WANGARA v. SUNUSI & ORS
(2020)LCN/15922(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Monday, November 23, 2020
CA/KN/234/2017
Before Our Lordships:
Abubakar Datti Yahaya Justice of the Court of Appeal
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Amina Audi Wambai Justice of the Court of Appeal
Between
ALH. BALA SULEIMAN AHMED WANGARA APPELANT(S)
And
1. R.H THE EMIR OF DUTSE, ALH. NUHU MUH’D SUNUSI (CON) 2. DUTSE EMIRATE COUNCIL 3. AMINU ABDULLAHI WANGARA RESPONDENT(S)
RATIO:
FINDINGS OF A TRIAL COURT
The law having been firmly settled, it is trite. Where a party, be it plaintiff or defendant, fails to challenge by way of an appeal, the findings of a trial Court or even an appellate Court, that party cannot question the findings. The findings bind the parties as well as the Court – N.B.C.I VS. INTEGRATED GAS (NIG.) LTD. (2005) 4 NWLR (PT. 916) 617; AKINLAGUN VS. OSHOBOJA (2006) 5 S.C (PT.11) 100; PER ABUBAKAR DATTI YAHAYA, J.C.A.
ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court Jigawa State (the trial Court) delivered on the 1st February 2017. It was the case for the Appellant as claimant at the trial Court, that he was appointed through a letter of 18th April 2013, from the District Head of Dundubus, as the new Village Head of Wangara, following the demise of the Village Head of Wangara. When he received the letter of appointment, he travelled to Dutse and completed some forms and was thereafter informed to return on the 24th April 2013 by 10:00am to be turbaned. However, as the 1st Respondent was away on Medical issues, the turbaning was postponed. He waited for about twenty-one months, before he learnt that, another Village Head was to be selected. He felt aggrieved since he had been appointed, and had not been removed. He caused his counsel to write a letter and later commenced legal action. In the Writ of Summons, the Appellant prayed for –
(a) An order declaring that by virtue of the selection of the Claimant in April 2013 to fill the vacant seat of the Village Head of Wangara, that seat is not vacant and the Claimant should be turbaned as Village Head of Wangara.
(b) An order directing that the selection, election, nomination or turbaning of any candidate to the seat of Village Head (Dagachi) Wangara made when the selection/appointment of the Claimant to the same seat still subsists is contrary to the tradition of Wangara Dandubus District Dutse Jigawa State.
(c) An order directing the 1st, 2nd and 3rd Defendants to turban the Claimant as the Village Head of Wangara.
(d) An order of perpetual injunction restraining the Defendants jointly and severally by themselves or through their allies from holding any elections, selections or appointment of anyone to occupy the seat of Village Head of Wangara since the position is not vacant.
(e) An order declaring null and void and of no legal consequence any steps taken in contravention of the selection of the Claimant as the Village Head of Wangara since April 2013.
At the trial, the Appellant called five witnesses and tendered Exhibits. The Respondents called four witnesses. At the end of the trial, the Court resolved all four issues identified by the Appellant, declaring that the Appellant had been validly appointed the Village Head of Wangara and that the appointment still subsists. He declared as null and void, the election held by then 3rd defendant (District Head of Dundubus) on the 26th December 2014. He however made a Consequential Order that the then 3rd defendant should conduct a fresh election to appoint a Village Head of Wangara, with the Appellant as participant, if he so wished. It is this Consequential Order that the Appellant found to be erroneous and so appealed to this Court on it.
In the Appellant’s brief filed on the 21st August 2017 but deemed filed on 14th March 2018, the following three issues were identified-
1. Whether the order for fresh election made by the learned trial Court was proper in view of the earlier finding of the Court that Appellant’s appointment as the Village-Head of Wangara was still valid and subsisting? (Distilled from ground 1).
2. Whether the learned trial Judge found as a fact that election is the only means by which a would be Village Head of Wangara is selected/appointed when he made the order for election to that seat. (Distilled from ground 2).
3. Whether the finding by the learned trial Court that the Appellant’s right to participate in an election held by the Respondents was one of the issues before the trial Court such as would lead the trial Court to nullify one election and then order a fresh election? (Distilled from grounds 3 & 4).
