsel urged this court to resolve this issue in favour of the respondents.
RESPONDENTS’ ISSUE NO. 3
Whether or not there were sufficient pleadings vis a vis the evidence placed before the trial court by the respondent to justify the award of general damages by the trial court Ground 6, 7 & 8.
The Respondents’ counsel submits that it will be apt to draw the attention of this court to the pleadings of the respondents and the evidence on oaths placed before the trial court.
Respondents counsel draw the attention of this court to paragraphs 17,18,19,20 and 21 of the Respondents’ amended statement of claim as well as the respondents statement on oaths, to show the evidence of damage done by the Appellants to the Respondents family, that is the Ndajiko family of Bacita.
He submitted that the claimant claimed N1million (One Million naira as general damages against the appellants, but the trial court used his discretion to award the sum of N250,000.00 as general damages as borne out both in the documentary and other evidence placed before the trial court.
Respondents’ counsel submitted that general damages are such as the law will presume to be direct natural or probable consequences of an action. He stated that it is settled law that in other to justify the interference with the amount of damages awarded by the trial judge, an Appeal court must be convinced that the trial judge acted upon some wrong principle of law. He relied on the case of STERLING VS MAHMOOD YAHAYA (2005) 22 NSCQR 1 AT 22-23.
Respondents’ counsel submits that while proof of special damages needs special and strict proof, general damages does not need strict proof, he cited the case of SHELL PETROLEUM VS TIEBO (2005) 22 NSCQR 69 at 98 to support his claim.
Counsel further submitted that, it is settled law that the award of general damages is essentially that of the trial court’s discretion and on appellate court, like this honourable court must ordinarily be circumspect in an invitation to interfere with what is awarded he relied on the authority of OKWEJI MINOR VS GBAKEJI (2008) 33 NSCQR (PT 863) AT 896.
The Respondent counsel then urged this court to resolve this issue in favour of the Respondents.
APPELLANTS REPLY BRIEF/REPLY TO PRELIMINARY OBJECTION
Appealed a reply brief dated 28/5/09 and sensed 1/6/09, they prayed this honourable court to discountenance with the submissions in the preliminary objection, most especially the authorities cited. On the other hand there is an appellants response to Respondent brief on its merit urging this court to dismiss the respondents suit as formulated before the lower court.
DETERMINATION OF PRELIMINARY OBJECTION
It will be recalled that O.J. Adeseko Esc, the learned counsel to the respondent in his respondents brief filed a preliminary objection. The grounds for the preliminary objections are
(a) By tie combined effect of sections 241 and 242 of the 1999 constitution, particularly section 241(1) (b) and going through the grounds of Appeal as couched by the appellant they are at best facts and or of mixed law and facts. Hence the plants needed the leave of the trial court or this honourable court before they can validly filed this appeal and no such leave was sought and obtained before this appeal was filed.
(b) By Order 6 Rule 2 and 3 of the court of Appeal Rules, 2007 the grounds of appeal must not be vague, general and must disclose reasonable grounds.
On the first ground which relates to the combined effects of sections 241 and 242 of the 1999 constitution, that when an appellant is filling an appeal which contains facts, and or, mixed law and fact; the appellant will need the leave of the trial court or that of the court of appeal for a final judgment as in this case is an absolute misnomer.
Section 241 is herein under reproduced below-
241(1) an appeal shall lie from decisions of the Federal High Court or a High court to the court of appeal as of right in the following cases.
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
Flowing from the above section of the constitution, it is categorically stated that the appellant has a right of appeal, as of right in a final decision of a high court sitting as a court of first instance, thus, the appellant does not need leave to appeal.
