PETER BABALE KURE V. THE KADUNA STATE LOCAL GOVERNMENT SERVICE COMMISSION & ORS
(2011)LCN/4818(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 22nd day of May, 2002
CA/K/246/96
RATIO
INTERPRETATION OF STATUTE: MEANING OF THE PHRASE “SUBJECT TO APPROVAL” AS CONTAINED IN SECTION 8M OF THE KADUNA STATE LOCAL GOVERNMENT EMIRATE AND TRADITIONAL COUNCIL AMENDMENT INSTRUMENT 1983/84 AS REGARDS THE APPROVAL OF THE LOCAL GOVERNMENT SERVICE BOARD IN THE APPOINTMENT OF THE DISTRICT HEAD OF NOK
The provision of section 8m of the Kaduna State Local Government Emirate and Traditional Council Amendment Instrument 1983/84 is couched as follows; “Subject to the provision of the law, the functions of the council, i.e. (the 3rd respondent in this appeal) shall be (a) subject to the formal approval of the local government service board (the 1st defendant/respondent) to (1) appoint (2) and discipline district heads and pay their remuneration.” There is no dispute as to the functions of the 3rd respondent to pay to the district head their remuneration or to discipline the district heads. What appears to be in conflict in the appeal is the interpretation of the part of the law which requires the approval of the local government service board in the appointment of the district head of Nok. Assuredly, the power to appoint a district head by 3rd defendant is subject to the approval of another body the 1st defendant can mean no more than that the nomination in the first instance is by the 3rd defendant and the final appointee is the appointment made by the 3rd defendant/respondent. The provision of the legislation referred to does not require the local government service board to go in search of candidates to appoint as district head, similarly, the 3rd or the 2nd defendant/respondent cannot announce on their own, the appointment of a district head. Neither of the incidents cited above would be in consonance or in compliance with the provision of section 8m of instrument of appointment referred to above. There is in the provision of the section a symbiotic situation. The 1st defendant/respondent had to approve of the appointment made by the 3rd defendant. In doing this, the 1st defendant may refuse to approve of a recommended candidate until the 3rd respondent presents a candidate that the 1st defendant will approve. The use of the word “appointment” by the traditional council shows clearly that any such approval by the 1st defendant shall be made in the name of the traditional council which body has the right and duty to appoint the district head. In my view the provisions of section 8m above are clear and allow of no ambiguity. The prefix “subject to approval” cannot as in the case of such provision in a contract agreement be ignored. See International Textile Industries (Nig.) Ltd. v. Ademola Oyekanmi Aderemi & Ors. (1999) 8 NWLR (Pt. 614) 268 per Uwaifo, JSC. Such a prefix, “subject to approval” in a statute must be complied with in giving effect to the legislation. In giving such an interpretation, the court will seek to interpret the intention of the legislature as prescribed by the Supreme Court in Prince Ademola Odeneye v. Prince David Efunuga (1990) 7 NWLR (Pt. 164) p. 618 at p. 635 where the Supreme Court held. The purpose therefore of interpreting the words of the statute is to seek to ascertain the intention of the legislature and to provide a key to unlock the elusive and obscure intention of the legislature in inserting the clause. PER OMAGE, J.C.A.