The Respondents’ brief was settled by Mr. Aliyu Hassan, Senior State Counsel, Ministry of Justice Jigawa State and was filed on 27th February 2019 and deemed filed on the 27th February 2019. He identified only one issue. It is-
Whether from the totality of evidence, the learned trial Judge was right to have ordered for fresh election within 30 days and the Appellant to participate in the said election.
The Appellant filed a Reply on 27th June 2019, deemed filed on 6th October 2020.
In my view, the issue identified by the Respondents, is most apt, in view of the findings of the trial Judge in his Judgment. I shall utilise it in resolving this appeal, with slight amendment-
Whether from the findings of the trial Judge in the Judgment, he was right to have ordered for fresh election within 30 days and the Appellant to participate in the said election.
In arguing the appeal, learned counsel referred to pages 689, 690, 696-697 of the record, and exhibits C and C1, G and G1 and H and H1 to submit that the trial Court had found the appointment of the Appellant, as the Village Head of Wangara to have been validly made, subsisting and not terminated, thus granting all the reliefs claimed by the Appellant. Counsel then referred to page 702 of the record where the learned trial Judge ordered for fresh election to the office occupied by the Appellant and submitted that such was contradictory, perverse, erratic and incomprehensible, occasioning injustice to the Appellant. He argued that such could not be a rightful consequential Order, by placing reliance on IDRISU VS. COP (2009) ALL FWLR (PT. 450) 720 AT 727; FAAN VS. GREEN STONE LTD (2009) ALL FWLR (PT. 500) 741 AT 756 AND OSUJI VS. EKEOCHA (2009) ALL FWLR (PT. 490) 646 -647. He was emphatic that the Order made in the form of a Consequential Order, was not sought for by the parties and so not grantable. His position is that an Order for installation of the Appellant would have been the proper Consequential Order, to make. In a response, learned counsel for the Respondents submitted that once a trial Judge believes or disbelieves evidence, and confines himself to the evidence and facts to dispense substantial justice to the parties, an appellate Court cannot interfere – ADEKUNLE VS. AREMU (1998) 1 NWLR (PT.533) AT 227 AND BOB-MANUEL VS. A.G. RIVERS STATE (2016) 11 NWLR (PT. 1523) AT 384 – 385. Counsel submitted that the Respondents at the trial, presented evidence that the purported appointment of the Appellant was inconclusive, nullified and cancelled by the 2nd Respondent. That even if the appointment was valid, it was cancelled at the meeting held on 10th December 2014 by the 2nd Respondent and the Appellant was aware. That the trial Judge was “not in contention about the cancellation of the purported appointment rather the issue of how the 1st and 2nd Respondents notified the Appellant about the cancellation of the appointment”. He went on to submit that, assuming but not conceding that the appointment of the Appellant was valid, “the mere appointment of the third Respondent as the Village Head of Wangara nullified and cancelled the appointment of the Appellant.” He referred to NETUFO VS. OMOOLORUN (2005) 12 NWLR (PT. 938). He urged us to hold that the appointment/election of the 3rd Respondent as Village Head of Wangara, automatically cancelled and nullified the selection or appointment of the Appellant as the Village Head of Wangara. He argued that it was because the Court held the view that since the Appellant did not participate in the election that produced the 3rd Respondent, his right had been infringed and that is why it cancelled the election and ordered a fresh one with the Appellant participating.
Counsel submitted that “the Judgment of the trial Court is fair and just”. It therefore made an Order which appears incidental and necessary for a proper determination of a cause before it, though not claimed – EZE VS. GOVERNOR OF ABIA STATE (2014) 14 NWLR 1426; KAYILI VS. YILBUK (2015) 7 NWLR (PT. 1457) 1-236. Counsel then went on to elaborate on how to appoint a Village Head of Wangara and then concluded by saying that since the Appellant did not prove that he had been turbaned, inaugurated and had assumed the function of Village Head of Wangara, he had not been appointed and if appointed, it had been cancelled.
