PRINCE HALADU YUSUF & ORS V. ALH. AHMED AL-MAKURA & ORS
(2013)LCN/6306(CA)
In The Court of Appeal of Nigeria
On Monday, the 17th day of June, 2013
CA/J/283/2009
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
SAMUEL C. OSEJI Justice of The Court of Appeal of Nigeria
MOHAMMED A. DANJUMA Justice of The Court of Appeal of Nigeria
Between
1. PRINCE HALADU YUSUF
2. USMAN DANJI DILAYI
3. ALH. AYUBA AKANZA
4. IBRAHIM MOHAMMED
(SUING ON BEHALF OF THEMSELVES, AND THE ENTIRE MEMBERS OF NGAJI ROYAL HOUSE AND FEMALE ROYALIST OF KWANDERE) – Appellant(s)
AND
1. ALH. AHMED AL-MAKURA
2. ALH. ABUBAKAR ABUH
3. LAFIA LOCAL GOVERNMENT COUNCIL
4. CHAIRMAN, LAFIA TRADITIONAL COUNCIL
5. ATTORNEY-GENERAL NASARAWA STATE – Respondent(s)
RATIO
WHETHER OR NOT THE COURT OF APPEAL CAN INTERFERE WITH THE FINDING OF FACT BY THE TRIAL COURT
The Plaintiffs, having failed to establish a strong case, the burden on the Defendants was minimal. Where this minimal burden is satisfied, the Appellate court will be slow to interfere with the findings of facts – where they are supported by the pleadings and evidence led. Where findings are not supported by pleadings and evidence or are perverse and have occasioned a miscarriage of Justice, it will interfere. Miscarriage of Justice will definitely be occasioned if an Appellate court interferes when it is unwarranted. The need to ensure that Justice is done must always dominate the attitude of an appellate court when dealing with appeals arising from questions of facts. See CPC & Anor. V. INEC & Ors. (2012) 2-3 SC 1 at page 35 per Adekeye, JSC, see also Ayorinde & Ors. V. Sogunro & 6 Ors. (2012) 4-5 SC 160. PER DANJUMA, JC.A.
MOHAMMED A. DANJUMA J.C.A.: (Delivering the Leading Judgment): This is an appeal against the Judgment of the Nasarawa State High Court of Justice, sitting at Lafia Division in suit No. NSD/LF41/2000 delivered on the 31st March, 2009 wherein the Learned Judge dismissed the Appellants claims for want of proof and in the following words:
“On the whole, therefore, the Plaintiffs have failed to prove their claim as contained in paragraph 28(a), (b), (c) and (d) of their claim. It is therefore dismissed.”
In 1994, the Chieftaincy stool of Kwandere was vacant following the death of the Chief, Ribidi Osaba on the 18th of June, 1995. The 1st Respondent who was 1st Defendant at the trial court was elected or selected by the Traditional Selectors or King Makers of the 5 Ruling Houses as the Sarkin Kwandere Subsequently; the 1st Defendant/1st Respondent was turbaned as the Sarkin Kwandere and collected a Bufafalo Tail from Mankongiji, who was the custodian thereof in accordance with their custom. The Makongiji, however died in 1996.
This was the position of the Respondents. It was however the case of the Appellants as Plaintiffs that the Defendant/1st Respondent did not collect the Buffalo tail as required by custom and tradition of the Kwandere people from the Makongiji and was by that fact not properly appointed as the Sarkin Kwandere and could not enter into the performance of the office of the chief and make any appointment thereby. The Appellants as Plaintiffs also challenged the appointment of the 2nd Respondent as the Madaki of Kwandere on the ground that he was in addition to the incompetence of his appoint or i.e. 1st Respondent, also not from a female Royal House i.e. not a female Royalist to entitle him to such an appointment as made as the Madaki of Kwandara.
For the purpose of clarity, the Appellants had by an amended writ of Summons and an Amended Joint Statement of Claim in a representative capacity sued for themselves and the entire members of the Ngaji Royal House and Female Royalist of Kwandere claiming the reliefs contained in their Amended Joint Statement of Claim dated 8th April, 2005 as follows:
a) A declaration that the 1st Defendant cannot perform the functions of the Chief of Gwandere having failed or refused to undergo the gratifying rites attached to the said stool.
b) An injunction restraining him from performing any function or parading himself as the chief of Kwandere.
c) An injunction restraining the 2nd Defendant from performing the function of Madaki of Kwandere as he is not from the female line of the royal house of Kwandere.
d) An order nullifying all appointments purportedly made by the 1st Respondent not having been properly appointed and installed as the Chief of Kwandere.
To this amended Statement of Claim, the 1st and 2nd Respondents filed their respective Amended Statement of Defence by Motion dated 31st March, 2005 which was granted on 4th April, 2005, whilst the 3rd – 5th Defendant/Respondents filed their last amended Statement of Defence through a Motion dated 6th November, 2003 and filed on 7th November, 2003 which was granted on 1st April, 2004. The Appellant filed a Reply dated 8th April, 2005 to the 1st and 2nd Respondents’/Defendants’ Defence.
SUMMARY OF THE FACTS AT THE TRIAL
The Summary of the Case of the respective parties is as follows: –
While the Appellants/Plaintiffs as shown in their pleadings and oral evidence are that, following the selection of the 1st Respondent/Defendant as the Chief of Kwandere people of Nasarawa State, the 1st Respondent did not undergo the traditional rite of collecting the Buffalo tail from their Makungiji before entering into the performance of his duties as a Chief and that this fact voided his appointment or made it inchoate; so also the appointment of 2nd Defendant as a Madaki; who also suffered an additional disability or disqualification of not being from a Female Royal House.
The Plaintiffs/Appellants tried to show by their Reply that the 1st Defendant/Respondent tried to forcefully receive the Buffalo tail during the pendency of the suit.
The 1st and 2nd Respondents admitted the importance of the Buffalo tail in their tradition but insisted that they collected same soon after 1st Defendant’s selection.
The 3rd – 5th Respondents insisted that it had complied with and acted in accordance with the outcome of Kwandere Custom on the selection and installation of their Chief.
At the trial court, the 1st and 2nd Appellants testified as PW3 and PW1 respectively and called two (2) additional witnesses.
The evidence of PW1 is at page 183 – 189 of the record, and his cross-examination is found at pages 198-199 of the record.
PW3 evidence in Chief is contained on pages 200-2002 and his cross-examination is at pages 2002 and 2005 – 2006 and cross-examination, page 2007.
The Appellants/Plaintiffs tendered a total number of six exhibits – marked Exhibits 1 – 6.
At the close of the Appellants/Plaintiff’s case, the 1st and 2nd Respondents/Defendants testified as DW1 and DW4 respectively and called two other independent witnesses.
