WALI & ORS v. OGIRI & ORS
(2021)LCN/15872(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Tuesday, December 14, 2021
CA/MK/151/2013
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Between
- MR. DAUDA WALI 2. MR. HARUNA ABE 3. MR. IBRAHIM ABISABO (For Themselves And On Behalf Of OGAH Ruling House Of OBI) APPELANT(S)
And
1. ALHAJI DANGIWA OGIRI (NEW OSUKO OF OBI) 2. IBRAHIM OKPOSHI (Madaki Of Obi) (New Madaki Of Obi) 3. USMAN OKPOSHI (New Madauchi) 4. OGBOLE MAMMAN (New Moyi) 5. YAKUBU ABE (New Waziri) 6. IBRAHIM BALA GALADIMA (Secretary Selection Exercise) 7. THE GOVERNOR, NASARAWA STATE 8. THE ATTORNEY-GENERAL, NASARAWA STATE 9. THE COMMISSIONER FOR LOCAL GOVERNMENT AND CHIEFTAINCY AFFAIRS, LAFIA, NASARAWA STATE 10. THE CHAIRMAN, OBI LOCAL GOVERNMENT 11. OBI TRADITIONAL COUNCIL 12. OBI LOCAL GOVERNMENT 13. WING COMMANDER MUKHTAR M. USMAN 14. MUHAMMED YUSUF OZEGYA 15. UMAR YUSUF OZEGYA 16. UMAR OZEGYA 17. HARUNA IDASHO 18. SIDI OZEGYA 19. OFOKU ALIYU LIMAN (Dan-Iyan Obi) 20. YAHAYA YUSUF OZEGYA 21. ALH. HAMZA OGAH 22. ABUBAKAR OFOKU 23. IBRAHIM O. WAZIRI 24. EGYA MOH’D ONYAPA 25. ALH. DAUDA A.S. EGWA 26. UMARU OBALA OTUKPO 27. YAHAYA SABA EGWA 28. A.A. ARIKA 29. ALH. SANI ALBASHIR 30. ALH. ADAMU OMMAME OZEGYA 31. ALH. ISMAILA OKURA AYISODU 32. ADAMU AYOSODU 33. ISHALEKU ABE 34. HASHIMU IBRAHIM 35. ABUBAKAR OZEGYA MOHAMMED 36. HARUNA M. OZEGYA 37. YAHAYA MOH’D ONYAPA 38. ISMAIL YUSUF OZEGYA 39. MOH. GALADIMA RESPONDENT(S)
RATIO
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION OF A COURT TO DETERMINE A MATTER BEFORE IT
There is no doubt as rightly submitted by the learned Counsel to the Respondents/Objectors that the law is settled on a plethora of authorities that the issue of jurisdiction is very fundamental in the adjudicatory process to the extent that it can be raised at any time in the proceeding whether at the trial or Appellate level both here and in the Supreme Court or even suo motu by the Court because any Judgment obtained without jurisdiction is a nullity no matter how brilliant a Court conducted the proceeding. See the locus classicus of Madukolu & Ors. vs. Nkemdilim (1962) 1 All NLR 587, Bairamian F.J. set out the circumstances under which it may be held that a Court is seised of jurisdictional competence to entertain a cause of action as follows:
“A Court is competent when:-
(1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication.”
See also Ogembe vs. Usman (2011) 17 NWLR (Pt.1277) 638 at 656 paras. E-F; Achonu vs. Okuwobi(2017) 14 NWLR (Pt.1584) 142 at 171 paras. B-F; Shelim vs. Gobang (2009) 12 NWLR (Pt.1156) 435; Usman Dan Fodio University vs. Kraus Thompson Organization Ltd. (2001) 15 NWLR (Pt.736) 305; Ajayi vs. Adebiyi (2012) 11 NWLR (Pt.137) (SC). See also Adeyemi vs. Opeyori (1976) 9-10 SC 31; Odofin vs. Agu (1992) 3 NWLR (Pt.229) 350 and Oloba vs. Akereja (1988) 3 NWLR (Pt.84) 508. PER AGUBE, J.C.A.
WHETHER OR NOT WHERE THERE IS NO JURISDICTION, AN ENTIRE PROCEEDINGS IS A NULLITY
Again, neither the Court nor the parties can confer jurisdiction as parties cannot by mere acquiescence donate jurisdiction to a Court where the Constitution or the Statute creating such a Court has ousted its jurisdiction.
Since the position of the law concerning jurisdiction of the Court to adjudicate upon any matter is fundamental in the adjudicatory process, the Supreme Court has posited in a plethora of decisions that jurisdiction is the blood that gives life to the survival of an action in a Court of law without which the action being like an animal drained of its blood, ceases to be alive. Bereft of any blood in it and indeed without life, any effort at resuscitating it remains a futile exercise. See Utih vs. Onoyivwe (1991) 7 NWLR (Pt.166) 166; Usman vs. Umaru (1992) 7 NWLR (Pt.254) 377 and the recent Supreme Court cases of Emejuru vs. Abraham (2019) 4 NWLR (Pt.1663) 541 at page 560 paragraphs B-C; page 567 paragraphs A-B, page 568 paragraph B, per Galumje, Peter-Odili, and Sanusi, JSC.
In Elebanjo vs. Dawodu (2006) All FWLR (Pt.328) 604, Mohammed, JSC (as he then was) held at page 639 paragraph “C” thus:-
“…If there is no jurisdiction, the entire proceedings are a nullity no matter how well conducted. See Ndaeyo vs. Ogunaya (1977) 1 SC 11; Chacharos vs. Ekimpex Ltd. (1988) 1 NWLR (Pt.68) 88; Oloba vs. Akereja (1988) 3 NWLR (Pt.84) 508; Bakare vs. Attorney-General, Federation (1990) 5 NWLR (Pt.152) 156 and Jeric (Nigeria) Ltd. vs. Union Bank of Nigeria Plc (2001) FWLR (Pt.31) 2913, (2000) 15 NWLR (Pt.691) 447.” PER AGUBE, J.C.A.
THE POSITION OF THE LAW ON LOCUS STANDI
For purposes of this Appeal, I shall reproduce what I said in that case inter alia:-
“The term “locus standi” has been severally defined to denote the legal capacity of a person to initiate proceedings in a Court of law which capacity is synonymous with status, standing, title or authority to sue. It is also the right of a party to appear and ventilate his grievance(s) and to be heard on a question(s) before the law Court or the competence of such a party to seek redress in a Court of law and to assert a right which is enforceable at law. See the locus classicus of Abraham Adesanya V. The President of the Federal Republic of Nigeria (1981) 5 S. C. 112 at 128 – 129; per Fatayi- Williams, CJN; Ogunsanya V. Dada (1992) 4 S.C.N.J. 162 at 168; Attorney-General Kaduna State V. Hassan (1985) 2 NWLR 453 at 496 and Adefulu V. Oyesile (1989) 5 NWLR 377 at 318. In the case of Attorney-General V. Hassan (supra) at pages 522 and 533; Oputa JSC, held that “The Legal Concept of standing or locus standi is predicated on the assumption that no Court is obliged to provide a remedy for a claim in which the Applicant has a remote, hypothetical or no interest.” PER AGUBE, J.CA.
IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): In the High Court of Justice of Nasarawa State, in the Lafia Judicial Division, the Appellants as Plaintiffs then led by Mr. Yusuf A. Madaki (District Head/Osuko of Obi) (now deceased) for themselves and on behalf of the OGAH Ruling House of Obi, in Obi Local Government Area of Nasarawa State, on the 10th day of July, 2007 took out a Writ of Summons against the 1st to 39th Respondents (then Defendants) and by both the Endorsements on the Writ and the Joint Statement of Claim which were amended by the Amended Writ of Summons and AMENDED JOINT STATEMENT OF CLAIM dated the 27th of May, 2008 but filed on the 28th day of May, 2008; sought for the following Reliefs against the Respondents (then Defendants) to wit at pages 118-119 of the Records:-
“WHEREOF, the Plaintiffs are aggrieved and claim from the Defendants jointly and severally the following reliefs:
(a) A Declaration of the Court that the selection of the 1st Defendant by the 2nd Defendant only without the requisite quorum of 3 members of the College of Selectors of Obi Chiefdom on the 15th day of May, 2007 as the Osuko of Obi, contravenes the Gazette – Nasarawa State Legal Notice No.3 of 2006 – The Obi Local Government (Modification of Native and Custom Relating to the Selection of the Osuko of Obi Chiefdom) Order 2003.
(b) A Declaration that the nomination of the 1st Defendant as the Osuko of Obi on the 15th day of May, 2007 by the 2nd Defendant, only as a Kingmaker of Obi Chiefdom without the required quorum is invalid for being contrary to Native Law and Custom of Obi Community as contained or codified in the Gazette – Nasarawa State Legal Notice No.3 of 2006.
(c) An Order of Court nullifying the nomination, selection, approval and appointment of the 1st Defendant as the Osuko of Obi Chiefdom conducted on the 15th day of May, 2007 and approved on the 16th day of May, 2007 by the 8th Defendant for being null and void for lack of proper quorum at the selection exercise.
(d) A Declaration of Court that the 1st Defendant lacks the competence to abrogate, scrap or change the post, position, office of Sarkin Pada of Obi or any position or post in the composition of the College of Selectors of Obi Chiefdom.
(f) An Order of the Court that the abrogation of the Office or the position of Sarkin Pada Obi as a Kingmaker of Obi Chiefdom by the 1st – 6th Defendants and the creation of a new Office of Liman in the College of Selectors of Obi Chiefdom on the 4/6/2007 is unlawful and ultra-vires their powers.
(g) An Order of the Court that the Defendants have no power to change or amend the law and Gazette made by the Nasarawa State House of Assembly and Nasarawa State Government respectively for the required quorum for the selection of Osuko of Obi Chiefdom.
(h) An Order of Court nullifying or canceling the Office or post of Liman of Obi created into the College of Selectors of Obi Chiefdom by the 1st – 6th Defendants on the 4th day of June, 2007.
(i) A perpetual injunction restraining the 1st and 2nd – 6th Defendants from parading themselves as the Osuko of Obi Chiefdom and the Kingmakers of Obi Chiefdom respectively.
(j) A perpetual injunction restraining the 8th-13th Defendants jointly and severally either by themselves, their servants, agents or privies from recognizing the 1st and 2nd – 6th Defendants as the Osuko of Obi Chiefdom respectively.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
The Plaintiffs/Appellants as disclosed in paragraph 2.01 at page 7 of their (Appellants’) Brief of Argument, filed the Amended Joint Writ of Summons/Statement of Claim for the purpose of joining Obi Local Government as the 13th Defendant. Upon receipt of the Plaintiffs’ Originating processes, the respective sets of Defendants, filed their Memoranda of Conditional Appearance and subsequently their Joint Statements of Defence. See pages 16-17, 18-19, 20-25, 63-66, 99-103 of the Records.
The respective learned Counsel to the sets of Defendants also filed Notices of Preliminary Objection to the competence of the Suit. See pages 26-59 of the Records. At the trial, the Plaintiffs and Defendants called Four (4) Witnesses each and closed their respective cases and 17 (Seventeen) documentary exhibits were admitted. Thereafter, Written Addresses were filed, exchanged and subsequently adopted that culminated in the Judgment of the learned Trial Judge delivered on the 3rd day of June, 2011 by the Honourable Justice Badamasi Maina (CJ) of the High Court of Nasarawa State, Holden at the Lafia Judicial Division.
In the said Judgment, the learned Chief Judge held at pages 280-281/37-38 of the Records/Judgment in lines 30-32 to lines 1-7 that the action of the Plaintiffs seeking the nullification of the selection and appointment of the 1st Defendant conducted on the 15th day of May, 2007 on ground of the absence of quorum failed and same was accordingly dismissed. In consequence, he held that there were no reasons to invalidate the appointments of the 2nd – 6th Defendants as the Kingmakers of Obi Chiefdom. However, the learned Trial Judge took the view that the post of Traditional Selectors for the Osuko of Obi as defined and their titles as enumerated in the law and as gazetted are sacrosanct and the 1st Defendant (now Respondent) lacks the competence to scrap them and in particular, the said Respondent has no power to remove the Sarkin Pada and replace him with the Liman of Obi. Accordingly, His Lordship held that such replacement was ultra-vires and consequently a nullity without legal effect.
Dissatisfied with the part of the decision of the Lower Court dismissing their claim and the holding that the Selection of the 1st Defendant (now 1st Respondent) is valid and in compliance with the Customs and Traditions of Obi Chiefdom, the learned Counsel to the Plaintiffs who shall henceforth be addressed as Appellants appealed against the said decision by initially filing their Notice of Appeal with 7 (Seven) Grounds which was amended and their extant Notice and Grounds of Appeal is the Further Amended Notice of Appeal dated the 6th day of July, 2021 filed on the 8th day of July, 2021 but deemed properly filed and served on the 28th day of September, 2021 in the course of hearing this Appeal.
For the avoidance of doubt, the Grounds of Appeal are hereunder set out albeit without their respective particulars as follows:-
“GROUNDS OF APPEAL:
1. The learned Chief Judge erred in law when he held that the nomination, selection and appointment of the 1st Respondent/Defendant as the Osuko of Obi on the 15th day of May, 2007 by only one member of the College of Selectors or Kingmakers of Obi Chiefdom was in compliance with the provisions of Exhibits “2” relating to the Selection of the New Osuko of Obi.
2. The Trial Court erred in law when it made the following findings and conclusion thus: “Thus in an ideal situation where five traditional selectors are alive, the five of them will be required to select the Osuko of Obi. In the absence of any one or two of them, either because of death, illness or the choice of the traditional Selector to absent himself, three can form a quorum and go ahead to do the selection. If by the act of God, three died, leaving only two or even four died leaving only one, the tradition stated that the Osuko of Obi shall be selected by the Traditional Selectors. It follows therefore that by the doctrine of necessity, even if only one is surviving, he and only him alone can do the selection of the new Osuko of Obi, any other method used will be alien to the Customs and Tradition and in future even create for the government to act at their whims and caprices appointment rather than allowing the traditional selectors to select.”
3. The Trial Court misdirected itself in law when it held and concluded as follows: “Even if quorum was to be applied with one of the Kingmakers voting from his grave, a candidate is only expected to get two or three votes which the 1st Defendant publicly got at the installation. What the Waziri had not done for reasons best known to him on 15th May, 2007, he showed up at the venue of the installation where he belonged, thus the two surviving Kingmakers confirmed publicly their choice for the 1st Defendant, it will therefore be wrong to ask this Court to nullify the process which did not violate the Custom and Traditions of Obi wherein the only two surviving Kingmakers publicly made their choice. This is therefore resolved in favour of the Defendants as I see no reason to temper with the selection exercise.”
4. The Lower Court misdirected itself in law when it refused to apply the provision of Section 4 of Exhibit “2” and this occasioned a miscarriage of justice.
5. The Trial Court erred in law when it gave a wrong interpretation to Exhibit “2” by importing the doctrine of necessity therein thereby arriving at a wrong meaning and conclusion to Exhibit “2”.
6. The Trial Court misdirected itself in law when it held that an amendment is not the solution to the issue of lack of quorum for the selection of the new Osuko of Obi.
7. The Trial Court erred in law when it misapprehended the Appellants’ case before it and this occasioned a miscarriage of justice.”
Upon transmission of the Record of Appeal and entry of the Appeal here in this Court on the 27th day of May, 2013, Briefs of Argument were subsequently filed and exchanged by the respective learned Counsel to the parties. For the Appellants, their extant Brief of Argument is the Further Amended Appellants’ Brief of Argument dated the 6th day of April, 2021 and filed on the 8th day of July, 2021 but deemed properly filed and served on the Respondents on the 28th day of September, 2021. In the said Further Amended Brief of Argument, J.E. Agbo, Esq. of Counsel who settled same along with his colleagues as listed, distilled 3 (Three) Issues for determination as reproduced hereunder to wit:-
“ISSUES FOR DETERMINATION:
1. Whether the Trial Court was wrong to have held that the selection by one Kingmaker was in compliance with Exhibit “2” and refused to apply the clear terms and unambiguous express provisions of Exhibit “2” as it relates to quorum of Traditional Selectors for the selection of Osuko of Obi? (Distilled from Grounds 1 and 4).
2. Whether the Trial Court by applying and relying on the un-pleaded doctrine of necessity and act of God has not wrongly interpreted the express provision of Section 4 of Exhibit “2” in the absence of an amendment to the Gazette to arrive at a wrong conclusion and this thereby occasioned miscarriage of justice in the circumstance against the Appellants? (Distilled from Grounds 5, 2 and 6).
3. Whether the Trial Court was right to place reliance on the presence of Waziri at the installation ceremony on a date different from the selection date to hold that there was the required quorum for the selection of the Osuko of Obi on 15th May, 2007 and by so relying on the installation ceremony has not misapprehended the case of the Appellants? (Distilled from Grounds 3 and 7 of the Grounds of Appeal).”
On their part, Ucha P. Ulegede, Esq.; who settled the 1st – 5th Respondents’ Joint Amended Brief of Argument dated the 19th day of March, 2021 and filed same date, distilled Sole Issue for determination couched as reproduced here under to wit:-
“Whether considering the entire circumstances of this case, the learned Trial Judge was not justified in resolving the Suit on the principle of Doctrine Necessity?”
As for the 6th-12th Respondents, their Amended Brief of Argument dated and filed on the 26th of January, 2021 but deemed properly filed and served on the 28th day of September, 2021, was settled by I.I. Edoh, Esq. and S.I. Ancho, Esq. (Senior State Counsel) wherein the following Three (3) Issues were formulated for determination:
“ISSUES FOR DETERMINATION:
1. Whether the nomination, selection and appointment of the 1st Respondent could only be said to be done in compliance with Exhibit “2” without regard to Exhibit “1” which gave rise to Exhibit “2”? (Distilled from Grounds 1 and 2).
2. Whether the Trial Court was right when it held that there was no reason to temper or interfere with the selection exercise of 15th May, 2007 as regards the quorum and or the amendment of Exhibit “2”? (Distilled from Grounds 3, 4 and 5).
3. Whether having regard to the Plaintiffs’ Statement of Claim and the evidence adduced before the Trial Court, could it be said that miscarriage of justice was occasioned in the circumstance of this case? (Distilled from Grounds 6 and 7 of the Grounds of Appeal).”
It would be recalled that Yakubu Hussaini, Esq. the learned Counsel to the 13th – 39th Respondents gave Notice of the Respondents’ Intention to Rely on Preliminary Objection which was dated the 14th of September, 2020 and filed on the 17th of November, 2020 but same was also deemed properly filed and served on the 28th day of September, 2021. The argument on the Preliminary Objection incorporated in the Brief can be found in paragraphs 2.0, page 4 to 2.10 page 9 of the 13th – 39th Respondents’ Further Amended Brief of Argument dated 20th November, 2018 but deemed properly filed on the 28th day of September, 2021.