In the Reply brief, learned counsel for the Appellant re-iterated the findings of the trial Court which have not been appealed against. He also distinguished the case of NETUFO VS. OMOOLORUN (2005) 12 NWLR (PT. 938) 1, cited by learned counsel for the Respondent from this case, and so not applicable.
There is no doubt that the real grouse of the Appellant in this appeal, is the imminent election of a new Village Head of Wangara, whilst he remains the substantive holder of the title.
The law having been firmly settled, it is trite. Where a party, be it plaintiff or defendant, fails to challenge by way of an appeal, the findings of a trial Court or even an appellate Court, that party cannot question the findings. The findings bind the parties as well as the Court – N.B.C.I VS. INTEGRATED GAS (NIG.) LTD. (2005) 4 NWLR (PT. 916) 617; AKINLAGUN VS. OSHOBOJA (2006) 5 S.C (PT.11) 100; AMALE VS. SOKOTO LOCAL GOVERNMENT (2012) 5 NWLR (PT.1292) 181; AND ALAKIJA VS. ABDULAI (1998) 6 NWLR (PT.552) 1. The party who fails to appeal against any specific finding of the Court, is therefore deemed to have accepted same and an appellate Court would not have the jurisdiction to entertain the issue on appeal.
In the instant appeal, the trial Judge made far reaching findings in respect of the claims of the Appellant before him. Those findings, germane to this appeal, can be found at the following pages of the record of appeal. At pages 688 -689 of the record, the trial Judge found that
“The claimant as earlier held, had by both evidence which includes the written statement on oath and Exhibits as tendered, proved that he was given letter of appointment by the 2nd defendant and that without the appointment being suspended or cancelled by the 1st and 2nd defendants an election was called whereby the 4th defendant was elected.
Throughout the whole gamut of the evidence as presented by the defence, nowhere is it shown that the letter of the suspension of the appointment of the claimant was served on the claimant…
Once a person is given the letter appointing him as in Exhibits C and C1 that satisfies the requirement of the law.”
At page 693 of the record, the trial Judge found and held very firmly, that
“The appointment of the claimant is real and it still subsists….”
At page 696 of the record, the trial Judge found that
“Also on the issue of inauguration as argued by the defence, suffice it to say that did not provide that a person must subscribe to oath of office before he is deemed appointed as Village Head.”
At page 695, the trial Judge found that
“On the receipt of the reply in Exhibit J and J1, the 1st and 2nd defendants decided to hold an election but failed or neglected to write informing the claimant of the cancellation of his appointment, but instead, decided to do that verbally through the Senior Councilor to the 2nd defendant.”
Then at page 696, the trial Judge found and held
“The procedure of cancelling the appointment of the claimant adopted by the 1st, 2nd and 3rd defendants cannot by strict (sic) of imagination terminate the appointment of the Claimant.”
The above finding is strengthened by the finding of trial Judge at page 694 when he found that –
“The verbal information as relayed by the Senior councilor could not be said to be with all intents and purpose to cancel the appointment as made vide Exhibits C and C1 and D and D1”.
At page 701 -702 of the record, the Judge held that –
“The defendants having received the reply from Kano Emirate Council are by law required to inform its decision cancelling the appointment of the claimant in writing in the same way his appointment was given to him in writing.
The fact that the cancellation of the appointment of the claimant during a meeting of stake holders convened by the Senior Councilor to the 1st and 2nd defendants with the parties in attendance which includes the claimant, does not serve as a notice of the cancellation of the claimant’s appointment”.
There is also the firm findings of the trial Judge at page 700 of the record, that –
“As earlier held in this Judgment, by Exhibits C, and C1 and D and D1, the 1st and 2nd defendants have appointed the claimant as a consensus candidate chosen among 3 names sent to the 1st and 2nd defendants by the 3rd defendant.”
From the foregoing, it is crystal clear that the findings of the trial Judge in the Judgment under consideration, show that the Appellant had been validly appointed the District Head of Wangara, that the appointment still subsists and the procedure adopted at a meeting held with the stakeholders, resulting in Exhibits H and H1, did not terminate the appointment of the Appellant.
