YUSUF A. MADAKI V. THE GOVERNOR OF NASARAWA STATE & ORS.
(2011)LCN/4699(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 13th day of July, 2011
CA/J/87/07
RATIO
BURDEN OF PROOF: ON WHOM LIES THE BURDEN OF PROOF IN CIVIL CASES; WHEN DOES THE BURDEN OF PROOF OF FACTS IN A CIVIL CASE STOP SHIFTING
…the law is that he who asserts must prove. In civil cases, the burden of first proving the 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 pleading. See Sections 135 – 137 of the Evidence Act. It is also trite that the burden of proof of particular facts shifts from side to side throughout the proceedings until all the issues in contention have been dealt with. See Section 139 of the Evidence Act. See: Agbaje Vs Fashola (2000) 6 NWLR (1082) 90 @ 141; Onobruchere vs Esegine (1986) 1 NWLR (19) 799. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
INTERPRETATION OF STATUTE : THE PROVISION OF SECTION 151 OF THE EVIDENCE ACT AS TO THE PRINCIPLE OF ESTOPPEL
Section 151 of the Evidence Act, relied upon by the appellant in relation to Exhibits 8, 19 and 22 provides: “When one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representatives in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest to deny the truth of that thing”. All the parties agree that the position of Osuko is an elective position. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
INTERPRETATION OF STATUTE : PROVISION OF SECTION 18 OF THE LIMITATION LAW OF NASSARAWA STATE AS REGARDS THE LIMITATION OF TIME FOR COMMENCING ACTION FOUNDED ON CONTRACT, TORT, OR ANY OTHER ACTION NOT SPECIFICALLY PROVIDED FOR IN PARTS I AND II OF THE EDICT
Section 18 of the Limitation Law of Nassarawa State provides: “No action founded on contract, tort, or any other action not specifically provided for in parts I and II of this Edict shall be brought after the expiration of five years from the date on which the cause of action accrued. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
CAUSE OF ACTION/ACCRUAL OF CAUSE OF ACTION: MEANING OF “A CAUSE OF ACTION” AND “ACCRUAL OF A CAUSE OF ACTION”
In Adimora V. Ajufo (1988) 1 NSCC 1005 @ 1018, relied upon by learned counsel for the appellant the Supreme Court defined two important concepts: what is a cause of action? And when does it accrue? Oputa, JSC defined cause of action as “every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment.” His Lordship stated further, “the accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action.” PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
CAUSE OF ACTION: ELEMENTS THAT CONSTITUTE A CAUSE OF ACTION
In Ojukwu V. Yar’dua (2009) 12 NWLR (1154) 50 @ 131 – 132 H – A, the Supreme Court per Niki Tobi, JSC identified two elements that constitute a cause of action, namely: (i) the wrongful act of the defendant which gives the plaintiff his cause of complaint; and (ii) the consequent damage. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
JUSTICES
KUDIRAT M.O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
YUSUF A. MADAKI Appellant(s)
AND
1. THE GOV. OF NASARAWA STATE
2. THE ATTORNEY-GENERAL OF NASARAWA STATE
3. NASARAWA STATE GOVERNMENT
4. ALHAJI IBRAHIM OKOPOSHI Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Nasarawa State, sitting at Lafia delivered on 4/8/06 dismissing the appellant’s claims and holding that the said claims were statute-barred.
The Appellant who was the plaintiff before the trial court, by paragraph 31 of his Amended statement of claim sought the following reliefs:
A. “A declaration that the plaintiff is the District Head/Osuko of Obi in Obi Local Government of Nasarawa State.
B. A Declaration that the indefinite suspension of the Plaintiff by the Defendants is a violation of his constitutionally guaranteed right of access to justice and fair hearing.
C. A Declaration that the purported appointment of the 4th Defendant by the 1st, 2nd and 3rd Defendants to act in the office of Osuko of Obi is illegal, null and void and contrary to the native law and custom of the people of Obi in Obi Local Government of Nasarawa State.
D. A Declaration that the refusal of the Defendant to upgrade the plaintiff to the status of a 3rd class chief is discriminatory and contrary to the constitutionally guaranteed right to freedom from discrimination.
E. AN ORDER of perpetual Injunction restraining the 4th Defendant by himself, his agents, representatives privies or proxies from holding himself out or parading himself or causing himself to be paraded or held out as a traditional Kingmaker or Maduachi and/or representative of the Osuko of obi, or howsoever interfering with performance of the functions of the Osuko of Obi, Obi Local Government Area of Nasarawa state of Nigeria.
F. AN ORDER of perpetual Injunction restraining the 4th Defendant from attending any public or private meetings or occasions or ceremonies or functions as a traditional Kingmaker or Maduachi of Obi and/or representative of the Osuko of Obi, Obi Local Government Area of Nasarawa state of Nigeria.
G. AN ORDER of perpetual Injunction restraining the Defendants particularly the 1st Defendant either by himself, agents, servants, representatives, privies and/or proxies from appointment, approving the appointment of, constituting, confirming, ratifying or recognizing any person other than the plaintiff as the Osuko of Obi or otherwise taking any steps inconsistent with the position of the Plaintiffs as the Osuko of Obi'”
The parties duly filed and exchanged pleadings and the suit proceeded to trial. The plaintiff called a total of six witnesses, PW1 – PW6, The 1st – 3rd Defendants called two witnesses who testified as DW1 and DW2. The 4th Defendant testified as DW3. Several Exhibits were tendered in the course of the trial and they were marked as Exhibits 1 – 31B.
The facts of the case as gathered from the pleadings and evidence before the lower court are as follows: sometime in 1960, one Alhaji Ibrahim Atanyi was elected as the Osuko of Obi, a village in the present day Nasarawa state of Nigeria. His area of jurisdiction was limited to Obi village areas. In 1983 the Stool of Osuko was upgraded to a 4th class chieftaincy by the Government of the then Plateau state, upon the creation of the new chiefdom in 1983, five additional village areas were added to the territory namely, Adudu, Agwatashi, Deddere Assakio and Riri. Assakio later opted out of the chiefdom. Alhaji Atanyi Ibrahim continued to use the title of Osuko of Obi over the new chiefdom. According to the appellant a vacancy was created by Ibrahim Atanyi’s appointment as 4th class chief of the new chiefdom. An election was conducted in 1985. He emerged the winner of the exercise and was installed as Village Head of Obi.
It is the appellant’s contention that village head and Osuko mean the same thing. That while village head is the English version, its equivalent in Alago dialect is Osuko.
Later there was complaint by the other village areas that the 4th class status, which Alhaji Ibrahim Atanyi occupied, was meant for rotation among the village areas. They took exception to the use of the title Osuko, which is meant for Obi village area alone. This prompted Government to set up a commission of enquiry in 1986 to look into the issue. The panel after receiving memoranda from various parties concerned made its recommendations. The Government issued a white paper (Exhibit 18) based on the commission’s recommendations by designating the title of the Stool and its occupier as Osagye.
Thereafter Alhaji Ibrahim Atanyi began to use the title Osagye of Obi. After the death of Alhaji Ibrahim Atanyi in 1994, one Orume Alaga, the Ogolosuko (the Makongiji of Obi) took over the custody of the stool. After his demise, the 2nd person in rank Osuga (Moyi) took over and after the death of Osuga the 4th Defendant as the next in rank. In 1994 the appellant attempted to occupy the palace of Osuko, which resulted in serious unrest in Obi village, which culminated in violence. He was removed from the town and taken to Jos. On his return he was appointed as the District Head of Obi. It was the appellant’s contention that the 4th respondent was improperly and irregularly appointed to oversee the affairs of obi and that he had usurped his functions and privileges as Osuko of Obi. He instituted an action before the Nassarawa State High court for redress. As a result of the suit filed he was suspended from office. He contended that his suspension violated his constitutional right of access to justice and fair hearing. He also contended that he was discriminated against because when additional chiefdoms were created in Nassarawa state with 3rd class status, he was the only one not elevated to 3rd class status. He was aggrieved and therefore filed the suit that gave rise to this appeal before the Nassarawa State High Court, Lafia.