Section 241(1)(b) refers to interlocutory appeal and that is not the position in this case. See FIRST FUEL LTD VS. NNPC (2008) ALL FWLR (PT 429) 514 AT 529 A-D, 530 F-G AND KASANDUDBU V ULTIMATE PETROLEUM LTD (2008) ALL FWLR (PT 417) 155 AT 170 G-G. Where this honourable court held as follows-
“where an appeal is interlocutory but it involves questions of law above, no leave is required in accordance with section 241(1)(a). See ICHIE FEROME ANAGHALU V NATHAN ORALOSI (1990) 10 SCNJ 1. An interlocutory order involving mixed law and fact can only be appealed against with leave within the meaning of section 242(1) of the said constitution. If it is a final order, no leave is required whether it is mixed law and fact
Similarly, Ogunwumiju JCA, in UNITY BANK PLC V NWADIKE (2008) ALL FWLR (PT 444) 1571 at 1589 B-D held thus
“…the Appellant appealed against the final judgment of the lower court and whether the grounds are of mixed law and facts, no leave to appeal need be sought: section 241(1) (a) of the 1999 Constitution…
This is different from section 233 (2) (a) of the 1999 Constitution which relates to appeals to the supreme court in which case, be it final or interlocutory, where the decision appealed against is of mixed law and facts, leave of the supreme court must first be sought and obtained for it to be competent; OJO ADEBA YO V MRS. F. IGBODALO (1996) 5 SCNJ 23.
In other words, for an appeal to lie as right or without leave of either a State or Federal High Court or this Honourable Court, the grounds of appeal must relate-
(1) Final decision from the Federal and State High Courts either in any civil or criminal proceedings of the court sitting of first instance.
(2) The courts decisions on questions of law alone;
(3) Decisions on questions as to the interpretation or application of the constitution, and
(4) Decisions on questions as to whether any of the provisions of chapter iv of the constitution has been breached or likely to be breached in relation to any person, and so on.
The poser now is, was the decision appealed against not a final judgment? I answer in the affirmative that it is a final judgment and the appellants does not need any leave of the lower court or of this court before filing an appeal, even on grounds of law or facts.
Thus, the first ground of the preliminary objection is dismissed.
On the second ground of appeal, all the attacks of the respondents on the grounds of appeal as couched by the Respondents are uncalled for as the grounds of appeal, arose from the judgment appealed against thus they are competent, as they do not offend order 4 rules 2 and 3 of the Court of Appeal Rules 2007. The grounds are not vague and general, as they disclose reasonable ground. Furthermore, where the substantive grounds of appeal filed by an appellant contains enough information about the complaint of the appellants, the ground would not be described as vague or liable to be struck out simply because the particulars in support of the grounds of appeal are inelegantly drafted. SEE S.C.O.A (NIG) PLC V. MOHAMMED (2004) 4 NWLR (PT 862) 20.
A ground of appeal must relate to the decision or judgment appealed against. Thus, a ground of appeal will not be competent if it is not related to or connected with the controversy between the parties see KABIRU V. IBRAHIM (2004) 2 NWLR (PT 757) 326.
With the greatest respect to the learned counsel to the Respondent, it is clear that the ground of appeal that he complained against are competent and does not need unnecessary hair splitting.
On the whole, this preliminary objection lacks merit and is accordingly dismissed.
RESOLUTION OF ISSUES
Upon a careful consideration of all issues formulated by the two parties in their briefs of argument, I have come to the considered opinion that the three issues as enunciated by the Respondents are well entrenched in issues one to six of the Appellants, thus the issues as formulated by the appellants will be use to determine this appeal.
ISSUE ONE
Whether the learned trial (sic) adequately considered exhibit D1, its effect and the issue raised thereon in the Appellants’ address and whether the non-consideration of same has not occasioned a miscarriage of justice to the Appellant.
Exhibit D1 is a ruling of a High court which was tendered during the cross-examination by CW1, with suit No. KWS/50/94. I have carefully perused the entire proceedings of the lower court. Exhibit D1 is an interlocutory application for substitution after the demise of one Alhaji Issa Mohammed in the case of one ALHAJI ISSA MOHAMMED V HRH ALHAJI ALIYU AUDU NDAKPATATA. I agree intoto with the Appellants’ counsel that any issue or issues raised by any of the parties in the court must be decided one way or the other. See ADEBAYO V BABALOLA (1995) 7 SCNJ 306 AT 319 – 320, AGBOGUNLERI V DEPO (2008) ALL FWLR (PT 408) 240 AT 256, A-F; 259 A-B, 267-268 H-B, 268 E-G AND NOGA NOTELS INTERNATIONAL S.A. V NICON HOTELS (2008) ALL FWLR (PT 411) 840 AT 576 D-G.