Before delving into the Arguments on the issues distilled for determination and the Notice of Preliminary Objection as well as their resolution, it is only apt to have a resume of the summary of the case of the respective parties as fought in the Lower Court. The case of the Appellants who were the Plaintiffs in the Lower Court was that on the 13th day of March, 2003, the Nasarawa State Government created a new Class Chiefdom for the Obi Traditional Council and pursuant to the newly created Chiefdom for Obi Traditional Council of 3rd (Third) Class Staff of Office, the Gazette and Legal Notice Number 3 of 2006, otherwise known as the Obi Local Government (Modification of Native Law and Custom Relating to the Selection of the Osuko of Obi Chiefdom) Order, 2003, was enacted for the regulation of the Selection of Osuko of Obi.
It was their further case that in order to fill the vacant post of the newly created 3rd Class Staff Stool of Osuko of Obi Local Government Council Area of Nasarawa State, the Nasarawa State Government in conjunction with Obi Local Government Council set up the machinery for the selection of the Osuko of Obi and on the 14th day of May, 2007 at about 9:30pm, caused invitation Notices to be served on the two (2) surviving Kingmakers. According to the Appellants, on the 15th of May, 2007 at about 10:00 am (in less than 24 hours), the Selection exercise of the 1st Defendant/Respondent as the new Osuko of Obi was carried out by a single Kingmaker in the person of the 2nd Respondent in the absence of other Kingmakers and without the required quorum contrary to the provisions of the Legal Notice No.3 of 2006.
The Appellants who are all Royalists from OGAH Ruling House of Obi therefore felt dissatisfied with the whole exercise for the selection of the 1st Respondent because of the selection of the 1st Respondent singly by the 2nd Respondent and the shortest and inadequate invitation notices served for the selection exercise of the new Osuko of Obi contrary to the quorum provisions of the Legal Notice No.3 of 2006. They approached the Trial Court to challenge the selection of the 1st Respondent and the subsequent abrogated and creation of new Offices in the composition of Kingmakers by the 1st Respondent against the Offices provided in the Legal Notice No.3 of 2006, and sought for the Reliefs earlier reproduced as contained in the Amended Statement of Claim filed by the Appellants as Plaintiffs in the Court below.
As for the 1st, 2nd, 3rd, 4th and 5th Respondents, their case as summarized in their Amended Brief of Argument is that the Obi Chiefdom in Obi Local Government Area of Nasarawa State has four recognized Ruling Houses to wit: OBANDE, OGA, AKYA AND OSURUKE as duly set out in the Nasarawa State Legal Notice No.3 of 2006, which also provided for Five Traditional Selectors (Kingmakers) for the purpose of selecting the Osuko of Obi in Obi Local Government Area of Nasarawa State who are: OGBOLOSUKO (MAKUNGIJI), OSUZA (MOYI), MADAUCI, OSOGBONI (SARKIN PADA) and WAZIRI who collectively constitute the College of Selectors.
According to them, the quorum needed for the selection of the Osuko of Obi is 3 (Three) and the last Osuko of Obi died in 1994 and Obi District had been without an Osuko for over Fifteen (15) years prior to the 1st Respondent’s Selection on the 15th of May, 2007. The 1st – 5th Respondents also explained that only a sitting Osuko, by the Custom of the Obi people, has the power to appoint any of the 5 (Five) Kingmakers also known as Traditional Selectors and there was no Osuko of Obi to appoint any of the 5 (Five) Kingmakers also known as Traditional Selectors and there was no Osuko of Obi to appoint and replace the Three (3) Traditional Selectors that were deceased. They claimed that the people of Obi Chiefdom, all the Ruling Houses and Plaintiffs inclusive, were not happy about being without an Osuko for such a long time and were desirous to select a candidate for the office and applied for and got approval form the Government of Nasarawa State for the selection to be carried out and the necessary invitations were sent out indicating the date and venue for the selection.
It was their further case that three of the Five Traditional Selectors – Makungiji, Moyi and Sarkin Pada, had died as stated by the Appellants in paragraph 27 of their Amended Statement of Claim and the machinery for the conduct of the selection was set in motion to the knowledge and approval of the people concerned including the Plaintiffs/Appellants and nobody protested. The Respondents also claimed that the two surviving Traditional Selectors – Madauchi and Waziri and all concerned were duly served with the notice of invitation for the selection exercise slated for 15th May, 2007.
On that 15th of May, 2007, they maintained, only one of the two surviving traditional selectors (the Madauchi) was present at the venue as the Waziri did not turn up and never sent any message to excuse his absence and the lone Traditional Selector nominated the 1st Respondent which nomination was accepted and was voted for by the Sole Traditional Selector and the 1st Respondent was returned selected. It was their further case that on the date the 1st Respondent was installed, the absent Waziri was present at the occasion, presented 1st Respondent to the Governor of Nasarawa State and participated in the installation ceremony.
It was and is the defence of the 1st – 5th Respondents that neither the Waziri nor any of the other Four Ruling Houses in Obi Chiefdom are Plaintiffs to this Suit, thus signifying acceptance and approval of the selection of the 1st Respondent as the Osuko of Obi Kingdom as carried out on the 15th of May, 2007. It was/is their further defence that Ogah Ruling House which maintained the Suit now on Appeal, is in the minority out of the Four Ruling Houses and a great minority of the entire populace of the Obi Chiefdom yet they filed the Suit to contest the absence of the required quorum in the selection of the 1st Respondent but that the learned Trial Judge resolved the pertinent question of the absence of quorum by the Doctrine of Necessity, hence this Appeal.
The Respondents finally in their summary of facts recalled that in the course of this Appeal, the 6th Respondent, Gambo Abubakar died on the 1st day of May, 2013. The learned Counsel applied for his name to be struck out which this Court obliged him on the 28th September, 2021 when the respective Briefs of Argument of the parties were adopted.
The facts of the case as stated by the 6th – 12th Respondents are that as revealed from the pleadings and evidence led sometime in 2007 (i.e. 15th day of May, 2007), there was selection for the Stool of the Osuko of Obi which Stool had been vacant since the demise of Late Ibrahim Atanyi in 1994 (about 13 years). This selection exercise was based on the law of the House of Assembly of Nasarawa State which upgraded the Stool of the Osuko of Obi to 3rd Class status on the 13th of March, 2003. (Page 6 paragraph 23 of Exhibit “1” for Obi Chiefdom referred). It is their case that the same law provided for Four (4) Ruling Houses and 5 (Five) Kingmakers to make up the College of Selectors as reproduced in paragraph 2.6 of the 6th – 12th Respondents’ Amended Brief of Argument at page 5.
It was their further case also that due to the long period of the vacant stool of the Obi Chiefdom from 1994 to 2007 (a period of 13 years) after the death of the last occupant (Ibrahim Atanyi), three of the Kingmakers had died leaving only two (2) survivors as at the year 2007 when the selection exercise was conducted. Our attention was drawn to the fact that Exhibit “1” which is the law of Nasarawa State House of Assembly creating the new Chiefdom of Obi with the 3rd Class status did not contain quorum except Ruling Houses and the number of College of Selectors.
The 6th – 12th Respondents also pointed out that as at the 15th of May, 2007, when the selection exercise was conducted, only two (2) Kingmakers were alive (i.e. Madauchi and Waziri) and that the said Waziri had passed on the 7th November, 2012 leaving only Madauchi as the only surviving Kingmaker as of now out of the initial Five (5) College of Selectors appointed by the Late Ibrahim Atanyi who died in 1994 as the last Osuko of Obi, before the present Osuko/1st Respondent.
It was also their case that Plaintiffs in the course of trial abandoned the Issue of Exhibit “1” which is the law of Nasarawa State House of Assembly creating the Obi Chiefdom. They also contended that if there was any need to amend any of the Exhibits, it was Exhibit “1” and not Exhibit “2” (i.e. the Gazette) which was not made by the House of Assembly. They also like the 1st – 5th Respondents endorsed the dismissal of the Appellants’ case by the learned Trial Judge after listening and considering the evidence of the parties both documentary and oral in the course of delivery of his Judgment that has culminated in this Appeal by the Appellants.
The case of the 13th – 39th Respondents (Defendants in the Lower Court) was not different from that of the 1st – 12th Respondents even though their Counsel did not summarize the facts of their case.
ARGUMENTS OF THE LEARNED COUNSEL TO THE APPELLANTS ON THE THREE ISSUES DISTILLED FOR DETERMINATION FROM THE SEVEN (7) GROUNDS OF THE FURTHER AMENDED NOTICE OF APPEAL
ISSUE NUMBER ONE (1):
On this issue which poses the question whether the Trial Court was wrong to have held that the selection of the 1st Respondent by one Kingmaker was in compliance with Exhibit “2” and refused to apply the clear terms and unambiguous express provision of Exhibit “2” as it relates to the quorum of Traditional Selectors for the selection of the Osuko of Obi (Distilled from Grounds 3 and 7 of the Further Amended Notice of Appeal); the learned Counsel in the first place submitted that the Trial Court acted in grave error to have held that the nomination, selection and appointment of the 1st Respondent as the Osuko of Obi Chiefdom on 15th May, 2007; was in compliance with the provision of Exhibit “2” (The Gazette, Nasarawa State Legal Notice No.3 of 2006, the Obi Local Government (Modification of Native Law and Custom Relating to the Selection of the Osuko of Obi Chiefdom) Order, 2003).
The learned Counsel pointed out that the crux of the Appellants’ case and the Reliefs sought are to the effect that the inability to replace the deceased Kingmakers in order to get the requisite quorum made it impossible for a valid selection of a new Osuko of Obi with only two surviving occupants or members of the Traditional Selectors and that out of the two surviving Selectors invited for the selection exercise, only one of them actually went to the venue of the meeting for the nomination and selection of the Osuko of Obi and carried out the selection that led to the emergence of the 1st Respondent as the Osuko of Obi. Hence they prayed the Court below for among other Reliefs, a declaration by the Court that the selection of the 1st Respondent by the 2nd Respondent only, without the requisite quorum of three (3) members of the College of Selectors of the Obi Chiefdom on 15th May, 2007, contravened the express provision of the Obi Local Government (Modification of Native Law and Custom Relating to the Selection of the Osuko of Obi Chiefdom) Order, 2003, Nasarawa State Legal Notice No.3 of 2006.
Section 4 of the Legal Notice No.3 of 2006, the Obi Local Government (Modification of Native Law and Custom Relating to the Selection of the Osuko of Obi Chiefdom) Order, 2003 was reproduced which section mandatorily provides that the quorum at the meeting of Traditional Selectors for the selection of the Osuko (Obi Chiefdom) shall be three (3) Selectors but that on the 15th day of May, 2007 the 1st Respondent was purportedly selected, without the express mandatory quorum of three (3) Traditional Selectors.
He submitted that the Appellants and Respondents are on common ground that only one Selector who is the occupant of the Madauchi post out of the Traditional Selectors listed under paragraph 2 of the Gazette was present and indeed selected the 1st Respondent as Osuko of Obi of Obi Chiefdom and that it was established and settled at the trial Court that the selection exercise was done by one Kingmaker out of the Five (5) Traditional Selectors. The learned Counsel to the Appellants further emphasized that the words “Quorum” and “shall” as used in Section 4 of the Gazette are not intended to be treated casually or subjected to any form of discretion but are to be strictly and mandatorily applied with the consequence of lack of the stipulated quorum in the exercise of 15th May, 2007 wherein the 1st Respondent was selected as the Osuko of Obi.
To buttress the above submission, he placed reliance on the case of Agbeotu vs. Brisibe (2005) 10 NWLR (Pt.932) 1 at 19, paras. E-F; where the word “quorum” was defined by the Court of Appeal and Adeosun vs. Govt. of Ekiti State (2012) 4 NWLR (Pt.1291) 501 at 602-603 per Onnoghen, JSC (as he then was) on the definition of the word “shall”. The learned Counsel further alluded to the evidence of the 2nd Respondent while testifying as DW2 under cross-examination in the lower Court where he admitted that on the day of selection the necessary quorum was not formed as he was the only Kingmaker present and the 1st Respondent scored one vote which he (the 2nd Respondent) gave the 1st Respondent (page 222 of the Records refers) yet the Court below failed to apply the provision as to the requisite quorum.
In the light of the foregoing, he submitted that where the words of a Statute are clear and unambiguous as in the instant case, they should be given their natural, literal and grammatical meanings and the Court cannot fill any existing lacuna as it is the function of the Law Maker to do so through an amendment. For the above statement of the law, he relied on the authorities of Chidolue vs. EFCC (2012) 5 NWLR (Pt.1292) 160 at 177 (CA); Adefemi vs. Abegunde (2004) 15 NWLR (Pt.895) at 29 ratio 7 and Adisa vs. Oyinwola (2000) 10 NWLR (Pt.674) 116, to further submit that the wordings of Section 4 of Exhibit “2” are clear and concise with mathematical precision and need no interpretation as to the figure “3” members therein which are clear and unambiguous and should be given its natural, literal and grammatical meaning by the Court.
The learned Counsel to the Appellants still on this Issue contended that the position of the law is clear that where either because of death or any other cause, the required quorum cannot be formed as in the instant case, the law must be amended to put in place the mandatory required statutory provision for the quorum in order to secure the legal backing before the selection is carried out for in his view, the approval by the Governor of Nasarawa State and the subsequent installation of the 1st Respondent is not an amendment to the Gazette complained of as a Written Instrument has to be amended by another Written Instrument and not by implied conduct whatsoever.
To buttress the above contention, the Supreme Court decision in Owodunni vs. Registered Trustees (2000) 6 SCNJ 399 ratios 16, 17 and especially Ratio 18 at pages 434-435; was further cited to further submit that irrespective of the death of some members of the Traditional Selectors, the Codified Custom as to the mandatory quorum of 3 (Three) Selectors was still extant and applicable law, hence the required quorum was not formed on the 15th of May, 2007 and therefore, the whole selection exercise by one Kingmaker was an exercise in futility as we were urged to hold.
On the frantic efforts made by the learned Trial Judge to distinguish the cited cases of Owodunni vs. Registered Trustees (supra); Dapianlong vs. Dariye (2007) 4 SCNJ 286 and Inakoju vs. Adeleke (2007) 4 NWLR (Pt.1023) at 697 ratio 21 in his Judgment, learned Counsel for the Appellants argued that these distinctions were based purely on moral considerations without legal backing and the exercise was completely faulty and misconceived, more so, as the learned Trial Judge subsequently agreed with the Appellants’ case and granted their Reliefs Numbers 6, 7 and 8 as quoted in paragraph 4.17 pages 14 and 15 of the Appellants’ Brief of Argument. The above quoted conclusion by the learned Trial Judge according to the learned Counsel, is an affirmation of the fact that Legal Notice No.3 of 2006 otherwise known as the Obi Local Government (Modification of Native Law and Custom Relating to the Selection of Osuko of Obi Chiefdom) Order, 2003 cannot be compromised whereas the learned Trial Judge unjustifiably assaulted the law with regards to the quorum direction in this same Gazette when he sustained a Kingmaker as the quorum at the meeting for the selection of the Osuko of Obi.
Learned Counsel went on to point out that Customs and Traditions are dynamic and amenable to changes depending on the circumstances created from time to time which in the case at hand necessitated the emergence of the custom which was submitted by the Obi people of Nasarawa State to the Government that saw the emergence of the Legal Notice No.3 of 2006 which is the extant law and has not been amended. It was his further submission that in the event of a glaring fundamental legal impossibility in the Gazette, the Presiding Officer cannot go on with the selection exercise but report back such lapses to the State Government that enacted the Legal Notice through the State House of Assembly with a view to amending or legally altering the Legal Notice before a valid exercise can take place and not after the step is taken that the Court will come to save the ugly situation as in this Appeal.
Still on the Lower Court’s distinction of the cases of Inakoju vs. Adeleke (supra) and Dapianlong vs. Dariye (supra); on the basis that some members of the Houses of Assembly concerned in those cases were alive, the learned Counsel to the Appellants submitted that it was not their case that the State Government should fill the vacant position created by the death of the Kingmakers but that the Obi Chiefdom can make representation on how to fill the vacancy or amend their Gazette before any valid selection can take place rather than proceed with one Kingmaker to select the 1st Respondent as the Osuko of Obi on 15th May, 2007.
Re-emphasizing again on the mandatory nature of the requirement of the quorum of three members being the College of Selectors of the Obi Chiefdom to be present together before the process of selection of any new Osuko of Obi can take place, he again quoted from Ratio 21 at page 697 of Inakoju vs. Adeleke (supra) as reproduced in paragraph 4.21 at page 16 of the Further Amended Appellants’ Brief of Argument. He also sought umbrage on Onochie vs. Odogwu (2006) NWLR (Pt.975) 65 at 39-90 Ratio 8 and Adeosun vs. Govt. Ekiti State (supra) at pages 602-603.
On the effect of non-compliance with mandatory requirement of the law, the learned Counsel referred us to the dictum of Adekeye, JSC in B.A.S.F. Nig. Ltd. vs. Faith Entp. Ltd. (2010) WRN pp.55 lines 5-20; to finally submit that the learned Trial Judge failed in his duty to be bound to enforce the provisions of a substantive law. We were therefore urged to invoke the mandatory provision of the Legal Notice No.3 of 2006 as stipulated in Section 4 of the Exhibit “2” and hold that the selection exercise conducted on 15th May, 2007 was contrary to the Custom and Tradition of Obi Chiefdom and also to resolve Issue Number 1 (One) distilled from Grounds 1 and 4 of the Grounds of Appeal in their (Appellants’) favour.
ARGUMENT ON ISSUE NUMBER 2 (TWO):
Arguing on the second Issue which is whether the Trial Court by applying and relying on the un-pleaded doctrine of necessity and act of God, has not wrongly interpreted the express and unambiguous provision of Section 4 of Exhibit “2” in the absence of amendment of the Gazette to arrive at the conclusion and thereby occasioned miscarriage of justice in the circumstance against the Appellants (Distilled from Grounds 5, 2 and 6 of the Further Amended Grounds of Appeal); the learned Counsel to the Appellants pointed out that the learned Trial Judge in his Judgment delivered on 3rd June, 2011 relied heavily on the Act of God and the Doctrine of Necessity to justify the selection of 3rd Class Chief in the absence of the required statutory and mandatory quorum for the selection of the Osuko of Obi Chiefdom of Obi Local Government of Nasarawa State when he stated at page 271 of the Records/Judgment as quoted in paragraph 5.01 page 18 of the Further Amended Appellants’ Brief of Argument.
He on the above basis submitted that those doctrines were not pleaded specifically and thus, issues were not joined on them and that a Judgment based on facts not pleaded must be set aside by the Appellate Court more so, as the learned Trial Judge unilaterally raised the issue without calling on the parties especially the Appellants to address the Court on the applicability or otherwise of the doctrines imported into the Codified Custom and Tradition of the Osuko of Obi and resolved them against the Appellants in his final Judgment.
Citing the case of Victino Fixed Odds Ltd. vs. Ojo (2010) 8 NWLR (Pt.1197) 486 at 503-505 paras. H-D and F-H at page 505 Rationes 4-11; it was again submitted that the Trial Court set a wrong precedent by invoking those doctrines thereby polluting the existing Customs and Tradition in addition to the earlier violation of the codified custom and tradition by the Respondents on the issue of quorum during the selection exercise of 15th May, 2007 and therefore the Lower Court’s Judgment cannot stand before this Honourable Court of Appeal.