DW1 evidence in chief is recorded at pages 209-212, their cross-examination from pages 213-215. DW2 evidence in chief is on pages 217-218, cross-examination at pages 218-219. DW3 evidence in chief is at pages 211-223 while DW4 is at 223-225.
Curiously, the 3rd – 5th Defendants/Respondents called the 1st Appellant who had testified as PW2 earlier as their DW5.
Written addresses were filed at the trial and adopted, after which the Judgment dismissing the suit in its entirety was entered.
Aggrieved by the decision as earlier on indicated at the opening of this Judgment, the Appellants lodged this appeal and upon seven grounds of appeal as shown at pages 252-255 of the record of appeal.
The record of appeal was transmitted to this court on 15th October 2009.
The Appellants’ Brief of Argument was filed on 15/4/11 pursuant to an order for extension of time granted on 16/3/11 for that purpose.
The 1st and 2nd Respondents, on their part filed their joint 1st and 2nd Respondents’ Brief of Argument on 19/5/11.
The 3rd, 4th and 5th Respondents on their part, filed their Brief of Argument on 18/5/11.
At the hearing of the Appeal on the 20th day of March 2013, the Appellants adopted their joint Brief of Argument and urged this court to allow the appeal and grant all the reliefs contained in their Joint Amended Statement of Claim at the trial court.
The 1st and 2nd Respondents also by their Learned Counsel adopted their Joint Brief of Argument and urged this court to dismiss the appeal. In the same manner, the learned counsel for the 3rd – 5th Respondents urged this court to dismiss the appeal after they had likewise adopted their joint Brief of Argument.
The Appellants, by their Joint Brief of Argument dated and filed on 15/4/11 and which was adopted, at the hearing has formulated four
(4) issues for determination, to wit:
1. Issue one (covers Grounds 1, 2, 7 and 8):
Whether the trial court rightly dismissed the Appellants/Plaintiffs’ suit in the light of the oral and documentary evidence adduced by the Appellants before it.
Issue two (Ground 3):
Whether in the light of the time and date the Appellants brought their suit to the lower court, the trial Judge was right when he held that the Appellants did not plead facts on collection of Buffalo tail that happened during the pendency of the suit.
Issue three (Grounds 4 and 5):
Whether having regard on the state of law on effect of contradictory evidence, the trial court was right when he gloss over the contradictory evidence brought by the 1st and 2nd Respondents on material issue bordering on statutes (Sic) of 2nd Respondent in Kwandere Kingdom.
Issue four (Ground 6):
Was the learned trial Judge right in holding that Exhibit I is not a reaction of 4th Respondent to Appellants’ letters and petitions all tendered before him?
On their part the 1st and 2nd Respondents formulated three (3) issues for determination, to wit:
1. Whether the trial lower court properly and correctly evaluated the evidence to justify the dismissal of the suit.
2. Whether the learned trial Judge was right when he held that the Appellants did not plead facts on the collection of Buffalo tail that purported/allegedly happened during the pendency of the suit?
3. Whether there was materially fundamentally contradictory evidence in the testimony of the 1st and 2nd
Respondents in respect of the status of the 2nd Respondent in Kwandere Kingdom to warrant the grant of the Appellants’ relief regarding the 2nd Respondent. On their part the 3rd, 4th and 5th Respondents filed their joint Brief of Argument wherein they raised two (2) issues for determination to wit:
1. Whether the Plaintiffs adduced credible evidence to prove that the 1st Defendant did not collect the Buffalo tail after his selection as Sarkin of Gwandara District.
2. Whether the Plaintiffs adduced any evidence linking or affecting the position of the 3rd – 5th Defendants as regards the collection or non collection of the buffalo tail by the 1st Defendant and his subsequent function(s) concerning the appointment of the 2nd Respondent.
I have studied the entirety of the Record of Appeal and noted all the exhibits tendered and having perused the respective issues formulated by the respective parties vide their respective learned counsel, I think with respect that the three (3) issues formulated by the learned counsel for the 1st – 2nd Respondents are apt and comprehensively covers the issues of the other parties that are relevant for the determination of this appeal. I shall, therefore, adopt and treat this appeal on the basis of Issues so formulated by the 1st and 2nd Respondents.
The 3rd – 5th Respondents had filed a Notice of Preliminary Objection on the 13th November, 2009. It is undated. It was not incorporated in the Brief of Argument that was withdrawn nor in the present Brief of Argument dated 17/5/11 and filed on 18/5/11 which was adopted on 20/3/13 in this court.
The said preliminary objection is deemed, therefore, as abandoned.
It is accordingly, struck out.
Appellants’ Issues Numbers 1, and 4 can be subsumed in the Issue No. 1 of the 1st -2nd Respondents and Issue Number 1 of 3rd – 5th Respondents’/Appellants’ Issues No. 2 is the same as the 1st and 2nd Respondents’ Issue No.2 while Appellants’ Issue No. 3 is the same as 1st and 2nd Respondents’ Issue No. 3.
I shall consider Appellants’ Issues 1 and 4 together.
Arguing Issues 1 and 4, Appellants’ counsel submitted that the learned Trial Judge did not evaluate the evidence led relating to the Exhibits that were tendered in evidence. That the admitted exhibits were neither evaluated, made use of or expunged not withstanding that once evidence was led and documentary evidence admitted, a trial Judge had a duty to painstakingly evaluate same in the light of the surrounding circumstances of the entire case before the court.
That there were no inferences drawn from the admitted exhibits and that this failure had occasioned a miscarriage of Justice. Learned counsel relying on the case of Chief Adebayo Bashorun Olufosoye & 2 Ors. V. Johnson O. Olorunfuni (1989) 1 NWLR (Pt. 95) page 26 at 37 and Vincent Ekwealor & Anor. V. Ezebilo Obasi & 4 ors. (1990) 2 NWLR (pt. 131) page 200 (CA) Ezekwesili v. Onwuegbu (1998) 3 NWLR (Pt.541) at 217 at 223, and submitted that the court has a duty to consider all admissible and relevant evidence brought before it.
Learned counsel quoted page 26 at page 37 of Chief Adebayo Bashorun Olufosoye & 2 Ors. V. Johnson O. Olorunfuni (supra) wherein the court stated thus: –
“There is a duty in a trial court to receive all available relevant evidence on an issue. This is perception of evidence. After that is another duty to weigh that evidence in the con of the surrounding circumstances of the case. This is evaluation of evidence. A finding of fact will entail both perception and evaluation.”
And page 40 thereat where Oputa, JSC stated thus: –
“It is of the essence that cases are decided on their merits. This imposes a duty on the trial Judge to consider all the issues arising between the parties before deciding for or against any such party. When a trial court fails in this duty he has merely decided half the case and not the whole case.”