RULES OF INTERPRETATION: POSITION OF THE LAW WHERE THE WORDS OF AN ENACTMENT ARE CLEAR AND UNAMBIGUOUS
It is true that where the words of an enactment is clear and unambiguous, the words of the provisions of the statute should be given their ordinary or natural and grammatical meanings so as to convey what is intended by the legislature. PER SALAMI, J.C.A
APPROVAL: DEFINITION OF THE WORD “APPROVAL”
…The Black’s Law Dictionary 6th Edition which defines the word “approval” thus: “The act of confirming, ratifying, assenting, sanctioning or consenting to some act or thing done by another. PER SALAMI, J.C.A
SUBJECT TO APPROVAL: IMPLICATION OF THE PHRASE “SUBJECT TO APPROVAL” WHEN CONTAINED IN A STATUTORY PROVISION
Statutory provisions containing the phrase or words “subject to approval” are usually restraining or restrictive. It implies that there is no absolute, or unrestrained or unconditional power on the part of the third respondent namely Jaba Traditional Council to select or appoint a district head for Nok District. I am encouraged in this view by the case, Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517, 565 where Oputa, JSC said: “The expression ‘subject to’ is often used in statutes to introduce a condition, a proviso, a restriction, a limitation.” See also Olatunbosun v. Nigeria Social & Economic Research Council (1988) 3 NWLR (Pt.80) 25, 46; Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622 and LSDPC v. Foreign Finance Corporation (1987) 1 NWLR (Pt.50) 413, which were all cited in the fourth respondent’s brief. PER SALAMI, J.C.A
JUSTICE
ISAAYO SALAMI Justice of The Court of Appeal of Nigeria
MAHMUD MOHAMMED Justice of The Court of Appeal of Nigeria
VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria
Between
PETER BABALE KURE Appellant(s)
AND
1. THE KADUNA STATE LOCAL GOVERNMENT SERVICE COMMISSION
2. H.R.H., THE KPOM HAM, MALLAM DANLADI GYET MAUDE
3. THE JABBA TRADITIONAL COUNCIL
4. ALHAJI IBRAHIM NOK Respondent(s)
OMAGE, J.C.A. (Delivering the Leading Judgment): In the court below, in the Kafanchan High Court of Kaduna State, the plaintiff now the appellant sued the following;
(i) Kaduna State Local Government Service Board Commission.
(ii) His Royal Highness, the Kpom Ham,Mallam Danladi Gyet Maude.
(iii) The Jabba Traditional Council.
(iv) Alhaji Ibrahim Nok in suit No KDH/KAD/562/91. In the suit, the plaintiff Peter Babale Kure, claimed the following;
1(a) “The declaration that the plaintiff having been selected and or recommended as the district head of Nok Jaba Local Government by those entitled to select and or approve him for the said office is entitled to be approved by the 1st defendant, and to be turbaned and installed by the 2nd defendant as the head of Nok district in Jaba Local Government of Kaduna.
(ii) An order that the 1st, 2nd & 3rd defendants should appoint, turban and install the plaintiff as the district head of Nok District in Jaba Local Government of Kaduna State.
(iii) A perpetual injunction restraining the 1st, 2nd and 3rd defendants either by themselves, agents servants and/or privies or whosoever from appointing, turbanning, recognising or installing the 4th defendant as the district head.
(iv) A perpetual injunction restraining the 4th defendant, his agents, servants or privies from performing any of the duties, functions and obligations of district Head of Nok district or from enjoying any of the rights, privileges, use or benefits of the said office etc or in any manner holding out or parading himself as the district head of Nok district.
(v) A declaration that the 1st, 2nd and 3rd defendants abdicated their duties when they failed to appoint or approve the selection or appointment of the plaintiff as the district head of Nok District of Kaduna State.
(vi) A declaration that the purported appointment and or approval of the 4th defendant is ultra vires, illegal, null and void and of no effect and should be set aside etc.”
Pleadings were filed by the plaintiff and defendant it is only the 4th defendant, who filed a statement of defence. To further elucidate on the facts the following paragraphs of the statement of claim and of defence are necessary and they are stated herein where relevant. First the paragraphs of the statement of claim in paragraph
7. “On about the 8th of October, 1991, at the Chiefdom Hall Kwoi, an election was held between the defendant and the plaintiff for the purpose of selecting the new district head of Nok district.
(8). That after the election which was held in the presence of the members of the traditional council and the Assistant Divisional Police Officer (DPO) Kwoi and other members of the security and in which 8 village Heads were present the plaintiff scored 5 votes as against the 4th defendant, which two of the village heads abstained from voting.
(9). That after, the plaintiff was declared elected his name was accordingly forwarded to the Kpom Ham, who also recommended the plaintiff for appointment to the Kaduna State Local Government Service Commission for approval being the more popular of the two candidates.