Still on this point, the learned Counsel to the Appellants emphasized that the sets of Respondents filed their respective Joint Statements of Defence without any of them pleading those doctrines which doctrines are equitable doctrines that ought to be specifically pleaded before they can be relied upon by the trial Court as parties are bound by their pleadings before the Court. He further contended that the Trial Court in its adjudicatory duty had erroneously read into the express provision of Section 4 of Exhibit “2” thereby wrongly interpreted the provision of the codified Custom and Tradition of the Obi.
The learned Counsel also asserted that parties are bound by their pleadings and it is not open to the Court to violate the pleadings by making a case for them as the learned Trial Judge had done to the Respondents in this case by importing the doctrines of necessity and act of God. For the above submission, reliance was placed on Adeleke vs. Iyanda (2001) 13 NWLR (Pt.729) and Adeniran vs. Alao (2001) 18 NWLR (Pt.745) 361.
Furthermore, he asserted that the findings and conclusion of the Trial Court with a view to justify the selection exercise of 15th May, 2007 by a single Kingmaker without the requisite quorum was speculative and Courts are not allowed to speculate or work on hypothetical situations rather than factual situations placed before them and it was wrong for the Court below to speculate on what the Government will do at their whims and caprices.
He re-emphasized on the need to have given the express provision of Section 4 of Exhibit “2” its clear, ordinary meaning rather than embarking on different principles of interpretation which occasioned the Appellants’ miscarriage of justice.
On another score, the learned Counsel to the Appellants argued that the Trial Court erred in law when it held that the amendment was not necessary in the circumstance. In the view of learned Counsel, the extant law contained in Exhibit “2” before the Court and the Local Government Law allows for modification and amendment of the Native Laws and Customs of Obi Chiefdom and that unless the law is modified just as the title “Modification” suggests, or is amended to reflect the fact that the surviving Kingmaker(s) unable to form a quorum can select the Osuko of Obi any other lesser number of Kingmakers for purposes of selection or application of Section 4 of Exhibit “2”, is unlawful, illegal and a nullity. For this submission reliance was placed on the case of Kutse vs. A-G Plateau State (1999) 4 NWLR (Pt.597) 1 at pp.6-7 paras. G-B per Belgore, JSC (as he then was) the dictum which he quoted in paragraph 5.16 page 21 of the Further Amended Appellants’ Brief of Argument on the rationale behind the modification provision in Exhibit “2”.
He reiterated that the Trial Court’s contention that the case of Dapianlong vs. Dariye (2004) 7 SCNJ 286 Rationes 18 and 19 pages 325 or (2007) 8 NWLR (Pt.1036) at 414 Ratio 22; is not applicable to the instant case is faulty for in the instant case only the Osuko of Obi had the power to appoint the Traditional Selections but that there was no Osuko of Obi prior to the selection exercise of 15th May, 2007 to fill the vacancies whereas in Dariye’s case by Bye-Election the vacant seat could be filled.
The learned Counsel argued that the amendment to be effected could be either to abrogate the selection for the quorum or changing the quorum from three to the available number of surviving Kingmakers prevailing at the time of the selection before a valid selection can take place or the community through recommendation to the Governor of Nasarawa State for the new titles or posts to replace those of the deceased Kingmakers in Exhibit “2”. He contended that the Trial Court only focused on the person to appoint and fill the vacancies without averting or alluding to the fact that the customs and traditions are dynamic and the Gazette would be amended to reduce the quorum direction or abrogating the posts or titles in Section 4 of Exhibit “2” completely.
Finally, on this Issue, the learned Counsel to the Appellants insisted that the Selection of the 1st Respondent on the 15th day of May, 2007 by a single Kingmaker was not in compliance with the law or that it was not backed up by the customs and tradition as entrenched in the Gazette and was therefore a nullity. We were therefore in the light of the above, urged to so hold and resolve this Issue in favour of the Appellants.
ARGUMENT OF ISSUE NUMBER THREE (3):
On this Issue which questions whether the Court below was right to place reliance on the presence of Waziri at the installation ceremony on a date different from the selection date to hold that there was the required quorum for the selection of Osuko of Obi on 15th May, 2007 and by relying on the installation ceremony, has not misapprehended the case of the Appellants as distilled from Grounds 3 and 7 of the Further Amended Notice of Appeal; the learned Counsel to the Appellants still harped on the fact that the requisite quorum of the Kingmakers for selection of the Osuko of Obi as provided in Exhibit “2”, Section 4 thereof, does not include nor is it intended to extend to cover any other activity on a date different from the date of the selection exercise which was 15th May, 2007. He again quoted the provision of Section 4 of Exhibit “2” which he reproduced in paragraph 6.02 page 23 of the Appellants’ Further Amended Brief of Argument and maintained that the Gazette is clear that the quorum shall be at the meeting of the Traditional Selectors to select the Osuko of Obi Chiefdom and does not by any extension or imagination widen the provision to cover the day of installation or any activity to be carried out subsequently by the Traditional Selectors.
The learned Counsel submitted that the learned Trial Judge misdirected itself materially which occasioned a miscarriage of justice and affected the whole decision rendered by the Court below when it substituted the activities on the installation date for the meeting of Traditional Selectors to select the Osuko of Obi for exercise of activities that took place on 15th May, 2007.
He argued further that the Court below was substantially influenced by the presence of the Waziri at the installation of the 1st Respondent several days after the selection exercise of 15th May, 2007 and indeed misconceived the case of the Appellants by suo motu raising the issue of the presence of the Waziri at the installation venue and resolved it without letting the Appellants to at least address the Court on whether that could have cured the irregularity surrounding the absence of quorum at the meeting of 15th May, 2007. He therefore submitted on the above score that the learned Trial Judge was wrong to have held as he did at page 273 of the Records as quoted in paragraph 6.07 at page 24 of the Appellants’ Further Amended Brief of Argument for using the presence of the Waziri at the installation venue for confirmation and determination of the quorum that was not formed on 15th May, 2007 and thereby dismissing the Appellants’ Suit challenging the lack of quorum at the selection exercise of 15th May, 2007.
The learned Counsel to the Appellants also argued that issues were not joined on the activities that took place at the installation venue as the Appellants’ case was/is concentrated on the lack of quorum on 15th May, 2007 and not who was present at the installation venue more so as the installation activities do not require any form of quorum nor intended to serve as confirmation of lack of quorum at the selection exercise. In the light of the above, the learned counsel further submitted that the Trial Court failed in its duty to correctly appraise the proved facts that the quorum was not formed at the selection venue on 15th May, 2007 and thereby occasioned a gross miscarriage of justice. Garuba vs. Yahaya (2007) 1 SCNJ 352 page 360; was cited on the effect of misdirection and how it occurs.
Again, reliance was placed on the case of Udengwu vs. Uzuegbu (2003) 7 SCNJ 145 at 153; as being most relevant to the issue because the Trial Court therein went outside the case of the parties and drew wrong inference, wherein the Supreme Court set aside the whole proceeding and Judgment because it was a clear misapprehension of the case that led to the perverse Judgment and same was set aside. Going by the above authority, he submitted that the Court below in the instant case clearly misunderstood the case of the Appellants and reached a perverse Judgment that cannot be allowed to stand by this Honourable Court. We were therefore urged to resolve this Issue in favour of the Appellants and set aside the Judgment of the trial Court and grant all the Reliefs sought by the Appellants at the Trial Court. We were finally prayed to allow the Appeal on all the issues raised.
ARGUMENTS OF THE LEARNED COUNSEL TO THE 1ST-5TH RESPONDENTS ON THE SOLE ISSUE FORMULATED FOR DETERMINATION:
Arguing the Sole Issue which is whether, considering the entire circumstances of this case, the learned trial Judge was not justified to have resolved the Suit on the principle of Doctrine of Necessity, the learned Counsel to the 1st – 5th Respondents went into the historical background of the case as earlier stated in the summary of the facts of their case, and submitted that the law which created the Obi Chiefdom and provided for the required quorum for the valid selection of the Osuko of Obi, never envisaged the situation where there would not be the required quorum as a result of the death of up to three (3) of the Traditional Selectors at a time and therefore never made provisions for the way out.
According to him, the only reasonable and possible way out of the state of impossibility which was adopted was that before the remaining Traditional Selectors all disappeared, it was necessary for the surviving ones to be made to effect the selection to pave way for the selection of other Traditional Selectors to complete the required number for the future and that was what happened. The learned Counsel submitted that all the 4 (Four) Ruling Houses including the Appellants’ Ogah Ruling House received adequate notice of the selection exercise slated for 15th May, 2007 and were also aware of the situation on ground which is why the Ogah Ruling House selected 1st Plaintiff to stand for the selection exercise prior to 15th May, 2007 as attested to in paragraph 43 of page 114 of the Amended Statement of Claim. The learned Counsel to the 1st – 5th Respondents submitted further that the 1st Appellant was present along with the representative of the Ogah Ruling House at the selection exercise of 15th May, 2007 that produced 1st Respondent as winner and the fact of having adequate Notice was demonstrated by the fact that the 1st Plaintiff who had assumed that he was the Osuko of Obi in Exhibit “8” simply refused to participate at the selection exercise of 15th May, 2007 on the ground that he appealed the decision of the Nasarawa State High Court in Exhibit “8”.
It was his further submission that Legal Notice No.3 of 2006 which the Appellants placed heavy reliance on does not provide for service of Notice on any of the four Ruling House, but all it provided for is that the Presiding Officer shall summon a meeting of the Traditional Selectors within the Local Government, at which meeting the Presiding Officer shall issue Nomination Papers to the Selectors and call for nomination to be made for the purpose of selecting the Osuko of Obi Chiefdom (Sections 6(iii), 7(i)-(iii) and 8 of Exhibit “2” refer). The learned Counsel also contended that it was when the 1st Appellant from the Oga Ruling House failed to secure the selection that the Appellants then turned round to exploit the issue of quorum. He added that the fact that none of the other three (3) Ruling Houses complained along with the Oga Ruling House by coming to Court or join in the Suit speaks volumes in favour of the proper procedure except the issue of quorum followed and the acceptance of the dire impossible situation in the circumstances and the desire to seek a way out was the nomination and selection by one of the two surviving Traditional Selectors.
Addressing the crux of the Sole Issue nominated for determination which is the doctrine of necessity, the learned Counsel to the 1st – 5th Respondents asserted that the said doctrine, like the concept of plea bargaining recently introduced in this country, is relatively new in our clime and not really provided in our Rules and Laws as such. He went on to quote from the text “THE LIFE OF ABRAHAM LINCOLN (1884; University of Nebraska Press, 1994) at page 81” where Abraham Lincoln originated the doctrine of necessity and his categorization by some philosophers as enunciated in paragraph 3.11 of page 8 of the 1st – 5th Respondents’ Amended Brief of Argument. The learned Counsel further went into an expose of the basis of the invocation of the doctrine in extra legal actions by State Actors, for purposes of restoring Order and found to be constitutional, a situation where the Rule of Law and Constitution have to be adulterated by extra-civil means of preserving the Constitution, Rule of Law, the Government and Democracy and also the basis upon which extra-judicial powers are used by the Judiciary to restore Order in the Polity.
The learned Counsel also traced the historical antecedents of the Doctrine to writings of Medieval Jurists like Henry de Bracton and more recent Legal Authorities including William Blackstone and the fact that the doctrine subsequently came into use in modern times firstly in a controversial 1954 Judgment in which the Pakistan Chief Justice Mohammed Munir validated the extra-constitutional use of the emergency powers of Governor General, Ghulam Mohammed and invoked Bracton’s maxim that “that which is otherwise not lawful is made lawful by necessity;” thereby providing the label that would come to be attached to the Judgment and the doctrine that it was establishing and by other Commonwealth Countries particularly Nigeria where it was invoked in 2010 to justify extra legal actions as shown in the cases of State vs. Dosso (1958) 2 PSLR 180; which facts are stated in paragraph 3.14 pages 9-11 of the 1st – 5th Respondents’ Amended Brief of Argument.
The learned Counsel also referred to the invocation of the doctrine in 1985 by the Chief Justice of Grenada to validate the legal existence of a Court then trying to murder the persons who conducted a coup against former Leader Maurice Bishop; and in the case of Nigeria though non-judicial, the Nigerian National Assembly (Parliament) on 9th February, 2010 used the doctrine of necessity to create the position of Acting President when by a Resolution made Vice President Goodluck Jonathan, the Acting President and Commander-in-Chief of the Armed Forces following the absence of President Yar’Adua who had been in Saudi Arabia for 78 days receiving medical treatment.
Further reference was also made to what transpired in the Nigerian Parliament following the death of the Prime Minister Sir Abubakar Tafawa Balewa (the Head of Government) while the President of Nigeria (then Dr. Nnamdi Azikiwe) was abroad and Dr. Nwafor Orizu (the President of the Senate announced the voluntary decision of the rump of Parliament to transfer power to the Head of the Army, General J.T.U. Aguyi-Ironsi. The learned Counsel also referred to the case of Lakanmi vs. Attorney-General, Western State & Ors. (1971) 1 UILR 201; where the legal effect of the abdication of power by Dr. Orizu was tested and the Supreme Court per Udo Udoma, JSC in the Panel agreed with Kelson’s Theory but held that the abdication deprived the Appellants of their property by ad hominem Decree contrary to the 1963 Constitution.
He also alluded to 1993 when General Sani Abacha tagged his Military Government “a chief of necessity” when he claimed to have been appointed Head of State consequent upon the resignation of Chief Ernest Shonekan who was the Head of the controversial Interim National Government that was overthrown by Abacha. Yet undone, the learned Counsel again referred us to the decision of the Ugandan Supreme Court led by Sir Udo Udoma in the case of Uganda vs. Commissioner of Prisons, Ex-Parte Matovu (1966) E.A. 514; where their Lordships followed the Pakistan decision to justify Prime Minister Wilton Obote’s extra-constitutional burial of the 1962 Constitution by his (Obote’s) removal of Sir Edward Mutesa II, and declared himself Executive President which events as enumerated above were according to the learned Counsel justified under the doctrine of necessity.
According to the learned Counsel, he had gone this length to try to show this Honourable Court that the doctrine of necessity which the learned Trial Judge introduced to resolve the un-contemplated and unforeseen situation created by the death of three (3) of the Five (5) Kingmakers/Traditional Selectors rendered it impossible to attain the required legal quorum for the selection of the Osuko of Obi.
He went on to list/look at the circumstances which existed in the case and which weighed heavily on the Trial Court into invoking the doctrine of necessity by reviewing the pleadings and evidence both oral and documentary as led and tendered by the parties (See pages 13-19 of the 1st – 5th Respondents’ Brief of Argument). The learned Counsel submitted that the only contention by the Appellants from the evidence of their Witnesses was that there was no quorum for a valid selection on 15th May, 2007 and therefore the selection of the 1st Respondent was not proper but according to the learned Counsel, the Appellants would accept whatever position the Government had taken on the matter given that only two selectors were alive following the evidence of PWIV on page 219 lines 9-12 of the Records; that of the 2nd Appellant/PWI at page 208 lines 21-22 of the Records and that of the 3rd Appellant/PWIII at page 213 lines 28-29 of the Records.
In the light of the foregoing, the learned Counsel argued that Exhibit “1” is the Law that created the Obi Chiefdom with 3rd Class status as signed into law by the Governor on 13th March, 2003. The law is said to have four Sections in all and then Schedules and that there is nowhere in Exhibit “1” provision is made for an amendment. He also pointed out that Obi Chiefdom is Item 23 on Schedule Two at page 6 thereof and that unlike other Chiefdoms where the quorum provided in the law, there is no quorum provided for in the case of Obi Chiefdom in the 3rd Column with the heading “COLLEGE OF SELECTORS” as only the names of the Selectors are listed as: (1) OGBO LOSUKO (MAKONJI), (2) OSUZA (MOI); (3) MADAUCI; (4) OSOGBONI (SARKIN PADA); and (5) WAZIRI.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
He submitted further that Section 4 of the Law creating the Obi Chiefdom allows for such modifications in the areas of jurisdiction, on composition of College of Selectors, eligibility and quorum and for ease of reference the provision was reproduced at page 19 paragraph 2 of the Amended 1st – 5th Respondents’ Brief of Argument to insist that the law does not provide for Notice to be given to contestants before the selection exercise is carried out. Therefore, in his view, given the special circumstances in which the people of Obi Chiefdom had been for Fifteen (15) years without the Osuko and three (3) Kingmakers had died while only two (2) were surviving and in a situation where the Kingmakers/Selectors can only be made by a sitting Osuko; the selection of the 1st Respondent by one surviving selector which selection was affirmed by the second surviving selector who was notified of the 15th May, 2007 and could not turn up for no reasons but turned up at the 1st Respondent’s installation by the Governor of Nasarawa State which was accepted by all the Four Ruling Houses and the entire populace of Obi Community except OGA Ruling House, amounts to the modification of the College of Selectors and the quorum for the selection of the Osuko of Obi in line with Section 4 of Exhibit “1” and was valid. He reiterated that what the Court below did in validating the Selection under the Doctrine of Necessity was correct and the learned Trial Judge should be applauded for the bold step.
Turning to Exhibit “2” which is the Nasarawa State Legal Notice No.3 of 2006 on the Selection of the Osuko of Obi Chiefdom, the learned Counsel also argued that Section 4 thereof provides for quorum of 3 Selectors but like the main law that created the Obi Chiefdom it does not:
1. Provide for any amendment and how, if there was need for amendment to be made thereto;
2. Envisage a situation where there would not be a quorum of 3 Selectors for the selection of the Osuko of Obi and therefore does not make provision therefor or where all the Selectors would be unavailable to carry out the selection of the Osuko of Obi.
3. Provide for Notices to be served on Aspirant prior to the selection exercise; but that all that was required by the said Exhibit “2” are that the Governor must be informed of the vacancy and the desire/readiness to fill the vacancy.
Upon approval by the Governor, the Presiding Officer is appointed who then summons a meeting of Traditional Selectors and at the meeting, the Presiding Officer issues nomination papers to the Traditional Selectors who carry out the nomination and selection, he further explained citing Sections 6-9 of the said Exhibit “2”.
The learned Counsel further referred to Section 10 of the said Exhibit which provides that at the conclusion of the exercise, a Report is sent to the Governor for approval after consultation with the Council of Chiefs and posited that the Governor of Nasarawa State received the Report of the Nomination/Selection exercise of the 1st Respondent carried out on the 15th May, 2007 by one of Traditional Selectors and gave his approval after consultations with the Council of Chiefs thereby formalizing the 1st Respondent’s selection and followed same with the installation in 2007. Accordingly, the learned Counsel contended that the Government through the Governor of the State has spoken on the finality of the 1st Respondent’s selection which Appellants acknowledged in their testimonies before the Trial Court as quoted at page 21 paragraph 1 of the 1st – 5th Respondents’ Amended Brief of Argument and that the advice which the Appellants referred to in their evidence as quoted, is the approval given to the selection of the 1st Respondent by one of the two surviving Selectors in the light of the peculiar circumstances which was not contemplated by the law creating the Chiefdom and/or Exhibit “2” relating to the Selection of the Osuko of Obi in view of the acknowledgment by the 1st Appellant that in the history of Obi the Government had never appointed a Kingmaker.