Most interestingly, the Appellant’s counsel referred also to the decision of this court in Vincent Ekwealor & Anor. V. Ezebilo Obasi & 4 Ors. (Supra) wherein Uwaifo, JCA stated thus: –
“A trial court (particularly Supreme Court) has a duty to consider all the admissible and relevant evidence brought before it. This should be done in a painstaking manner in the interest of Justice. The facts may at time present immense difficulty and complication, nevertheless once they are available, it is expected that with (or without) the assistance of counsel, the court must do all it can do to understand, unnerve, explain simply and properly evaluate them and then making findings on relevant issues, if a court cannot do this it has abdicated its duty.”
Upon these authorities supra it was contended that Exhibit 4, though relevant by virtue of section 10 of the Evidence Act and was so admitted, the trial Judge did not consider the contents particularly of paragraphs 3 and 4 thereof; ditto paragraph 3 of Exhibit 2 and Exhibit 1. Learned counsel contended that from Exhibit 1, it was clear that the 4th Defendant had found merit in the complaint of the Appellant even prior to the commencement of the suit on appeal now.
It was contended that if the trial court had painstakingly considered the documents, he would have seen that prior to the commencement of the suit, the 1st Respondent had not collected the Buffalo tail and also the appointment of the 2nd Respondent as the Madaki Kwandere was wrong in their custom as he is not a Female Royalist. That the trial court failed to evaluate the evidence. Relying on Summit Fin Co. Ltd. V. Iron Baba & Son Ltd. (2003) 17 NWLR (Pt.848) page 57 wherein this court, per Salami, JCA as he then was (now President of the Court) held: –
“Where there is oral as well as documentary evidence, documentary evidence should be used as a hanger from which to assess or evaluate the oral evidence.”
And Kindey V. Military Governor Gongola State (1988) 2 NWLR (Pt. 77) P. 445. Fashami V. Adekoya (1974) 6 SC 83. pg. 123 par. E-F and submitted that a close look at all the letters under reference will reveal that a copy was served on the 1st Respondent at the time it was made, and there was no denial in writing of the facts in writing, except in the Statement of Defence which had been objected to in a Reply by the Appellants. It was also submitted relating to the specific findings by the trial Judge at page 254 lines 5-10 of the Record, thus: –
“As to Exhibit 2, 3, 4 and 2A talk of improper appointment of title holders only, therefore Exhibit 1 is not a reaction from the 4th Defendant as alleged by the Plaintiffs in their address as it too complains of improper appointment of title holders addressed to the Sangari of Kwandere who is the 1st Defendant. That this exhibit (sic) are of no evidential value as to none collection of Buffalo tail;”
that it did not take into account the totality of the content of the exhibits and therefore was perverse and unfair to the Appellants.
It was further submitted that it is necessary in a trial that the Judge considers the totality of the evidence adduced. Magaji & Ors. V. Madam Rabiatu Odofin & Ors. (1978) 4 SC page 93 wherein the court stated thus: –
“In order words, the totality of the evidence should be considered in order to determine which has weight and which has no weight at all… the trial Judge after a summary of all the facts, must put the two sets of facts on an imaginary scale weight one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other and then apply the appropriate law to it.”
This court has been urged to appraise the documents as the trial court did not properly do, and then to find in favour of the Appellant – Maigoro V. Bashir (2000) FWLR (Pt. 19) p.553 at 559 holden 15 referred.
On the related issue No. 4 the Appellants submitted that construction given to Exhibit 1 as not being a reaction to Exhibits 2, 3, 4 and 2A was wrong as Exhibits 2, 3 and 4 were earlier in time to Exhibit 1.
Secondly, all those exhibits are either addressed to the 4th Defendant or copied to it. That the central complaint therein is either on improper appointment of title and failure of the 1st Respondent to undergo the rite of Buffalo tail. That Exhibit 1 was a reaction as far as specifically shown in the letter dated 18th November 1999 addressed to 4th Defendant/4th Respondent.
That it was the duty of the 4th Respondent to denounce Exhibit 1 as not been their reaction and not for the court to so do.
Babale V. Abdulkadir (1993) 2 SCNJ p. 110 at 111 per Kawu, JSC to the effect that –
“The duty of a trial court is to resolve the dispute between the parties as presented by them. It is not the business of a trial court to make out o case for a party as the Upper Area Court did in this case.”
That the 4th Defendant abandoned their pleadings and the trial court’s hand was therefore tied in that respect.
That the purport of Exhibit 1 was to admit that the Appellants had made out their case against the appointment of the 2nd Defendant.
We have been urged to re-evaluate the evidence relating to the evidence of 4th Respondent and Exhibit 1 and find that the evidence not touching on credibility tilted in favour of the Appellants.
On the whole, the Appellant urged that the appeal be allowed on this issue too.
On those twin issues 1 and 4 of the Appellants, which I had indicated (as rightly also appreciated by the 1st and 2nd Respondent’s counsel in the formulation of his client’s Issues for determination in the Brief filed, the 1st and 2nd Respondents arguing same as his issue No. 1 submitted that the trial court correctly and rightly evaluated the evidence adduced at the trial to justify the dismissal of the suit. That it was trite that in Civil cases, the basic principle is that he that asserts must prove. That where the Plaintiff fails to adduce evidence which is credible, admissible, cogent and weighty with probative value, the trial court is entitled to refuse to grant the reliefs sought. Ha-Wad International School Ltd. V. Minma Project Ventures Ltd. No. 1(2005) 2 NWLR (pt. 908) pg. 522, 573 par. C-F.
It was submitted that the trial court made his findings based upon the evidence led that the Appellants, as Plaintiffs had not proved their claim; that the findings not being perverse should not be interfered with as the trial court had the advantage of listening to witnesses and watching their demeanor and in arriving at the conclusion as to which witness to believe and who not to believe. See Agbi V. Ogbe (2005) 8 NWLR (Pt. 920) ratio 50. Awudu V. Daniel (2005) 2 NWLR (pt. 909), pg. 199. Counsel also referred to the dictum of Augie. JCA of this Court in Omozeehian V. Adjarho (2006) 4 NWLR pt. 969, page 33 at 53 par. C-E wherein the learned Justice stated thus: –
“Judges naturally must differ in the procedure and manner in which they approach the consideration of the entire evidence in any given case, whichever course is adopted, what is necessary is that they must always bear in mind that the Plaintiff has to succeed on the preponderance of evidence, on the strength of his case, not on the weakness of the defence some times, however, the weakness of the case for the Defence tends to strengthen the case for the Plaintiffs. The principal question at the end of the day is which party’s case on a preponderance of credible evidence has more weight.
In the instant case, the trial court was at liberty to conduct the trial in her own style with due regard to the issues at stake and the related laws including procedural ones.”
Referring to the findings of the trial court relating to Exhibit 5, at page 244 – 245 as follows: –
By this exhibit, there is only an attempt to recover the tail. There is not where deposed that the tail was taken away from the said Akungya Osaba forcefully.
