DAUDA & ORS v. A.G & COMMISSIONER FOR JUSTICE OF NASARAWA STATE & ORS (2022)

DAUDA & ORS v. A.G & COMMISSIONER FOR JUSTICE OF NASARAWA STATE & ORS

(2022)LCN/16375(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Friday, June 03, 2022

CA/MK/46/2016

Before Our Lordships:

Ignatius IgweAgube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Muslim Sule Hassan Justice of the Court of Appeal

Between

1. MALLAM AUDU GUZOMA DAUDA (THE AGUMA OF GADABUKE) 2. MALLAM SHILANI AMALI (THE SARUN KASUMA OF GADABUKE) 3. UMAR YUSUF WODI (Suing For Themselves And On Behalf Of The Bassa People Of Gadabuke, Toto Local Government Area Of Nasarawa State) APPELANT(S)

And

1. HON. ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE OF NASARAWA STATE 2. THE HONOURABLE COMMISSIONER OF LOCAL GOVERNMENT & CHIEFTAINCY AFFAIRS, NASARAWA STATE 3. ALHAJI DAUDU BABA (HIS ROYAL HIGHNESS THE GOMO BABYE OF GADE CHIEFDOM OF NASARAWA STATE) 4. THE SPEAKER NASARAWA STATE HOUSE OF ASSEMBLY RESPONDENT(S)

RATIO:

THE PURPOSE OF GROUNDS OF APPEAL

It is settled law that the purpose of grounds of appeal is to ensure that the respondent is not taken unawares. Thus, this Court in the case of Addax Pet. Dev. (Nig.) Ltd. vs. Duke (2010) 8 NWLR Pt. 1196, Pg. 278 at 295-296, paras. F-B, held as follows:
“The purpose of rules relating to the formulation of grounds of appeal is to ensure that the respondent is not taken by surprise. Therefore, once a ground of appeal clearly states what the appellant is complaining about and there is compliance with the rules of Court, it cannot be described as bad and therefore incompetent… Courts should always strive to do substantial justice in each and every case. The nature of the preliminary objection is in the realm of technicalities. Courts should not give undue prominence to technicalities at the expense of justice. Substantial justice cannot be done unless Courts of justice strive to ensure that the appeals are heard on the merit. In the instant case, it is important that this appeal be heard on the merit. See Usani vs. Duke (2006) 17 NWLR Pt. 1009, pg. 610, Ogboru vs. Ibori (2006) 17 NWLR Pt. 1009, pg. 542. I see no merit in the preliminary objection and it is hereby overruled.” CORDELIA IFEOMA JOMBO-OFO, J.C.A.

GROUNDS OF APPEAL ARE MEANT TO ATTACK FINDINGS OF THE COURT

The law is settled that a ground of appeal must stem from the text of the judgment appealed against. In the Supreme Court’s authority of Nwankwo vs. E.D.C.S.U.A. (2007) 5 NWLR Pt. 1027, pg. 377 at 395, it was held that a ground of appeal is basically a highlight of the error of law or fact or mixed law and fact made by the Court in the decision sought to be set aside in the appeal. Grounds of appeal are meant to attack findings of the Court that have bearing on the case put forward by the litigant. Which is to say that it should be related to a decision and contain complaints an appellant relies on to succeed in setting aside the ratio decidendi of a judgment, and not just observation and or passing remarks of a Judge in the course of setting a judgment. Grounds of appeal are not formulated in Nubibis, they must be firma terra, i.e., arise from a judgment. See also F.B.N. Plc vs. A.G., Federation (2018) 7 NWLR Pt. 1617, pg. 121 at 149, Kashadadi vs. Noma (2007) 13 NWLR Pt. 1052, pg. 510 at 522; Aribo vs. CBN (2011) 12 NWLR Pt. 1260, pg. 133 at 153, Akeredolu vs. Mimiko &Ors (2013) 12 SCM Pt. 2, ratio 35 and Agbiti vs. Nigerian Navy (2007) LPELR-4893(CA). CORDELIA IFEOMA JOMBO-OFO, J.C.A.