The Respondents have not filed any appeal against the Judgment of the trial Court, challenging any of the various and firm findings of the trial Judge. They cannot therefore question those findings in this appeal. The submissions of learned counsel for the Respondents therefore, that the appointment of the Appellant is inconclusive because he had not subscribed to the oath, nullified and cancelled, have been made without foundation upon which they can stand and are discountenanced. Similarly, the submission of counsel, that because the 3rd defendant had been elected, that automatically cancelled the earlier appointment of the Appellant, is contrary to the findings of the trial Judge, a finding which had not been appealed from and impeached. Counsel has no locus to make the submission and this Court has no jurisdiction to delve into it. It is also discountenanced. I must say also that I find the submissions of counsel made against the findings of the trial Court which have not been appealed against, rather surprising, in view of his clear submission in the brief at page 9, paragraph 4.19 that
“My Lord it is my humble submission that the Judgment of the trial Court is fair and just…”
How can counsel make this submission and then proceed to attack the findings in the Judgment, more so that he did not appeal against the findings and the Judgment as a whole? The Respondents are not aggrieved by the Judgment and the findings of facts in it. They cannot be heard opposing it – KASHIM SHETTIMA & ORS. VS. MOHAMMED GONI & ORS. (2011) 10 S.C. 92.
In respect of the order for election to be conducted to elect the District Head of Wangara made by the trial Court, the law is clear that a Court has the power to make consequential orders in order to give effect to the Judgment. It is made consequent upon the reliefs claimed by the plaintiff. A consequential order therefore has to and owes its life to the main claim as its foundation. It is the clothes worn on the person. Without the person, the clothes cannot be worn. See INAKOJU VS. ADELEKE (2007) 4 NWLR (PT.1025) 423. In MURTALA NYAKO VS. ADAMAWA HOUSE OF ASSEMBLY (2016) LPELR-41822 (SC) per I. T. Muhammad JSC (as he then was) at page 56 -57, he held that “In AWONIYI VS. REGISTERED TRUSTEES OF AMORC (2000) 10 NWLR (PT. 676) 522, this Court re-stated the purpose of a consequential order. The purpose of a consequential order is to give effect to the decision or Judgment of the Court but not by granting an entirely new, unclaimed and/or incongruous relief which was not contested by the parties at the trial, and neither did it fall in alignment with the original reliefs claimed in the suit, nor was it in contemplation of the parties that such relief would be subject-matter of a formal executory Judgment or order against either side to the dispute. A consequential order may also not be properly made to give a party an entitlement to a relief he had not established in his favour.” Following from this, the Supreme Court had the opportunity to emphasise the situation in which Courts can make consequential orders. In APC & ORS. VS. HON. DANLADI IDRIS KARFI & ORS (2017) LPELR-47024 (SC) per OKoro JCS at pages 15-18, – he held that a consequential order is one which gives effect to the Judgment already given by the Court and that “it is not granted as a fresh, unclaimed or unproven reliefs.” In DEC OIL AND GAS LTD. VS. SHELL NIG. GAS LTD. (2019) LPELR – 49347 SC AT 30 – 31 Galinje JSC held that a consequential order is one that “is directly traceable to or flows from the Judgment or Order duly prayed for and made.”