The plaintiff further aver that instead of appointing the plaintiff being the selected and recommended candidate, the 1st defendant by its circular No. S/LGSC/16/S73, Vol. 1/4 and dated 22/10/91, purported to appoint the 4th defendant as the district head of Nok district. Part of paragraph 5 of the 4th defendant’s statement of defence reads thus… “The 3rd defendant only nominated three candidates for each of the 2 districts to the Local Government Service Commission for approval. While in Nok district only two applications were received, therefore both applications i.e. that of the plaintiff and the 4th defendant qualified and were sent to the Local Government Service Commission for final approval” (of one).
“The defendant deny paragraphs 7, 8 & 9, of the plaintiff’s statement of claim and in reply to that paragraph state that since there were only two candidates were nominated to the Local Government Service Commission for approval (of one)”.
The learned trial court took evidence from the witness of both the plaintiff and the defendant before he delivered judgment on 25/9/95 as follows:-
“The function of the 3rd defendant specified in section 8m of the 1983 instrument supra i.e. The Local Government Emirate and Traditional Council Amendment of 1983, include the appointment and discipline of district heads and payment of their remuneration. However, it is specifically provided that the exercise of those function is subject to formal approval of the 1st defendant. Thus, like the earlier instrument the 1983 amendment does not give absolute power of appointment to the 3rd defendant etc. For clarity I shall quote the provision of section 8m of the instrument of 1983, it provides as follows subject to the provision of the law, the functions of the council shall be (a) subject to the formal approval of the Local Government Service Board to appoint and discipline district heads and pay their remuneration. To say, that the 1st defendant must appoint the candidate elected by the 3rd defendant means going beyond these express sic provision etc etc. Generally, the plaintiff’s case rests on the fact of his preference over the 4th defendant and his anchor is that he was selected as in order of preference.”
See exhibit P.1) by the 3rd defendant. His case must fail simply because the statutory duty of the 3rd defendant is advisory and recommendatory and that the 1st defendant as appointing authority has exercised a valid power in appointing the 4th defendant. There is no duty proved on the 1st defendant to strictly go with the preference of the 3rd defendant. The X ray of my finding shows a resolution of the 2 issues formulated for determination in this suit in favour of the defendants. I find it a duty to dismiss the plaintiff claims.
They are so dismissed with no costs.”
It is against the judgment above that the plaintiff filed two grounds of appeal and sought the following reliefs;
(i) The order setting aside the judgment of the court.
(ii) A declaration that the appointment, approval and installation of the 4th defendant as the district head of Nok district is null and void and of no effect.
(iii) The declaration that the appellant was duly appointed by the 3rd respondent as the district head of Nok.
(iv) An order directing the 1st respondent to exercise its power under section 8m of the instrument only in relation to the appellant or in the alternative an order directing the 2nd and 3rd respondents to install the appellant as the district head of Nok.
The issues formulated on the grounds of appeal filed are;
(i) Whether the High Court was right in holding that the 1st respondent and not the 3rd respondent has the power of appointing a district head under section 8m of the local government Emirate and Traditional Council Instrument of 1983, and that the 1st respondent can approve a candidate not being the candidate appointed.”
(ii) Whether the High Court was right in upholding the appointment and installation of the 4th respondent.”
In the 4th respondent’s brief filed with the leave of court on 30/4/01, he adopted the two issues formulated by the appellant. The 4th respondent urged the court to discountenance the prayer of the appellant which urged the court to approve the appellant’s candidacy, on the ground that he of the two candidates was recommended. The 4th respondent averred that he was not aware:
(a)That there is only one approving body.
(b)That the 2nd & 3rd defendants have no approving authorities.
In the submission of the appellant in his brief, the appellant reiterated the functions of the 3rd defendant/respondent as the traditional council which was established under the Local Government Amendment Law, 1983, and of even the function to appoint and discipline district heads subject to the formal approval of the local government service board, (the 1st defendant in this appeal). The appellant submitted that the learned trial Judge was in error when in construing the provisions of section 8m of the Local Government Emirate and Traditional Council of 1983 law, he held that the power of appointing a district head lies in the 1st respondent and not in the 3rd respondent, (the Jaba Traditional Council). The appellant said that the learned trial Judge was further in error when he held that the Traditional Council under section 8m of the said instrument of law, was merely advisory and that the 1st respondent was not bound by the recommendation of the Traditional Council or by its choice or preference of candidate for the position of district heads. The appellant submitted that the power of appointment of a district head lies with the Traditional Council (the 3rd respondent) and not with the 1st respondent which only has the power of approval.