THE ESSENCE OF AN APPEAL IS TO CORRECT MANIFEST ERRORS OF TRIAL COURT

It is trite that the essence of an appeal is to correct manifest errors of the trial Court. in Ezeuko vs. State (2016) 6 NWLR Pt. 1509, pg. 529 at 577, the revered and respected Ngwuta, JSC., (of blessed memory) tapping from the authority of Oredoyin vs. Arowolo (1989) 4 NWLR Pt. 114, pg. 172 at 211, defined an appeal as:
“an invitation to a higher Court to review the decision of a lower Court to find out whether on proper consideration of the facts placed before it and the applicable law, the lower Court arrives at a correct decision.”
Also, sublime is the holding in S.C.C. Ltd vs. Kingston (2016) 4 NWLR Pt. 1501, pg. 172 at 189, per our own Ikyegh, JCA., that:
“A solemn statement by a Judge in a judgment or ruling is also given great weight and efficacy. See Nwizuk&Ors vs. Eneyok&Ors (1953) 14 WACA 354 at 355.” CORDELIA IFEOMA JOMBO-OFO, J.C.A.

THE COURT IS TO CONFINE ITSELF WITH ISSUES RAISED BY THE PARTIES

One position of the law which has stood out in the foregoing authorities is that a Court is generally not forbidden from formulating and or re-formulating issues for determination. It is my firm view that while the Court reserves the power to formulate issues, the said Court is to confine itself to or with the issues earlier raised by the plaintiff or appellant as the case may be. To confine oneself does not in anyway connote rejection of the issue(s) already formulated by the parties particularly the plaintiff as in the trial Court or appellant where on appeal, rather it demands of the Court whilst so varying or re-formulating the issues, not to lose sight of or touch with the meat of the issues earlier raised or formulated by the plaintiff or appellant as the case may be. This is to say that any re-formulated issue by the Court must revolve around or take its bearing from the pleadings where applicable and or the grounds of appeal as in an appellate jurisdiction such as in the instant scenario. CORDELIA IFEOMA JOMBO-OFO, J.C.A.

A COURT IS ENTITLED TO RE-FORMULATE BY A PARTY IN ORDER TO GIVE IT PRECISION AND CLARITY

It is my considered view that the law does not preclude the Court from pruning and or compressing questions or issues framed for determination, if the same are found to be unwieldy and prolix as in the instant case. That way they are reduced to a precise, comprehensible and an elegant order. The learned trial Judge in the instant appeal did not derogate from the crux and substance of the questions and issues formulated by the appellants. This is to say that the central or main issue framed by the learned trial Judge adequately covered the appellant’s issues and questions raised by them for determination. This is in line with the decision in Unity Bank Plc vs. Bouari (2008) 7 NWLR Pt. 1086, pg. 372 at 401, para C., where Ogbuagu, JSC., had this to say:
“Of course, it is now firmly settled that a Court is entitled to re-formulate issue or issues formulated by a party or parties or Counsel in order to give it precision and clarity.” CORDELIA IFEOMA JOMBO-OFO, J.C.A.

FOR AN INSTRUMENT TO BECOME LAW IT MUST PASS THROUGH A LEGISLATIVE PROCESS

As rightly submitted by the learned counsel for the 1st – 3rd respondents’ what makes an instrument a law, is not only the institution that made the law but also the process through which it passed. In a civilian dispensation, for an instrument to become law it must pass through a legislature process by way of a Bill and further has to be assented to by the Governor. However, that is not the position under the Military as both the legislature and the executive functions reside in the Military Governor, as was the case with the making of Exhibits A and B in law such military orders and or executive orders as regarded as subsidiary legislations and they are binding as laws. By the provisions of Section 18(1) of the Interpretation Act, a subsidiary legislation has the force of law. See Yaki vs. Bagudu (2015) 18 NWLR Pt. 1491, pg. 288 at 319, para. A. CORDELIA IFEOMA JOMBO-OFO, J.C.A.

CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice, Nasarawa State holden at Keffi (hereinafter the lower/trial Court) in Suit No. NSD/K63/2014 presided over by Hon. Justice S. A. Ayiwulu, J. and delivered 30th September, 2015.

By an Amended Originating Summons, the plaintiffs at the lower Court who before us are the appellants had claimed jointly and severally declaratory reliefs, and injunction of the Court against the respondents therein the defendants. The plaintiffs raised the following six questions for determination by the lower Court:
1. Whether the headquarters of Gade Chiefdom of Nasarawa State is Gwargwada (New Settlement) by virtue of the Appointment and Deposition of Chiefs (Appointment of GOMO Babye) Order, 1983, P.S. Legal Notice No. 9 of 1986, Plateau State of Nigeria Gazette No. 11 Jos dated 10th July, 1986 as in attached Exhibit A with concomitant White Paper of Plateau State of Nigeria titled “Government Views ad Decisions on the Report of the Administrative Committee to Review the Definition of some Chieftaincy Institutions in Plateau State” (as applicable in Nasarawa State) as in attached Exhibit B and the fact of the existence of the Palace of the OgomoBabye in Gwargwada (New Settlement) as in Exhibits C1 and C2 attached to the affidavit in support of this Originating Summons.
2. Whether 3rd Defendant has legal and constitutional right to move the headquarters of Gade Chiefdom, which is Gwargwada (New Settlement) to Gadabuke.
3. Whether the 3rd Defendant can abandon his palace in Gwargwada (New Settlement) and move his palace and in sigma (sic) of office to Gadabuke and rule from Gadabuke.
4. Whether the 3rd Defendant can build a new palace in Gadabuke as his headquarters and reign and administer the Gade Chiefdom from Gadabuke instead of Gwargwada (New Settlement).
5. Whether it is imperative for the Defendants to respect and obey the law and Government White Paper creating the Gade Chiefdom and its headquarters as Gwargwada (New Settlement)
6. Whether there is any law or bill that made Gadabuke as the Headquarters of Gade Chiefdom.

If the answers to the above questions 1 and 5 are in the positive and above questions 2, 3, 4 and 6 are in the negative, the plaintiff’s claim against the defendants jointly and severally as follows:
1. A DECLARATION that the headquarters of Gade Chiefdom of Nasarawa State is Gwargwada (New Settlement), Toto Local Government Area of Nasarawa State by virtue of the Appointment and Deposition of Chief’s Appointment of GomoBabye) Order, 1983, P.S. Legal Notice No. 9 of 1986, Plateau State of Nigeria Gazette No. 11 Jos dated 10th July, 1986 attached to the affidavit in support of this Originating Summons and married as Exhibit A and concomitant White Paper of Plateau State of Nigeria titled “Government Views and Decisions on the Report of the Administrative Committee to Review the Definition of some Chieftaincy Institutions in Plateau State” (as applicable in Nasarawa State) attached to this Originating Summons and marked as Exhibit B.
2. A DECLARATION that the 3rd Defendant by virtue of being the Gomo (also spelt and pronounce OGOMO Babye of Gade Chiefdom must and shall maintain his headquarters and palace in Gwargwada and must and shall reign and administer the Gade Chiefdom from the headquarters of the Gade Chiefdom being Gwargwada (New Settlement).
3. A DECLARATION that the Defendants have no legal right or authority to move the headquarters of Gade Chiefdom being Gwargwada (New Settlement) in Toto Local Government Area of Nasarawa State to Gadabuke town in Toto Local Government Area of Nasarawa State without a bill or law duly passed by the Nasarawa State House of Assembly and assented to in line or in accordance with the entire Section 100 of the 1999 Constitution of the Federal Republic of Nigeria as amended.
4. A DECLARATION that the Defendants, particularly the 3rd Defendant, building a new palace and headquarters in Gadabuke town as the GomoBabye Palace of Gade Chiefdom is unlawful, null and void and of no effect as no law or bill duly passed by the Nasarawa State House of Assembly in line with Sections 4(6) and (7) and 100 of the 199 Constitution of the Federal Republic of Nigeria (as amended) or any other law exist to that effect that Gadabuke as the Headquarters of Gade Chiefdom.
5. A PERPETUAL ORDER of this Honourable Court compelling the Defendants, their agents, privies, successors and representatives (howsoever called) to respect, honour, maintain and abide with the law and White Paper as in attached Exhibit B that Gwargwada (New Settlement) is the Headquarters of Gade Chiefdom of Nasarawa State.
6. A PERPETUAL ORDER of this Honourable Court that the palace of the GomoBabye of Gade Chiefdom of Nasarawa State is and shall be and is known as Gwargwada (New Settlement) and not Gadabuke.
7. AN ORDER of this Honourable Court stopping the building of the palace of GomoBabye of Gade Chiefdom in Gadabuke.
8. AN ORDER of this Honourable Court stopping the 3rd Defendant and indeed all the Defendants and their agent, privies, successors (howsoever called) from further building GomoBabye palace in Gadabuke.
9. AN ORDER of this Honourable Court compelling the 3rd Defendant to administer, rule, govern and reign as the Gomo Babye of Gaade Chiefdom from his headquarters in Gwargwada (New Settlement), Toto Local Government Area of Nasarawa State.
10. A PERPETUAL ORDER of injunction restraining the Defendants by themselves and their agents, privies, successors, representatives and assigns (howsoever called) from recognizing Gadabuke as the Headquarters of Gade Chiefdom. (See pages 412-414 of the record of appeal).