The respondents contended that the appellant was never elected Osuko of Obi and remained at all times the village head. They also rejected the claim that village head and Osuko mean one and the same thing. They contended that the positions are separate and distinct and that the appellant was not entitled to his claims. They also contended that there was no existing vacancy for the appellant to fill at the time he was elected as village head.
At the conclusion of the trial, and after hearing the addresses of learned counsel, the learned trial Judge in a considered judgment delivered on 4/8/06 dismissed the appellant’s claims. Being dissatisfied with the decision he filed a notice of appeal containing nine grounds of appeal. All the parties herein filed and exchanged briefs of argument in compliance with the Rules of this Court. The appellant’s brief settled by JOHN ABIMIKU MATHEW ESQ., is dated 16/3/09 and filed on 17/3/09. The 1st – 3rd respondents’ brief settled by ROTIMI OGUNESO ESQ., is dated 23/10/09 and filed on 26/10/09. It was deemed filed on 7/12/2010. The 4th respondent’s brief settled by HASSAN M. LIMAN ESQ., is dated 29/9/09 and filed on 30/9/09. It was deemed filed on 16/10/09.
At the hearing of the appeal on 2/6/2011, A.S. ANZEWU adopted and relied on the appellant’s brief and urged the court to allow the appeal. ROTIMI OGUNESO ESQ., with I.I. EDO adopted and relied on the 1st – 3rd respondents’ brief while H.M. LIMAN ESQ, with A.M. IMAM adopted and relied on the 4th respondent’s brief. They urged the court to dismiss the appeal. In addition, Mr. Liman drew the court’s attention to the fifth issue formulated by the 4th respondent, which was inadvertently omitted from the issues set out at page 3 of the brief but dealt with at pages 18 – 22 of the brief.
The Appellant formulated six issues for determination as follows:
a. Whether the lower court was right when it held that the name “OSUKO” in Alago dialect was not synonymous to village head in English (Grounds 2).
b. Wether the lower court was right when it held that at the time the appellant was elected, he was never elected as the Osuko of Obi but the village head (Grounds 1, 4 and 7).
c. Are the 1st – 3rd respondents not estopped from denying that the appellant is the Osuko of Obi (Ground 8).
d. Was late Ibrahim Atanyi still the Osuko of Obi at the time of his death in 1994 (Grounds 3).
e. whether the claim before the lower court was statute barred (Ground 5).
f. Whether the 1st – 3rd respondents can seek refuge under the Public Officers Protection Act with respect to the suspension of the appellant (Ground 6).
The 1st – 3rd respondents formulated three issues for determination:
1. Whether the plaintiff adduced credible evidence to prove that he was at any time elected as the Osuko of Obi. If the answer is in the negative, was the trial court not justified in dismissing the plaintiff’s claim?
2. Having regard to the plaintiff’s statement of claim and the evidence adduced before the trial court, was the Plaintiffs claim barred by statute as held by the learned trial Judge.
3. Whether from the entire circumstances of this case the 1st – 3rd respondents are entitled to rely on or seek protection under the Public Officers Protection Law?
The 4th respondent formulated five issues for determination:
1. Whether in view of the clear and unambiguous contents of Exhibits 27, 31A and 31B vis-a-vis the available evidence before the trial court the stool of Osuko is the same as that of a Village Head. (Ground 2)
2. Whether the trial court was right when it held that the appellant was elected/appointed as a Village Head of Obi not as Osuko of Obi. (Grounds 1 & 4).
3. Whether the contents of Exhibit 18 which created the title of Osagye vis-a-vis the referral of Ibrahim Atanyi as Osagye derogate from his election and appointment as Osuko of Obi (Ground 3).
4. Whether the correspondences in Exhibits 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 19 and 20 without can vest the title of Osagye on the late Ibrahim Atanyi thereby taking away his official status as the Osuko of Obi. (Grounds 7 & 8).
5. Whether the appellant’s claim before the trial court was not caught up by statute of limitation. (Grounds 5 & 6).
In his brief of argument, learned counsel for the appellant argued issues 1, 2 and 3 together. The 1st – 3rd respondents’ first issue encompasses the appellant’s issues 1, 2 and 3. The 4th respondent’s issues 1 and 2 also encompass the appellant’s issues 1, 2 and 3. I adopt the 1st – 3rd respondents’ first issue with a slight modification and the appellant’s issues (d) – (f) (referred to in the brief as issues 4, 5 and 6) for the resolution of this appeal. The issues for determination are thus:
1. Whether the plaintiff adduced credible evidence to prove that he was at any time elected as the Osuko of Obi.
2. Was late Ibrahim Atanyi still the Osuko of Obi at the time of his death?
3. Whether the claim before the lower court was statute barred.
4. Whether the 1st – 3rd respondents can seek refuge under the Public Officers protection Act with respect to the suspension of the appellant.
Issue 1
Whether the plaintiff adduced credible evidence to prove that he was at any time elected as the Osuko of Obi.
In arguing this issue, learned counsel for the appellant, John Abimiku Matthew Esq. referred to the appellant’s pleading in reply to the respective statements of defence filed by the 1st – 3rd and the 4th respondents to the effect that the position of Osuko of Obi is the same as that of Village Head of Obi; that the positions had never been held by two different persons; and that the title Village Head in English is the equivalent of Osuko in Alago dialect. He also referred to the evidence of PW4 and pw6 in this regard. PW4 was chairman of Obi Local Government from 1991 to 1993. The appellant testified as PW6.
He referred to Exhibits 8, 19 and 22 and observed that in Exhibit 8, a document made in 1994 and addressed to the Director General, Local Government and chieftaincy Affairs, Deputy Governor’s Office, Plateau State (from which state Nassarawa State was carved out), the word “Osuko” was used immediately proceeding the words “village head of Obi.’ He noted that Exhibit 19, the composition of Plateau State Council of Chiefs, a Publication made in 1992 by the Plateau State Government, on page 17 Serial No. 2 the appellant’s name featured under the caption, Name of village/Ward Head in Obi Local Government Council: Village Head. He noted further that under the column for title the word “Osuko” was used as the title of the Village Head of Obi. He also observed that in Exhibit 22, a letter written on behalf of the Secretary to the plateau state Government on 13/9/94 and addressed to the chairman of Obi Local Government Management Committee, the heading and body of the letter referred to the appellant as “Village Head (Osuko of Obi)”. He submitted that having been referred to and held out as the Osuko of Obi in Exhibits 19 and 22, it is too late to deny his status. In support of this proposition he relied on section 151 of the Evidence Act and the case of: Iga & Ors. vs. Amakiri & Ors. (1976) 10 NSCC 610 @ 616; Nsirim vs. Nsirim (2002) W.R.N. 1 @ 17 – 18 Per Iguh, JSC; (2002) 3 NWLR (755) 697. He submitted that the 1st – 3rd respondents as successors or representatives in interest of the then Plateau State Government from which Nassarawa State was carved out are bound by the actions of the former Government.