Still not done, the learned Counsel to the 1st – 5th Respondents alluded to the findings of the Court below that the Oga Ruling House was aware of the selection and some of the Plaintiffs contested the selection exercise of May 15th, 2007 which findings are clear from the evidence of the 2nd Plaintiff/PW1 at page 208 lines 15-16, 3rd Plaintiff at page 213 lines 19-20; that the 1st Plaintiff lied when he said that he did not contest the selection of 15th May, 2007 because he was not notified if not he would have won the contest when he accepted at page 217 lines 3-4 as corroborated by the evidence of the 2nd Plaintiff/Appellant at page 120 lines 31-32 which shows that the 1st Plaintiff did not contest the selection of the Osuko of Obi because he was claiming that he was the Osuko of Obi. All other submissions of the learned Counsel on the findings of the learned Trial Judge were repetitive of his earlier submissions. See pages 22 to 24 of the 1st – 5th Respondents’ Brief of Argument.
It is also pertinent to note that the learned Counsel also highlighted the points taken into consideration by the learned Trial Judge in arriving at his decision on the issue of quorum having distinguished the cases cited by the Appellants from the instant cases. See paragraph 3.17 at pages 24-27 of the 1st – 5th Respondents’ Amended Brief of Argument the bottom line which is that the approval and concurrence of the Governor of the Selection of the 1st Respondent and the latter’s eventual installation is in tandem with Bracton’s maxim of “that which otherwise was not lawful is made lawful” and the Roman Law maxim urged by Ivor Jennings that “the well being of the people is the supreme law;” since peace and harmony has been restored in Obi Chiefdom.
Finally, the learned Counsel submitted that unlike Exhibit “1”, which is an enactment by the Nasarawa State House of Assembly, Exhibit “2” is an Executive Order made by the Governor in exercise of the powers under Section 4 of the Chiefs (Appointment and Deposition) Law and sub-section (3) of Section 5 of the Local Government Law, 2000 and all powers enabling him in that behalf. According to him, where therefore there is need for any amendment to the Order, such power lies within the Governor of Nasarawa State and that in the circumstances of the approval of the nomination of the 1st Respondent by one out of the two surviving Selectors, and the subsequent installation of the 1st Respondent to the Office of the Osuko of Obi by the Governor as an implied amendment of the Order on the issue of quorum. We were therefore urged to dismiss this Appeal for if there is any case that is appropriate for the application of the doctrine of necessity, this is one of them and the learned Trial Judge should be commended for applying same in the interest of the people of Obi Chiefdom.
The learned Counsel concluded by summarizing the points earlier made in paragraph 4.1 at pages 28 of the Judgment.
ARGUMENT OF LEARNED COUNSEL TO THE 6TH–12TH RESPONDENTS ON ISSUE NUMBER ONE (1):
On this Issue which poses the question as to whether the nomination, selection and appointment of the 1st Respondent could only be said to be done in compliance with Exhibit “2” without regard to the provisions of Exhibit “1” which gave rise to Exhibit “2” (Distilled from Grounds 1 and 2 of the Amended Grounds of Appeal); the learned Counsel alluded to the Claim of the Appellants in the Lower Court which had earlier been reproduced in the introductory part of the 6th – 12th Respondents’ Brief of Argument. He then submitted that one important thread that ran through their (Appellants’) claim is that the selection/election exercise of the 15th day of May, 2007 which produced the 1st Respondent was not done in accordance with the laid down procedure as provided for the selection of the Osuko of Obi especially Exhibit “2” which is the Gazette whereas the Defendants/Respondents’ case on the other hand is that the 1st Defendant/Respondent was duly elected as the Osuko in accordance with the law of the Nasarawa State House of Assembly (Nasarawa State creation of additional Chiefdoms Law, 2003) as assented to by the Executive Governor of the State on the 13th day of March, 2003 marked as Exhibit “1” in this case.
The learned Counsel pointed out that it is on record that Exhibits “1” –“6” were tendered by the Plaintiffs through their Counsel (pages 214 and 215 of the printed Records referred). He submitted that the law is settled that he who asserts must prove and that by virtue of Sections 131 -133 of the Evidence Act, 2011, the Plaintiffs had the legal burden of establishing their claim since the onus probandi rested on them as the persons who would fail if no evidence were led at all. Arase vs. Arase (1981) 5 SC 33 at 37 and Ugbo v Aburime (1993) 2 NWLR (Pt.273) 101 were referred.
The learned Counsel then posed the question whether in this case, it can be said that the Plaintiffs discharged the burden of proof as placed on them by the law which he answered in the negative. On the heavy reliance placed by the Appellants on Exhibit “2” to the exclusion of Exhibit “1” which was equally tendered by them, it was submitted that nothing was said about Exhibit “1” by the Appellants throughout their submission before the Trial Court and even before this Honourable Court. Referring us to Exhibit “1” as can be found at pages 32-41 of the Records, he asserted that if any law needed amendment for the selection exercise of Osuko of Obi on 15/05/ 2007, it should be Exhibit “1” being the Law of the Nasarawa State House of Assembly and not Exhibit “2” which was supposed to be an offshoot of Exhibit “1” for according to him, Exhibit “1” is the fulcrum of the Appellants’ case and we were therefore urged to so hold.
Further reference was made to page 6 of Exhibit “1” particularly paragraph 23 where Obi Chiefdom and its method of selection (i.e Ruling Houses/eligibility and College of Selectors) are inserted, and submitted that there is no quorum whatsoever, provided for against the Electoral College. It was therefore on this score that they submitted that if the legislation had intended a quorum for the College of Selectors, it would have been inserted therein as was the case of other Chiefdoms like Agwatashi and Beddere contained in paragraphs 21 and 22 respectively preceding Obi Chiefdom which is in paragraph 23 of the same page 6 of the law.
In the light of the foregoing, it was contended that the submission of the learned Counsel for the Appellants on the quorum concerning Exhibit “2” without regard to the provision of Exhibit “1” which was equally tendered by them, is not tenable in law. He maintained that Exhibit “2” being a by-product of Exhibit “1” ought not to depart from the provisions of Exhibit “1” which is the law of the State House of Assembly. The said Law was enacted in 2003 about Nine (9) years after the vacant stool of Osuko of Obi (i.e. 9 years after the demise of late Osuko in 1994) and the Legislature might have contemplated the possibility of the vacancy in the number of Kingmakers by not inserting a quorum in the law, knowing vividly well that without the incumbent Osuko, nobody had right to appoint any titleholder(s) including Kingmaker(s) in Obi Chiefdom, he further argued.
Accordingly, the learned Counsel to the 6th – 12th Respondents therefore submitted that the decisions in AGBEOTU V. BRISIBE (supra), OWODUNNI V. REGISTERED TRUSTEES (supra), DAPIANLONG V. DARIYE (supra), INAKOJU V. ADELEKE (supra), ONOCHIE V. ODOGWU (Supra) and B.A.S.F. Nig. Ltd. V. FAITH ENTP. LTD (Supra); lavishly cited by the Appellants are not applicable to the facts of this case.
It was again submitted by the learned Counsel that the Appellants would do well by being guided by the admonition of the Supreme Court in the case of ADEGOKE MOTORS V. ADESANYA (1989) 3 NWLR (Pt.109) 250 AT 265-266 per Oputa JSC; in that, the decisions in those cases cited by the Appellants are not applicable to this case for the facts and circumstances differ from this case as Exhibit “1” is the main law that created Obi Chiefdom with all it entails but did not consider the quorum to be a necessary factor in the selection exercise of the Osuko of Obi.
He finally questioned why the Appellants tendered Exhibit “1” but refused to make any case out of it and contended that the answer is that the said document (Exhibit “1”) is unfavourable to them. We were on the above premises urged to resolve this issue in favour of the Respondents.
ARGUMENT OF LEARNED COUNSEL TO THE 6TH–12TH RESPONDENTS ON ISSUE NUMBER TWO (2):
Arguing this Issue which is whether the trial Court was right to have held that there was no reason to tamper with the Selection exercise of 15th May, 2007 as regards the quorum and/or the amendment of Exhibit “2” (Distilled from Grounds 3, 4 and 5 of the Amended Grounds of Appeal); the learned Counsel noted that the case of the Appellants before the Trial Court was that there was no quorum of three (3) Kingmakers present at the selection venue due to the demise of the three (3) selectors out of five (5), leaving only two (2) survivors and that they also complained of inadequate service of notice on the other surviving Kingmaker who neither complained about the time factor nor joined them in pursuing the Suit as a party.
He further pointed out that the Trial Court after listening to the evidence of the parties, came to the conclusion that at the time of the selection exercise of the 1st Respondent, the three (3) out of the five (5) Kingmakers had passed on to the great beyond which was an act of God that no human being had control over.
The learned Counsel explained that the position of the Trial Court that was misconceived by the Appellants is that assuming without conceding that the quorum was necessary, the demise of the three (3) Kingmakers out of the Five (5), leaving only two surviving at the time of the selection exercise was an act of God beyond human control or imagination as insistence on the quorum would cause more hardship to the people of the Chiefdom, that had stayed without Chief for a period of about 13 years before the selection exercise of 15th day of May, 2007.
He added that the submission of the Appellants to the effect that the Trial Court had imported alien concept of doctrine of necessity and act of God into the qualified Custom and Tradition as contained in Exhibit “2” was equally wrong having regard to the provisions of Exhibit “1” in respect of Obi Chiefdom for if Exhibit “1” is not relevant to the Appellants’ case, why did they choose to tender it in the first place but refused to place reliance on it completely? According to the learned Counsel, they (Appellants) are estopped from denying its existence and efficacy in the determination of this case on the authorities of FEDERAL MORTGAGE FINANCE LTD VS HOPE OFFIONG EKPO (2004) 2 NWLR (Pt.856) 100 at 105-107 and OLALEKAN V. WEMA BANK PLC (2006) 13 NWLR (Pt. 998) 617 at 619.
Finally on this second Issue, it was submitted that the learned Trial Judge was correct in his finding and conclusion that there was no reason to tamper or interfere with the selection exercise of Osuko of Obi conducted on 15th day of May, 2007. He therefore urged this Honourable Court to hold that the selection of the 1st Respondent as the Osuko of Obi on the 15th day of May, 2007 was proper and resolve this Issue in favour of the Respondents
ISSUE NUMBER THREE (3):
On this third and last Issue as distilled by the learned Counsel which poses the question whether having regards to the Plaintiffs’ Statement of Claim and the evidence adduced before the Trial Court, it could be said that miscarriage of justice was occasioned in the circumstances of this case (Distilled from Grounds 6 and 7 of the Amended Grounds of Appeal); the learned Counsel to the 6th – 12th Respondents on the contention by the Appellants that the finding of the Trial Court had occasioned miscarriage of justice; submitted that the law is settled that the party who alleges miscarriage of justice has the onus or burden of proving same. S.B.N. LTD vs S. IND. O. CORP. (2009) 8 NWLR (Pt.1144) 491 at 496 Ratio 3; were cited in support of the above position of the law.
The learned Counsel further submitted that the position or view of the Trial Judge quoted at page 10 of the Appellants’ Brief of Argument was simply to analyze the fact that the demise of the members of the College of Selectors was an act of God beyond human imagination as no one had control over such which did not in any way influence his decision in the matter. He posited that the fact of the demise of the other Kingmakers leaving only two of them surviving at the time of the selection exercise of 15th day of May, 2007 was pleaded in paragraph 20 of the Joint Statement of Defence of the 1st, 7th – 13th Defendants/Respondents (Page 102 of the Records referred).
In the light of the foregoing, he asserted that all the authorities cited by the Appellants are not on all fours with the case at hand as they are more or less political matters that have no resemblance with Traditional or Chieftaincy matters. According to the learned Counsel to the 6th – 12th Respondents, in Chieftaincy matters, it is the Chief that appoints members of the College of Selectors and after his demise, nobody has the right to do such appointment until another Chief/Traditional Ruler is enthroned in order to carry out such a duty.
Finally on this Issue, it was submitted that the learned Trial Judge was right when he held that the selection of the 1st Respondent on 15th day of May, 2007 was done in compliance with the law of the Nasarawa State House of Assembly and assented to by the Governor on the 13th day of March, 2003 and no miscarriage of justice was occasioned as a result. We were therefore urged to resolve this Issue in favour of the Respondents.
In conclusion, the learned Counsel to the 6th – 12th Respondents urged us to hold as follows:
1. The trial Court was right when it held that the selection of the 1st Respondent as the Osuko of Obi on the 15th day of May, 2007 was in compliance with the law that created the Obi Chiefdom.
2. The action of the Plaintiffs/Appellants seeking the nullification of the nomination, selection and appointment of the 1st Defendant/Respondent conducted on the 15th day of May, 2007 on ground of the absence of quorum has no basis at all.
3. The Trial Court was right when it accordingly dismissed the Plaintiffs/Appellants’ case in the circumstance.
4. No miscarriage of justice was occasioned in this case and accordingly the decision of the Trial Court should be affirmed and Appellants’ Appeal dismissed.
ARGUMENT OF THE LEARNED COUNSEL TO THE 13TH-39TH RESPONDENTS ON THE PRELIMINARY OBJECTION:
As noted earlier the learned Counsel to the 13th-39th Respondents filed a Notice of Preliminary Objection under Order 10 of the Court of Appeal Rules, 2016 predicated on the following Grounds:-
“1. That the Appellants have no locus standi to initiate this action because they did not contest the election of 15th May, 2007 that produced the 1st Respondent as the OSUKO OF OBI.
2. That the Trial Court had no jurisdiction ab initio to entertain this matter and the Judgment reached without jurisdiction is a nullity.
3. That the Appellants did not initiate this action on behalf of Ayoga Ruling house as the consent of the 13th-39th Respondents was never obtained, and this action did not survive the present set of Appellants as the Mr. YUSUF A. MADAKI died with his action.”
The arguments on the Preliminary Objection are incorporated in pages 4 paragraph 1.0 to 9 paragraph 2.10 of the 13th-39th Respondents’ Further Amended Brief of Argument. In the said Brief of Argument, the learned Counsel to the 13th-39th Objectors sought the leave of Court to argue Grounds 1 and 2 of the Objection together.
GROUNDS 1 AND 2 TOGETHER:
On these Grounds as to whether the Trial Court could assume jurisdiction in a Chieftaincy matter where the Plaintiffs had no locus standi, he submitted that the Trial Court was in error to have assumed jurisdiction over the matter for according to him the Appellants ab initio had no locus standi from their pleadings and evidence as can be found from the Records because they did not contest for the Selection of the Osuko of Obi on 15th May, 2007 and this robbed the Court below of its jurisdiction to entertain the matter.
On the fundamental nature of jurisdiction for the determination of a matter before the Court, it was submitted that it can be raised any time at the trial Court or even on Appeal for a Judgment obtained without jurisdiction is a nullity and cannot be subject to appeal as such a Judgment has no life issues for determination. As for the right to sue in Chieftaincy matters, he submitted on the Supreme Court authorities of Herbert Ohuabunwa Emezi vs. Akujobi David Osuagwu & 3 Ors. (2005) 2 SC (Pt.II) 128 L.E.R.; (2005) SC 251/200 and Adewumi vs. A-G of Ekiti State (2002) 1 SCNJ? were cited on the test laid down to be fulfilled by a Plaintiff in order for the Court to be seised of the requisite vires and jurisdiction to determine a matter pertaining to Chieftaincy which are:-
1. He belongs to the Ruling House;
2. That it is the turn of the Ruling House to provide the candidate to fill the vacancy.
3. That there is or ought to be a vacancy on the throne.
4. That he is interested as an eligible candidate to the election to the throne.
5. That he had taken part as a candidate for election to the throne.
According to the learned Counsel to the 13th-39th Respondents/Objectors, in the instant case, the Appellants did not meet conditions 4 and 5 as set out in the case of Adewumi vs. Ekiti State (supra) at page 57 paras. 5-25. He maintained that the Plaintiff may establish in his Statement of Claim and lead evidence to show that the right being asserted is that of his family by reason of any hereditary interest in which case the action should be by the family through their representative which facts must be pleaded clearly that the civil right of the family that is being claimed and pursued. The learned Counsel asserted also that the Plaintiff may assert his right to the Chieftaincy Stool if he could show from his pleadings and evidence the nature of interest and entitlement to the stool for it is not enough for him to merely say that he is a family member without further stating that he had an interest in the Chieftaincy Stool/title and pleading further how his interest arose. Per Akintan, JSC in Musa Momoh & Anor. vs. Jimoh Olotu (1970) NSCC 99, L.E.R. (1970) 410/1967.
The learned Counsel to the Objectors went further to delve into the issue of onus and burden of proof that laid on them (the Appellants) to establish through concrete evidence their aforesaid rights that were allegedly violated thus warranting judicial remedy which burden in law were not placed on the Respondents to prove or justify any thing. He further recalled that the Appellants through their evidence at pages 219 and 208 of the Records where the 1st Plaintiff/Appellant as PW4 testified that he had a pending Appeal before the Court of Appeal, Jos Division on the issue of the Osuko of Obi which was on the breach of law in the Selection of the Osuko of Obi which fact the 2nd Plaintiff/Appellant confirmed at page 208 lines 16-18 of the Records that he was aware that the Plaintiff was before the Court of Appeal, Jos Division seeking to be declared the Osuko of Obi.
In the view of the learned Counsel to the Respondents/Objectors, the 1st Plaintiff (then Yusuf A. Madaki) and 1st Appellant was under the delusion that he was already the Osuko and was in the Court of Appeal, Jos in Suit No: CA/J/87/2007 having lost in Suit No. NSD/LF/79/2004 hoping to be declared as such by the Court when the exercise took place on the 15th of May, 2007 and so it was not true that he was not given sufficient time to contest and further that if he had been given sufficient notice to campaign despite the lack of quorum which he alleged as being an infraction of the law. Concluding his arguments on the Two Grounds, he submitted that Appellants having failed to establish their interest in the Stool aforesaid, they lacked the requisite vires to invoke the Court’s jurisdiction to entertain the matter.
ARGUMENT ON GROUND 3:
On this Ground whereof he posed the question whether the Appellants could commence the action on behalf of the Ogah Ruling House without the knowledge of the 13th-39th Respondents’ principal members of the Ruling House as well their consent and approval; the learned Counsel to the Objectors submitted that the Appellants failed to show in their pleadings and evidence led at the Trial Court how the Ogah Ruling House authorized or mandated them to commence the action on their behalf but that the Appellants unilaterally indicated so in their Writ to misled the Court into believing that they represent the 13th-39th Respondents as Members of their Ruling House.