There is no where stated in the pleadings of the Plaintiffs that the said Akangya was in custody of the said tail. That there was evidence that by tradition, the tail is kept in custody of the Makunguji. Akungya is never known to be the Makunguji. That there was no claim by the Plaintiffs that Makunguji predeceased the late Chief, so whatever evidence given went to no issue. That the testimony of PW2 therefore did not help the Plaintiffs’ case. That none of the evidence of PW2 or PW1 or indeed any witness show that the Buffalo tail was in possession of PW2.
That the trial Judge having summarised the evidence of each witness was entitled to believe or disbelieve and ascribe probative value to each of the witnesses who testify and to draw such inference as he saw fit. Mogaji V. Odofin (1974) 4 SC 70, 74 referred.
That the Appellants misconstrued this role when they saw it as speculative and consideration of extraneous matters.
Drawing from paragraph 4:12 of the Brief of Argument filed by Appellants to the fact that Exhibit 4 captioned “Re Improper Appointment of Title Holders” especially paragraphs 3 and 4, it is submitted that the appointment of Zalatu, Madaki, etc. was done by the 1st Respondent when he had not collected the Buffalo tail and which tail was in possession or custody of PW2 and false fully collected, it was submitted to be speculative.
That there was nowhere in the pleadings that the Buffalo tail was in custody of PW2 as the Makunguji of Kwandere town and was not collected when 1st Respondent appointed 2nd Respondent as Madaki and later was forcefully collected from his custody by the 1st and 2nd Respondents.
That the claim of forceful collection was an afterthought as even from the evidence of PW2 in cross-examination, said “on Oath he was a farmer and the Bande of Kwandere. That by the tradition of the Kwandere people, the Buffalo tail is kept with the Makunguji. That he was not a Kingmaker and did not report to the Police when some people came forcefully and removed the Buffalo tail from him. That he neither reported to the Emir of Lafia who was Chairman of the Traditional Council or to anybody or anywhere but was coming to court to say so.
This is as contained at pages 198 – 199 of records. That the fact of none report of the alleged seizure of the Buffalo tail to the Police, Emir of Lafia who was the Chairman of the Traditional Council under which Kwandere falls, nor the report to the Kingmakers/Selectors of the Chief of Kwandere or the Elders of Kwandere or even the sons or daughters of Kwandere was suggestive of its unreliability. That indeed none of the PW1, PW3, PW4 also corroborated PW2’s testimony as to how, where and when the Buffalo tail was falsefully collected.
It was therefore urged that the proper inference to be drawn is that the assertion of PW2 is speculative as it is not contained in Appellants’ pleadings; that speculation no matter, how high, cannot take the place of legal proof.
The cases of Nteogwuija V. Tukuru (1998) 10 NWLR (pt. 569) 267; Ajayi V. Military Administrator Ondo State (1997) 5 NWLR Pt. 504 page 237: South Atlantic Petrol Ltd. vs. VSMPR (2009) 22 WRN 58 at 70 especially ratio 2 referred.
That submission of the Appellants in paragraph 4:33 of their Brief was illogical and unworthy of belief as it states thus: –
Paragraph 3 of the said Reply the Appellants pleaded as follows, the Plaintiffs aver that following the demise of the last Sarkin Kwandere the Buffalo tail was handed over to his first son named Akujua Osaba Ngaji and the 1st Defendant, against the procedural norms and customs of Kwandere people attempted to hijack the Buffalo tail from the elders, which action was stopped by their Solicitor’s letter, already pleaded in paragraph 24 of their joint Statement of Claim before the Court.
That the submission of Appellants that the tail was handed over to the son of the late Chief was against the custom testified to and could not be believed.
1st and 2nd Respondents had testified and this was corroborated by DW2 and DW3 that at the time of the death of the 1st Respondent’s predecessor as the Chief of Kwandere, the Makungiyi of Kwandere was Makunguji Madaki Aloshi and that it was he who handed over the Buffalo tail to the 1st Respondent in his Palace at Kwandere town amidst Kwandere sons and daughters.
That PW2 never testified that at the time of his father’s death he was the Makungiji and was by tradition supposed to have custody of the tail. That these were important pieces of evidence that ought to be testified to and corroborated by any of the Appellants (PW1 and PW4 and their witness, the PW3.)
It was also submitted that there was no proof of the customary law or custom alleged nor why the contrary was done in respect of the purported tail and if the custom had been amended or waived. See Taiwo V. Dosumu & Anor. (1965) ALL NLR 417, ultimately, it is submitted that the trial court’s findings should not be disturbed.
That Exhibit 7 i.e. the Buffalo tail being tendered by 1st Respondent who was the Chief of Kwandere upon testimony of having received same from Makungiji Oloshi in his Palace in the presence of Kwandere people strengthened his case and the trial court properly considered the exhibits and properly evaluated the evidence and arrived at the correct decision.
That the PW2’s evidence that the 2nd Respondent was from Agaza in Keana Local Government and not Kwandere had not been established as no witness was called from Agaza to corroborate that assertion.
On the whole, it was, submitted that the trial court rightly evaluated the evidence on the seizure of the Buffalo tail and the membership of 2nd Respondent in a Female Royal House as against hailing from Agaza as claimed, uncorroborated.
On the Appellants’ issues 1 and 4 argued compositely, the 3rd – 5th Respondents responded through his Issue Number One. He submits that the Defendants had testified to the collection of the Buffalo tail which was in the possession of 1st Respondent as the Sarkin Kwandere and tendered as Exhibit 7;
That the onus of proof was on the Plaintiff’s to prove that the Exhibit 7 was not properly in the hands of the 1st Respondent. They referred to Sections 135-137 of the Evidence Act and contended that they onus was on he, who will fail if no evidence was adduced. See Arase V. Arase (1981) 5 SC 33 at 37: Elemo V. Omolade (1958) NWLR 159; Osawaru v. Ezeiruka (1993) 2 NWLR (pt. 273) 101.
That the evidence of the parties led to the far reaching findings of the court that if the pleadings and evidence of the two sides were put on an imaginary scale, it will tilt in favour of the Defendants.
That the submission of counsel does not take the place of evidence, see Obasuyi V. Business Ventures Ltd. (2000) 5 NWLR (Pt. 658) 658 at 659: Yoyo V. Olubode (1974) 1 ALL NLR 657 at 661 and that for the submission of counsel to be relevant and or useful, must be based on accepted facts and evidence before the court. See Ikpo v. The State (1995) 9 NWLR (Pt. 421) 450.
That the case of Chief Adebayo Bashorun Olufosoye & 2 Ors. V. Johnson O. Olorufani (Supra). was inapplicable to the circumstances/facts of this case.