He argued that based on these documents, there was sufficient evidence for the learned trial Judge to hold that village head and Osuko mean one and the same thing. He contended that the learned trial Judge was wrong to rely on Exhibits 26, 27 and 28 to determine that village head was not synonymous with Osuko at the time the appellant was elected. He gave a brief summary of the history of the stool of Obi from the election of Ibrahim Atanyi as the 34th village head of Obi or Osuko of Obi in 1960 to the creation of the new 4th class chiefdom comprising Obi Village Area and five others (the fifth eventually opting out) of which he was the head, the agitation of the various villages that Ibrahim Atanyi could not use the title of Osuko of Obi in his new status, the setting up of a panel of inquiry under the then Deputy Governor of Plateau State; the resulting Government white paper giving the ruler of the new chiefdom the title Osagye and setting out a mode of selection, different from the mode of selection for a village head. Learned counsel submitted that the appointment of Ibrahim Atanyi as a 4th class chief created a vacancy for the village head or Osuko, which was filled by the election of the appellant. He stated further that while the controversy over Ibrahim Atanyi as title lasted, even though he was exercising the functions of the 4th class chief over a larger chiefdom he continued to use his old title of Osuko, which explains why he was still being addressed and referred to as such in Exhibits 26, 27, 28 and 29. He contended that once the issue of his title was resolved, Ibrahim Atanyi referred to himself and was addressed as Osagye of Obi. He referred to Exhibits 2, 3, 4, 5, 6, 8, 9, 10 and 19, which were tendered and admitted without objection. He noted that with the exception of Exhibit 19, the other exhibits were tendered from the 1st – 3rd respondents’ custody pursuant to a subopoena. He rejected the finding of the learned trial Judge at page 208 that the appellant was elected as village head simpliciter, notwithstanding the finding that four out of five of the kingmakers who normally select the Osuko of Obi participated in the appellant’s election. He argued that the learned trial Judge erroneously relied on the evidence of DW2, a civil servant with Obi Local Government regarding the participation of one Sarkin Pada who was not a kingmaker in the exercise rather than the uncontroverted evidence of PW5 at page 103 of the record that he was one of the kingmakers who participated in the appellant’s election and that the election was for the stool of Osuko of Obi.
He argued that the mere fact that one of the five kingmakers was not a traditional kingmaker of the stool of Osuko of Obi was not sufficient to vitiate the election. He argued that although no specific quorum was provided, four out of five kingmakers were sufficient to conduct the election process. He relied on the case of: Ibrahim vs. Aliyu (2000) FWLR (7) 1081 @ 1098 C – D.
Rotimi Oguneso, Esq., on behalf of the 1st – 3rd respondents submitted that the burden of proof of his claims rested on the appellant, he relied on Sections 135 – 137 of the Evidence Act and cited various authorities in support. He noted that the appellant relied on the evidence of PW4, PW5 and his own evidence as PW6 in addition to Exhibits 6, 8, 19 and 22. He observed, as noted by the learned trial Judge at page 209 of the record, that the appellant was not referred to as the Osuko of Obi in Exhibit 6, the handing over note from Ibrahim Atanyi dated 16/3/93.
He submitted that none of the exhibits individually or collectively proved that he was elected as Osuko of Obi or that village head and Osuko are synonyms. He argued that Exhibits 26, 27 and 28 are very damaging to his case. He referred particularly to Exhibit 28, which is a letter written by the appellant and addressed to Ibrahim Atanyi wherein the Plaintiff referred to himself as Village Head of Obi and addressed Ibrahim Atanyi as Osuko of Obi. He submitted that it amounts to admission against interest. He referred to the learned trial Judge’s evaluation of the said exhibits at pages 207 – 209 of the record and submitted that His Lordship rightly concluded that notwithstanding the oral testimony of PW4, PW5 and PW6, the documents revealed that the appellant was elected as village head simpliciter and the title of Osuko never featured alongside the village head. He also agreed with the finding that from 1985 when the appellant was selected as village head to 1990 when the name of Osuko was changed to Osagye, the appellant was never an Osuko. He submitted that an appellate court would not ordinarily interfere with findings of fact by the lower court unless such findings are perverse. He relied on: Ebba Vs Ogodo (1984) 1 SCNLR 372 @ 378; Nwokoro Vs Nwosu (1994) 4 NWLR (337) 172 @ 180 – 187; Eseigbe Vs Agolor (1993) 9 NWLR (316) 128 @ 142. He submitted that the appellant has not shown that the findings are perverse.
He urged the court to discountenance the reason proffered by learned counsel for the appellant at paragraphs 5.5 – 5.6 at pages 17 – 18 of his brief as to why the appellant was not using the title Osuko, as it was not borne out by the evidence before the court. He submitted that such evidence ought to have come from the witnesses and not the address of learned counsel. He submitted that address of counsel no how brilliant cannot take the place of evidence. He referred to: Obasuyi Vs. Business Ventures Ltd. (2000) 5 NWLR (658) 668 @ 690; Yoye vs. Olubode (1974) ALL NLR 657 @ 661. He submitted that learned counsel’s submissions must be based on evidence before the court. See Ikpo vs. The State (1995) 9 NWLR (421) 540 @ 551. With regard to the contention that the appellant’s selection as Osuko was valid notwithstanding the fact that one person, Sarkin Pada was not qualified to participate in the exercise and reliance on the case of Ibrahim vs Aliyu (supra), Mr. Oguneso submitted that the fact of the election of the appellant was not in dispute. That what was in issue was whether he was elected as village head or Osuko of Obi. He contended that the learned trial Judge correctly found that if a person who is not qualified participated in the selection of the appellant (Sarkin Pada), then the exercise could not have been for Osuko but for village head. He argued that this view is in keeping with other evidence before the court such as the appellant’s letter of appointment and his recognition of Ibrahim Atanyi as Osuko of Obi at the material time. He submitted that the decision in Ibrahim Vs Aliyu (supra) is not applicable to the facts of this case.
With regard to the contention that the upgrading of the Obi chiefdom to a 4th class chieftaincy created a vacancy in Obi, he submitted that the only vacancy that occurred was that of a village head whose duty it was to assist in the collection of taxes. He argued that this explains why in Exhibit 6 Ibrahim Atanyi handed over only tax documents to the appellant and not the stool of Osuko. He referred to the appellant’s contention that because certain Government officials had referred him to as Osuko at a certain period the 1st – 3rd respondents were estopped from denying that he is Osuko and submitted that the Government officials have no power to unilaterally make the appellant an Osuko, especially where it has been shown that the stool was not vacant. He referred to the observation of the learned trial Judge at page 211 of the record. He submitted that the fact that Ibrahim Atanyi was at a time being addressed as Osagye could not amount to proof that the appellant was elected as Osuko of Obi.
Hassan Liman Esq., learned counsel for the 4th respondent submitted that in determining whether the stool of Osuko of Obi is the same as village head of Obi, the relevant exhibits are Exhibits 27, 31A and 31B. He submitted that Exhibit 27 dated 10/8/88 is the appellant’s letter of appointment as the Village Head of Obi. He observed that pursuant to Exhibit 15, which graded the Obi Chiefdom, Ibrahim Atanyi took the oath of office per Exhibit 31A as “Osuko of Obi 4th class chief”. He contended that Exhibit 31A did not derogate from his status as the Osuko of Obi but merely gave him the additional privilege of being graded to 4th class status with additional villages under him. He submitted that Exhibit 318, the instrument of appointment recognized his appointment and status as Osuko of Obi, elevating him from the status of District Head to 4th class chief. He submitted that it was only after the grading of Ibrahim Atanyi to 4th class status that the appellant was selected as village head to assist in the collection of taxes. He submitted that Exhibits 27, 28 and 29 buttress this fact. He submitted that it was clear from Exhibit 28 that the position of Osuko of Obi and Village Head are different. He urged the court to uphold the finding of the learned trial Judge in this regard.
With regard to Exhibits 8, 19 and 22 Mr. Liman made submissions similar to those made by Mr. Oguneso to the effect that Exhibits 19 and 20 could not transform the appellant from village head to Osuko. He observed that Exhibit 22 is a response to Exhibit 21 wherein the appellant described himself as village head/Osuko of Obi. He noted that Exhibit 20 was a query issued to the appellant on behalf of the Chairman Obi Local Government wherein he was referred to as “Mr. Yusuf Agyose Abisabo Madaki, Village Head of Obi”. He contended that it was when the appellant was replying to the query vide Exhibit 21 that he designated himself village head/Osuko of obi. He argued that consequently Exhibit 22 merely repeated the description the appellant used in his reply. He maintained that the salient document is Exhibit 27, the appellant’s letter of appointment, which clearly shows the position to which he was appointed. He maintained that the need for the appointment of a village head to assist in the collection of taxes arose as a result of the grading of obi chiefdom to 4th class status. He referred to the evidence of DW1 and DW2 and Exhibit 26, the programme for the official installation and turbanning of the appellant as Village Head (Dagaci) of obi by HRH the Osuko of Obi, Alhaji Ibrahim Atanyi. He submitted that Exhibit 26 clearly shows that the two positions are separate. He also argued that the authority of Ibrahim vs Aliyu (supra) is not applicable to the facts of this case. He referred to Exhibit 25, which declared the stool of Osuko of Obi vacant and appointed Moyi of Obi to hold the stool of Obi in accordance with the custom and tradition of the area and noted that the appellant’s position as village head was reiterated therein as subsisting. He referred to the appellant’s evidence at page 115 of the record where he stated that after the death of Ibrahim Atanyi, Makongiji and Moyi (in that order) were appointed to hold the stool of Obi in trust and that they were working together. Learned counsel argued that the appellant’s confirmation of the fact that these persons held the stool in trust after the death of Ibrahim Atanyi while he, who claimed to be the Osuko was still alive, makes nonsense of his claim.