He submitted that the Appellants did not come to equity with clean hands having usurped the authority of the Ruling House and Members which explains why they did not secure the Order of the Trial Court permitting them to commence the action as majority/principal members of the Ogah Ruling House never resolved at any time to challenge the said election more so, when the Appellants have not shown how any of their rights was violated. In the view of learned Counsel, only the Ruling House is empowered to institute an action in a Chieftaincy matter on behalf of a nominated candidate where it is apparent that there was an infraction of any procedure. Adewumi vs. A-G. Ekiti State (2002) 1 SCNJ at 57; was again relied upon to buttress the above submission and to urge the Court to hold that the resultant effect of commencement of the Suit without the authority of Ogah Ruling House rendered the Suit incompetent abi initio and should be struck out.
It was his further argument that this set of Appellants cannot as nominal parties subsume into the Claims of the 1st Appellant (Yusuf A. Madaki) whose name was struck out from the Suit as well as this Appeal since the facts and evidence adduced at the trial were peculiar to him (the Deceased 1st Appellant).
On the whole, we were urged to uphold their Preliminary Objection and strike out the Appeal as the Court below lacked the jurisdiction to hear the matter in first place. Efet vs. INEC (2011) SCNJ 194; was relied upon on the essence of Preliminary Objection as decided by the Supreme Court.
REPLY OF LEARNED COUNSEL TO THE APPELLANTS ON THE PRELIMINARY OBJECTION:
Reacting to the Objection and the arguments of the learned Counsel to the 13th-39th Respondents’ Preliminary Objection, the learned Counsel to the Appellants urged this Court to dismiss the Objection with substantial costs as same is highly misplaced and misconceived as well as directed to the Suit in the trial Court and not against the Appeal and as such the said Objection ought to be brought before the Trial Court. According to the learned Counsel, a Notice of Preliminary Objection as envisaged under Order 10 of the Court of Appeal Rules, 2011 by the Respondents is intended to challenge an Appeal against a Judgment of the trial Court in order to save or defend the Judgment, rather than the Suit at the Trial Court that has metamorphosed into a Judgment, and which Judgment shall be defended by the Respondent in the absence of Cross-Appeal.
The learned Counsel submitted in this wise that the 13th-39th Respondents who have not cross-appealed and by their position as Respondents whose Judgment of the Trial Court is in their favour, credit and advantage they cannot and have no legal basis or justification to attack the Judgment of the trial Court by hiding under the façade of Preliminary Objection to attack the Judgment. Reference was made to the dictum of Onnoghen, JSC (as he then was) in the case of Nsirim vs. Amadi (2016) 4 WRN 68 p.83; on the duty of a Respondent in an Appeal to buttress his above submission. He maintained that the Preliminary Objection provided under Order 10 of the Court of Appeal Rules, 2011, is designed to challenge an Appeal from being heard and in the ultimate, defend or protect the Judgment rendered by the Trial Court from being disturbed on Appeal against the interest of the Respondents.
Turning to the Grounds of the Objection and the respective arguments on them, the learned Counsel to the Appellants cited Ajayi vs. Adebiyi (2012) 11 NWLR 137 also reported as Ajayi Tosin (Dr.) vs. Adebiyi Olajumoke (Princess (Mrs.) (2013) 3 WRN 1 SC; and submitted still that the Grounds of the Objection and concluding portion of their legal argument thereon suggest that the Respondents’ disposition towards the Judgment in their favour is that of an attack rather than defend same which is strange and incompatible with their position as Respondents. Placing reliance again on the case of Eliochin vs. Mbadiwe (1986) 1 NWLR (Pt.14) 47; the learned Counsel to the Appellants reiterated that a Respondent in an Appeal who seeks to set aside a finding which is crucial and fundamental to a case or who seeks to attack the Judgment in his favour can only do so through substantive Cross-Appeal. We were therefore urged to resolve Ground 1 (One) against the Respondents/Objectors and dismiss the Objection.
In respect of Ground 2 (Two) challenging the trial Court’s assumption of jurisdiction over the Suit on the ground of locus standi and lack of mandate to commence the Suit on behalf of the Ogah Ruling House, the learned Counsel to the Appellants submitted that an Objector who intends to rely on such facts must depose to an Affidavit in support of the Notice of Preliminary Objection to enable them agree on facts. Reacting to the issue of leave to commence the Suit, he submitted that the issue was earlier raised and resolved by the Trial Court in the Ruling contained at pages 80-98 of the Record of Appeal and as such, this set of Respondents cannot re-raise it here on Appeal.
It was submitted more on this point that the Appellants can still bring the Suit on behalf of the Ogah Royal House and the Suit could still stand without the indication of the representative capacity as disclosed in the Suit for according to the learned Counsel to the Appellants, any member of the Royal House can challenge the violation of their codified Gazette without contesting for the Stool of the Osuko of Obi hence the trial Court rightfully quashed the removal of Saraki Pada, from the College of Selectors and replacing him with the Imam. Attention was drawn to pages 58 and 59 of the Record of Appeal, where the principal members of Ogah Royal House expressly wrote to declare their support and approval of this Suit at the Trial Court. He therefore submitted that this new set of 13th-39th Respondents, lack the locus standi to challenge the competence of the Suit at the Trial Court having waived their rights and we were urged to so hold.
Finally, in their reaction to the arguments of the learned Counsel to the Respondents/Objectors, the learned Counsel to the Appellants drew our attention to their Amended Statement of Claim as contained in pages 109-119 of the Records whereof they clearly brought out their claim and how their rights were violated which they sought to redress and contended that in the circumstance of this case, the cause of action does not die with the Original 1st Plaintiff/Appellant as the case is not for the personal interest of the 1st Appellant but for the whole Ruling House and concerned Royalists. In the light of the foregoing, we were therefore urged to dismiss the Preliminary Objection.
ARGUMENTS OF THE 13TH-39TH RESPONDENTS:
The learned Counsel for the 13th-39th Respondents adopted the Issues distilled by the learned Counsel to the Appellants in opposition to this Appeal.
ARGUMENT ON ISSUE NUMBER ONE
“Whether the Trial Court was wrong to have held that the election by One Kingmaker was in compliance with Exhibit “2” and refused to apply the clear and unambiguous express provision of Exhibit “2” as it relates to the Quorum of Traditional Selectors for the selection of OSUKO of OBI.”
On this Issue, the learned Counsel to the 13th-39th Respondents submitted that the Trial Court was correct when it held that the selection by one Kingmaker did not contravene the provisions of Exhibit “2”, which provides for a minimum of 3 selectors to make a quorum before carrying out the exercise of selecting the OSUKO of OBI.
In the view of the learned Counsel, the learned Trial Judge having made the finding of fact based on the peculiar circumstance of this case where by virtue of the impossibility posed by the death of three (3) of the Kingmakers as at 15th May, 2007, the literal interpretation of the provisions of Nasarawa State Legal Notice No.3 of 2006 (the Obi Local Government Modification of Native Law and Custom Relating to the selection of the OSUKO of OBI Chiefdom Order, 2003) would lead to an absurd result and that by the employment of the mischief rule of interpretation which permitted him to look at what mischief the law seeks to suppress and what remedy it sought to promote, the Trial Judge saw the mischief to be that the winner should not emerge by minority votes but simple majority which is the remedy it sought to promote.
He further submitted that having made a finding that only two Kingmakers were alive as at the 15th of May, 2007 and only a sitting King can fill the vacuum so created by the death of three (3) of the Kingmakers and that the 2 surviving Kingmakers were invited to carry out their traditional duties with only one honoring the invitation and casting his votes and the other absented himself without any lawful excuse and not complaining that he was disenfranchised, the single vote against no vote satisfied the requirement of the law by having the victorious party emerge by simple majority of the lawful vote casted.
The learned Counsel further argued that by requiring a quorum of 3 Kingmakers, the law makers expect a winner to emerge by a difference of 1 vote assuming there were a minimum of 3 Kingmakers alive as at the time of the selection exercise (Paragraph 2.2 of Appellants’ Brief referred).
In the light of the above, the learned Counsel contended that it is wrong to postulate that only one Kingmaker was invited to carry out the exercise as the second absentee Selector was officially invited to carry out the exercise but chose to absent himself from the exercise which gave the 1st Respondent a simple majority vote of 1-0 thereby meeting intentions of the lawmakers of wanting the victorious party to emerge by a simple majority vote or by a difference of 1 vote.
He posited that the insistence of the Appellants that the Trial Judge was in error for not employing the literal rule of interpretation of the provision of Exhibit “2” in isolation of the peculiar facts and circumstance of this case is wrong as that would have clearly negated the onerous duties of a Trial Judge who was duty bound to apply the law to facts ascertained by him. According to him, the learned Trial Judge who was faced with the construction of the provisions of Exhibit “2”:-
1. Must first satisfy himself with the meaning of the law and how it relates to the case and issue in controversy.
2. And where the language or words used ascertains and resolves the controversy, the inquiry of the trial Judge terminates there.
3. But where the language or meaning does not resolve the controversy then the Judge must adjust and apply the appropriate judicial rule to decide and resolve the case or issue in controversy.
He maintained that in the instant case, the learned trial Judge employed the literal construction of Exhibit “2” which stipulated a minimum quorum of three (3) Kingmakers when in fact there were only two (2) surviving Kingmakers at the time of the selection exercise which made it near impossible to employ the literal rule of interpretation as same would not adequately resolve the controversy hence his deployment of mischief canon of construction of statues where he acted within the confines of the provisions of the law when he looked at the purpose of the said law and the wrong it sought to make right which was to have a candidate win by a simple majority of the existing votes hence his resolution of the riddle by affirming the victory of the 1st Respondent having scored by simple majority of the existing lawful votes to emerge as the winner of the said exercise.
Accordingly, we were urged to hold that the resolution of the controversy by deploying the mischief rule canon of construction of statutes did not violate the provisions of Section 4 of Exhibit “2” and to resolve this Issue against the Appellant as no miscarriage of justice was resulted in the trial Judge’s resolution of the Issue in controversy. Adewumi vs. A-G Ekiti State (supra) at page 49; was relied upon to buttress his above contention and to further submit that the Appellate Court on the other hand is enjoined to look at the TOTALITY of the Judgment in determining whether the trial Judge gave reasons for his belief or disbelief and not pockets of it.
He insisted that it is not the legal position that a trial Judge must match every act or belief or disbelief with reason or reasons, for by the community of evidence a trial Judge is entitled to sum up his belief or disbelief by the TOTALITY of the acts of conduct of witnesses at the stage of sitting or evaluation of evidence. Therefore, he further asserted, where a trial Judge gives a reason that is all embracing in the sense that it adequately covers the realm or domain of disbelief or belief, an Appellate Court should not fault the findings of the trial Court. Osmund Onuoha vs. State (1998) 5 NWLR page? was cited to finally submit that for this and more reasons earlier advanced, this Honourable Court should resolve Issue One against the Appellants.
ARGUMENT ON ISSUE NUMBER TWO (2):
Arguing the second Issue which is whether the Trial Court by applying and relying on the unpleaded doctrine of necessity and act of God has not wrongly interpreted the express and unambiguous provisions of Section 4 of Exhibit “2” in the absence of amendment to the Gazette to arrive at a wrong conclusion and thereby occasioned a miscarriage of justice in the circumstance against the Appellants; he answered the poser as presented on Issue 2 in the negative, as according to him, the learned trial Judge was faced with the construction of Section 4 of Exhibit “2” when he used the Act of God and Doctrine of Necessity as literal expression in his delivery of the Judgment which did not form the core or Ratio of the Judgment as the Appellants would want to argue.
It was the view of the learned Counsel that the phraseologies were merely employed to aid the delivery of the Judgment to demonstrate the peculiar circumstances that presented themselves which compelled the trial Judge to decide which of the Canons/Rules of construction to employ to solve the riddle while appreciating fully well that the Literal (Golden Rule) of Interpretation was inapplicable in the circumstance on the basis that there were only two (2) surviving Kingmakers and that his examination of what mischief the legislation sought to remedy when it stipulated selection by three (3) selectors was to have a victorious party win by a simple majority of votes cast i.e by a difference of one vote; his employment of the mischief rule to solve the riddle aptly and correctly complied with the provision of the said law when he found and affirmed the victory of the 1st Respondent having scored 1-0. He further submitted that the learned trial Judge cannot be said not to have complied with the said law as he acted lawfully on the authority of ENG. CHARLES UGWU VS. SEN IFEANYI ARARUME L.E.R (2007) SC 83/27.
It was further argued that the Judge is duty bound to adopt such interpretation that will enable the suppression of the mischief and to promote the remedy within the instant or intentions of the statues adding that the Appellants misconceived the Judgment of the trial Court when they perceived it as being anchored on the doctrine of necessity or act of God for the Trial Court’s Judgment was based on its findings of fact that only the Kingmakers can select the Osuko of Obi by simple majority vote when it stipulated 5 Kingmakers as College of Selectors with a minimum of 3 to form a quorum, the interplay of this odd numbers means that the winner should emerge by a simple majority vote to avoid a tie (deadlock) as would require an external force to cast the tie (break the deadlock) if even numbers were the requirement of the law.
The learned Counsel contended that inviting the Government to interfere with the exercise either by filling the vacuum created by the death of the Kingmakers would be alien practice to the custom of the people of Obi and the deployment of mischief cannon of construction to construe the provisions of Exhibit “2” due to the riddle created by the death of three (3) of the Kingmakers before reaching his conclusion which was reached correctly cannot be faulted. The contention of the Appellants that the use of the expression of Act of God and doctrine of necessity constituted the ratio of the judgment by the trial Court was wrong and assuming it is considered as the ratio of the Judgment, a Judgment reached correctly using wrong reason cannot be set aside merely for using the wrong reasons as long as it was reached correctly, he further argued.
He posed the question again whether it would be enough to annul the victory of the 1st Respondent, when no miscarriage of justice was shown to have resulted in the Judgment of the trial Court which poser he answered in the negative in that a Judgment reached correctly cannot be set aside because it was reached using a wrong reason (Adewumi vs. A-G Ekiti State (2002) 1 SCNJ at pages 54-55 referred); where Oladejo vs. Fadeke (1993) NWLR (Pt.30); was quoted with approval.
The learned Counsel to the 13th-39th Respondents conceded that the use of the expression was not borne out of pleadings or evidence but the trial Judge’s style of demonstrating the impracticability of the application of the literal Rule of interpreting the provisions of Section 4 of Exhibit “2” and a justification of the applicability of the mischief Rule used to cure or remedy the situation.
He insisted that the learned Trial Judge fully demonstrated that he acted within the confines of the law without going outside the law, in his effort to resolve the issue in controversy having ascertained the fact that only the Traditional Kingmakers can select an OSUKO and only a sitting OSUKO can fill the vacuum created by the death of any Kingmaker and having found that as at the 15th May, 2007, 3 out of 5 Kingmakers were dead and the law did not contemplate or provide for the Government to amend the law to make for a new quorum as is being canvassed or suggested by the Appellants, the trial Judge was justified when he held that the vote of the lone Kingmaker of the surviving Kingmakers invited to cast their vote constituted a simple majority vote that made the 1st Respondent victorious.
Finally, on this second issue, the learned Counsel submitted that the suggestion of the Appellant that the Government ought to further amend the law was not so provided by the same law and neither was it shown to have the blessing of other Royal Houses and same remains alien to the custom and traditions of the people of OBI, a radical point the same law seeks to prevent. In the light of the foregoing, we were therefore urged to resolve this Issue 2 against the Appellants.
ARGUMENT ON ISSUE NUMBER THREE (3):
On this third issue which poses the question whether the presence of WAZIRI at the installation of the 1st Respondent at the installation venue on the different date from the date of the selection date of 15th May, 2007 has cured the lack of requisite quorum on the selection day of the OSUKO of OBI to warrant the trial Court sustaining the selection of OSUKO of OBI by one Kingmaker that it was in compliance with Exhibit “2”; it was the learned Counsel to the 13th-39th Respondents’ submission that the presence of the WAZIRI the absentee Kingmaker at the venue of the installation exercise made little or no difference as the 1st Respondent had already scored 1-0 votes, a simple majority vote as contemplated by the Section 4 of Exhibit “2”. His presence at the venue by the installation only gave the trial Judge an additional room to further infer that he has ratified his vote which he did not cast on the 15th May, 2007 to the glare of all members of the community as witnesses, a unanimous decision of the 2 surviving kingmakers in favour of the 1st Respondent as the victorious party as earlier argued.
The learned Counsel then posited that the learned trial Judge after ascertaining the facts and had drawn necessary inference must apply the law to the facts and resolve the dispute in a manner that will not lead to a miscarriage of justice and that in the instant case, the Appellants have not shown how the inferences drawn by the trial Judge of the presence of WAZIRI at the venue of the installation led to a miscarriage of justice as the imaginary scale preponderates more in favour of the 1st Respondent. He maintained that the Appellants have not shown how a miscarriage of justice occurred as a result of the trial Judges interpretation of Section 4 of Exhibit “2” when he opted to cure the mischief created by the death of the 3 Kingmakers as at the 15th May, 2007 by affirming the victory of the 1st Respondent having obtained a simple majority of the lawful vote cast on 15th May, 2007.
Furthermore, in his view, the Appellants have not been able to show how a miscarriage of justice resulted in the trial Judges use of the literal expression of act of God and doctrine of necessity as lubricant used in delivery of Judgment and not the basis of the Judgment itself as same was not shown to be the ratio of the Judgment but reason or an obiter dictum of the Judgment, and Judgment reached correctly cannot be faulted by an Appellate Court merely for supposedly use of wrong reasons unless a miscarriage is manifestly shown to have occurred.
The learned Counsel also asserted that the Appellants cannot question the discretion of the trial Judge or hold him to account from drawing inferences from uncontroverted evidence led at trial at the Appellate Court adding that the evidence that the WAZIRI was at the venue of the installation ceremony of the 1st Respondent as the OSUKO of OBI was not challenged at the trial, they are precluded from challenging or questioning the judicial discretion of the inferences drawn by the learned trial Judge in believing that the WAZIRI indeed RATIFIED the official act he was invited to carry out on 15th May, 2007 in coming to his conclusions.
On the above premise, he urged this Court to resolve the 3rd Issue for determination against the Appellants and dismiss the Appeal with cost.
Finally, in his summary and conclusion, he urged the Court:
1. To dismiss this Appeal with cost as the Appellants have not established the requisite locus to institute and maintain this action in the first place as they did not comply with the provisions of eligibility as contained in Exhibit “2” as to invoke the requisite vires of the Court to resolve their grievance as they never participated in the contest.
2. That by the deployment of the mischief canon of interpretation of statutes, the provision of Section 4 of Exhibit “2” was complied with when the trial Court affirmed the victory of the 1st Respondent having won the selection exercise by simple majority vote of 1-0 of the only two surviving Kingmakers invited to cast their votes as a result of the death of the three (3) Kingmakers as at the 15th May, 2007 when the selection exercise took place.
3. That the use of the grammatical phraseology of act of God and doctrine of necessity were literarily used to deliver the Judgment and it did not occasion any miscarriage of justice or affect the result of the decision in a way that would warrant the reversal of the Judgment.