However in this case the non consideration of Exhibit D1 by the trial court will not cause any injustice or unfairness to the appellants, as it has got nothing to do with this case. More over, a claim that there has been a miscarriage of justice can only be sustained where there are substantial errors in the adjudication, with the resultant effect that the party relying on such errors may likely have judgment in his favour. There is no miscarriage of justice or failure of justice where it is not shown that the decision reached is prejudicial or inconsistent with the substantial rights of a party. See Kraus Thompson Org Ltd v. uncial (2004) 9 NWLR (Pt 879) 631 @ 642, AMADI V- NN.PC (2000) 10 NWLR (Pt. 674) 76. The trial court carefully appraised all the issues but without necessarily splitting it one by one. That was why the trial court had referred to the celebrated case of HAROLD SHODIPO V LEMIN KAINEN OY (1986) 1 NWLR (PT 15) 220 at 234. Where it stated thus.
“A judge exists to determine disputes and to examine with due care and microscopic sense all matters before him in his pursuit of justice. He is not to trap any party or get in motion what the parties have not brought before him. He is not the ground inquisitor envisage by DOTOEVE in his BROTHER KARAMAZU. He is a judge governed by rules… the judge though he must have some room to manoeuvre once it is in the interest of justice is certainty not an image of a go-getter, a-free-for-all fighter.”
The Supreme Court said the following about cogency of evidence in ADEPOJU AYANWALE & ORS V BABALOLA ATANDA & ORS (1995) 15-C 1 at 1.
“Cogency of evidence led depends on a series of factors the most important of which is the credibility of witnesses, its enhance if there is no contrary evidence to his testimony. It is destroyed if there is contrary evidence to this testimony either from independent witness or from previous testimony on oath of the witness, himself. If the credibility of a witness is destroyed, the evidence he gave loses cogency and probative value.”
Before Exhibit D1 could be considered, section 34 of the Evidence act provide thus-
34(1) Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving in a subsequent judicial proceeding, the truth of the facts which it states. When the witness is dead or cannot be founded or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which in the circumstances of the case, the court considers unreasonable provided-
(a) That the proceeding was between the same parties or their representatives in interest.
(b) That the adverse party in the first proceeding had the right and opportunity to cross-examine; and
(c) That the questions in issue were substantially the same in the first as in the second proceeding.
Exhibit D1 is a matter between one Alhaji Issa Mohammed and HRH Alhaji Aliyu Ndapatata; the issue is for the challenge on the appointment of one Alhaji Aliyu as the Akimi of Bacita and it is not the same issue as in this case. Thus, the admissibility of the exhibit without objection and the non-consideration of the exhibit to my own mind did not occasion any miscarriage of justice to the appellants or to any other person, since the parties, issues and proceedings are not the same. Thus exhibit D1 is an irrelevant document to this case. S.O. Uwaifo JSC (as he then was) held in SHANU ANOR VS AFRIBANK PLC (2003) 11 NSCQR 54 at 75.
“it must be understood that in order to legally admit. Evidence given by a witness in a previous judicial proceeding when tendered in a subsequent proceeding or at a later stage of the same proceeding for the purpose of proving the truth of the same facts which states (i.e. in the sense that it is true those facts become evidence which the trial court has a duty to evaluate and it is for it to decide which fact is true and which is not,) the conditions stipulated under section 34(1) of the evidence Act must be complied with, compliance therewith is a statutory requirement to make such evidence legally admissible. That is why it is irrelevant whether there was no objection to its admission. In other words unless there is compliance, the evidence cannot be admitted by consent.
Similarly the erudite jurist D.O. Edozie JSC in DUROSARO VS AYORIIJJDE (2005) 21 NSCQR 701 at 711 said-
“It is not permissible to treat evidence in previous proceedings as one of truth: see Alade v Aborishade (1960) SCNLR 398; (1960) 5 FSC 167, 171; Asuquo Udo Enang & Anor v Edem Udo Ekanem & Ors (1962) 1 ALL NLR 530. Where inadmissible evidence is admitted without objection at the trial, the failure of a party to object will not prevent its inadmissibility from being raised and determined on appeal. In Alade v Olukade (1976) 10 NSCC, 34-35, this court held that a court is expected in all proceedings before it to admit and act therefore, if a court should inadvertently admit inadmissible evidence, it is duty bound not to act upon it.
Without being immodest, the trial judge need not pronounce on Exhibit D1 as it adds nor subtracts anything from this case.