In order to properly appreciate the issues in controversy I deem it expedient to provide a timeline for the various events that culminated in the suit before the lower court. Having given a rather exhaustive review of the facts earlier, the timeline will be brief in terms of particulars.
. 1960: Alhaji Ibrahim Atanyi elected 34th Osuko of Obi.
.1981: Obi chiefdom upgraded to 4th class status with 5 additional villages added. (See Exhibit 16)
. 1985: Appellant elected Village Head. (See Exhibit 27)
. 1986: Commission of Inquiry set up by the Plateau State Government to look into complaints regarding Ibrahim Atanyi’s use of the title Osuko of Obi in respect of the upgraded chiefdom.
. 1991: Gazette issued by Plateau State Government (Appointment of Osagye of Obi Order) (See Exhibit 18)
. 1992: publication of composition of Plateau State Council of chiefs (Exhibit 19)
. 1993: Handing over note of tax materials to village head of Obi, Yusufu A. Madaki by Ibrahim Atanyi, Osagye of Obi. (Exhibit 6)
. 1994: Death of Ibrahim Atanyi; appellant’s attempt to occupy palace of Osuko, sent to Jos for 4 months; appellant later permitted to return (see Exhibit 22); on his return appellant upgraded to District Head; after the death of Ibrahim Atanyi’ Orume Alaga and thereafter Osuga appointed to oversee the affairs of Osuko of Obi.
. 1999: Abrogation of obi chiefdom; stool of obi declared vacant; appellant’s position as Village Head reiterated and unaffected by the abrogation; setting up of Judicial commission of Inquiry by Nassarawa State Government. (Exhibit 25)
. 2003: creation of 27 additional chiefdoms in Nassarawa State with 3rd class status including Obi chiefdom. Appellant not given status of 3rd class chief.
. 24/6/2003: 4th respondent appointed to oversee affairs of Osuko of Obi
. 2004: Appellant instituted action (suit no’ NSD/LF2/2004 see paragraph 25 of amended statement of claim) before the High Court of Nassarawa State challenging the appointment of 4th respondent among other reliefs.
. 22/4/2004: Appellant suspended from office.
. 19/10/04: Appellant filed suit no NSD/LF79/04 before Nassarawa State High Court leading to this appeal.
The first issue raised by the appellant is that his appointment as village head in 1985 was to fill the vacancy created by the upgrading of the obi chiefdom to 4th class status with additional villages under it and the elevation of Ibrahim Atanyi to the status of 4th class chief. He also contends that village head and Osuko mean the same thing, as village head is Osuko in Alago dialect. Paragraphs 8 and 11 of the amended statement of claim, paragraph 4 (i) and (ii) of the reply to 1st – 3rd defendants’ statement of defence and paragraph 4 (i) and (ii) of the reply to 4th defendant’s statement of defence are apposite.
They are reproduced below:
Amended Statement of Claim
Paragraph 8: “That in 1985 the position of Osuko (Village Head) of Obi was declared vacant and after a valid selection exercise on 10/3/55 the Plaintiff emerged winner with three votes cast out of five. The letter from the Local Government declaring the seat of Osuko (Village Head) vacant and the minutes of the meeting of the Lafia Local Government Emirate Council are pleaded.
Paragraph 11: On 10th August, 1988, the plaintiff received a letter of Notification of Appointment as well as offer of Appointment as Village Head of Obi, consequent upon which the plaintiff was turbaned as the Osuko (Village Head) of Obi by the paramount ruler, Alhaji Ibrahim Atanyi.
Reply to 1st – 3rd defendant’s joint statement of defence
Paragraph 4: in reply to paragraphs 5, 7, 8 and 9 of the defence, the plaintiff avers:
(i). “That the position of Osuko was not different from that of the Village head of Obi and at no time in history were the positions occupied by two different persons, The plaintiff pleads the recommendations and Plateau State Government white paper on the definition of some chieftaincy titles.
(ii) That the title “village head” is in English while the equivalent in Alago dialect is Osuko, as rightly narrated in the biography of Alhaji lbrahim Atanyi, which is pleaded.”
The pleading in paragraph 4 (i) and (ii) of the reply to 4th defendant’s statement of defence is in pari materia with paragraph 4 reproduced above,
As submitted by learned counsel for the 1st – 3rd respondents the law is that he who asserts must prove. In civil cases, the burden of first proving the 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 pleading. See Sections 135 – 137 of the Evidence Act. It is also trite that the burden of proof of particular facts shifts from side to side throughout the proceedings until all the issues in contention have been dealt with. See Section 139 of the Evidence Act. See: Agbaje Vs Fashola (2000) 6 NWLR (1082) 90 @ 141; Onobruchere vs Esegine (1986) 1 NWLR (19) 799.
On this issue, learned counsel for the appellant rejected the finding of the learned trial Judge at pages 207 – 208 of the record and drew our attention to Exhibits 8, 19 and 22 on the one hand and Exhibits 26, 27, 28 and 29 on the other. He urged us to prefer Exhibits 8, 19 and 22 as proof that Osuko and village Head are the same.
Bearing in mind the fact that the Obi chiefdom was upgraded to 4th class status in 1981 via Exhibit 16, with five villages added thereto thus expanding the jurisdiction of Alhaji Ibrahim Atanyi, I am of the view that the appropriate starting point for a determination of this issue is the appellant’s notification and offer of appointment referred to in paragraph 11 of the amended statement of claim, which was issued subsequent to his election in 1985. It was admitted in evidence as Exhibit 27. It is dated 10/8/88 and notifies the appellant of his appointment as “Village Head Obi” with effect from 27/7/88 on salary grade level 05. In the same paragraph 11 he averred that pursuant to Exhibit 27 he was turbanned as the Osuko (Village Head) of Obi by the paramount ruler, Alhaji Ibrahim Atanyi. The programme for his official installation, swearing in and turbanning was admitted in evidence by consent of the parties as Exhibit 26. The cover page of Exhibit 26 reads:
“PROGRAMME
FOR THE OFFICIAL INSTALLATION, SWEARING IN AND TURBANNING OF THE VILLAGE HEAD (DAGACI) OF OBI
MALLAM YUSUFU AGYOSE ABISABO MADAKI
BY
HIS ROYAL HIGHNESS, THE OSUKO OF OBI
ALHAJI IBRAHIM ATANYI
ON SATURDAY 3RD DECEMBER 1988”
At page 14 of the programme some of the events listed are:
“9.00a.m. Arrival of Village Head of Obi, Mr. Yusufu Agyose Madaki amidst kingmakers.