Finally, the Appellant was admonished to be guided by the dictum of the Supreme Court in Adegoke Motors Vs. Adesanya (1989) 3 NWLR (pt. 109) 250 at 265-266, wherein it enjoined Courts and Lawyers alike to be alive to the fact that it is the facts and circumstances of a given case that frame the issues for the decision in that particular case.
Pronouncements of the courts whether they be rationes decidendi or obiter dicta must therefore be inextricably and intimately relate to the facts of the given case. This court is urged, therefore, to resolve in favour of the 1st Defendant/1st Respondent the contention of Plaintiffs/Appellants that 1st Respondent did not collect the Buffalo tail and having so resolved, to hold that it was not so proved; and that Respondents proved the collection in accordance with the custom as pleaded. That the Appellants had not proved any in fraction on the part of the 3rd – 5th Respondents and that the trial court’s Judgment was right when it stated that the Plaintiffs had not proved their claim;
2. That the 1st Defendant collected the Buffalo tail in accordance with the custom and tradition of Kwandere community.
3. That the appointment of the 2nd Defendant was properly done.
That the Appellants having failed to prove the existence of the particular facts it claimed it must fail in its action. See Agwaramgbo V. Idumogu (2008) 5 NWLR (Pt. 1081) 564 at 566 ratios 1 and 2. This court has been urged to dismiss the appeal, therefore. The bottom line of the Appellants issues 1 and 4, which as I stated is the same with the 1st Respondent’s Issue No. 1 – 2nd and 3rd – 5th Respondents’ Issues No. 1 has as its crux the question whether the Appellants had proved its case at the trial court. Indeed Appellants Issue Number one, which is exactly the 1st – 2nd Respondents Issue No. 1 will settle this appeal upon the pleadings and the claims as made.
The Appellants at the trial court had filed an Amended Plaintiffs Joint Statement of Claim wherein he pleaded inter alia as follows: –
“8- The plaintiff aver that sometime on or about 8th day of June, 1995, the 1st Defendant who is also Kwandere by tribe was elected the Sarkin Kwandere District in Nasarawa State.
9 – That plaintiffs aver that by the Gwandere Chieftaincy Selection, custom and tradition, an elected Sarkin Kwandere is duty bound to go and collect the Buffalo tail and some other traditional items ascribed to the stock from the Makwuguji of Kwandere.
At the trial, the Plaintiffs/Appellants tendered Exhibit 1. Exhibit 1 is a letter that complains of improper appointment of title holders. It is dated 1-6-1999.
2. Exhibit 2 – A letter addressed to the Chairman, Nasarawa State Traditional Council, Dr. Isa Mustapha Agwai I for his intervention.
Exhibit 3 is a letter complaining of the absence of the 1st Respondent from the Palace. It is dated 17-11-1999.
Exhibit 4 is a letter complaining that one Alhaji Abubakar Ambush was signing and collecting salary on behalf of the 1st Respondent. It is dated 28-10-99.
Exhibit 5 is a letter of complaint as to an attempt to forcefully take custody of a Royal tail. It is dated 9-5-2000.
Exhibit 6 is a programme of events for the installation of 1st Defendant as 3rd Class Chief. It is dated 10th Jan. 2004. The Plaintiffs testified and called 2 other witnesses and tendered the exhibits mentioned aforesaid in evidence.
At the Defence, the Defendants testified and also tendered Exhibit 7, the Buffalo tail in contention.
It is obvious from paragraphs 9, 10, 11, 12 and 13 of the Plaintiffs Joint Amended Statement of Claim and the oral testimonies of PW1 and PW3 that the election or selection or appointment of the 1st Defendant/1st Respondent as the Chief of Kwandere was not being challenged. It is the non collection of the traditional Buffalo tail as custom demands and the appointment of the 2nd Defendant as Madaki Kwandere by the 1st Respondent/Defendant that was in challenge. PW1 Usman Danji Dilayi – the 2nd Plaintiff who did not hold any title in Kwandere Chieftain but was a female Royalist asserted the custom of the collection of the Makongiji tail and that 1st Respondent did not collect same. He further testified that the 2nd Respondent was appointed the Madaki of Kwandere by the 1st Respondent on 28/5/1999. That any female Royalist may be appointed Madaki. That it is the sole prerogative of the Chief of Kwandere to so bestow the honour of appointments. The PW1 stated that the collection of the buffalo tail from the Mankogiji is done within two weeks from the time of the selection of the new chief. That Munkogiji died in 1996 that is in one year after the selection of the 1st Defendant as Sarkin Kwandere. In cross-examination, PW1 stated at page 192 of the record thus:
“Ribidi was the Mokongiji when the 1st Defendant was installed as Chief of Kwandere. Ribidi died in 1996. I will be surprised to hear that 1st Defendant collected the Buffalo tail from Ribidi before his death. I will be surprised because when it is to be given everybody will be present in the Palace. The collection of Buffalo tail from Makongiji by the Chief should not be more than two walls (weeks) from the time of his selection. It took us too long to complain because the chief – 1st Defendant was not performing his function as the chief. Later he gave somebody to act in his place. We complained when somebody was appointed to act in place of the 1st Defendant. I have nothing to show to that effect. PW2 at page 197 of the record testified as Akwya Sarkin Osoba and as the son of the Chief who preceded the 1st Defendant. That the 1st Defendant had not collected the tail which was usually in the chiefs House but under the custody of Mokongiyi. He said the Mokonguji is dead. That as Mokongiji was dead “it comes to my custody”. That the Buffalo tail is in the house with me. The Buffalo tail is not with me now because our people came and forced me and collected it from me. The name of the people who forced me to collect the tail are Muhammad Galadima Kwandere, Wombai Kwandere and the Madaki Sarkin and Mallam Habu but he is now dead. None of these people ere the Makongiji Kwandere. That is all.”
At page 98 of the record, PW1 admitted that he did not report to the Police when the Buffalo tail was allegedly forcefully removed from his. Neither did he report to the Chairman of the traditional council The Emir of Lafia or anybody any where apart from coming to court to say so. That he was not a Kingmaker.
PW3 – The 1st Appellant contested the stool with the 1st Respondent and lost. Insists that the 1st Respondent was properly appointed but had not collected the Buffalo tail and so could not perform the duties of a chief. He named the 5 Ruling Houses but says the 2nd Respondent was not from any of the Homes as a female Royalist. That all the five Ruling Houses are complaining about the 2nd Defendant’s appointment.
PW4 – Damu Atta
That the Makongoji did not give the tail to the 1st Respondent because he did not come to collect it. Since he did not collect the tail, he cannot perform as the chief. In cross-examination, he said there are 4 Ruling houses in Kwandere. Says he does not know if the other ruling houses also complained about the non collection of the tail. (Cross-exam by Adigun).
In cross-exam by Akika, PW1 said “I know the tail is with Ubangari. But I do not know where the tail is now.” Ubangari is now late. See page 207 of the record of appeal.