In all I hold on this issue that the non-consideration of exhibit D1 did not occasion a miscarriage of justice to the appellant or to any other party.
This first issue is resolved against the appellants and in favour of the Respondents.
ISSUE TWO
Whether having regard to the Inconsistent position of the Respondents (and their privy) on the existence or otherwise of kingmakers in the appointment of village head of Bacita it was correct or proper for the learned trial judge to have held that there are kingmakers m the appointment of Estu Yankpa / Village head of Bacita.
In every society where leaders, heads and kings are being appointed, nominated or bselected it is generally being done by a set of people and they can be given any name either as chiefs, kingmakers, elders-in-council and any other nomenclature.
The Appellants contended that there are no kingmakers and it is the generality of the people of Bacita who will appoint their village head; forward his name to the 2nd Appellant for approval and who would in turn forward his name to Edu/Patigi Traditional council who would then forward such name to Edu Local Government for final approval. Whereas, the position of the respondent is that the kingmakers for Estu Bacita who are principal members of Ndejiko family, will appoint the village head on the basis of seniority and the person will be escorted to the 2nd appellant to pay homage who will in turn take the name to Edu Patigi traditional council from where same will finally be transmitted to Edu Local Government Council for final approval. It is clear that the two parties agree that the village head of Bacita must come from Njediko family who are the first settlers in Bacita and from whom previous Ndejiko’s were selected, nominated and confirmed. The duty of the 2nd Appellant is just to approve the name of whoever is selected amongst the Ndejiko’s in which he would in turn forward same to Edu/Patigi Traditional Council and for onward transmission to the Edu Local Government Area council. The headship of Bacita is not graded, thus, there is no formal way of section and appointment of such head.
The 2nd Appellant has nothing to do with the selection of the head of Bacita.
The contention of the Appellants that the respondents in one breathe stated that the village head is appointed by the principle members of Ndejiko family members and in another breathe stated that it is the generality of the Ndejiko family members or principal members that appoints the head of Bacita, to me, this is not a contradiction; the principal members or kingmakers are all still from the Ndejiko family and there is no dispute on that.
Be that as it may, paragraph 8 and 9 states who can be the village head and same is reproduced herein under-
8) the plaintiff will prove by traditional evidence that there had been 8 village heads before the appointment of the 1st Plaintiff and that all the village heads were from Ndejiko family of Bacita, the family is the sole ruling house in bacita
9) that Ndajiko family is the sole ruling house of Bacita and all village heads must come from Ndajiko ruling house of Bacita.
Evidence too was similarly given in this respect and there is no strong different opinon whatsoever to warrant the trial court to do otherwise that to state that the 1st Respondent who hails from Ndejiko family is the duely selected head of bacita.
The submission of the appellants on this issue missed the point. Common sense dictates that a group that a group of people by whatever nomenclature they are called would be responsible for the selection and it would be absurd for a party to claim that section will be done by the generality of the people. Even under the democratic dispensation where it is the government of the people, by the people, and for the people; where votes are being cast, the voters have to be accredited by the electoral body before anybody can vote and not that everybody will just come and vote, including aliens and convicts.
Furthermore, the argument of the Appellants on the lack of credibility of the kingmakers based on the presence of the Respondents son as a kingmaker is of no issue. This is born out of the African culture, of having a representative of the plaintiff in an institution or organisation i.e this representative most often than not is the eldest in the family. The 1st Respondent who was elevated onto the head of the Bacita people or community left an auspicious lacuna which had to be filled by a member of the family. In this case, this position was filled by his son. The question now to be answered is, should the son be disqualified as a member of the kingmakers solely because his father has been selected as the next head of the Bacita Community?.
Kingmakers have a vested right to vacant Chieftancy stool as each of them has a constitutional right to take part in the selection or appointment of a successor to the stool in the event of a vacancy in the Stool. NDAYAKO v. DANTORO (2004) 13 NWLR (PT 889) 187.
Based on the above cited authority, my answer is in the negative.
Finally on this issue, the .trial court was right to hold that there are kingmakers who validly appointed the 1st Respondent as the village head of Bacita in November 1997. On 1 this issue, I disagree with the submissions of the learned appellants’ counsel and the authorities cited by him are inapposite to the current case.
This second issue is resolved against the appellants and in favour of the Respondent.