9.10a.m. His Royal Highness, the Osuko of Obi arrive. (sic)”
It is prima facie evident from these two exhibits that the Appellant was elected, installed, sworn in and turbaned as Village Head of Obi. While he maintains that he was elected Village Head (Osuko). Exhibit 26 shows that his installation ceremonies were performed by Ibrahim Atanyi in his capacity as Osuko of Obi. Prior to Exhibit 26, the appellant had written a letter to “The Osuko of Obi, Alhaji Ibrahim Atanyi, Osuko’s palace, Obi” dated 10/9/88 (Exhibit 28) requesting a date for his swearing in and turbanning ceremony “as the village head of Obi”. Alhaji Ibrahim Atanyi, Osuko of Obi replied via Exhibit 29 dated 18/10/88, which was addressed to “Mallam Yusufu A. Madaki, Village Head, Obi” communicating the swearing in date of 3/12/88. So in 1988 three years after his alleged election as Osuko (Village Head) he still recognised and addressed Ibrahim Atanyi as Osuko of Obi. It is also pertinent to note that when Ibrahim Atanyi was installed and presented with his staff of office as a 4th class chief in 1983 (the reason for the vacancy according to the appellant), he was described in the programme as “His Highness the Osuko of Obi”. See Exhibit 24. In Exhibits 31A (oath of office) and 318 (instrument of appointment) both dated 11/6/83, Ibrahaim Atanyi took his oath of office as 4th class chief and received his instrument of office as Osuko of Obi. The learned trial Judge, correctly in my view held that up to 1988 there was no evidence to suggest that the appellant was anything other than Village Head simpliciter.
On the other hand it is the 1st – 3rd respondents’ contention that the elevation of Ibrahim Atanyi to 4th class status and the expansion of his area of jurisdiction created the need for a village head to assist in tax collection. They placed reliance on Exhibit 6, the hand-over note from Alhaji Ibrahim Atanyi, Osagye of Obi “to the Village Head of Obi, Mr. Yusufu A. Madaki – today 15th day of March, 1993”. Page 2 of Exhibit 6 indicates that only tax materials were handed over in the exercise. This would appear to buttress the position of the respondents.
The learned trial Judge at pages 209 – 210 of the record held thus:
“The plaintiff avers that under Obi native law and custom only one person can occupy the position of Osuko (village head of Obi) at a particular time and as Alhaji Ibrahim Atanyi has become the Osagye of Obi, he ceased to be the Osuko of Obi as he was no more the village head of Obi. When cross-examined by the learned counsel for the 1st – 3rd defendants he stated “In the history of Obi there has never been two Osuko’s at a time”.
Going by the deposition in paragraph 15 of the plaintiff’s statement of claims and the plaintiff’s answers when he was cross-examined, it will be contradictory for him to say he has been elected as Osuko since he acknowledge (sic) the authority of Alhaji Ibrahmi Atanyi as Osuko of Obi when he installed him as the village head on 3rd December, 1988. I therefore hold the view that from 1985 when the plaintiff was elected as a village head to 1990 when the name of Osuko was changed to Osagye, the plaintiff was never an Osuko.
That being the case, when did the plaintiff become Osuko of Obi? In an answer to the question put to him by the learned counsel for the 1st – 3rd defendant, he said that apart from the election of 1985, he had never undergone any election again. The plaintiff is however laying claim to Exhibit 6, 19 and 22 to say he is an Osuko of Obi…”
His Lordship examined Exhibit 6 and held thus:
“In this Exhibit there is no where shown the handing over was to a village head/Osuko of Obi but the village head of Obi simpliciter, This Exhibit is therefore of no help to the plaintiff.”
His Lordship equally examined Exhibits 19 and 22 and came to the conclusion that neither of them advanced the appellant’s case. I have carefully examined these exhibits. The contention of the appellant is that he was referred to therein by 1st-3rd respondents as Village Head (Osuko) and they are therefore estopped from denying his status. Exhibit 19 is the Composition of Plateau Sate Council of Chiefs published in 1992. At page (iii) serial no. 18, Alhaji Ibrahim Atanyi is mentioned as Osagye of Obi, 4th class status of Obi with his year of appointment as 1983. The appellant is referred to at page 17 serial no. 2 as Osuko with his date of appointment as 27/7/88. As rightly pointed out by the learned trial Judge, 27/7/88 was the date of his appointment as village head as contained in Exhibit 27. On this, the learned trial Judge at page 210 of the record held:
“By this exhibit a person can see that the plaintiff was mentioned as Osuko but in Exhibit 28 the plaintiff himself wrote a letter to Alhaji Ibrahim Atanyi and addressed him as Osuko of Obi, the letter dated 10/9/1988 wherein he called himself as the village head. This therefore means by 27/7/88 the plaintiff could not have been Osuko of Obi since there cannot be two Osuko of Obi at the same time. He was installed as the village head by Exhibit 26 on 3/12/95 as a village head by the Osuko of Obi. This Exhibit 19 therefore cannot avail the plaintiff”.
The learned trial Judge reproduced Exhibit 22, a letter dated 13/9/94 addressed to the chairman, Obi Local Government Management Committee with heading: “Re – Issue of the Village Head (Osuko of Obi) Mallam Yusuf Agyose Madaki” stating that the Military Administrator, Lt. Col. Mohammed Manna had approved that “the village head (Osuko) Yusuf Agyose Madaki should now return home please”. It was signed by S.J. Dachor, Director General for the Secretary to the State Government.
His Lordship held at page 211 of the record:
“The maker of the letter Exhibit 22 who is PW3 said the document came as a result of instruction of his boss, the Secretary to the State Government. The question is whether by the 13/9/94 the Secretary to the State Government can confer the title of Osuko on the plaintiff without him being elected as such by Osuko’s kingmakers? I answer in the negative because the government cannot confer such traditional title on the plaintiff without being elected as such by the kingmakers. His election shows he was elected as a village head in 1985 and he has not undergone any subsequent election again for that purpose”. (Emphasis mine)
Section 151 of the Evidence Act, relied upon by the appellant in relation to Exhibits 8, 19 and 22 provides:
“When one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representatives in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest to deny the truth of that thing”.
All the parties agree that the position of Osuko is an elective position. In my humble view, the question that arises is whether this section is applicable in the circumstances of this case? There is no doubt that the Nassarawa state Government referred to the appellant interchangeably as village head and village head (Osuko). However can such reference without more usurp the election process? I think not. I am of the humble view that Section 151 of the Evidence Act is not applicable in chieftaincy matters where positions are elective.
This is a case in which the plaintiff had the burden of establishing that his election in 1985 was to the position of Osuko. Having acknowledged the authority of Ibrahim Atanyi in 1988 as the Osuko of Obi, the appellant had the onus of proving when and how he became the Osuko thereafter. I agree with the learned trial Judge that Exhibits 19 and 22 could not serve that purpose. Furthermore I agree with the submission of learned counsel for the 4th respondent regarding the genesis of Exhibit 22. The appellant was issued a query (Exhibit 20) dated 27/5/94 by the Obi Local Government Council. It was addressed to him as village Head of Obi. In replying to Exhibit 20 the appellant in Exhibit 21 wrote his address at the top of the letter as “The Village Head/Osuko of Obi, P.O. Box 3 – Obi, Obi L.G.” and signed the letter as “The Osuko/Village Head of Obi”. It was in reaction to Exhibit 21 that the Bureau for political and Local Govt. Administration wrote Exhibit 22 dated 13/9/94 addressed to the chairman, Obi Local Government Management committee with the heading: “RE: Issue of Village Head (Osuko of Obi): Mallam Yusufu Agyose Madaki”. It does not constitute proof that he was elected Osuko of Obi.
I have averted my mind to the evidence of PW5, Abdullahi Maiga, the Waziri of Osuko who testified at page 104 of the record that he is one of the five kingmakers of Obi and that he participated in the appellant’s selection as Osuko of Obi and that the appellant emerged the winner. He testified thus:
“There was the need for an election because Ibrahim Atanyi was leaved (sic) to the status of 4th class chief. The jurisdiction of the 4th class chief covers Adudu, Agwatashi, Obi, Daddare and Riri”.
Learned counsel for the appellant submitted that this evidence was uncontroverted and ought to have been accepted by the court. In light of the plethora of documentary evidence before the court, the court had a duty to weigh it against the oral evidence led. If the documentary evidence contradicts the oral evidence led, it cannot be said that the evidence was uncontroverted. Exhibits 26, 27, 28 and 29 contradict the evidence of PW5 that the election was for that of Osuko. Moreover there was evidence before the court that one of those who participated in the exercise, Sarkin Pada was not one of the five kingmakers qualified to select an Osuko. Relying on the authority of Ibrahim V. Aliyu (2000) FWLR (7) 1081 @ 1092, learned counsel for the appellant argued that this fact was not sufficient to vitiate the exercise.