4. That the presence of WAZIRI at the installation of the 1st Respondent was a confirmation of his ratification of his vote having absented himself on the 15th May, 2007 without any lawful excuse.
5. That the Appellants in their Reliefs (a-j) are not seeking for any one of them to be declared as the successful party but merely a nullification of the exercise with the attendant consequences of plunging the community back to crises having been in a similar situation for 14 years prior to 15th May, 2007 without a Paramount Ruler.
6. That other Ruling Houses of AYAKYA, AYOSURUKE, AYOBANDE and AYOGAH are not challenging the victory of the 1st Respondent a decade after the event save the Appellants who constitute an insignificant minority member of the AYOGAH RULING HOUSE who anointed themselves as championing the cause of the said Ruing House.
7. That they urge this Court to hold that this Appeal lacks merit and it should be dismissed with substantial cost of N1,000,000.00 (One Million Naira) only.
RESOLUTION OF ISSUES:
Before delving into the resolution of the substantive Issues distilled for determination in this Appeal, it is necessary to determine the propriety vel non of the Preliminary Objection of the 13th-39th Respondents/Objectors. I propose to follow the order of arguments of the learned Counsel on the Preliminary Objection. Accordingly, I shall begin with the consideration of Grounds 1 and 2 as argued together by the learned Counsel to the Respondents/Objectors which are:
“1. That the Appellants have no locus standi to initiate this action because they did not contest the election of 15th May, 2007 that produced the 1st Respondent as the OSUKO OF OBI;”
AND
“2. That the Trial Court had no jurisdiction ab initio to entertain this matter and the Judgment reached without jurisdiction is a nullity.”
The learned Counsel to the Respondents/Objectors had posed the question whether the Trial Court could assume jurisdiction in a Chieftaincy matter where the Plaintiffs/Appellants did not establish a locus standi? He had submitted that the Trial Court was in error when it assumed jurisdiction in the matter because the Appellants had no locus standi ab initio because from their pleadings and evidence they did not contest the election of 15th May, 2007 that produced the 1st Respondent as Osuko of Obi. There is no doubt as rightly submitted by the learned Counsel to the Respondents/Objectors that the law is settled on a plethora of authorities that the issue of jurisdiction is very fundamental in the adjudicatory process to the extent that it can be raised at any time in the proceeding whether at the trial or Appellate level both here and in the Supreme Court or even suo motu by the Court because any Judgment obtained without jurisdiction is a nullity no matter how brilliant a Court conducted the proceeding. See the locus classicus of Madukolu & Ors. vs. Nkemdilim (1962) 1 All NLR 587, Bairamian F.J. set out the circumstances under which it may be held that a Court is seised of jurisdictional competence to entertain a cause of action as follows:
“A Court is competent when:-
(1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication.”
See also Ogembe vs. Usman (2011) 17 NWLR (Pt.1277) 638 at 656 paras. E-F; Achonu vs. Okuwobi(2017) 14 NWLR (Pt.1584) 142 at 171 paras. B-F; Shelim vs. Gobang (2009) 12 NWLR (Pt.1156) 435; Usman Dan Fodio University vs. Kraus Thompson Organization Ltd. (2001) 15 NWLR (Pt.736) 305; Ajayi vs. Adebiyi (2012) 11 NWLR (Pt.137) (SC). See also Adeyemi vs. Opeyori (1976) 9-10 SC 31; Odofin vs. Agu (1992) 3 NWLR (Pt.229) 350 and Oloba vs. Akereja (1988) 3 NWLR (Pt.84) 508. Courts are creatures of statutes and it is the statute that creates a particular Court that confers jurisdiction on it, which jurisdiction can only be extended by the legislature as it is trite law that the pleaded facts and reliefs claimed by a party determine the jurisdiction of the Court to entertain the dispute. See Adeyemi vs. Opeyori (1976) 1 FNLR 149 at 157. Only the Plaintiff’s claim is usually examined to determine whether the Court has jurisdiction in the cause or matter. See Ladoja vs. INEC (2007) All FWLR (Pt.377) 934 at 967 and Tukur vs. Governor of Gongola State (1989) 4 NWLR (Pt.117) 517.
Again, neither the Court nor the parties can confer jurisdiction as parties cannot by mere acquiescence donate jurisdiction to a Court where the Constitution or the Statute creating such a Court has ousted its jurisdiction.
Since the position of the law concerning jurisdiction of the Court to adjudicate upon any matter is fundamental in the adjudicatory process, the Supreme Court has posited in a plethora of decisions that jurisdiction is the blood that gives life to the survival of an action in a Court of law without which the action being like an animal drained of its blood, ceases to be alive. Bereft of any blood in it and indeed without life, any effort at resuscitating it remains a futile exercise. See Utih vs. Onoyivwe (1991) 7 NWLR (Pt.166) 166; Usman vs. Umaru (1992) 7 NWLR (Pt.254) 377 and the recent Supreme Court cases of Emejuru vs. Abraham (2019) 4 NWLR (Pt.1663) 541 at page 560 paragraphs B-C; page 567 paragraphs A-B, page 568 paragraph B, per Galumje, Peter-Odili, and Sanusi, JSC.
In Elebanjo vs. Dawodu (2006) All FWLR (Pt.328) 604, Mohammed, JSC (as he then was) held at page 639 paragraph “C” thus:-
“…If there is no jurisdiction, the entire proceedings are a nullity no matter how well conducted. See Ndaeyo vs. Ogunaya (1977) 1 SC 11; Chacharos vs. Ekimpex Ltd. (1988) 1 NWLR (Pt.68) 88; Oloba vs. Akereja (1988) 3 NWLR (Pt.84) 508; Bakare vs. Attorney-General, Federation (1990) 5 NWLR (Pt.152) 156 and Jeric (Nigeria) Ltd. vs. Union Bank of Nigeria Plc (2001) FWLR (Pt.31) 2913, (2000) 15 NWLR (Pt.691) 447.”
Closely tied to the issue of jurisdiction as argued by the learned Counsel to the 13th-39th Respondents/Objectors and the authorities cited is the question of locus standi of the Appellants to institute the chieftaincy action now on the Appeal. Luckily for me, I was privileged to have come across the case of Bannuram & Ors. vs. Hillary & Anor. (2013) LPELR-20854 (CA); which was a chieftaincy matter that cropped up at the Yola Division of the Court of Appeal where similar issues of jurisdiction and locus standi came up for determination and which I was privileged to have written the lead judgment. For purposes of this Appeal, I shall reproduce what I said in that case inter alia:-
“The term “locus standi” has been severally defined to denote the legal capacity of a person to initiate proceedings in a Court of law which capacity is synonymous with status, standing, title or authority to sue. It is also the right of a party to appear and ventilate his grievance(s) and to be heard on a question(s) before the law Court or the competence of such a party to seek redress in a Court of law and to assert a right which is enforceable at law. See the locus classicus of Abraham Adesanya V. The President of the Federal Republic of Nigeria (1981) 5 S. C. 112 at 128 – 129; per Fatayi- Williams, CJN; Ogunsanya V. Dada (1992) 4 S.C.N.J. 162 at 168; Attorney-General Kaduna State V. Hassan (1985) 2 NWLR 453 at 496 and Adefulu V. Oyesile (1989) 5 NWLR 377 at 318. In the case of Attorney-General V. Hassan (supra) at pages 522 and 533; Oputa JSC, held that “The Legal Concept of standing or locus standi is predicated on the assumption that no Court is obliged to provide a remedy for a claim in which the Applicant has a remote, hypothetical or no interest.” His Lordship also held the view in Thomas V. Olufosoye (1986) 1 NWLR 669 at 691 that ‘locus standi’ is simply the right of appearance in a Court of justice to litigate an issue for people do not appear in Court for the fun of it but either to establish their right or to defend that right against any injury. Per Obaseki, JSC on his part in that same case opined that:- “In determining the issue of locus standi, the Court must constantly bear in mind that its judicial powers is being invoked and matters in which the judicial powers can be exercised are by the provisions of the Section 6(6) (b) of the Constitution of the Federal Republic of Nigeria 1979 (now 1999) expressly stated to “extend to all matters between persons or between government or authority and any person in Nigeria and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”
It has also to be noted that the concept of locus standi is inextricably connected to cause of action. In other words, to be possessed of locus standi to initiate legal proceedings there must be factual situations like: the existence of a primary right of the 1st Respondent (in this case the Appellants) which was actually violated by the Appellants (in this case the Respondents); or the threatened violation of that right which violation the 1st Respondent was/is entitled to restrain or prevent as in the case of actions or suits for injunctions; or it may be that there are some doubts as to some duty or right, or that that right is beclouded by some apparent adverse right or claim, which the 1st Respondent (Appellants herein) in this case is (are) entitled to have cleared up. See Black’s Law Dictionary 7th Edition by Bryan Garner et al at page 214; Edwin Bryant in his text titled “The Law of Pleadings under the Codes of Civil Procedure” 2nd Edition at Page 170 cited in the above quoted page of Black’s Law Dictionary; Alhaji Kusada V. Sokoto N. A. (1968) 1 ALL NLR 379 at 381 – 382; Lasisi Fadare V. A. G. Oyo State (1982) 4 S. C. 1 at pp 6 – 7, per Aniagolu, JSC; Egbe V. Adefarasin (1987) NWLR (pt 47) 1 at 20. In Accord Party (AP) & 4 Ors V. The Governor of Kwara State & 2 Ors. Appeal No. CA/IL/15/2008 delivered on 8th June 2009 by the Court of Appeal, Ilorin Division at page 29, I reasoned that by its very nature, cause of action is a sine qua non to the vesting of locus standi and that the two must co-exist simultaneously and be vested in a party to an action in order for the Court to be seised of the requisite jurisdiction to entertain the party’s claim. The cases of Afolayan v. Ogunrinde (1990) 1 NWLR 369 at 382 – 383; Adimora V. Ajufo (1988) 3 NWLR 1; Julius Berger V. Omogui (2001) 6 NSCQ R 1062 at 1072 – 1076 and Mrs. F. O. Labode V. DR. Geoffrey Otubu & Anor (2001) 5 NSCQR 722 at 741 – 745, inspired me in so holding and I adopt my said position herein once more. Furthermore, at page 36 of that Judgment I had posited that in line with a galaxy of authorities, the Court in the determination of whether a party is seised of the locus standi for his case to be heard and determined as in this case, the Lower Court would only be concerned with the questions for Determination and the Reliefs sought on the Originating Summons and in particular, the Affidavits in support thereof which are akin to pleadings in ordinary suits initiated by Writ of Summons. See Boothia Maritima Inc v. OT & T.A. Ltd. (2001) 8 NWLR (pt. 716) 534 at 543; Inakoju V. Adeleke (2007) 4 NWLR (pt. 1025) 423 and Global Transport Oceanica S. A. & Anor. v. Free Enterprises Nig. Ltd. (2001) 12 WRN 136 at Paras. 15 – 25; per Kalgo, JSC. As was rightly submitted by the learned Counsel for the 1st and 2nd Appellants and conceded by the learned Counsel to the 1st Respondent, in order to establish that he has locus standi the 1st Respondent ought to show from his pleadings that he has sufficient interest or legal right in the subject matter of the dispute (in this case the 3rd Class Chieftaincy Stool of Lau Chiefdom). See Daramola V. A. G. Ondo State (2000) 7 NWLR 476 – 477. Secondly, he ought to show that their collective right or interests were in jeopardy or had been violated by the acts of the Appellants and thirdly, that they had justiciable cause of action. See Ojukwu v. Ojukwu (2008) 18 NWLR (pt. 1119) 439; A. G. Lagos State v. Eko Hotels Ltd. (2006) 18 NWLR (pt. 1011) 378 and Nyame v. F.R.N. (2010) 7 NWLR (pt. 1193), Busari V. Oseni (1992) 4 NWLR (pt. 231) 587. Again, it has been settled by motley authorities past and recent that two classes of persons possess the locus standi to initiate chieftaincy proceedings and they include a candidate or contestant to the stool and the family or Ruling House of that Chieftaincy. See Eleso V. Govt. Ogun State (1990) 2 NWLR (pt. 133) 420; Odeneye V. Efunuga (1990) 7 NWLR (pt. 164); Agboola V. Agbodemu (2009) 37 WRN 59 and Adekunle V. Adelugba (2011) 16 NWLR (pt. 1272) 154 at 176 – 179 Paras. B – E per Abba Aji, JCA (as he then was). Finally, before determining whether from the pleadings of the 1st Respondent, he possessed the legal capacity to initiate the proceedings now on appeal, it is pertinent to note as was decided in Daniyan V. Iyagin (2000) 8 NRN 44 following the Supreme Court decision in Owodunni V. Registered Trustees of C.C.C. & Anor (2000) 2 WRN 29; (2000) 6 S.C.N.J. 399; that locus standi denotes the legal capacity or status to institute proceedings and does not depend on a chance of success in the suit but the condition or nature of the Suit. From the foregoing decisions and principles enunciated therein the learned Counsel for the 1st Respondent was therefore on sound footing when he cited the case of Ladejobi V. Oguntayo (2004) 18 NWLR (pt. 904) page 178 Paras G – H which reinforced this principle of law that:- “Where the Court Conceives that the plaintiff is somehow connected to a dispute in which he feels that he should exercise his right of access to the Court to protect his own interest or indeed group interest, he should not be shut out as long as it can be discerned from the pleadings that he had protectable interest of some sort. It is desirable and in fact essential that a party should be given as much latitude as possible and the opportunity to canvass his cause. A Plaintiff ought not to be chased out peremptorily from the temple of justice because the Court is not strongly satisfied that he has not shown a strong connection and interest in the matter.” See Odeneye V. Efunuga (supra) per Belgore, JSC (as he then was); Fawehinmi V. Akilu (1987) 4 NWLR (pt. 66) 797; Fawehinmi V. The President FRN (2007) 14 NWLR (pt. 1054) 75 at 336 Paras H – E; Alamieyieseigha V. Igoniwari No. 2 (2007) 7 NWLR (pt. 847) 554; per Galadima, JCA (as he then was) and Elendu V. Ekwoaba (1995) 3 NWLR (pt. 380) 70 at 74; which have tended to depart from the anachronistic and narrow concept of sufficiency of interest as the basis for conferment of locus standi on a party.”
Going by the above authorities, the authorities of Herbert Ohuabunwa Emezi vs. Akujobi David Osuagwu & 3 Ors. (2005) 2 SC (Pt.11) 128 L.E.R., (2005) SC 251/2000, and Adewumi vs. A-G of Ekiti State (2002) 1 SCNJ, cited by the learned Counsel to the Respondents/Objectors and the principles enunciated therein, it is necessary to resort to the pleadings of the Appellants (then Plaintiffs) in their Amended Joint Statement of Claim in order to determine whether the Plaintiffs/Appellants had the locus standi to initiate the Suit now on Appeal. As was rightly submitted by the learned Counsel to the Appellants, the Amended Joint Statement of Claim of the Appellants can be found at pages 108-118 of the Record of Appeal. In paragraphs 1, 2, 11-29, 32-47, 59-63 and others the Appellants have pleaded as follows:-
“1. The 1st Plaintiff is the District Head/Osuko of Obi Chiefdom and has on and is still the District Head and the Osuko of Obi for many years now and also resides at Obi Town of Obi Local Government Council of Nasarawa State.
2. The Plaintiffs are indigenes of Obi Town of Nasarawa State and they are all Alago by Tribe resident at Obi Town of Nasarawa State.
11. The 12th Defendant is a Traditional body constituted by law to handle traditional matters in Obi Local Government Council.
12. The Plaintiffs aver that they are all Royal Members of Oga Ruling House of Obi Chiefdom one of the Ruling Houses in Obi Chiefdom entitled to present candidates to fill the vacant Stool of Osuko of Obi Chiefdom.
13. The Plaintiffs aver that they bring this action in a representative capacity for themselves and on behalf of Oga Ruling House of Obi Chiefdom.
14. The Plaintiffs aver that being royalists from Oga Ruling House of Obi Chiefdom they have power, authority and right to present this action for themselves and for Oga Ruling House.
15. The Plaintiffs aver that they are all male adult descendants of Oga Ruling House of Obi Chiefdom and they are all indigenes of Obi born and bred at Obi.
16. The Plaintiffs aver that they have keen interest to aspire and occupy the vacant Stool of Osuko of Obi Chiefdom which was created by the Nasarawa State House of Assembly and signed into law by the 8th Defendant on the 13th March, 2003.
17. That Oga Ruling House is one of the 4 Ruling Houses legally and customarily recognized in the Law and Gazette creating Obi Chiefdom.
18. The Plaintiffs aver that the 1st Plaintiff has been and is the Osuko of Obi many years right from the time when Obi Chieftaincy Stool was at the village and District Headship levels and he has not been formally removed as the District Head/Osuko of Obi. The Plaintiffs further state that the 1st Plaintiff is the most elderly member and head of Oga Ruling House of Obi Chiefdom for many years now.
19. That the 1st Plaintiff has been holding the positions of the District Head and Osuko of Obi Chiefdom for long before Obi Chiefdom was created and upgraded from the District Headship to a 3rd Class Chiefdom with a 3rd Class Staff of Office by the 8th Defendant on the 13th day of March, 2003.
20. The Plaintiffs aver that the 8th Defendant increasing Obi Chiefdom with 3rd Class Staff of Office included and retained all the structures, traditions, usages, native law and custom of Obi Chiefdom for the selection of the District Head of Obi into the new law and Gazette creating the Obi Chiefdom with 3rd Class Staff of Office and the Office and title of Osuko of Obi inclusive.
21. The Plaintiffs plead the Law and Gazette creating the new Obi Chiefdom, the Defendants are given notice to produce the Original or Certified True Copies at the hearing. The Plaintiffs plead photocopy of the Law and Gazette in the event of failure or refusal or neglect to produce the original or Certified True Copies by the Defendants at the hearing.
22. The Plaintiffs aver that the Obi Chiefdom comprises 5 Villages areas and the Stool of Osuko of Obi created by the 8th Defendant on the 13th March, 2003 provides for 4 Ruling Houses and 5 Kingmakers to make up the College of Selectors as follows:
RULING HOUSES:
(i) Obande Ruling House
(ii) Oga or Uga Ruling House
(iii) Akya Ruling House
(iv) Osuruke Ruling House
COLLEGE OF SELECTORS/KINGMAKERS:
(i) Makungiji (Ogbolosuko)
(ii) Moyi (Osuza)
(iii) Madauchi
(iv) Sarkin Pada (Osogboni)
(v) Waziri
23. The Plaintiffs aver that any male adult descendant of Obi origin from the 4 Ruling Houses in paragraph 22(a) above is eligible to aspire/occupy the vacant Stool of Osuko of Obi while any person of Obi in and of repute holding any of the traditional titles or posts in paragraph 22(b) is entitled to be appointed to occupy any position, post/title in paragraph 22(b) above.
24. Plaintiffs aver that the required quorum for the meeting and selection of the new Osuko of Obi is 3 members of the College of Selectors present together at the meeting of the Selectors.
25. Plaintiffs further aver that the requisite quorum for the selection of new Osuko of Obi is the presence of at least 3 members of the College of Selectors out of the total 5 memberships of the traditional Selectors or Kingmakers of Obi Chiefdom.