He submitted that the 1st respondent has no power of appointment and cannot exercise its power of approval except there has been a valid appointment made by the 3rd respondent. The appellant referred to sections 77(i) and K 78(i) (c) & 82 of Local Government Edict, 1977. The learned Counsel for the appellant cited authorities of (i) Eleso v. Governor of Ogun State (1990) 4 SCNJ 45 at 56; (1990) 2 NWLR (Pt. 133) 420 and (ii) Odeneye v. Efunugu (1990) 12 SCNJ; (1990) 7 NWLR (Pt. 164) 618. Both authorities are respectively also reported in (1990) 2 NWLR (Pt. 133) 420, (1990) 7NWLR (Pt. 164) at 618. I have found neither of the report relevant to the issue canvassed by the appellant, they are relevant only on the interpretation of statutes. The appellant further submitted that in the contents of section 8m of the Local Government Emirate and Traditional Instrument, the trial court enlarged the meaning of the words “formal approval” to include appointment and selection, which was not intended in the statute. In the circumstance the counsel submitted that the trial Judge has failed to give to the words its ordinary meaning. In his response to the appellant’s brief the 4th respondent submitted that the interpretation given by the trial court to the words “subject to approval” is correct and the observation of the court was apt, when the court ruled in its judgment that the 3rd respondent does not by the provision of section 8m Local Government Emirate and Traditional Council of 1984, have absolute power to appoint a district head, that the power of the 3rd defendant/respondent is merely advisory. The respondent counsel submitted that the intention of the legislature in inserting the provision of section 8m supra is to vest jurisdiction, power or duty for appointing a district head on the 1st respondent. On issue two, the appellants submitted that the trial court contradicted itself and misconstrued the law, when the court had expressed in the judgment that it preferred the testimony of the plaintiff, (the appellant now), when the appellant as the plaintiff in the court below, testified that the plaintiff was preferred by the 3rd defendant at an election which the court believed took place before the 3rd defendant, upon which ground he the plaintiff was recommended to the 1st defendant and yet the court proceeded to state in its judgment that the 1st defendant was not bound by the choice of candidate of the 3rd defendant. In the issue the appellant reiterated his submission that the right or duty to appoint a district head resides in the 3rd respondent in this appeal as directed, counsel said try the provision of section 8m of the instant law.
On issue 2 in this appeal the respondent submitted that the appellant, who alleged that the appointment of the 4th defendant as district head of Nok was wrong has failed at the trial and in this appeal that the appointment was wrong. He submitted that the onus is on the appellant which he has failed to discharge. This he said, precludes the appellant from saying the contrary. The respondent described as unassailable the findings of the court below. He submitted that the appellant as the plaintiff in the court below has failed to prove by evidence his preferred existing procedure. He submitted that the appellant’s failure to establish the correct procedure to be adopted in appointing of a district head leaves, the court to rely on the appellant’s assumption of the procedure, which the court will refuse to do. Quoting from the judgment of the court below, the respondent said, the court has ruled that it (the court) can presume that the preferred procedure had been followed by the 3rd defendant. The respondent urged the court to dismiss the appeal.
In this appeal, the complaint of the appellant is that his preferred procedure was not followed by the 3rd defendant by sending only the name of the favoured candidate to the 1st respondent. He also complained that the 1st respondent had exceeded its power, when it approved a candidate other than himself to be the district head of Nok district in the Jaba Local Government of Kaduna State. The appellant submitted also that the exercise of power by 1st defendant/respondent in appointing the defendant was not in compliance with the provision of section 8m of the Kaduna State Local Government Emirate and Traditional Council. The facts show that the basis of the appellant’s belief is of his view of his popularity as the appellant, at the election which he the appellant alleged took place before the Chiefs (the 3rd respondent). In the election the appellant had testified in the court below that he received the highest votes as against the 4th defendant/respondent from the Chiefs assembled at the council except for the two chiefs who abstained from voting. It is the expressed belief of the appellant that his name only was sent by the 3rd defendant/respondent to the 2nd defendant, who forwarded his name to the 1st defendant. The appellant has complained that the 1st defendant/respondent exceeded its power under the law, when it approved a candidate other than himself to be the district head of Nok district in the Jaba Local Government of Kaduna State. On the testimony of the appellant in the court below, the following questions arise, some of the questions are;
(1) The basis of the belief of the appellant that the 2nd & 3rd defendants/respondents sent one name or sent to the 1st defendant/respondent only the name of the appellant reading through the record of the proceedings there is nothing other than the ipse dixit of the appellant that it is so.