I have read the authority and I am of the view that it is not applicable to this case. In that case the respondent as plaintiff at the trial court challenged the selection and appointment of the respondent as defendant as the Oriye Rindre of Wamba in Akwanga Local Government Area of the then Plateau State. The quorum for selection as provided in the applicable law was seven. On the day of selection ten of the eleven selectors were present. The appellant had seven votes while the respondent had three. The respondent challenged the eligibility of three of the seven kingmakers/selectors who voted for the appellant on the ground that they were not the rightful representatives of their families. The trial Judge held that there was substantial compliance with the law, that their eligibility was not successfully challenged and that even if the three votes were deducted the appellant would still have won by a majority of votes. The respondent successfully appealed to the Court of Appeal, which nullified the exercise. The appellant appealed against this decision to the Supreme Court, which allowed the appeal and held that the election was held in substantial compliance with the applicable law.
In the instant case the respondents did not contend that the appellant’s election was invalid. Their contention was that the election that took place wherein one of the electors was not qualified to participate in the election of an Osuko suggested that the election could not have been for an Osuko but for a village head. The learned trial Judge agreed with this submission. The argument finds support in Exhibit 27, the appellant’s notification of appointment as Village Head and his subsequent recognition of Ibrahim Atanyi as the Osuko after his election vide Exhibits 26, 27 and 28. More damning in my view is the appellant’s evidence at page 116 of the record where he stated under cross-examination:
“The letter of my appointment was in 1988. I was given the letter. The letter of appointment was written Mallam Yusuf Agyose Madaki c/o the Osuko of Obi Osuko Palace Obi. 1888 (sic) I was a village head. … After the death of Ibrahim Atanyi Makongiji was given in trust to hold Obi but we were working together. After the death of Makongiji Monji (sic) was given consent to hold Obi in trust but we were working together. After the death of Monji 4th defendant the Madauchi was given Obi to hold it in trust. And that is why I am here. When I was to perform my ceremony as the village head, in the installation programme put Ibrahim Atanyi as the Osuko of Obi and myself as the Village Head. By 1988 I still recognised Ibrahim Atanyi as the Osuko of Obi. I never heard during the reign of Monde that the stool was declared vacant”.
(Emphasis mine)
Despite the appellant’s contention that the appointment of the 4th respondent as custodian of the stool of Obi was against Obi native law and custom, he admitted working with two previous custodians who were appointed after the death of Ibrahim Atanyi in 1994. The question that arises is why were custodians being appointed to hold the stool of Obi in trust when he was alive and purportedly the Osuko? And why did he not protest when the first two custodians were appointed? Rather he worked with them. Even though he challenged the 4th respondent on the basis that he was not eligible to hold the stool in trust because he was not a kingmaker of Obi, having been appointed by Ibrahim Atanyi when the latter was Osagye of Obi, the fact remains that the 4th respondent was the third person to be appointed custodian after the death of Ibrahim Atanyi. If the appellant was the Osuko at the time Atanyi died there would have been no reason for a custodian of the stool because in effect the Osuko was not dead.
For the reasons variously advanced in resolving this issue, I find no justification interfering with the findings of the learned trial Judge in this regard. The appellant failed to prove that Osuko and Village Head mean the same thing. He also failed to prove that he was at any time elected Osuko. This issue is accordingly resolved against the appellant.
Issue 2
Was late Ibrahim Atanyi still the Osuko of Obi at the time of his death?
Essentially this issue challenges the findings of the learned trial Judge that although Ibrahim Atanyi died as Osagye in fact he was not Osagye in law having not been elected to the position in accordance with the procedure set out in Exhibit 18.
Learned counsel for the appellant reiterated the facts and circumstances surrounding the elevation of Ibrahim Atanyi to the status of 4th class chief, the upgrading of Obi chiefdom to 4th class status with the addition of five villages, the controversy surrounding Ibrahim Atanyi’s continued use of the title Osuko of Obi after his elevation; and the panel of inquiry set up to look into the issue, which culminated in the issuance of Exhibits 17 and 18 and creation of the new title of Osagye of Obi. Learned counsel also reiterated the fact that the appellant was elected as Osuko to fill the vacancy created by Ibrahim Atanyi’s elevation and performed the duties of Osuko even though the latter continued to use the title of Osuko until the issue was finally resolved. He referred to the evidence of PW4, PW5 and PW6 and the cross-examination of DW1 and DW2 by Mr. Matthews at certain pages of the record. He submitted that the controversy over the title explains why in Exhibits 26, 27, 28 and 29 Ibrahim Atanyi was still being addressed as Osuko. He submitted that Exhibits 2, 3, 4, 5, 6, 8, 9, 10 and 19 show that after the matter was resolved Ibrahim Atanyi referred to himself as Osagye of Obi and no longer Osuko of Obi. He also referred to Exhibit B, the Obituary announcement stating that he died as Osagye of Obi. He referred to the view expressed by the learned trial Judge at page 197 of the record to wit:
“I therefore hold the view that Alhaji Ibrahim Atanyi died as Osagye but not in law as there no where shown he was sworn as Osagye or installed as such.”
He submitted that having found that Ibrahim Atanyi died as Osagye of Obi, it was not open to the learned trial Judge to determine the legality of his appointment on the premise that he was never so selected or installed in accordance with Exhibit 18, as the propriety of his appointment was not submitted for adjudication before the court. He submitted that as his appointment as 4th class chief preceded the enactment of Exhibit 18 he could not have been elected under it. He urged the court to hold that he died as the Osagye of Obi. Learned counsel for the 1st – 3rd respondents did not react to this issue.
Learned counsel for the 4th respondent submitted that the basis of the submissions on behalf of the appellant is the argument that the late Ibrahim Atanyi died as Osagye of Obi and had therefore ceased to be the Osuko of Obi before his demise and further that with the grading of Ibrahim Atanyi to 4th class status, a vacancy was created for the stool of Obi. He argued that irrespective of its nomenclature, the stool of Obi has its fount in the customs and historical values of the Obi people. He submitted that the evidence of the appellant at pages 113 – 114 of the record supports this contention. He submitted that after the Obi chiefdom and Ibrahim Atanyi were elevated to 4th class status in 1981, Ibrahim Atanyi still took his oath of office and received his instrument of office as Osuko of Obi. See Exhibits 31A and 31B. He submitted that Exhibit 18 only came into being on 1st January, 1990, long after the appellant claimed he was elected Osuko in 1985. He referred to Section 4 of Exhibit 18, which sets out the traditional selectors of Osagye of Obi, which includes the village head of Obi and noted that the appellant although claiming to be Village Head/Osuko admitted that he had never participated in the selection of an Osagye. He argued that Exhibit 18 contains clear provisions on the selection of an Osagye and that it did not contain any provision that automatically transformed Ibrahim Atanyi to an Osagye. He submitted that the title of Osagye could not have vested in Ibrahim Atanyi simply by admission, misconception of facts, or ignorance of the law. He referred to: N.B.C.I. V. Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (916) 617 @ 645 B – G; 646 B – G; 656 C. Exhibit 17 is the Plateau State Government white paper on the report of the Administrative Committee to review the definition of some chieftaincy institutions in the state. The findings and recommendations of the Committee with regard to the Obi chiefdom are contained at pages 21-25 thereof. At page 25 the Government accepted the Committee’s recommendation of the name and title of Obi chiefdom and Osagye of Obi respectively. It is not in dispute that pursuant to the acceptance of the recommendation the Government published Exhibit 18 (Appointment and Deposition of Chiefs (Appointment of Osagye of Obi) Order 1991 with commencement date of 1st January, 1990. Sections 3 and 4 provide:
3. “The Osagye of Obi shall be selected from the adult male descendants of the ruling houses of the five villages of: – (a) Obi
(b) Deddere
(c) Agwatashi
(d) Adudu
(e) Riri
4. The traditional selectors shall be the persons holding the offices of the Village Head of: –
(a) Obi
(b) Deddere
(c) Agwatashi
(d) Adudu
(e) Riri”
While there is evidence from Exhibits 2,3,4,5,6,8,9,10 and 19 that after the publication of Exhibit 18 the late Ibrahim Atanyi began to refer to himself and was addressed as Osagye of Obi, there was no evidence before the court that he was ever elected as such in accordance with the procedure set out in Exhibit 18. It seems to me, as observed by learned counsel for the 4th respondent, that there ought to have been a saving provision in the law recognising Ibrahim Atanyi as the first holder of the position by virtue of his elevation and the grading of the Obi chiefdom prior to the commencement of the law. There was none. He merely began to use the title after the law was passed. The appellant admitted that as village head he had not participated in the selection of an Osagye. I am therefore unable to disturb the finding of the learned trial Judge that Alhaji Ibrahim Atanyi died as Osagye in fact but not in law, not having been sworn in as Osagye or installed as such.