26. Plaintiffs aver that Obi Chiefdom was created with 3rd Class Staff of Office amongst other new Chiefdoms created on 13th March, 2003 by the 8th Defendant and only two (2) of the occupants of the title or posts of the College of Selectors of Obi Chiefdom out of the 5 members were alive when the Obi Chiefdom was created on the 13th March, 2003.
27. Plaintiffs aver that the Occupants of the Traditional titles or positions of Makungiji Obi, Moyi Obi and Sarkin Pada Obi who were members of College of Selectors for the selection of Osuko of Obi died long before the Obi Chiefdom was created with 3rd Class Staff of Office by the 8th Defendant on 13th March, 2003 and their positions or titles/offices were not removed nor new replacements made to fill the vacancies created as a result of the demise of the 3 members of the Traditional Selectors or Kingmakers before the 15th May, 2007 when the 1st Defendant was selected as the new Osuko of Obi.
28. Plaintiffs aver that only the occupants of the Offices or posts of Madauchi and Waziri Obi as members of College of Selectors for the selection of Osuko of Obi were alive at the time of the creation of Obi Chiefdom by the 8th Defendant on the 13th March, 2003 and on the 15th May, 2007 when the 1st Defendant was purported to have been selected as the new Osuko of Obi with 3rd Class Staff of Office.
29. That no inquiry or committee was set by Obi Local Government Council of Nasarawa State Government to determine the method of replacing the 3 deceased members of College of Selectors for the selection of Osuko of Obi in accordance with the native law and custom and the law relating to selection of the new Osuko of Obi Chiefdom.
32. That the inability to replace the deceased Kingmakers to get the required quorum makes it impossible for a valid selection of a new Osuko of Obi with only 2 living occupants of members of College of Selectors of Obi Chiefdom.
33. That the lawful or proper quorum for a valid selection of a new Osuko of Obi is not available unless replacements of the 3 deceased Kingmakers or some of them are made by the Government of Nasarawa State and Obi Local Government Council in accordance or conformity with the usage, tradition and native law and custom of Obi Community.
34. That the lawful or proper quorum for a valid selection of a new Osuko of Obi is not obtainable unless the law and Gazette creating Obi Chiefdom is amended by the Nasarawa State House of Assembly.
35. That the 1st Plaintiff is a male descendant of Oga Ruling House of Obi Chiefdom and has interest to aspire for the Stool of the Osuko of Obi having been the occupant of the seat or Stool prior to the purported selection of the 1st Defendant as another Osuko of Obi on the 15th May, 2007 and even before the creation of Obi Chiefdom with 3rd Class Staff of Office by the 8th Defendant on the 13th March, 2003.
36. That the 1st Plaintiff has been fighting a legal battle to retain his position as the Osuko of Obi at the High Court 3, Lafia which case is now on Appeal at the Court of Appeal, Jos. A Copy of the Notice of Appeal to the Court of Appeal Jos is hereby pleaded and will be relied upon at the hearing.
37. That the Nasarawa State Government has also sued the Nasarawa State House of Assembly over the lack of quorum or membership of the College of Selectors of Obi Chiefdom. The Plaintiffs plead a Certified True Copy of the Originating Summons of the case at the High Court 4, Lafia and will rely on same at the hearing.
38. The Plaintiffs aver that the Defendants on the 15th May, 2007 went ahead and selected the 1st Defendant as the new Osuko of Obi despite their knowledge of the fact and law that the required quorum for such a selection exercise was not met at the selection venue on the said date.
39. The Plaintiffs aver that the 2nd Defendant was the only Kingmakers present at the meeting of 5 Kingmakers conveyed by the 7th Defendant on the 15th May, 2007 wherein the 1st Defendant was purportedly selected as a new Osuko of Obi Chiefdom.
40. That only the 2nd Defendant attended the meeting conveyed for 5 Kingmakers on the 15th May, 2007 and the 2nd Defendant alone purportedly nominated and selected the 1st Defendant as the Osuko of Obi contrary to the native law and custom, the law and Gazette relating to the selection of Osuko Obi.
41. That the Defendants have no legal bases to select the Osuko of Obi with the One Kingmaker present and attending a meeting conveyed for 5 members of College of Selectors to select the Osuko of Obi.
42. That the Plaintiffs were deprived of the vested customary and constitutional right to participate in the selection of the new Osuko of Obi on the 15th May, 2007 as no invitation notice was served on the Plaintiffs and other members of Oga Ruling House and other Ruling Houses of Obi Chiefdom to enable them participate in the selection exercise on the 15th May, 2007.
43. That the 1st Plaintiff was actually nominated by the Oga Ruling House to contest for the selection into the new Stool of Osuko of Obi long before the purported selection exercise of 15th May, 2007 and would have mobilized, campaign, convinced and persuaded the Selectors to vote for him at the selection if there was adequate notice served before the selection exercise of 15th May, 2007 wherein the 1st Defendant was selected as the new Osuko of Obi.
44. That Plaintiffs aver that the fact of death of the 3 Kingmakers does not invalidate the required quorum for the selection of the Osuko of Obi from 3 members to 1 or 2 members.
46. That Plaintiffs aver that the death of three members of the College of Selectors of Obi Chiefdom does not invalidate, change, alter or amend the required quorum of 3 of the 5 members of the College of Selectors of Obi Chiefdom.
47. That Plaintiffs aver that the selection exercise of 15th May, 2007 wherein the 1st Defendant was selected as the new Osuko of Obi was contrary to the Gazette and the Customary Law relating to the selection of Osuko of Obi Chiefdom.
59. That the Plaintiffs aver that the 2nd-6th Defendants unwittingly made themselves available and accepted the unlawful appointments knowing very well that the 1st Defendant was not competent to make the appointments as he (1st Defendant) was not validly selected as the new Osuko of Obi.
60. That the 1st Plaintiff would have emerged winner of the selection exercise had the Defendants followed the customary law and due process for the selection exercise.
61. That by the age, long usage, tradition and native law and custom of Obi Community a mandatory notice of sufficient time is required to be served before a valid Osuko could be selected.
62. That the 1st Plaintiff has missed the position of the new Osuko of Obi to the breaches and non-compliance with due process and the extant customary law and Gazette relating to the selection of Osuko of Obi.
63. That the Plaintiffs aver that the selection of the 1st Defendant as the Osuko of Obi on the 15th May, 2007 by only the 2nd Defendant is invalid for non-compliance with the law relating to the selection of Osuko of Obi.”
From the paragraphs of the Appellants’ Amended Joint Statement of Claim as reproduced, and the Reliefs sought by the Appellants as earlier reproduced, the 13th-39th Respondents/Objectors’ Counsel cannot seriously contend as he has done in his submissions that the Appellants failed to establish in their pleadings their interest in the Stool of the Osuko of Obi and therefore lacked the requisite vires to invoke the Court’s jurisdiction to entertain the Suit now on Appeal. On the contrary, the 1st Plaintiff/Appellant (now deceased) and his Co-Appellants had established from their pleadings that they are all adult members of the Ogah Ruling House whose son (the 1st Appellant) was the reigning District Head of Obi before the enactment of the Chieftaincy Law of 2003 and who was nominated to contest for the Stool apart from the 1st Appellant initiating a Suit in the Nasarawa State High Court which Appeal was pending in the Jos Division of the Court of Appeal against the decision of the High Court when the purported Selection of the 1st Respondent was done. Most importantly, the Appellants were challenging the breach of the provision of the Law/Executive Order on the appropriate quorum of the College of Selectors during the selection exercise of the 15th day of May, 2007 which threw up the 1st Respondent as the new Osuko of Obi.
In the light of the above, the Appellants as Plaintiffs had a reasonable cause of action that conferred them with the requisite locus standi to challenge the selection of the 1st Respondent and to ignite the jurisdiction of the Court below and indeed this Honourable Court.
As I said elsewhere (See Government of Kwara State & 2 Ors. vs. Irepodun Block Manufacturing Company & 2 Ors. (2013) 12 WRN 106 at 154-155 lines 20-15) while relying on the authorities of Senator Adesanya vs. The President of Nigeria (2002) 11 WRN 80; (1981) 1 SCNLR 236 and Fawehinmi vs. Akilu (1987) 18 NSCC (Pt.2) 1269; locus standi means the standing to sue or competence of a party to initiate proceeding and that an objection to a Plaintiff’s (in our instant case, the Appellants’) locus standi attacks his (their) competence to sue as to whether he (they) has/have a legal or equitable interest to protect.
The rule about locus standi was developed primarily to protect the Courts from being used as a play ground by professional litigants, or/and meddlesome interlopers and busy bodies who really have no real stake or interest in the subject-matter of the litigation.
I further reasoned that a Plaintiff must satisfy the Court that he has locus standi if he is able to show that his civil rights and obligations have been or are in danger of being breached or infringed. There must be a nexus between the Claimant and the disclosed cause of action concerning his right or obligations and that locus standi is determined by examining only the Statement of Claim and the Reliefs sought therein. Furthermore, whether a party has locus standi or not the chances that the Suit/action may not succeed is an irrelevant consideration. See Ejiwunmi vs. Costain (W.A.) Plc (1998) 12 NWLR (Pt.576) 149; Williams vs. Dawodu (1980) 4 NWLR (Pt.871) 189.
In the Attorney-General of Kaduna State vs. Hassan (1985) 2 NWLR (Pt.8) 483; it was held that there are two tests in determining locus standi of a person which are that:-
1. The action must be justiciable.
2. There must be a dispute between the parties.
In this Appeal, the Appellants had demonstrated in very clear terms that they have a stake and legal interest in the subject-matter of the Suit which is the Osuko of Obi Stool and that their rights and obligations were violated by the initiators of the selection and installation of the 1st Respondent who carried out the exercise on 15th May, 2007. Accordingly, going to the evidence led by the Plaintiffs to establish their Claim is unnecessary in the determination of Grounds 1 and 2 of the Preliminary Objection. On the whole, the learned Trial Judge had the jurisdiction to entertain this Chieftaincy matter which was/is justiciable in view of the establishment by the Appellants (then Plaintiffs in the Lower Court), that they had the requisite locus standi to initiate the Suit at the Court below.
The first Issue formulated in respect of this objection is therefore resolved against the 13th-39th Respondents/Objectors and in favour of the Appellants.
GROUND 3 OF THE PRELIMINARY OBJECTION:
In respect of Ground 3 of the Objection whereof the learned Counsel to the Respondents/Objectors posed the question whether the Appellant can commence the action on behalf of the Ayoga Ruling House without the knowledge and consent of the 13th-39th Respondents as principal members of the Ruling House. Again, it was the submission of the learned Counsel to the 13th-39th Respondents that the Appellants failed to show in their pleadings and evidence led at the trial Court how Ayoga Ruling House authorized them to commence this action on their behalf but that the Appellants unilaterally indicated so in their Writ to mislead the Court into believing that they had the consent of the 13th-39th Respondents as members of the Ruling House. He (the learned Counsel) had relied on Adewumi vs. A-G Ekiti State (2002) 1 SCNJ 1 at 57; to submit that since the Appellants did not secure the order of the Trial Court permitting them to initiate the proceedings on behalf of the Ayogah Ruling House, the resultant effect is that the action commenced on behalf of the Ruling House cannot stand and should be struck out.
The learned Counsel had also submitted that the Suit was peculiar to the 1st Appellant whose name was struck out for being deceased and the surviving Appellants cannot subsume into the Claims of Yusuf A. Madaki (the said 1st Plaintiff/Appellant). Furthermore, he had cited Efet vs. INEC (2011) SCNJ at 194; to insist that the Appellants as they are now cannot be seen to sit on the case of the deceased 1st Appellant on the assumption that he was able to establish a cause of action and locus standi hence we were urged to uphold the Preliminary Objection and strike out the matter in limine.
With the greatest respect to the learned Counsel to the Respondents/Objectors, the surviving Appellants had a subsisting cause of action even though the 1st Appellant had died. They are challenging the lack of quorum in the Selection of the 1st Respondent as their Traditional Ruler as provided by the Executive Order that modified the Nasarawa State (Creation of Additional Chiefdoms, Law, 2003) as far as the Obi Chiefdom is concerned. As far as this case is concerned, the Issue of consent to sue in representative capacity had long been settled in the Lower Court. For the avoidance of doubt at pages 58 and 59 of the Records there is a document titled “RESOLUTION/APPROVAL FOR SUIT NO.NSD/LF93/2007: MR. YUSUF MADAKI & 3 ORS. VS. ALH. ALIYU DANGIWA OGIRI & 11 ORS.; AT THE HIGH COURT 2, LAFIA” whereby 19 (Nineteen) members of the Oga Ruling House of Obi, expressed their support and approval for the institution of the case now on Appeal to challenge the selection of Dangiwa Ogiri (Alhaji) who was purported to have been selected as the Osuko of Obi in that the exercise did not comply or abide by the law creating the Stool of Osuko of Obi as well as their tradition. They gave their full support and approval and consent to the institution of the case by their 4 (Four) Members of Oga Ruling House.
Also as was rightly submitted by the learned Counsel to the Appellants, in the Preliminary Objection raised by the Respondents as Defendants in the Lower Court that one of their prayers was that the action of the Plaintiffs (now Appellants) was incompetent because the Plaintiffs/Appellants filed the Suit for themselves and on behalf of the Oga Ruling House of Obi, but that funny enough, there was nothing to show that the members of the said Oga Ruling House Family, authorized them to sue in representative capacity. See the Ruling of the learned Trial Judge at page 91/12 to 93/15 of the Records/Ruling where the learned Trial Judge cited and relied on Order 11 Rules 7 and 8 of the Nasarawa State High Court (Civil Procedure) Rules and held that the Plaintiffs had fulfilled the requirement of the Rules when they expressly stated in the Writ filed on the 10th of July, 2007 that they brought the Suit for themselves and on behalf of the Oga Ruling House of Obi.
There is no Cross-Appeal from the 13th-39th Respondents on the Issue of representative capacity of the Appellants to sue. I had already held that the death of the 1st Appellant has not extinguished the right of the remaining Appellants to ventilate their grievances against the conduct of the selection exercise of the Osuko of Obi since they are members of the Oga Ruling House, complaining about the non-compliance with the law and Executive Order in the Selection of the 1st Respondent which they claim has affected their collective and individual interests.
In conclusion, this Issue formulated from Ground 3 of the Preliminary Objection is also resolved against the 13th-39th Respondents/Objectors. The Preliminary Objection is therefore dismissed for being unmeritorious as I agree with the submissions of the learned Counsel to the Appellants and the authorities of Ajayi vs. Adebiyi Olajumoke (2012) 11 NWLR 137 also referred as Ajayi Tosin (Dr.) vs. Adebiyi Olajumoke (Princess (Mrs.) (2012) 3 WRN 1 (SC); as well as Eliochin vs. Mbadiwe (1986) 1 NWLR (Pt.14) 47; that the position taken by the 13th-39th Respondents/Objectors who were victorious in the lower Court is most incongruous as their arguments and conclusion on the Preliminary Objection suggest that their disposition towards the Judgment of the lower Court that was in their favour, is that of attack rather than defence.
This is because traditionally, a Respondent seeking to attack or set aside a Judgment which is in his favour, ought to cross-appeal but not by Respondent’s Notice or Notice of Preliminary Objection.
RESOLUTION OF SUBSTANTIVE ISSUES:
Upon a careful perusal of the Issues distilled for determination by the respective learned Counsel for the Appellants and sets of Respondents, the only Issues that call for determination and which I shall adopt are Issue No.2 of the Appellants, the Sole Issue of the 1st-5th Respondents as well as Issue No.2 of the 13th-39th Respondents which are synonymous to wit:-
“Whether the Trial Court by applying and relying on the un-pleaded doctrine of necessity and act of God has not wrongly interpreted the express provision of Section 4 of Exhibit “2” in the absence of amendment to the Gazette to arrive at wrong conclusion and this thereby occasioned miscarriage of justice in the circumstance against the Appellants? (Distilled from Grounds 5, 2 and 6).”
To answer this question it is necessary to have recourse to the provisions of Sections 4 of Exhibits “1” and “2” which are “The Nasarawa State (Creation of Additional Chiefdoms) Law, 2003” enacted by the Nasarawa State House of Assembly and “The Nasarawa State Legal Notice No.3 of 2006: The Obi Local Government (Modification of the Native Law and Custom Relating to the Selection of the Osuko – Obi Chiefdom) Order, 2003” made by the Governor of Nasarawa State, then Alhaji (Dr.) Abdullahi Adamu and published in the Nasarawa State of Nigeria Gazette No.3 on the 4th of August, 2006; in order to determine whether the learned Trial Judge was right to have imported/relied on the Doctrines of Necessity and Act of God in holding that the selection of the 1st Respondent by the 2nd Respondent the only Member of the College of Selectors, was in line with Exhibit “2”.
For the avoidance of doubt, Section 4 of the Nasarawa State (Creation of Additional Chiefdoms) Law, 2003 provides thus:
“4. Notwithstanding the provisions of Section one of this Law, the validity of existing Chiefdoms, other than those declared null and void by competent Courts of law are guaranteed, under this law with such modifications in their areas of jurisdiction, composition of college of selectors, eligibility and quorum for selection.”
By paragraphs 1-5 of the Schedule to the Executive Order (Exhibit “2”) The Obi Local Government (Modification of Native Law and Custom Relating to the Selection of Osuko – Obi Chiefdom) Order, 2003 which was made pursuant to Section 4 of Exhibit “1” by the Governor of Nasarawa State published in the Nasarawa State Government of Nigeria Gazette on the 4th August, 2006; it is provided in very clear and mandatory terms as follows:-
“1. The Osuko (Obi Chiefdom) shall continue to be chosen by the Traditional Selectors from any eligible male adult of the following Four (4) Ruling Houses:
(i) Obade Ruling House
(ii) Oga Ruling House
(iii) Akya Ruling House
(iv) Osuruke Ruling House
2. The Traditional Selectors shall be persons holding the following posts namely:-
(i) Ogbolosuko (Makungiji)
(ii) Osuza (Moyi)
(iii) Madauci
(iv) Osogboni (Sarkin Pada)
(v) Waziri
3. The Traditional Selectors mentioned in paragraph 2 of this Order shall constitute an Electoral College for the purpose of selecting the Osuko (Obi Chiefdom).
4. The quorum at the meeting of the Traditional Selectors to select the Osuko (Obi Chiefdom) shall be three (3) Selectors.
5. Whenever the Office of the Osuko is vacant, the Chairman to the Obi Local Government shall notify the Governor in writing of such vacancy.”