The 1st – 3rd defendants through their counsel filed their defence by way of a further counter-affidavit to which their attached 4 exhibits marked Exhibits MOJ1, MOJ2, MOJ3 and MOJ4 respectively, while the 4th defendant did not file any defence. (See pages 661-667 of the record of appeal).

STATEMENT OF FACTS
The Gade Chiefdom of then Plateau State was created in 1981 without a headquarters. On 20th July, 1956, Plateau State of Nigeria Gazette P.S. Legal Notice No. 9 of 1986 – The Appointment and Deposition of Chief (Appointment of Ogomo Babye) Order, 1983 was published and gazette detailing the made of appointment of the Ogomo Babye of the Gade Chiefdom, in 1988 a 5 man Committee was set up under the Chairmanship of one Alhaji H. B. Usman to examine some chiefdoms with peculiar challenges and to recommend area of improvement where necessary. The Committee after holistic consideration recommended that the Headquarters of Gade Chiefdom should be at Gwargwada (New Settlement) in 1996 Nasarawa State was created out of Plateau State and Gade Chiefdom fall into Nasarawa State.

In 2004, the Nasarawa State Government constituted a Committee under the Chairmanship of H.R.H. Alh. Ahmadu Aliyu Oga Ohawo is investigate the circumstances surrounding the division between H.R.H. Gomo Babye and his subject over the venue of the installation ceremony as a 2nd Class Chief. The Committee after collating evidence presented before it, recommendation was accepted by the Government as shown in Exhibit MOJ2 attached to 1st – 3rd respondents’ further counter-affidavit. (See page 702 of the record). In January, 2014 the respondents began to build a new palace for the Gade Chiefdom in Gadabuke contrary to the White Paper that Gwargwada (New Settlement) should be the headquarters of Gade Chiefdom. This is saying that the 3rd respondent abandoned Gwargwada (New Settlement) and moved the headquarters to Gadabuke. In 2005, the Nasarawa State House of Assembly through its Committee on Public Complaints and Petition in Exhibit MOJ3 recommended that Gadabuke should be the administrative seat of GomoBabye and in compliance with Exhibits MOJ1, MOJ2 and MOJ3, the 1st – 3rd respondents in same 2005 relocated the palace of Gomo Babye of Gade Chiefdom to Gadabuke.

The plaintiffs felt aggrieved by the movement of the palace to Gadabuke consequent upon which they instituted Suit No. NSO/K63/2014 by way of Originating Summons. In its considered judgment delivered 30th September, 2015, the learned trial Judge dismissed the case of the plaintiffs/appellants.