This issue is accordingly resolved against the appellant.
Issues 3 & 4
Whether the claim before the lower court was statute barred.
Whether the 1st – 3rd respondents can seek refuge under the Public Officers Protection Act with respect to the suspension of the appellant.
Learned counsel for the appellant referred to the appellants claims as per his amended writ of summons and the pleading in paragraphs 21 and 22 thereof. He submitted that the most important consideration in determining whether an action is statute barred is the time the cause of action accrued. On the meaning of cause of action he referred to: Adimora V. Ajufo (1988) 1 NSCC 1005 @ 1018 per Oputa, JSC. He submitted that in the instant case it was the appointment of the 4th respondent to oversee the affairs of Obi as a representative of the Osuko of Obi that led to the institution of the suit. He noted that the appointment was made on 24/6/2003 while the writ of summons was filed on 19/10/04. He also submitted that the appellant also challenged his suspension from office and noted that the letter of suspension (Exhibit 23) is dated 22/4/04. He submitted that the appellant clearly commenced his action within a period of 5 years as required by Section 18 of the Limitation Law of Nassarawa State.
With regard to the suspension of the appellant, learned counsel reproduced Exhibit 23 (the letter of suspension) and noted that the reason given for the appellant’s suspension was the fact that he had instituted an action in court against the Nassarawa State Government.
He submitted that the Public Officers Protection Law is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office and without legal justification. He submitted that abuse of office and bad faith are factors that deprive a party who would otherwise have been protected under Section 2 (a) of the Law. He referred to: Nwakwere V. Adewunmi (1966) 1 ALL NLR 129 @ 133 – 134; Lagos City Council V. Ogunbiyi (1969) 1 All NLR 297 @ 299; Offoboche V. Ogoja Local Government Council (2001) FWLR (68) 1051 @ 1067 F. He submitted that the appellant’s suspension was in breach of his fundamental right of access to court. He submitted that not even a court has the right to deprive a citizen of his right to seek legal redress in court. He referred to: Mobil Producing Nig. Un-ltd. V. L.A.S.E.P.A. (2000) FWLR 1202 @ 1215 E-G. He urged the court to hold that the Law does not avail the 1st-3rd respondent in this case.
In response to this submission, learned counsel for the 1st-3rd respondent, while agreeing with learned counsel on the determination of when the cause of action accrues, submitted that in the instant case, the cause of action arose on 16th March, 1999 as soon as the stool of Osuko was declared vacant.
On whether the 1st-3rd respondent could rely on the Public officer’s protection Law, learned counsel submitted that the appellant did not raise the issue of abuse of office at the lower court and cannot raise the issue before this court without leave. He referred to: Oshatoba V. Olujitan (2000) 5 NWLR (655) @ 171 – 172; Otukpo V. John (2000) 8 NWLR (669) 507; Newbreed Press Ltd. V. Jaiyesin (2000) 6 NWLR (622) 561.
He submitted without conceding that assuming the court could entertain the suit, the appellant did not plead bad faith, abuse of position or absence of justification. He referred to: Offoboche V. Ogoja Local Government (supra) @ 485 per Ayoola, JSC. He submitted that Exhibit 23 does not amount to abuse of office. He urged the court to uphold the decision of the lower court that the 1st – 3rd respondents were entitled to protection under the Law and that the appellant’s suit was caught by section 2 (a) of the Law.
Learned counsel for the 4th respondent submitted that the defence of limitation, once properly raised by a defendant and determined against a plaintiff has the effect of leaving the plaintiff with an empty and unenforceable right, no matter how good his claim might be. He referred to: Bakare V. N.R.C. (2007) 17 NWLR (1064) 606 @ 635 – 636 G – A. He urged the court to discountenance the authorities cited by learned counsel for the appellant and uphold the decision of the lower court.
Section 18 of the Limitation Law of Nassarawa state provides:
“No action founded on contract, tort, or any other action not specifically provided for in parts I and II of this Edict shall be brought after the expiration of five years from the date on which the cause of action accrued.”
In Adimora V. Ajufo (1988) 1 NSCC 1005 @ 1018, relied upon by learned counsel for the appellant the Supreme Court defined two important concepts: what is a cause of action? And when does it accrue? Oputa, JSC defined cause of action as “every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment.” His Lordship stated further, “the accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action.”
In Ojukwu V. Yar’dua (2009) 12 NWLR (1154) 50 @ 131 – 132 H – A, the Supreme Court per Niki Tobi, JSC identified two elements that constitute a cause of action, namely: (i) the wrongful act of the defendant which gives the plaintiff his cause of complaint; and (ii) the consequent damage.
I have considered the averments in the amended statement of claim, particularly paragraphs 21 and 22 thereof. In the said paragraphs the appellant pleaded thus:
21. On 24/6/2003 the 4th defendant was improperly and irregularly appointed to oversee the affairs of Obi as a representative of the Osuko of Obi on the grounds that he was the Madauci (Kingmaker) of Obi.
22. The plaintiff avers that the appointment is improper and contrary to the native law and custom of the people of Obi Local Government Area of Nassarawa State on the following grounds namely:
(i) The plaintiff who is the District Head/Osuko of Obi is still alive and cannot be represented by any person.
(ii) That the 4th defendant was not appointed as Madauci by the Osuko of Obi who is the only competent authority to appoint traditional kingmakers including the Madauci of Obi.
(iii) That at the time Alhaji Ibrahim Atanyi purported to have appointed the 4th defendant as traditional kingmaker or Madauci of Obi, Alhaji Ibrahim Atanyi was occupying the position of Osagye of Obi, and the Osuko had the sole prerogative of appointing traditional kingmakers for Obi.
(iv) That the 4th defendant was appointed as the Madauci by Alhaji Ibrahim Atanyi when he was the Osagye of Obi and the position being a creature of the Osagye ceased to exist when the Osagye chiefdom was abrogated on 13/9/99;
(v) That the chiefdom under the District/Osuko of Obi is smaller than the chiefdom under the Osagye of Obi who purportedly appointed the 4th defendant as the Madauci. Relevant documents pleaded.”
Although the appellant pleaded that it was the improper and irregular appointment of the 4th respondent that gave rise to his action before the court, a careful examination of the pleadings in the amended statement of claim reveals that his entire claim is based on his assertion that he is the Osuko of Obi and cannot be represented by anyone. In the circumstances, I am inclined to agree with learned counsel for the 1st – 3rd respondents that the appellant’s cause of action arose on 16/3/99 when the Obi chiefdom was abrogated and the stool of Osuko of Obi was declared vacant but the existing position of the appellant as village head was reiterated. The writ of summons and statement of claim filed on 19/10/04 were therefore caught by the Limitation Law with respect to the claim for a declaration that he is the District Head/Osuko of Obi. All the reliefs sought in paragraph 31 of the amended statement of claim except relief B are predicated upon the declaration sought in A. They are thus statute barred.