As stated earlier in this Judgment, the trial Judge found that the Appellant was validly appointed the District Head of Wangara, was not given any notice in writing that the appointment had been cancelled, terminated or suspended and that the appointment subsists. Having found so, it is certainly a volte face, a somersault of incredible acrobatics, to now order an election to be held in respect of the same post of the Village Head of Wangara! Since the post is not vacant and the Appellant is the incumbent, what is the purpose of holding that election? The order made is more puzzling when the resolutions of the trial Judge all along, have been that the Appellant had been validly and duly appointed and the appointment had not been validly cancelled or adversely affected. The consequential order is an entirely new and unclaimed relief. The Appellant never prayed for an election to be held. Infact, his position which had been found to have been proved, by the trial Judge in his Judgment, is that he has been validly appointed the Village Head of Wangara and his appointment still subsists, as he had not been validly removed. It is therefore incongruous for the trial Judge to order an election to be held with an incumbent still in office and who did not ask for it. By the Judgment of the trial Court, the Respondents had not established that the Appellant had been removed validly from his appointment as Village Head of Wangara. They are therefore not entitled to a relief, to have an election conducted, to fill a post which is not vacant. The Respondents also did not contemplate another election, as their position at the trial Court, is that they had conducted an election and the 3rd defendant was the one elected. The Appellant did not pray for an election, as he is still the Village Head of Wangara. The trial Court did not hold that there is a vacancy as the appointment still subsists. If it subsists, then an Order, a Consequential Order for an election to be held, is anomalous, contradictory, unnecessary and uncalled for. It was not in the contemplation of any of the parties. It was a serious gaffe which cannot be said to have flown from the Judgment of the trial Court. It was in serious conflict with the tenor of the Judgment and it does not qualify at all, as a valid Consequential Order, necessary to give effect to the Judgment. It infact destroyed the fabric of the Judgment. It cannot stand. We hereby set aside the Consequential Order made by the trial Judge which ordered an election to be held for the purpose of appointing the Village Head of Wangara. The issue identified is resolved in favour of the Appellant and against the Respondents.
By Section 15 of the Court of Appeal Act, we can make an Order that the trial Court could make, which it did not make. The Judgment of the trial Court is that the Appellant was validly appointed the District Head of Wangara, which appointment had not been validly canceled and therefore, no vacancy exists in that respect to be filled. The proper consequential Order to make in the circumstance by the trial Judge, was to order for the turbanning of the Appellant. He did not do so. We invoke Section 15 of the Court of Appeal Act and Order the 1st and 2nd Respondents to turban and administer the Oath of Office to the Appellant Alhaji Bala Suleiman Ahmed Wangara, as the Village Head of Wangara, the duly appointed Village Head, as found by the Judgment of the trial Court in Suit No. JDU/09/2014, delivered on 1st February 2017, a Judgment which has not been appealed against, by the Respondents.
No order as to costs.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Abubakar Datti Yahaya, JCA. His Lordship has ably considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached therein.
This appeal turns on the propriety of the consequential order made by lower Court. The case of the Appellant before the lower Court was that he was selected and appointed the Village Head of Wangara Town, Dagachin Wangara, by the Dutse Emirate Council in line with the tradition governing the chieftaincy title. It was his case that he accepted the selection and appointment and fulfilled all requirements, leaving only his turbaning by His Royal Highness, the Emir of who was at the time out the country for medical reasons. It was his case that, while awaiting the turbaning, he learnt that the Dutse Emirate Council was going to conduct another selection process for the same chieftaincy, Village Head of Wangara Town.
The Appellant approached the lower Court claiming for (i) an order declaring that by virtue of his selection as the Village Head or Wangara, the seat was no longer vacant; (ii) an order that the selection, election, nomination turbaning of any other person as the Village Head of Wangara was contrary to the tradition governing the chieftaincy title, in view of his subsisting selection and appointment; (iii) an order directing the Respondents to turban him as the Village Head of Wangara. The Appellant also prayed for injunction and for an order declaring as null and void any steps taken by the Respondents in contravention of his selection and appointment as Village Head of his selection and appointment as Village4 Head of Wanagara.
The lower Court heard the matter on the merits and it declared that the selection and appointment of the Appellant as the Village Head of Wangara subsisted and this, consequentially, meant that the seat of Village Head of Wangara was not vacant. The lower Court declared null and void the subsequent selection and election of another Village Head of Wangara carried out by the Respondents. But rather than direct the turbaning of the Appellant as the Village of Head of Wangara and restraining the Respondents from holding any other selection for the post, the lower Court made a consequential order directing the Respondents to conduct a fresh selection/election process with the inclusion of the Appellant as a candidate, if he so desired.
The propriety of this consequential order is the centerpiece of this appeal. One of the best expose on consequential order that I have come across that by Ogunbiyi, JSC, in the case of Eyigebe Vs Iyaji (2013)11 NWLR (Pt 1365) 407 where the learned Justice espoused that:
“The purpose of a consequential order is to give effect to the judgment. It must therefore flow from the circumstances of the decision of the Court. It must not be at a cross purpose or in any way contradictory to the decision of the Court. See the case of Chikere v. Okegbe (2000) 7 SCNJ 128 at 115.