(2) Whether or not it is not permissible to send to the 1st defendant/respondent more than one name if it is not so permissible, the appellant has not so proved it as the rule of appointing a district head.
(3) What is the evidence of the procedure, which binds the 1st defendant/respondent to accept for approval only the favoured or popular candidate of the 2nd & 3rd respondents.
(4) Whether the provisions of the law compel the 1st defendant to accept the preference of the 3rd defendant.
The above are some building blocks, the plank on which the appellant should sustain his claim before the court below of error or the irregularity in the appointment of the 4th defendant now the respondent. Before the appellant can prove his charge of error of the 1st defendant/respondent, he must prove that his allegations are true and that it is so established. The appellant has made onlyaverments in his complaint, he has not proved his complaint of error or irregularity in the appointment of the 4th defendant now the respondent. On the issue, the appellant must fall. It is our rule that he who asserts must prove his assertion. See section 135 of the Evidence Act on the onus of proof. The appellant has failed to prove the error of the 1st defendant/respondent in the appointment of the 4th defendant as the district head of Nok, the issue is resolved against the appellant. Issue 2 in the appeal has failed as it is resolved against the appellant. It is inevitable in the appeal to dilate and comment on the interpretation or the import of the phrase “subject to approval” of the 1st defendant, which is contained in section 8m of the Kaduna State Local Government Emirate and Traditional Council Amendment Law. The issue incidentally is contained in issue one of both the appellant and of the respondent. The appellant has made on it a substantial submission. In my view, the ascertainment of the propriety of the exercise of the power of the 1st defendant/respondent in this appeal will depend upon whether or not the 2nd or 3rd defendant sent only one or two names to the 1st respondent, from which the 1st defendant/respondent approved one. In his submission, the appellant consistently said that they preferred only his name as the only candidate that was sent to the 1st defendant/respondent by the 2nd & 3rd respondents. The court in its judgment recited as follows;
“We can however presume that the preferred procedure had been followed by the 3rd defendant in nominating the plaintiff and the 4th defendant for the appointment.”
See page 16 lines 12 – 16 of the printed record. The learned trial Judge took the evidence of the parties, and as the trial Judge had cause to believe and to record that evidence existed to show that two names, not one only of the appellant was forwarded to the 1st defendant/respondent. If as recorded in the judgment two names of candidates for appointment as district head of Nok district was sent to the 1st defendant, surely the 1st defendant respondent in exercising its power of approval is not bound to prefer the popular candidate of the 3rd defendant. The provision of section 8m of the Kaduna State Local Government Emirate and Traditional Council Amendment Instrument 1983/84 is couched as follows;
“Subject to the provision of the law, the functions of the council, i.e. (the 3rd respondent in this appeal) shall be (a) subject to the formal approval of the local government service board (the 1st defendant/respondent) to (1) appoint (2) and discipline district heads and pay their remuneration.”
There is no dispute as to the functions of the 3rd respondent to pay to the district head their remuneration or to discipline the district heads. What appears to be in conflict in the appeal is the interpretation of the part of the law which requires the approval of the local government service board in the appointment of the district head of Nok. Assuredly, the power to appoint a district head by 3rd defendant is subject to the approval of another body the 1st defendant can mean no more than that the nomination in the first instance is by the 3rd defendant and the final appointee is the appointment made by the 3rd defendant/respondent. The provision of the legislation referred to does not require the local government service board to go in search of candidates to appoint as district head, similarly, the 3rd or the 2nd defendant/respondent cannot announce on their own, the appointment of a district head. Neither of the incidents cited above would be in consonance or in compliance with the provision of section 8m of instrument of appointment referred to above. There is in the provision of the section a symbiotic situation. The 1st defendant/respondent had to approve of the appointment made by the 3rd defendant. In doing this, the 1st defendant may refuse to approve of a recommended candidate until the 3rd respondent presents a candidate that the 1st defendant will approve. The use of the word “appointment” by the traditional council shows clearly that any such approval by the 1st defendant shall be made in the name of the traditional council which body has the right and duty to appoint the district head. In my view the provisions of section 8m above are clear and allow of no ambiguity.