Piqued by the decision, the appellants filed a Notice of Appeal before the lower Court on 2nd December, 2015. Pursuant to the leave of this Court an Amended Notice of Appeal filed by the appellants on 22nd November, 2018 was deemed properly filed 16th May, 2019.

Parties in line with the rules of this Court filed and exchanged briefs of argument. The appellants’ brief filed 22nd November, 2018 and the appellants’ reply brief filed 9th February, 2021 were both settled by Idumodin Ogumu, Esq. The 1st – 3rd respondents’ brief containing Notice of Preliminary Objection as well as their response to the appellants’ brief which was filed out of time 22nd May, 2019 was deemed properly filed 9th February, 2021. The said brief was settled by Y.Y. Ede, Esq. Assistant Director, Nasarawa State Ministry of Justice. The 4th respondent on record did not file any brief of argument. Given the threshold nature of preliminary objection in our adversarial system. I am compelled to determine same first before delving into the appeal itself if need be.

In the Notice of Preliminary Objection, the 1st – 3rd respondents/objectors challenged the competence of grounds 1, 2, 3, 4, 10 and 11 of the amended notice of appeal as well as the issues formulated thereon, submitting that they are incompetent same having not related to or emanated from the ratio of the judgment appealed against. The objectors proved the Court to strike out the said grounds 1, 2, 3, 4, 5, 6, 10 and 11 for being incompetent.

While relying on the cases of Akeredolu vs. Mimiko &Ors (2013) 12 SCM Pt. 2, ratio 15; Agbiti vs. Nigerian Navy (2007) LPELR-4893(CA) and Egbe vs. Alhaji (1990) 1 NWLR Pt. 128, pg. 546, the learned objector submitted that grounds 1, 2, 3, 4 and 5 in the amended notice of appeal filed 22nd November, 2018 were not against or relate to the ratio of the judgment of the trial Court but were merely against obiter dictum or statements made by the trial Court in the course of delivering the judgment. The learned objector submitted that appellants’ ground 4 does not disclose any reasonable cause against the 1st – 3rd respondents. That the particulars in support of appellants’ ground 6 do not flow from the said ground and so it should be struck out.

The learned objector further canvassed that grounds 10 and 11 do not emanate from the judgment of the lower Court as there is nowhere it made pronouncement or drew conclusion on issues of fraud relating to 1st – 3rd respondents’ further counter-affidavit and or the processes filed on behalf of the 3rd respondent. He urged on us to strike out grounds 10 and 11 inclusive of issues formulated thereon. See Akpan vs. Bob (2010) 17 NWLR Pt. 1223, pg. 468, paras. E-H, 493, paras. C-D, Fagunwa vs. Adibi (2004) 17 NWLR Pt. 903, pg. 544. The learned objector contended that the issue of fraud does not form part of ground 10 in the amended notice of appeal. They urged on us to strike out paragraph (a) of ground 10 same having no relationship with the said grounds and indeed grounds 1, 2, 3, 4, 5, 10 and 11 of the amended notice of appeal filed 2nd November, 2015.

The appellants on the converse formulated a sole issue for determination and it reads: “Whether the Notice of Preliminary Objection incorporated and annexed or filed along with 1st, 2nd and 3rd Respondents Brief of Argument is incompetent and Appellants’ Grounds 1, 2, 3, 4, 5, 6, 10 and 11 complained of in the Notice of Preliminary Objection competent relating or emanating from the ratio of the judgment of the lower Court, and is it not settled law that appeal complaining about failure of Court to decide on issue placed before it not a fresh issue but part of law and said to have arisen from the decision of the Court.”

Learned counsel for the appellants canvassed that the Notice of Preliminary Objection filed by the 1st – 3rd respondents is incompetent, same having not complied with Order 10 Rule 1 of the Court of Appeal Rules, 2016. He argued that the 1st – 3rd respondents failed to file the instant Notice of Preliminary Objection separately, rather it was incorporated or attached or annexed to the 1st – 3rd respondents’ brief of argument. Urged on us to discountenance the Notice of Preliminary Objection same having been filed in accordance with the rules. See Abioye vs. Afolabi (1998) 4 NWLR Pt. 545, pg. 296 at 304, para. F.