It was upon the above that Mr. Orjuide stated as follows: With this witness, we shall be closing our case.
The court then stated:
Court – “Case of the Plaintiff is closed as stated by the Plaintiffs’ Counsel.
Mr. Adigun – We ask for a date to open our defence.
Court – Case adjourned to 26/6/2007 for defence.”
(See page 207).
The Defence opened on 26/6/07 with the succinct evidence of the 1st Defendant/1st Respondent – Alhaji Ahmadu Almakura who stated that he was appointed after the death of his predecessor and collected the Buffalo tail which he described in his evidence identified same and it was so tendered. He said the tail was given to him by Madakin Makongiji. That it was in his Palace and did not know if Plaintiffs were present as there were many people there. The tail which was objected to was admitted in evidence as Exhibit ‘7’.
DW1 also stated that 2nd Respondent was a grandson from the Odugu Royal house.
In cross-examination, confirmed that Ikhya Osobo Okunsya is not the Makongiji and that he never sent anybody to seize any tail from him.
That only the Mukongiji had custody of the tail and no other person.
That the tail was with him and should be returned to him that tendered it in court as it is always in the possession of the chief. That if a chief is dying, the Makongiji takes possession immediately and not even the son or wife of the late chief and handover to the next chief.
That His Makongiji is always with the chief and was with him in court now.
DW2 – Testified to the reception of the tail by DW1 at the Palace upon his selection and the fact that 2nd Respondent’s grandmother was from Maigida Ruling House. He was present at the presentation. That 2nd Defendant was Ogudo’s son from Maigida Ruling house.
PW3 That he contested with DW1 and lost. That the tail was handed over to DW1 by the Makongiyi one Madaki Aloshe. That the 2nd Defendant was a female Royalist from Maigida Ruling house, i.e. mother of his father was from that house.
That Ribidi was the Makongidi Madaki Aloshi he was referring to. That the tail was handed to the chief.
DW4 is the 2nd Defendant/Respondent. He testified to his parentage as a grandson of Ogudo who was of the same father and mother with Maigida – a chief in Kwandere and from Maigida Ruling House and next in rank to the chief; witnessed the handing over of the tail to the 1st Respondent after installation and in his Palace.
DW5 was the PW1- at the trial – Testified to contesting against the 1st Respondent for the chieftaincy stool but lost, and was not challenging the selection.
Is it a summersault in the position of the Plaintiffs that a star/witness and 1st Plaintiff now testifies as DW5? Is it evidence against interest?
Be that as it may, it is from the afore stated evidence of the parties summarised above that the trial court dismissed the claims of the Plaintiffs.
The Appellants, by their Notice of Appeal on Ground one thereof complained thus: –
“The learned trial Judge erred in law, when he completely failed to properly evaluate and relate the evidential value of the documents tendered by the Appellants and marked Exhibits 1 to 6 to the issues before him and this occasioned a miscarriage of Justice.
Particulars of Error in Law
The Appellant as Plaintiffs at the lower court tendered written documents as port of their evidence.
ii) Having admitted them the trial court has a duty to ascribe probative value to each of them as it relates to the Appellants case at the lower court which it failed to do.”
In his Judgment the trial Judge at page 244 of the record considered Exhibit 5 i.e. the letter from A. M. Liman, a Solicitor to the Plaintiffs addressed to the Ubangari Kwandere Mallam Yusuf Njeji intimating him of an information received from his client against the 1st Defendant of a meeting held in the house of Yusuf Ngaji in the presence of Ten named persons summoned by 1st Respondent where at Akugya Osoba was requested to release the Royal Buffalo tail to 1st Respondent.
This Exhibit was referred to and considered. From his consideration of the Exhibit ‘5’, the learned trial Judge found that it was only an attempt to recover the tail – Exhibit ‘7’;
That there was nowhere in the pleadings that the tail was taken away from the said Akunya Osaba forcefully and that there was no pleadings that the said Akungya was in custody of the said tail; I have perused the Exhibit. It does not have the elements as rightly mentioned by the trial Judge. It was not so pleaded as contained in the said Exhibit. In any case, Exhibit 5 was only an admissible hearsay evidence to show what the writer said he was told or informed about by his clients. The content was not corroborated in evidence!
Indeed it was at variance with the evidence of PW2 at the trial that it was seized. Since by Exhibit 5, the request to hand over the tail was refused, why did the Akugya Osoba, who claimed to be in possession not tender it? This Exhibit contradicts the evidence of PW2 that he was in possession of the tail and was forcefully dispossessed of it.
The 10 persons mentioned in Exhibit 5 were not called to testify and the presumption is that their evidence would not have proved the attempt to seize the tail, let alone corroborate PW2’s evidence on actual seizure, thereof.
The evidence of PW2 was considered and the trial Judge came to the conclusion that Akungya was not the Makungiji. The said Akungya himself admitted this fact. All other witnesses said the same. The tail was always in custody of the Makungiji and that the ten Makungiji was not shown to have predeceased the late Chief. Evaluating the evidence led, the trial Judge found that no witness including PW1 and PW2 showed that the tail was in custody of PW2.
Exhibits 2, 2A were considered and held that Exhibit ‘1’ was not a reaction to them, as it was also a complaint about improper appointment of title holders addressed to the Sangari Kwandere, who is the 1st Defendant.
The court held that it is of no evidential value to the collection of the Buffalo tail.
True, it was also a complaint as considered before the court, but coming from a supervising official or officer/office, it should be appropriately seen as a reaction to previous communication made to it? However, I do not see any evidential value of this reaction in aid of the proof of the claim as made.
The Defendants, who in law have no burden in proving their defence if the Plaintiff fails to make out his case certainly is, in law, entitled to Judgment on the preponderance of evidence. In that instance, the proper order is to dismiss the Plaintiffs claims for want of proof. The Defendants had by the tenor of the evidence clearly shown that the 1st Defendant/1st Respondent collected the Buffalo tail on his appointment from Mukungiji who alone had custody of same and in the presence of witnesses who testified as DW2, DW3 and DW4. The evidence of Plaintiffs/Appellants remaining fluid as it were, as regards custody of the tail, its seizure and whether it was still in possession of PW2 as against its actual possession and tender by DW1 and admissibility, shows the Plaintiffs’ claim to be weak or at best un-established. On the status of the 2nd Defendant and non eligibility to be appointed the Madaki, the pleadings of the Plaintiffs at paragraph 15 was not testified to by PW1. PW2 said nothing. PW3 however said one Agudo was the grandmother of the 2nd Defendant.
That Agudo was the mother of the second defendant.