The crux of the Appellants’ case as pleaded and testified to by them was that the inability to replace the deceased Kingmakers to get the requisite quorum made it impossible for a valid selection of a new Osuko of Obi with only 2 surviving occupants of the Office of the Traditional Selectors of Obi Chiefdom and out of the 2 Kingmakers or Traditional Selectors invited for the selection exercise, only one of them actually went to the venue of the meeting for nomination and selection of the Osuko – Obi and carried out the selection that led to the emergence of the 1st Respondent as the Osuko of Obi. The Appellants in the light of the above, prayed the Trial Court for a declaration that the selection of the 1st Respondent by the 2nd Respondent only without the requisite quorum of 3 members of the College of Selectors of Obi Chiefdom on 15th May, 2007 as the Osuko of Obi, contravened the express provision of the Obi Local Government (Modification of Native Law and Custom Relating to the Selection of the Osuko of Obi Chiefdom) Law, 2003 of Nasarawa State and Executive Order published as Legal Notice No.3 of 2006 which was made to modify the Creation of Additional Chiefdoms Law of 2003 pursuant to Section 4 thereof.
There is no doubt that by the provisions of Sections 131-134 of the Evidence Act, 2011:-
“131(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
133(1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the Judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If the party referred to, in Subsection (1) of this Section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom Judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.
134. The burden of proof shall be discharged on the balance of probabilities in all civil proceedings.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
However, in this case as was rightly submitted by the learned Counsel to the Appellants, the Appellants and the Respondents are on the same page that the quorum of 3 Selectors was not met during the selection exercise of 1st Respondent as the New Osuko of Obi Chiefdom. To buttress this fact that the requisite quorum was not met during the selection exercise of the 1st Respondent, DW2 who was the 2nd Defendant in the lower Court had testified at page 222 lines 13 to 17 of the Record of Appeal thus:-
“It is true that there are Five Kingmakers for Obi. At the time of the selection of the 1st Defendant only two were alive, myself and Waziri. The three vacancies could not be filled because by our tradition only the Chief of the Osuko can fill the vacancy.”
Having, admitted that the requisite quorum was not satisfied during the selection exercise of 15th May, 2007, the Respondents’ case rather supported the case of the Appellants and accordingly without much ado, the Trial Court ought to have entered Judgment in favour of the Appellants rather than being misled into invoking the Principle/Doctrine of Necessity and Act of God where Sections 4 of Exhibits “1” and “2” are very clear and unambiguous that the quorum of the College of Selectors shall be three (3). As had been held in a plethora of authorities in line with the provisions of the Evidence Act, 2011; what is admitted need no further proof. See Section 123 of the Evidence Act, 2011 which stipulates thus:-
“123. No fact needs to be proved in any civil proceeding which the parties to the proceeding or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”
In Olale vs. Ekwelendu (1989) 7 SCNJ (Pt.2) 181, Oputa, JSC held at page 210 lines 7 to page 211 lines 1-4 as follows:-
It is also incumbent on our Trial Courts to discover (by carefully attending to the pleadings) what case the plaintiff is putting across. The case is Plaintiff’s case as per his claims…
Another point I will like to comment on rather briefly is the onus of proof on the Plaintiff/Respondent. Undoubtedly, there is an onus on the Plaintiff to prove his case. The onus of proof is nothing more than an onus to prove any issue or the various issues arising from the pleadings. It is only when and where issues of fact arise from the pleadings of the parties that one can then determine what those issues are and on whom the onus of proof lies. A Plaintiff can discharge the onus of proof in his pleadings: See Onyekaonwu & Ors. vs. Ekwubiri & Ors. (1966) 1 All NLR 32 at page 35. In this case, the Plaintiff/Respondent’s case based on the Abandoned Property Edict, was not traversed. There was no issue of fact on the case presented by the Plaintiff in his statement of claim. No one sets out to prove that which had not been denied. The trial Court should have realized and adverted to that. The Plaintiff’s case as pleaded, standing uncontroverted, thus needed no further proof. It was redundant that the Plaintiff was made to prove what had not been denied. It was a travesty that after the proof (which was even uncalled for), he was denied Judgment.
Thank goodness, the Court of Appeal rectified the situation by reversing the perverse Judgment of the trial Court.”
See alsoEbueku vs. Amola (1988) 3 SCNJ (Pt.2) 207 at 224 and Owosho vs. Dada (1984) 7 SC 149 per Eso, JSC and Aniagolu, JSC at page 163-165; Andony vs. Ayi II & Ors. (2004) FWLR (Pt.227) 444 at 482 and Elendu vs. Ekwoaba (1995) 3 NWLR (Pt.386) 704 at 747.
Again, as submitted by the learned Counsel to the Appellants, the Executive Order – Obi Local Government (Modification of Native Law and Custom Relating to the Selection of Osuko – Obi) Order, 2006 qualified the word “quorum” in mandatory terms with the use of “shall” and therefore neither the Court below nor the College of Selectors had any discretion to vary the said quorum from three (3) to one (1) on the purported ground of impracticability, Act of God and the Doctrine of Necessity following the death of other Kingmakers. Indeed, even the Governor who installed the 1st Respondent oblivious of Section 4 of his Executive Order also committed an illegality by approving what the Presiding Officer and his fellow Panelists did on the 15th May, 2007.
Black’s Law Dictionary, 7th Edition, at page 1263 defines “Quorum” as “The minimum number of members (usually a majority) who must be present for a body to transact business or take a vote”. See the case of Agbeotu vs. Brisibe (2005) 10 NWLR (Pt.932) 1 at 19 paras. E-F; aptly cited by the learned Counsel to the Appellants where this Court adopted the above definition of quorum.
Contrary to the submissions of the learned Counsel to the Respondents, the Court below was patently wrong to have found that based on the peculiar circumstances of this case where by virtue of the impossibility posed by the death of three (3) of the Kingmakers as at 15th May, 2007, the literal interpretation of the provisions of Nasarawa State Legal Notice No.3 of 2006 (The Obi Local Government (Modification of Native Law and Custom) Relating to the Selection of the Osuko of Obi Chiefdom) Order, made pursuant to Section 4 of the Nasarawa State (Creation of Additional Chiefdom) Law, 2003 would lead to an absurd result, the employment of the mischief rule of interpretation which permitted him to look at what mischief the law seeks to suppress and what remedy it sought to promote the trial Judge saw the mischief to be that the winner should not emerge by minority votes but simple majority which is the remedy it sought to promote. With the greatest respect, the learned Trial Judge had no business importing the mischief rule of interpretation of statute into this case and indeed his findings at page 271 of the Records in part that: “If by an act of God, three died leaving only two or even four died leaving only one, the tradition primarily stated that the Osuko of Obi shall be selected by the traditional selectors. It follows therefore that by the doctrine of necessity, even if only one is surviving, he and only him alone can do the selection of the new Osuko of Obi any other method used will be alien to the customs and traditions of Obi Community and pollute their tradition and in future even create for the Government to act according to their whims and caprices appoint, rather than allowing the traditional selectors to select;” was most perverse and rather offends the sensibilities of the Appellants, the peoples of Obi Chiefdom and indeed polluted the Law and Order on the Selection of Osuko of Obi Chiefdom. Without mincing words, a grave miscarriage of justice was occasioned the Appellants when the learned Trial Judge suo motu relied on these inapplicable doctrines which were un-pleaded by the Defendants and to worsen matters, did not give the Appellants the opportunity to react to his (learned Trial Judge’s) position thereby making a case for Respondents.
To put the Records straight and as was rightly submitted by the learned Counsel to the Appellants, where the wordings of a statute are clear and unambiguous the trial Judge ought to give those wordings their simple, ordinary, literal and grammatical interpretation or meaning. There are a plethora of authorities from the Supreme Court particularly the decisions of the Legendary Niki Tobi, JSC (of blessed memory). For instance, in Buhari vs. Yusuf (2003) 14 NWLR (Pt.841) 446 at 535 paras. H-B., on the limit to a Court’s interpretative power, he reasoned that a Court of law, in the exercise of its interpretative jurisdiction, must stop where the statute stops. In his words, a Court of law has no jurisdiction to go beyond a clear and unambiguous statutory provision by adding what the statute does not provide or intend to provide.
Commenting on the interpretation of Statutes and the Constitution by Courts, the Legal Sage posited that: “The duty of a Judge in the interpretation of a statute, including the Constitution, is to give the literal meaning of the words as used by the lawmakers. Where the words are clear and unambiguous, the Judge has to give the ordinary meaning without more. The Judge has no right to give a convenient interpretation to the words.” See A-G Lagos State vs. A-G Federation (2003) 12 NWLR (Pt.833) 1 at 242 paras. C-D.
Turning to the function and role of Court in the interpretation of Statutes, His Lordship held that the function and role of the Court is to interpret a statute in the light of the language used. A Court of law cannot go beyond the language used in a statute particularly when the language is clear and not stressed to accommodate the possible or likely effect of the statute. According to him, the only hire of the Judge is to interpret a statute and not its likely consequences. See Tanko vs. State (2009) 4 NWLR (Pt.1131) 430 at 464-465 paras. H-A. Still on the principle guiding interpretation of statutes, he further explained that “The underlying principle in the interpretation of a statute is that the meaning of the statute or legislation must be collected from the plain and unambiguous expressions or words used therein rather than from any notions which may be entertained as to what is just and expedient. The literal construction must be followed unless this would lead to absurdity and inconsistency with the provisions of the Statute as a whole. This is because it is the duty of the Judge to construe the words of a statute and give those words their appropriate meaning and effect.” See Ahmed vs. Kassim (1958) 3 FSC 51; (1958) SCNLR 28; Lawal vs. G.B. Ollivant (1972) 3 SC 124; Onashile vs. Idowu (1961) All NLR 313; Adejumo vs. The Military Governor of Lagos State (1972) 3 SC 45. Per Tobi, JSC in Ugwu vs. Araraume (2008) 2 CCLR 215 at 262 paras. 25-30; (2007) 12 NWLR (Pt.1048) 367 at 437 paras. C-D.
He re-emphasized in Abubakar vs. Yar’Adua (2008) 19 NWLR (Pt.1120) 1 at 132 at paras. E-F; citing Chief Awolowo vs. Alhaji Shagari (1979) 6-9 SC 51; Ojokolobo vs. Alamu (1987) 5 NWLR (Pt.61) 377; PDP vs. INEC (1999) 11 NWLR (Pt.626) 200; Adewunmi vs. A-G Ekiti State (2002) 2 NWLR (Pt.751) 474; that: “The main object of interpretation of statute is to discover the intention of the lawmakers, which is deducible from the language used. And so where the language of a statute is plain, clear and unambiguous, the duty of the Court is to interpret the language in its strict grammatical meaning to convey the intention of the lawmakers.”
In the light of the above authorities, the learned Trial Judge goofed when he allowed himself to be misled into invoking the doctrine of Necessity and Act of God based on the mischief rule of interpretation of the provisions of the Law and the Executive Order made thereunder that are plain and unambiguous on the quorum of Selectors at the Meeting for the selection of the Osuko of Obi Chiefdom. There is no doubt that the law is settled as was decided in Ugwu vs. Araraume (2008) 2 CCLR 215 at 264-265 paras. 15-15; (2007) 12 NWLR (Pt.1048) 367 at 438-439 paras. H-G, per Tobi, JSC, citing (Heydon’s Case 3 Co. Rep. 7 (A); Ifezue vs. Mbadugha (1984) 1 SCNLR 427; Savannah Bank of Nigeria Limited vs. Ajilo (1989) 1 NWLR (Pt.97) 305; Wilson vs. Attorney-General of Bendel State (1985) 1 NWLR (Pt.4) 572); that resort can be had to the mischief rule of interpretation in the circumstances enumerated in that case. However, in this particular case on Appeal before us, since the provisions of Sections 4 of Exhibits “1” and “2” are clear and unambiguous, there was no need to invoke the mischief rule of interpretation or resort to any other rule of interpretation of Statutes.
Accordingly, the conditions for the invocation of the mischief rule of interpretation do not exist in the circumstances of this case. The learned Counsel to the Appellants was therefore on the very sound pedestal when he cited the decision of this Court in Chidolue vs. EFCC (2012) 12 NWLR (Pt.1292) 160 at 177 following Adefemi vs. Abegunde (2004) 15 NWLR (Pt.895) 1 at 29 ratio 7; where it was variously held that where the words of a statute are clear and unambiguous, they should be given their natural, literal and grammatical meaning and that where a lacuna exists in the law (as in this case), the appropriate remedy lies in an amendment by the Legislature as the function of a Court is to declare the intention of the Lawmakers and not to make law.
In the instant case therefore and as was rightly submitted by the learned Counsel to the Appellants, where either because of death or any other cause, the required statutory quorum could not be formed, the law ought to be amended or adjusted to put in place the mandatory statutory provision in order to secure a legal backing prior to the selection exercise purportedly carried out on the 15th day of May, 2007. I therefore agree completely with the learned Counsel to the Appellants and on the authorities of Owodunni vs. Registered Trustees (2000) 6 SCNJ 399; Dapianlong vs. Dariye (2007) 4 SCNJ 286; Inakoju vs. Adeleke (2007) 4 NWLR (Pt.1025) 423 at 697 Ratio 21; Onochie vs. Odogwu (2006) NWLR (Pt.975) 65 at 39-90; Adeosun vs. Gov. Ekiti State (supra) and B.A.S.F. Nig. Ltd. vs. Faith Ent. Ltd. (2010) 24 WRN 26 p.55 lines 5-20; that irrespective of the death of the Traditional Selectors the mandatory quorum of three (3) Selectors was still the extant and applicable law and accordingly since the required quorum was not formed on the 15th of May, 2007 during the purported exercise of the selection of the Osuko of Obi by one Kingmaker who posed as the purported quorum, the exercise was in futility. Also the frantic effort by the trial Court to distinguish the above cited cases from the facts of this case in its Judgment was not backed by law but merely by moral consideration and therefore misconceived.
Again, it has to be reiterated as rightly submitted by the learned Counsel to the Appellants that where there was a glaring fundamental legal impossibility to comply with the provisions of the Law and the Order on the quorum for the selection of the Osuko of Obi, the Presiding Officer ought not have gone ahead with the exercise but to report back such lacuna to either the State Governor that issued the Legal Notice or the House of Assembly that enacted the law with a view to amending or altering the Legal Notice or Law before a valid exercise could take place and not for the Court to come into the fray by importing the Doctrines that were never pleaded by any of the parties in the face of the clear, unambiguous provisions of the law and Order. I agree with the learned Counsel to the Appellants once more on the authorities of Inakoju vs. Adeleke (supra) that the requirement of the presence of a quorum of three members of the College of Selectors of the Obi Chiefdom before the selection of any New Osuko of Obi is mandatory and a condition precedent for a valid selection to take place. Accordingly, I adopt the dictum of the Supreme Court in the above cited case that where the Constitution or a Statute provides for a pre-condition for the doing of a thing or for the attainment of a particular situation, that pre-condition must be fulfilled otherwise the act will be null and void.
Since the provision of Section 4 of the Legal Notice No.3 of 2006 (Exhibit “2”) made pursuant to Section 4 of Exhibit “1” as it relates to the issue of quorum is mandatory and not permissive or discretionary by the use of the word “shall,” it must be compulsorily fulfilled or complied with in the course of any selection of the Osuko of Obi. The authorities of Onochie vs. Odogwu (supra) and Adeosun vs. Gov. Ekiti State (supra); are very apt. Accordingly, the dictum of the Emeritus Adekeye, JSC in the case of B.A.S.F. Nig. Ltd. vs. Faith Ent. Ltd. (supra) that: “Where the law specifically directs the conformity to a mandatory requirement, the resultant absence of compliance ought to be fatal;” applies mutatis mutandis to the facts of this case.
In the light of the above authorities and notwithstanding all the authorities cited by the learned Counsel to the Respondents particularly that of the 1st-5th Respondents on the origin and the doctrine of necessity which with the greatest respect were cited out of context and therefore inapplicable and accordingly discountenanced; the non-compliance with the provision of the law on the appropriate quorum for the selection of the Osuko of Obi, rendered the selection exercise of the 1st Respondent, the Report submitted and even the installation of the 1st Respondent by the Governor null and void and of no effect. In the same vein, the presence of the Waziri (Abdullahi Akoshi)/2nd Respondent, the second surviving Traditional Selector at the installation of the 1st Respondent did not legitimize the illegitimacy of constituting himself as the quorum of Traditional Selectors by single handedly selecting the 1st Respondent as the Osuko of Obi when on the 15th of May, 2007 he was absent from the selection exercise in spite of being notified in advance. Accordingly, the Trial Court was wrong when it held at page 273 of the Record of Appeal thus:-
“What the Waziri had not done for reasons best known to him on 15th May, 2007, he showed up at the venue of installation where he belongs, thus the surviving Kingmakers confirmed publicly their choice for the 1st Defendant…”
I reiterate that the non-fulfillment of the condition precedent for the selection of the 1st Respondent invalidated his selection and subsequent installation by the Governor. On the whole, it was most unfortunate that the learned Trial Judge did not invalidate the selection and installation of the 1st Respondent at the appropriate time when this Suit was brought by the Appellants. On the whole, this Appeal is meritorious and hereby succeeds. The Judgment of the Hon. Justice B. Maina (then CJ) of Nasarawa State delivered on the 3rd day of June, 2011 is hereby set aside and all the Reliefs sought by the Appellants in their Amended Joint Statement of Claim are hereby granted as prayed.
Parties shall bear their respective costs.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the advantage of reading the draft copy of the leading judgment which my lord IGNATIUS IGWE AGUBE, JCA, just delivered. My learned brother has painstakingly and incisively addressed the issues canvassed.
I agree with his reasoning and conclusion that this appeal shall be allowed in the circumstance and it is so allowed. The judgment of the lower Court in suit No: NSD/LF93/2007 delivered on the 3rd day of June, 2011 is thus set aside.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in draft the leading Judgment just delivered by my learned brother IGNATIUS IGWE AGUBE, JCA and I completely identify with him that this appeal is imbued with merit and I also set aside the decision of the trial Court in like terms as the lead judgment. Just for purpose of emphasis, I wish to state that it is a settled principle of law, that where there exists a condition precedent to carry out a procedure, failure to fulfill the condition would mean that whatever, was done is a nullity. See the cases ofATIBA IYALAMU SAVINGS & LOANS LTD v. SUBERU & ANOR (2018) LPELR-44069(SC); BRONWEN ENERGY TRADING LTD v. CRESCENT AFRICA (GHANA) LTD (2018) LPELR- 43796(CA); and FCDA STAFF MULTI-PURPOSE (COOP) SOCIETY & ORS v. SAMCHI & ANOR (2018) LPELR-44380(CA).
In the instant case and from the record of appeal, it is clear that the required quorum of three Members/Selectors for the selection of the Osuko of Obi Chiefdom was not met, therefore, the installation by the Governor was invalid. It is in the light of the above, that I also hold that the High Court of Nasarawa State sitting in Lafia was obviously wrong not to invalidate the selection and the installation of the 1st Respondent therefore, this appeal is imbued with merit and therefore succeeds.
Appearances:
M.A. Sambo, Esq., with him, Sunday Omenka, Esq. For Appellant(s)
O.D. Obande, Esq., with him, P.O. Onah, Esq. – for 1st-5th Respondents/Applicants
I.I. Edoh, Esq. (Solicitor-General, Nasarawa State) – for 6th-12th Respondents
Hussaini Yakubu, Esq. – for 13th-39th Respondents/Objectors For Respondent(s)