ISSUE THREE
Whether haying regard to the state of pleadings and evidence led, the failure of the learned trial judge to adequately consider the relationship of the 1st Appellant with Estu Yankpa Zubair for his entitlement to the throne did not occasion a miscarriage of justice to the 1st Appellant.
The bone of contention of the Appellants on this issue is that the 1st Appellant who hails from Estu Yankpa Zubair lineage, one of the former Estu Bacita is entitled to be the village head, whereas the respondents claim that Estu Yankpa Zubair never had a direct male survivor and that the 1st Appellant is not entitled to the throne.
It should be noted that the 1st Appellant agreed that his own father and grandfather where never the head of Bacita. I agree with the position of the appellants’ counsel that all a person needs to do in a chieftaincy matter is to show that he belong to that family concerned,see OKULAYE & AWOSANYA (2000) FWLR (PT 25) 1666 AT 1686.
However, coming from the royal house stricto senso does not entitle a person to a chieftaincy stool as a matter of right as there are still some other conditions that will be attached to it.
The appellants in paragraph 16 of the amended statement of defence of the appellants stated thus-
“the defendant will at the trial lead evidence to show that the 1st defendant is from the Etsu Yankpa Zubair lineage of Bacita and is infact entitled to be made village head of Bacita.”
While the Respondents by paragraph 9 of the reply to the statement of defence stated thus-
“In further reply to paragraph 16 of the statement of defence, the claimants deny same and aver that Etsu Yankpa Zubair whom the 1st Defendant is claiming through does not have a direct male survivor.”
From the above, it is clear that the two parties joined issues on whether the 1st appellant is entitled to the headship Bacita or not.
It is not in dispute that the 1st appellant is of the Etsu Yankpa Zubair lineage, but the issue is whether his lineage is patrilineal. When the 1st appellant was cross-examined he said thus-
“Etsu Yankpa Zubair compound is the same as Ndejiko Compound, Etsu Yankpa Zubair has no male survivor that is the reason why my grandfather and father could not claim through Etsu Yankpa Zubair to become the village head of Bacita… Things start from somewhere”
This has served as a pointer to the fact that-
(1) It is only the male descendants of Ndejiko that can be the head of Bacita, and
(2) It must be through their paternal lineage.
In as much as I agree with the appellants that evidence not pleaded but extracted during cross-examination is inadmissible as earlier stated in NWABUBA & ORS V. ENEMUO & ORS (1988) 5 SCNJ 154 at 167; ISHENO V JULIUS BERGER PLC (2008) ALL FWLR (PT 415) 1632 at 1653 D-F; however, when a fact is in issue or in contention the truth of such facts can be elicited during cross-examination, as done in this case by the trial court.
The 1st Appellant under cross-examination at the trial court stated that
“things start from somewhere”
When his own father and grandfather were never made Etsu Bacita. At this stage, the holding of the trial court that
“on the most crucial issue of the ruling family the defendant averred that the 1st defendant is from Etsu Yankpa Zubair lineage but according to the claimant Etsu Yankpa had no male issue and the 1st Defendant is only a son of a female descendant of an Etsu Yankpa and therefore has no right to ascend the stool of Etsu Yankpa Bacita which is a patrilineal society”
should not be disturbed. It would not be fair at this stage to rewrite the history of the Bacita people as to ascension to the throne. For this and other holdings, issue three is resolved against the appellants in favour of the respondents. Furthermore, the learned trial judge adequately considered the relationship of the 1st appellant with Etsu Yankpa Zubair and there is no miscarriage of justice.
ISSUE FOUR
Whether having regard to the quality of evidence before the lower court, there was credible or admissible evidence to justify the award of damages jointly or severally in favour of the Respondents.
The appellant submitted that the 1st Appellant was not cross-examined on his denial of his involvement and that none of the witnesses who gave evidence for the appellant were ever cross-examined to throw light on their alleged act and that even the 1st Respondent who is the centre of the attack never gave evidence that he was attacked.
I am in tandem with the above submission. Also, I agree that the criminal allegations ought to have been proved beyond reasonable doubt vide section 138 (1) & (2) of the Evidence Act. Failure to do this is seriously against the 1st Respondent.
The Exhibits Rendered by the Respondents at the lower court did not assist their case, because the law is that, he that asserts must prove, section 137 of the Evidence Act.