DW1 and DW2 said 2nd Defendant was from Maigida Royal House. DW2 said, his mother was Agime and the mother of Agime was Agudo; and that Agudo was from the Maigida Royal House. This evidence of Royal lineage is supported by the evidence of DW2 which weakened the Plaintiffs/Appellants’ case. From the record, the Plaintiffs had pleaded that the 2nd Defendant was from Agaza and not Kwandere, and that neither his mother or grandmother was from any of the female Royal Houses. They did not prove those assertions. I have also scrutinised the printed evidence of DW1 2nd Defendant/2nd Respondent was from a female Royal house. Pw3 in cross-examination mentioned the existence of 5 Ruling Houses; PW4 said there were 4 Ruling Houses, PW4 said there was a Ododa Ruling House, which was not even mentioned by other witnesses for the Plaintiffs.
PW3 in cross-examination said all the 5 Ruling Houses he mentioned, were complaining against the appointment. There was no such evidence from other Ruling House members in proof of this assertion. Indeed, PW3 in his testimony in chief at page 206 said thus:
“I am not the person to perform the rituals on the chief – but Makongiji. Makongiji told the elders of the town that the Defendant did not perform the rituals. The elders are Ubangari, Kwandere, Wambai Kwandere, Barde Kwandere.”
The above quoted portion of the evidence is clearly a hearsay piece of evidence such evidence is inadmissible and if admitted ought to be expunged and if not, then no weight should be attached to same. The trial Judge was therefore not wrong in holding that those evidence of the plaintiffs did not establish the Plaintiffs case. The Evidence of PW4 in cross-examination at page 206, that the Mokongiji did not give the 1st Defendant the tail because, he did not come to collect it was clearly hearsay, speculative and confirms that the tail was always in possession of the Mokungiji and never with PW2 contrary to PW’s assertion; thus making the evidence of PW2 and PW3 contradictory in this material aspect. A court of law would be right therefore to draw all necessary and reasonable inferences from such contradictions in a party’s case and hold that he had not established his claim. PW3, contrary to the fact that the suit was instituted on behalf of the entire members of the Ngaji Ruling House and Female Royalists of Kwandere, yet in evidence said it was on behalf of all the Ruling houses of Kwandere. PW4 however said at page 207 of the record that he would not know if the other Ruling house also complained about the non-collection of the tail.
In the face of the conflicting evidence on material issues or facts and the lack of evidence on facts alleged; and indeed the proffering of evidence on unpleaded facts that go to no issue as pointed out in this Judgment earlier, I think the findings and the conclusion of the trial Judge was not perverse. It was based on a proper scrutiny of the evidence led in chief and the cross-examination thereon; including proper inferences made.
The 1st Defendant was in possession of the Buffalo tail. He and all Defence witnesses testified as to how he came in possession thereof. The status of the 2nd Respondent as female Royalists was testified to as pleaded in contradistinction to Plaintiffs’ unsubstantiated and conflicting evidence that did not support their contrary avowal.
The Plaintiffs, having failed to establish a strong case, the burden on the Defendants was minimal. Where this minimal burden is satisfied, the Appellate court will be slow to interfere with the findings of facts – where they are supported by the pleadings and evidence led. Where findings are not supported by pleadings and evidence or are perverse and have occasioned a miscarriage of Justice, it will interfere. Miscarriage of Justice will definitely be occasioned if an Appellate court interferes when it is unwarranted. The need to ensure that Justice is done must always dominate the attitude of an appellate court when dealing with appeals arising from questions of facts. See CPC & Anor. V. INEC & Ors. (2012) 2-3 SC 1 at page 35 per Adekeye, JSC, see also Ayorinde & Ors. V. Sogunro & 6 Ors. (2012) 4-5 SC 160.
In that case which I applied in my decision in CA/J/204/2006 (Suit No. NSA/AKW/4/2003 of 3rd June, 2013, His Lordship Rhodes Vivour, JSC in his lead Judgment at page 15 stated thus:
“Evaluation of Evidence comes in two forms:
a) Findings of facts based on credibility of witnesses and
b) Findings of facts based on the evaluation of evidence In ‘(a)’ an appeal court should be slow to differ from the trial court, after all it was he that saw and he and the witnesses, he watched their demeanor and so his conclusion must be accorded respect but in “B” an appeal court to evaluate the evidence. In both “a” and “b” the conclusion of the trial Judge should be accorded much weight except found to be perverse.” The evaluation of evidence by the trial Judge which involved both perception of the facts and credibility of the witnesses of the Plaintiff was properly done.
It was flawless in the circumstances. The Defendants who had no obligation of establishing a defence in the absence of a stronger case by the Plaintiffs, in any case presented a weightier case that tilted the scale in their favour. Cases are not decided on the snippet of evidence but on the totality of the case.
See Agoronyi J. Aladi V. Union Bank of Nig. (Plc) (2005) ALL FWLR (Pt. 285) 517 at 537 par. 6.
The seemingly contradictory evidence of a name mentioned by the DW1 as to 2nd Respondent’s Ruling House membership is not prejudicial to the Respondents’ case or to the Justice of the Defence or the case as a whole.
As I stated in my leading Judgment in Appeal No. CA/J/159/2002 of 5th June, 2013 in Ahembe Acho V. Toryina Ukagye, this court will not interfere in a decision arrived at upon an impeccable conclusion of a trial Judge that had the benefit of hearing a witness and observing his demeanor and when there was no perversity or miscarriage of Justice. The Plaintiffs did not prove their case on the preponderance of evidence, and the trial Judge (lower court) was therefore right in dismissing the claims.
See the unreported decision of this court in CA/J/204/2006 in Alhjai Rabiu Nunku and John Ava & Akwansa Local Government delivered on 3/6/13 per Danjuma, JCA.
In Samuel Ugela V. Akohol Tarvendah & 5 Ors CA/MK/09/12 delivered on 14/6/13 Adzira Mshelia Gana, JCA state D thus: –
“The lower Court did not abdicate the sacred duty of evaluating the evidence. From the findings reproduced it could be seen that the trial judge did ascribe probative value to the evidence adduced and proceeded to weigh the evidence before it on an imaginary scale upon preponderance of evidence having regard to the burden of proof as in Agenifo v. Aiwreola (1998) 1 NWLR (Pt. 70) at 325 and Mogaji V. Odofia (1978) 4 SC 91.
The findings are not shown to be perverse or unsupported by evidence. The trial Court properly evaluated the evidence adduced both oral and documentary. The Court has no cause to interfere.”A trial judge in my view, is not bound to state expressly that he was evaluating a piece of evidence or making inferences therefrom. Legally admissible evidence must not be expunged or so indicated in a judgment of a Court, as wrongly suggested by the Appellant’s learned Counsel (with due respect to him).
As analysed in the afore-postulated position of the law and against the evidence led vis-a-vis the trial judge’s conclusion, I am at peace in resolving the Appellant’s issues 1 and 4 against them and in consequence resolving those issues 1 and 4 and the corresponding 1st and 2nd Respondents issue No. 1 in favour of all the Respondents and against the Appellants.