Section 2 (a) of the public officers protection Law cap. P41 Laws of the Federation of Nigeria 2004 provides:
2. “Where any action, prosecution or other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any Law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such law, duty or authority, the following provisions shall have effect: –
(a) The action or prosecution shall not lie or be instituted unless it is commenced within 3 months next after the act, neglect, default complained of or in the case of a continuance of damage or injury within 3 months next after the ceasing thereof”. It is not in dispute that the 1st – 3rd respondents are public officers to whom the Law applies. It is also not in dispute that the appellant was suspended from office on 22/4/2004 and that he filed his suit before the lower court on 19/10/2004 about five months thereafter and therefore outside the limitation period in section 2 (a) above. I have examined the record and I am satisfied that the issue of the circumstances when the public officer’s protection Law would not avail a public officer together with relevant authorities cited was fully ventilated by the parties at pages 134 and 147 thereof. I have considered the submissions of learned counsel regarding the circumstances under which a public officer would not be Protected under the Law.
The learned Jurist, Ayoola, JSC in Offoboche V. Ogoja Local Government (2001) 16 NWLR (739) 458 @ 485 A -D referred to earlier decisions of the Supreme Court regarding the purport of the Public Officers Protection Law. He referred to the dictum of Brett, JSC in Nwankwere V. Adewunmi (1966) 1 All NLR 129 @ 134 thus:
“The Law is designed to protect the officer who acts in good faith and does not apply to acts done in abuse of office and with no semblance of legal justification,”
He also referred to the dictum of Ademola, C.J.N. in Lagos City Council V. Ogunbiyi (1969) 1 All NLR 297 @ 299:
“… the Act necessarily will not apply if it is established that the defendant had abused his position for the purpose of acting maliciously. In that case he has not been acting within the terms of the statutory or other legal authority. He has not been bona fide endeavouring to carry it out. In such a state of facts he has abused his position for the purpose of doing a wrong, and the protection of this Act, of course, never could apply such a case”.
His Lordship, Ayoola, JSC continued at page 485 E – F as follows:
“Abuse of office and bad faith are factors that deprive a party who would otherwise have been entitled to the protection of section 2 (a) of the Public Officers (Protection) Law, of such protection, The burden is on the Plaintiff to establish that the defendant had abused his position or that he has acted with no semblance of legal justification. Evidence that he may have been overzealous in carrying out his duties or, that he acted in error of judgment, or in honest excess of his responsibility will not amount to bad faith or abuse of office. Abuse of office is the use of power to achieve ends other than those for which power was granted for example for personal gain, to show undue favour to another or to wreak vengeance on an opponent to mention a few”.(Emphasis mine)
Exhibit 23 reads:
“NASSARAWA STATE GOVERNMENT
OFFICE OF THE HONOURABLE COMMISSIONER MINISTRY FOR LOCAL GOVERNMENT AND CHIEFTAINCY AFFAIRS
MLGCA/S/DIS/II/V.I/116
State Secretariat
Shendam Road
P.M.B. 110 Lafia
Nassarawa State
Date: 22nd April, 2004
To Mr Yusuf Madaki
District Head of Obi,
U.F.S.
The Chairman
Obi Local Government,
Obi
SUSPENSION FROM OFFICE
Government is in receipt of a court summons instituted by you challenging the inclusion of Ibrahim Okposhi the Madauchi of Obi acting for Osuko in Obi Traditional Council.
2. Being a salaried District Head, Government viewed your action as an act of insubordination to your employer especially when you are aware that it was His Excellency the Executive Governor of the State who appointed the Madauchi to act in the office of the Osuko pending the appointment of a new Osuko at his inaugural speech for the panel set up to look into the protracted Osuko chieftaincy tussle.
3. Consequently you are to proceed on suspension pending the determination of your case before the law court. You are to hand over all government documents in your possession to the Chairman of the Local Government please.
Signed Dr. John D.W. Mamman,
Permanent Secretary,
For Hon. Commissioner.”
(Emphasis mine).
Section 6 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 provide for judicial powers to be vested in the courts established for the Federation and for the States as specified in subsection (5)(a) – (i) thereof. Section 6(6)(a) and (b) provide:
6. “The judicial powers vested in accordance with the foregoing provisions of this section –
(a) shall extend notwithstanding anything to the contrary in this constitution, to all inherent powers and sanctions of a court of law;
(b) shall extend to all matters between persons, or between government or authority and to 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.”
The Constitution therefore provides an inalienable right of access to court by any person against any other person or against the government to seek redress for the violation of his civil rights or obligations. Exhibit 23 clearly speaks for itself. The appellant was being punished for daring to take the Government to court. The suspension was no doubt calculated to deter any like-minded person from seeking legal redress for any wrong that might be done to him by the Government. The suspension of the appellant from office for seeking to exercise his constitutional right in my respectful view amounts to abuse of office and cannot be supported. As observed by Oguntade, JCA (as he then was) in Mobil oil Producing Unltd. vs L.A.S.E.P.A. (2000) FWLR 1202 @ 1215 E – G, even a court of law has no jurisdiction to make an order that would have the effect of depriving a citizen of his right of access to court. I am therefore of the view that the 1st – 3rd respondents were not entitled to the protection afforded by Section 2(a) of the Public Officers Protection Law. I hold that the appellant’s claim in paragraph 318 of his amended statement of claim was not caught by the said Law and ought to have been granted. Thus while issue 3 is resolved against the appellant, issue 4 is hereby resolved in his favour.
In conclusion, the appeal succeeds in part. The judgment of the High Court of Nasarawa State, Lafia in Suit NO: NSD/LF79/04 delivered on 4/8/06 is hereby affirmed in respect of the reliefs in paragraph 31A, C, D, E, F and G. The dismissal of the relief in paragraph 318 is hereby set aside. I accordingly grant same. The parties shall bear their respective costs in the appeal.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of o review in draft of the lead judgment just read by my learned brother Kekere-Ekun, JCA and I am in complete agreement with his reasoning and conclusions on each of the issues in dispute. I too would allow this appeal in part and abide by all the consequential orders of my learned brother.
UCHECHUKWU ONYEMENAM, J.C.A.: I read in draft the judgment of my learned brother Kekere-Ekun, JCA, wherein he dealt exhaustively with the issues canvassed before us. I am in complete agreement with his comprehensive analysis of the facts. I also fully share his views about the limits of the protective law. The Public Officers Protection Law in so far as it imposes of limitation of time which an action may be brought against a pubic officer is a statute of limitation.
Section 2(a) of the Public Officers Protection Law Cap. P41 Laws of the Federation of Nigeria, 2004 gives full protection to all public officers or persons who execute public duties, who at all material times acted within the confines of their public duty. However, once they step outside the bounds of their public authority and are acting outside the colour of their office or employment or outside their statutory or constitutional duty, they automatically lose protection of the law. See Ekeogu v. Aliri (1991) 3 NWLR (Pt.179) 258; Ibrahim v. J.S.C. (1998) 14 NWLR (Pt.584) 1. Definitely the Act does protect any public officer who in the guise of the public office does an act contrary to or not authorized by law, or not in accord with his duty. See Unilorin v. Adeniran (2007) 6 NWLR (Pt.1031) 498.
The 1st to 3rd respondents by suspending the appellant through Exhibit 23 obviously did an act against the grundnorm of this country. The suspension of the appellant by the 1st to 3rd respondent was with ulterior motive vis-Ã -vis to punish the appellant who had taken out an action against the government in the exercise of his constitutional right. To say the least, this act of suspension is outside the constitutional or official deities of the said respondents. It is an act not authorized by the law and also contrary to Section 6(6) of the Constitution without trying to coat my words, the 1st to 3rd respondents acted outside the colour of their office and so came outside the cover of the protection of the law over their office. Having striped themselves of the protection of the Public Officers (Protection) Act, the appellant’s claim in paragraph 31B of his amended statement of claim was not caught by the said law and ought to have been granted.
For this, I inevitably reach and agree with the conclusion as shown in the meticulous judgment of my learned brother. I abide by the order as to costs.
Appearances
A.S. Anzewu;For Appellant
AND
Rotimi Oguneso Esq.
I.I. Edo Esq;
H.M. Liman;
A.M. Liman;For Respondent