The submission of the Appellant holds water and that was the position of the trial judge who held that-
“the law however remains that special damages must be specifically proved. In this case these is no such proof and such damages cannot be awarded arbitrarily. See KUSFA V UNITED BAWO CONSTRUCTION CO. LTD (1994) 4 SCNJ 1 and OJOMO VINCAR NIGERIA LTD (1993) 9 SCNJ 130.
…bemuse no special damages have been proved none shall be awarded”
Since the 1st and 2nd Appellant were not found guilty of any criminal offence by any court in Nigeria, there is no need for the award of the sum of N250,000.00 by the trial court, as there is no grounds for the award.
Issue no 4 is hereby resolved against the Respondents and in favour of the Appellants.
ISSUES FIVE & ISSUE SIX
Whether the learned trial judge was not wrong on the purported internal influence to justify his decision and whether same has not occasion (sic) a miscarriage of justice to the Appellants &
Whether the learned trial judge adequately and sufficiently weighed the totality of the evidence (oral and documentary) before finding for the respondents and whether the finding is not perverse.
In dealing with issues 5 and 6 above, in line with the act of the appellants in arguing the two together- the resolution of the two issues will also be done together.
The Appellants counsel did not marshal his point adequately as it was compound, complex and not easily digestible.
Issue 5 will be treated as issue 4 was treated above, while issue 6, as I stated in issues 1,2 and 3. The Respondents proved their case before the lower court and same shall not be disturbed except that of the issue on the award of damages.
Thus, issue 5 is resolved in favour of the Appellants, while issue 6 is resolved in favour of the Respondents.
In all, it is clear that the following were resolved-
(1) That Ndejiko was the founder and the 1st settler in Bacita.
(2) That there is only one ruling house, which is Ndejiko ruling house family.
(3) That it is the ruling house of Ndejiko that selects Etsu Yankpa, that is the village head of Bacita and the selection is patrilineal
(4) That after the nomination the people would now accompany the nominee to the 2nd defendant for homage
(5) That it is Ndejiko family affair to select Etsu Yankpa of Bacita from male members of the family in order of seniority
(6) That it is not the role of Etsu Tsaragi, 2nd Appellant to nominate or select Etsu Yankpa of Bacita but that who ever is appointed or selected is to pay homage to him.
In all, the Appeal succeeds in part.
I make no Order as to cost.
DALHATUL .D. ADAMU (OFR), J.C.A.: I have been privileged to have read (in advance) the lead judgment of my learned brother SOTONYE DENTON-WEST J.C.A. in this appeal. I noted the painstaking setting up of the arguments from the briefs and the resolution of all the issues involved in the case. I have also noted with admiration and commendation, the resolution of the respondents 1st arm and 2nd arm of preliminary objection against the competence of the grounds of appeal. I am also of the view and I adopt the resolution of the preliminary objection in the lead judgment, that the two sets of objections lacked merit and are accordingly dismissed.
On the issues particularly the 1st, 2nd and 3rd issues, I also agree with the resolution of the issues against the appellant and in favour of the respondent for the reasons given in the lead judgment. It is only on the 4th issue which relates to the award of general damages against the appellants and the consideration of external influence by the learned trial judge that should be resolved in favour of the appellant. The 6th issue on the inadequacy or insufficiency of weighing the totality of the evidence by the learned trial judge before reaching his conclusion should be resolved in favour of the respondent against the appellant. On the whole having resolved issues 1, 2, 3 and 6 against the appellant and in favour of the respondent while issues 4 and 5 are the only issues resolved in favour of the appellant against the respondent, I also agree that the appeal has succeeded in part.
It should therefore be allowed as such. While setting aside the order on award of damages N250.000.00. I also make no order on costs.
IGNATIUS IGWE AGUBE, J.C.A.: I have read the draft of the lead judgment of my noble Lord Denton West J.C.A and am in complete agreement with his reasoning and conclusion that this appeal is meritorious and should be allowed in part.
My Lord has ably done justice to all the issues which arose for determination in this appeal and I have noting more to add then to abide by her reasoning, conclusion and consequential others including costs.
Appearances
ADEWALE OLATUNDE ESQFor Appellant
AND
O.J. ADESEKO ESQ.For Respondent