Issue No. 2 of the Appellants, which is same with 1st – 2nd Respondents’ issue No. 2.
The Appellant’s counsel submitted on this issue that parties were bound by their pleadings which have the purpose of compelling parties to confine accurately and precisely. The issue upon which the case between them is to be fought to avoid elements of surprise by either party. It also guides the parties not to give evidence outside the facts pleaded as evidence on a fact not pleaded goes to no Issue. See Akinfeyinwa v. Oladujonye (2004) 4 SCNJ 141 at 152. It was therefore submitted that pursuant to S.91(4) of the Evidence Act pleadings could not be made of things or acts that occurred during the pendency of a suit as statements made by a person interested at the pendency of a suit will be inadmissible. That paragraphs 11 and 19 of the Plaintiffs’ pleadings captured the position of the Buffalo tail at the time of pleadings – filed that the evidence PW2 in cross-examination relating to the Buffalo tail advanced and corroborated Exhibit 5. That the evidence of PW2 extracted in cross-examination was not bound to flow from the pleadings and was useful to both or either party.
That the trial Judge ought to have drawn the necessary inference there from as advancing Exhibit 5.
Learned Counsel referred the court to paragraph 3 of the Plaintiffs’ reply to 1st and 2nd Respondents/Defendants last amended Joint Statement of Defence and submitted that it formed part of the pleadings and to the effect of how the Buffalo tail came to PW1.
It was therefore contended that there was account of both how an attempt and actual collection of the Buffalo tail was made. In response the 1st and 2nd Respondents, in reply by their own Issue No. 2 (Similar) conceded to the position of the law as stated by the Appellants learned counsel as relating the purport and essence of pleading but submitted that the pleadings in Reply to the 1st and 2nd Defendants Amended statement of Defence only averred an attempt by the 1st Respondent/Defendant to forcefully collect the Buffalo tail from PW2 (Akwungya Osaba).
That there was no pleading that the Buffalo tail was collected by the 1st Respondent. The time and place of collection or seizure was also not stated in their pleadings.
That the evidence of PW2 in that regard, therefore, went to no issue. It was contended and that the law is trite that no evidence out side the pleaded facts can be led in by oral testimony or imported otherwise; that the Appellants cannot resile from their pleadings. Ajayi v. A.G. Ogun State (2008) 42 WRN 145 at 152 holding 2 refers. That the Appellants who woefully failed to plead and adduce evidence as to where, when and how the Buffalo tail was forcefully collected from PW2, cannot be heard that such facts were not considered by the court.
That the court is not a navigator and must not be stampeded into a voyage of discovery of facts as it is a court of law, Justice, fairness and equity.
Counsel referred to the submission of Appellants’ counsel that the Buffalo tail was handed over to PW2 upon the death of his father and said it was a violation of the Kwandere custom.
Learned counsel concluded that placing the pleadings of the parties side by side and the evidence led, it was obvious that the Appellants had not pleaded that the Buffalo tail was forcefully seized from him.
That after all it had not been proved that the accepted customary law as to who was to have custody of the Buffalo tail had been altered/repealed by applicable statute or found to be repugnant to natural justice, equity and good conscience or against public policy constitution or could occasion miscarriage of Justice if allowed to stand. Chief O. N. Nsirim V. Nsirim (2004) 4 SCNJ. Chinwendu V. Mbamali (1980) 3-4 SC 31. Enang V. Adu (1981) 11-12 SC 25 at 42. Nwadike V. Ibekwe (1987) 4 NWLR Pt. 67 at 178 and Ikwego V. Evengo (1992) 5 NWLR Pt. 249 pg. 459 referred.
I had already considered adequately this Issue 2 as argued while considering Issues 1 and 4 of the Appellants and 1st – 2nd Respondents’ Issue One. It has been answered.
That is to say that the trial Judge was right in so holding that the Plaintiffs had not pleaded facts on the collection of the Buffalo tail that purportedly occurred during the pendency of the suit. The Appellants pleaded an attempt at collection and testified to the contrary in oral evidence of PW2 which could not stand any scrutiny. Exhibit 5 was also another documentary evidence on the attempt to seize the tail. It was only a fact relevant to a fact in issue of an attempt as pleaded.
Issue 2 is resolved against the Appellant and in favour of the Respondents. That is to say that the judge was right in holding that there was no pleading of the fact of collection of Buffalo tail that purportedly happened during the pendency of the suit.
Issue No. 3 of both the Appellants and the 1st and 2nd Respondents had been adequately considered in my treatment of issues 1 and 4 of Appellants (which is issue No. 1 of the 1st and 2nd Respondents; the perceived contradiction in the case of the Respondents as relating to the status of 2nd Respondent is a mere variation or minor discrepancy. It did not contradict their pleadings as to the royalty of the 2nd Respondent from the maternal side. The Plaintiff also corroborated this pleadings and evidence of the Respondents in respect of the royalty of 2nd Respondent through the maternal side. That evidence of the PW2 in cross-examination was evidence against interest and aided the case of the Respondents. The trial Court did not gloss over the evidence of the discrepancy, which in any case in fact and law was not a contradiction in evidence relating to the status of DW2. For the aforesaid, I also resolve issue No. 3 in favour of the Respondents and against the Appellants.
On the whole and having resolved all the 3 issues against the Appellants, I hold that this appeal must perforce fail. It fails and is dismissed. Accordingly it is hereby declared and ordered that the judgment of Honourable Justice Isa A. Ramalan, J of the Nasarawa State High Court holden at Lafia and delivered on 31st March, 2009 in Suit No. NSD/LF41/2000 shall be and it is hereby affirmed.
Appeal dismissed.
ADZIRA GANA MSHELIA J.C.A.: I read before now the lead judgment of my learned brother Danjuma, J.C.A. just delivered. I agree with his reasoning and conclusion that the appeal should be dismissed. My learned brother has exhaustively considered the issues raised for determination in this appeal. I have nothing useful to add but to adopt same as mine and dismiss the appeal as lacking in merit. I abide by the consequential orders made therein, inclusive of costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: My learned Brother, Mohammed A. Danjuma, JCA made available to me, an advanced copy of the judgment just delivered. I have perused it and I find that the issues raised in the appeal have been exhaustively treated and as such I have nothing extra to add.
I too order that the appeal be dismissed for being unmeritorious. I equally abide by the consequential order made in the lead judgment including that of costs.
Appearances
O. C. Ucheaguwa, Esq.,For Appellant
AND
A. I. Nwokolo, Esq., holding the brief of A. Adigun, (Esq.)
I. I. Edoh (DCL) Nasarawa State Ministry of Justice, Lafia appearing with I. N. Ugwu, Esq.,For Respondent