The prefix “subject to approval” cannot as in the case of such provision in a contract agreement be ignored. See International Textile Industries (Nig.) Ltd. v. Ademola Oyekanmi Aderemi & Ors. (1999) 8 NWLR (Pt. 614) 268 per Uwaifo, JSC. Such a prefix, “subject to approval” in a statute must be complied with in giving effect to the legislation. In giving such an interpretation, the court will seek to interpret the intention of the legislature as prescribed by the Supreme Court in Prince Ademola Odeneye v. Prince David Efunuga (1990) 7 NWLR (Pt. 164) p. 618 at p. 635 where the Supreme Court held. The purpose therefore of interpreting the words of the statute is to seek to ascertain the intention of the legislature and to provide a key to unlock the elusive and obscure intention of the legislature in inserting the clause.
The appellant was in error when he argued and submitted that the 1st defendant/respondent had exceeded its power and acted against the provisions of the statute. I have recorded above that the court below believed and so ruled that the names of both the appellant and of the 4th defendant not respondent alone were sent by the 3rd defendant, the appellant in this appeal has failed to show otherwise and there is nothing to show that the two names were not sent. The 1st defendant was entitled as it did to select one of the two names sent to it and it came to be the name of the 4th defendant not the name of the alleged popular candidate (the appellant). The first defendant was right to do so. The appeal fails, it is dismissed. There will be cost of N3,000 to the 4th respondent.
SALAMI, J.C.A.: The appellant identified two issues in his brief of argument. The issues are as follows:
“1. Whether the High Court was right in holding that the 1st respondent and not the 3rd respondent has the power of appointing a district Head under section (sic) 8(m) of the Local Government Emirate and Traditional Council Instrument of 1983 and the 1st respondent can approve a candidate not being the candidate appointed or selected by respondent.
2. Whether the High Court was right in upholding the appointment and installation of 4th respondent.”
In my respectful opinion, the issue calling for determination is whether the appellant proved his case by showing that only one candidate should be presented and it was so presented.
Learned Counsel in arguing the appeal for the appellant contended that the third defendant, the third respondent herein, was established under Local Government Law, Cap. 91 of the Laws of Kaduna State of Nigeria, 1991 and its function is set out in paragraph 8(m) of the Kaduna State Local Government (Emirate and Traditional Council) Instrument of 1983.
Learned Counsel submitted that the power of appointment of a District Head lies with the traditional council and not with the Local Government Service Board, the first respondent.
Learned Counsel submitted further that under paragraph 8(m) of the instrument third respondent has power of appointment.
While the first respondent is vested with power of approval which ought to and should be exercised in relation only to a candidate validly and properly appointed by the third respondent and not in respect of a candidate rejected or not preferred by the traditional council. Learned Counsel referred the court in the appellant’s brief to sections 77(i),(j),(k); 78(i)(c) and 82 of the Local Government Law Cap. 91.
Learned Counsel contended further that the learned trial Judge in construing the words formal approval in paragraph 8(m) of the Local Government (Emirate and Traditional Council) Instrument of 1983, expanded or enlarged the ordinary meaning of the words “formal approval” to include appointment and selection which was not what was intended. Learned Counsel argued that learned trial Judge wrongly widen the meaning of the word “approval” to include appointment and selection. Counsel cited the cases of American Cynamid Co. v. Vitality Pharmaceutical Ltd. (1991) 2 NWLR (Pt.171) 15,30.
The argument is adroit but not ingenuous. It is canvassed in nibubus. The same is not predicated upon evidence. It is true that where the words of an enactment is clear and unambiguous, the words of the provisions of the statute should be given their ordinary or natural and grammatical meanings so as to convey what is intended by the legislature.