With the High Court having pronounced an Order of a dismissal of the case, the subsequent Orders 3 and 1 did not correctly flow from the judgment of the Court but were inconsistent, contradictory and unnecessarily far reaching. A consequential order is not one merely indicted to the decision but one which necessarily flow directly and naturally there from: it is inevitable and consequent upon the decision made by the Court: It must in other words give effect to the judgment already given and not a granting of fresh and unclaimed or unproven relief. It can only relate to matters adjudicated upon. Where it flowed from nothing decided as it in the case at band the subsequent orders made must be nullified. This was the view held by this Court in Dr. M.T.N Liman v. Alhaji Mohammed (1999) 6 SCNJ 142. Also in Henry O. Awoniyi v. ARMOC 2002 6 SCNJ 144, it was further held that where a principal order sought was refused by a Court, an incidental order cannot be made.
This is because a consequential order by its very nature is predicated on a principal order, without which it must crumble. In other words, it ought to be cut off or severed.
Another related authority is the decision in the case of Obayagbona v. Obazee (1972) (reprint) 5 SC 159 wherein this Court again per Sowemimo JSC while considering an Order made subsequent to a judgment to a judgment restated clearly at page 162 and said:
“With respect it is quite wrong for the learned trial judge having declared the plaintiffs successful “as claimed” to make consequential orders which had the effect as in this case of varying his judgment and which in any case were not specifically asked for. The learned trial judge was functus officio immediately after he gave his judgment.”
Also at page 163 of the same report the learned jurist went further and said:
“…..A consequential order therefore made subsequent to a judgment which detracts from the judgment or contains extraneous matters is not an Order made within jurisdiction because at that stage, having determined the rights of the parties, by giving judgment for plaintiffs as claimed the judge has become functus officio except for any act permitted in law or Rules of Court.”
Following from the foregoing authority therefore and with the High Court having dismissed the appeal, it had at that stage become functus officio. The making of subsequent consequential orders which had the effect of varying its judgment and which in any case was not specifically asked for, was erroneous. This is because by nature, the order must be one giving effect to the judgment: it follows as a result to interference: following or resulting indirectly.”
It is obvious that the consequential order made by the lower Court detracted from the findings it made in the judgment on the claims of the Appellant and it was extraneous to the issues presented to it for adjudication. Applying the principles expatiated in the above referred decision of the Supreme Court, the consequential order was improper, erroneous and made by the lower Court without jurisdiction.
It is for these reasons and the fuller exposition of the law in the lead judgment that I too find merit in this appeal and I hereby allow same. I set aside the consequential order for the conduct of a fresh selection/election process for the position of Village Head of Wangara made by the High Court of Jigawa State in the judgment delivered in Suit No JDC/09/2014 delivered by Honorable Justice Umar M. Sadiq on the 1st of February, 2017. I abide by the consequential order made in the lead judgment directing the Respondents to turban and administer the oath of office to the Appellant as the duly appointed Village Head of Wangara.
AMINA AUDI WAMBAI. J.C.A.: I have read the leading judgment of my learned brother, ABUBAKAR DATTI YAHAYA, JCA and I am in agreement with his reasoning and conclusion that the learned trial judge goffed in the consequential Order made after it had found that the appointment of the Appellant as the Village Head of Wangara subsisted and had not been cancelled, suspended or terminated.
That consequential Order obviously does not flow from the findings of the Court nor was it prayed for. I agree with my learned brother that the incongruent consequential order ought to be set aside. I abide his lordships invocation of Section 15 of the Court of Appeal Act in ordering the turbaning of the Appellant as the duly appointed Village Head of Wangara. Consequently I also allow the appeal and affirm the other findings of the lower Court affirming the validity and subsistence of the Appellant’s appointment as the Village Head of Wangara.
Appearances:
Murtala Musa For Appellant(s)
A. H. Hassan PSC Ministry of Justice, Jigawa State For Respondent(s)