Paragraph 8(m) of the Local Government (Emirate and Traditional Council) Instrument, 1983, provides as follows:
“Subject to the formal approval of the Local Government Service Board to appoint and discipline district heads and pay their remunerations.”
In this regard, the learned trial Judge opined that the function of the Jaba Traditional Council is purely advisory and that the service board is not bound by the recommendation of the traditional councilor its choice or selection or preference of candidate for the position of a district head but could appoint any other candidate of its own choice.
I may not agree respectfully with the learned trial Judge that the Local Government Service Board can unilaterally shop for nominations and then give approval to their own nominee or selection. The first respondent Kaduna State Local Government Service Board, cannot exercise its power to give approval except there has been a selection by the third respondent to which the former would consent or assent to or confirm. The power of the service board to grant approval is in relation to a person properly and validly selected or nominated by the traditional council because the word “approval” to which the selection of the traditional council is subject presupposes that there must be an act already done by one person calling for approval of another person. See in this connection The Black’s Law Dictionary 6th Edition which defines the word “approval” thus:
“The act of confirming, ratifying, assenting, sanctioning or consenting to some act or thing done by another.”Before the Local Government Service Board gives its approval, it must be to some recommendation, selection or appointment or nomination or as the case may be, in the circumstance of the instant appeal by another body, the traditional council.
Statutory provisions containing the phrase or words “subject to approval” are usually restraining or restrictive. It implies that there is no absolute, or unrestrained or unconditional power on the part of the third respondent namely Jaba Traditional Council to select or appoint a district head for Nok District. I am encouraged in this view by the case, Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517, 565 where Oputa, JSC said:
“The expression ‘subject to’ is often used in statutes to introduce a condition, a proviso, a restriction, a limitation.”
See also Olatunbosun v. Nigeria Social & Economic Research Council (1988) 3 NWLR (Pt.80) 25, 46; Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622 and LSDPC v. Foreign Finance Corporation (1987) 1 NWLR (Pt.50) 413, which were all cited in the fourth respondent’s brief.
The case of Ibrahim v. Barde (1996) 9 NWLR (Pt. 474) 513 cited in the fourth respondent’s brief is not stricto sensu authority for the instant appeal. Section 3(1) of the (Appointment and Deposition) Law, Cap.25 of the Law of Kaduna State of Nigeria, 1991, expressly contains a provision whereby the Governor may appoint where those entitled under customary law fail to appoint in accordance with customary law. Paragraph 8(m) of the Kaduna State Local Government (Emirate and Traditional Councils) (Amendment) Instrument does not vests the Local Government Service Board with authority or power to solely or directly appoint a district head. Its power does not exceed giving approval or assent to an appointment already made by the traditional council.
It seems to me that parties agreed that appointment of a district head of Nok commences with a recommendation or selection or nomination or appointment by the Jaba Traditional Council. The nomination, selection or appointment is subject to the approval of the Kaduna State Local Government Service board which appointment remains inchoate until confirmation or ratification is given by the board. But the area of dispute is in respect of the procedure to be adopted to achieve the end. In this regard learned trial Judge adverted his mind to the issue in his judgment when he observed that neither appellant nor fourth defendant led evidence of the traditional or customary procedure of appointing or selecting a district head by Jaba Traditional Council. He went further to say that not even evidence of the procedure which obtains or governs some appointments within Jaba’s Traditional Council from which the third respondent, Jaba Traditional Council, was carved out was adduced. Notwithstanding the fact that Nok District is a new creation the learned trial Judge thought such evidence must be led.
I share the anxiety of the learned trial Judge, that evidence must be led to establish the procedure or practice adopted for the selection and failure to do so accounted for the situation whereby one party is claiming adherence to procedure and the other is crying foul for violation of the said procedure. And that is the bane of the appellant’s case. Appellant invited the trial court as well as this court to assume, without leading evidence thereon, that there is no power to nominate more than a person to the board and that the only person nominated by the third respondent has to be approved by the first respondent.
This submission is not sincere. It has no basis either in law nor evidence. It is a submission left hanging in the air as it is not supported by evidence, it is not a matter for address viva voce or written. It is for evidence-in-chief or cross-examination. And that onus which is on the party who will loose if it is not discharged in all civil cases is on the appellant. The failure of the appellant to adduce evidence on the number of persons to be recommended to the Board makes the cases of Eleso v. Government of Ogun State (1990)4 SCNJ 45; (1990) 7 NWLR (Pt. 133) 420 and Odeneye v. Efunuga (1990) 7 NWLR (pt. 164) 618 cited in the appellant’s brief, on the facts, distinguishable. The procedure including number of names or persons to be forwarded to the approving authority is invariably contained in the respective chieftaincy declarations relevant to these cases. There is no evidence before the trial court nor this court that, a similar declaration exists in respect of Nok district head chieftaincy.
The two decisions are therefore not material to determination of this appeal.
But, with utmost respect to the learned trial Judge, the record is not totally devoid of such evidence. In that regard the fourth respondent testified thus:
“All the village heads were invited by the 2nd defendant. He addressed us. He informed us that he was asked to send three names to Kaduna Districts for appointment of district heads. In the case of Nok, there were only two candidates; the plaintiff and myself.
Having only two names instead of three there was no need for selection/election.”
Second defence witness who represented the village head of Tungan Nok at the meeting said;
“In 1991, the village head fell sick, I represented him at the chief of Jaba’s Palace. We were informed by the chief that, the plaintiff and the 4th defendant had shown an interest in the office of the Nok District Head. There had not been an election of a candidate between the plaintiff and the defendant at the meeting.”
Under cross-examination, he denied that the chief of Jaba invited them to elect a candidate or express preference between the plaintiff and the fourth defendant. He went on to say that they only pledged their loyalty to whosoever was appointed the district head. The evidence of the first defence witness, Takallen Ganji, the village head of Ganji who, like second defence witness, was present throughout the meeting in chief of Jaba’s Palace, unlike the third defence witness, who at a stage of the proceedings had to go out, to enable the council discuss a matter affecting him personally substantially supported the other two defence witnesses.
However, defence testimony on this point is substantially, corroborated by the fourth plaintiff witness who said –
“Usually three names were sent to Kaduna, this instance only two contested.”
Fourth plaintiff witness is the Secretary to the traditional council.
It follows from these pieces of evidence that the Local Government Service Board, third respondent, called for more than two persons and since they had only two nominations, the question of selection or election does not arise. A fortiori if two people or persons were presented to the board it stands to reason that it is at liberty to anoint one of them as the Nok District Head. The argument of the appellant that he was the only candidate selected and ought to have been appointed is untenable. There would have been merit in this contention if there were evidence that nomination had been invited for a candidate and he were to be the only person presented for appointment. Even then the Local Government Service Board’s discretion in the matter to approve or otherwise would still remain unfettered. It would still have been opened to the board, first respondent herein, to reject the appellant and call for a fresh selection or nomination or appointment. In that situation it would not be opened to the appellant to complain or ask for an order of mandamus compelling the first respondent to appoint him willy nilly.
For this reason and the fuller reason of may learned brother, Omage, JCA, I too dismiss the appeal and affirm the decision of the learned trial Judge. I endorse all the consequential orders contained in the judgment, including the order as to costs.
MOHAMMED, J.C.A.: I have had the privilege before today, of reading the judgment of my learned brother, Omage, JCA, which he has just delivered. I agree with him that this appeal, must fail resulting in its being dismissed.
The appeal is against the judgment of the Kaduna State High Court sitting at Kafanchan, dismissing the claims of the appellant, who was the plaintiff against the respondents, who were the defendants. These claims in the main are for declaratory reliefs and injunction, the onus to call credible evidence and establish, which reliefs lay squarely on the appellant as the plaintiff in the case. Thus, having failed woefully to establish his claims against the respondents, the lower court was quite right in dismissing the claims.
Accordingly, I also find no merit in this appeal, which I also hereby, dismiss with N3000.00 costs to the 4th respondent.
Appeal dismissed.
>
Appearances
S. M. Nwosu, Esq.For Appellant
AND
S. E. Mosugu, Esq.For Respondent