RESOLUTION OF THE PRELIMINARY OBJECTION
It is settled law that the purpose of grounds of appeal is to ensure that the respondent is not taken unawares. Thus, this Court in the case of Addax Pet. Dev. (Nig.) Ltd. vs. Duke (2010) 8 NWLR Pt. 1196, Pg. 278 at 295-296, paras. F-B, held as follows:
“The purpose of rules relating to the formulation of grounds of appeal is to ensure that the respondent is not taken by surprise. Therefore, once a ground of appeal clearly states what the appellant is complaining about and there is compliance with the rules of Court, it cannot be described as bad and therefore incompetent… Courts should always strive to do substantial justice in each and every case. The nature of the preliminary objection is in the realm of technicalities. Courts should not give undue prominence to technicalities at the expense of justice. Substantial justice cannot be done unless Courts of justice strive to ensure that the appeals are heard on the merit. In the instant case, it is important that this appeal be heard on the merit. See Usani vs. Duke (2006) 17 NWLR Pt. 1009, pg. 610, Ogboru vs. Ibori (2006) 17 NWLR Pt. 1009, pg. 542. I see no merit in the preliminary objection and it is hereby overruled.”

By the provisions of Order 10 Rule 1 of the Court of Appeal Rules, 2021 that:
“A Respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the Appellant three clear days’ notice thereof before the hearing, setting out the grounds of objection and shall file such notice together with ten hard physical copies and an electronic copy thereof with the Registry within the same time. The preliminary objection shall be argued in the Respondent’s brief of argument.”
Admittedly the rules have provided for the separate filing of notice of preliminary objection, however the failure of the 1st – 3rd respondents in the instant case to so file their notice is not fatal to the objection. The objection as it were is not against the hearing of the appeal as a whole but against some grounds thereof. To this end, the objection can be raised and argued in the respondent’s brief of argument as has happened in the instant case. An attack on some grounds of appeal as opposed to the whole appeal, still leaves the appeal with something to stand on and be heard. This is to say that even a single surviving ground of appeal can sustain the appeal. See C.S.S. bookshops Ltd vs. R.T.M.C.R.S. (2006) 11 NWLR Pt. 992 pg. 530 and Akinlade vs. Ayinde (2021) 1 NWLR Pt. 1758, pg. 407, 431-432. Above all, failure to raise the objection on a separate notice of motion seems to be a procedural irregularity which has not and ought not to disturb the substance of the preliminary objection. The preliminary objection therefore can still stand irrespective of the attack on some of the grounds to wit: grounds 1, 2, 3, 4, 5, 6, 10 and 11.

On the procedure for raising a preliminary objection, this Court in the authority of Nsirim vs. Nsirim(1990) 3 NWLR Pt. 138, pg. 285 at 296 had enjoined as follows:
“To begin with, the procedure for raising a preliminary objection to the grounds of appeal in the Court of Appeal has been laid down by this Court and I do not intend to restate them here except to say that for an objection to the competence of ground or grounds of appeal to be validly raised and thereby worthy of consideration by the Court, the respondent must first and foremost file a motion on notice in the Court stating the grounds on which the objection is based so as to give notice to the appellant, otherwise, the appellant would be taken by surprise. The respondent subsequently follows it up with the filing of the respondent’s brief in which arguments on the objection is proffered.”
Irrespective of whether Notice of the Preliminary Objection was filed separately, or that the same was incorporated in the respondent’s brief as was the case in the instant case, provided the appellant had at least three clear days’ notice of the objection prior to the date of hearing the objection, the application shall remain competent. The ideal thing to do no doubt would be for a respondent intent on praying the Court to strike down ground(s) of a notice of appeal by way of a preliminary objection, is to file and give a separate Notice of Preliminary Objection and setting out the grounds of the objection. However, where the procedure followed is by raising and arguing same in the respondent’s brief, the process remains competent, provided there was enough interval of at least three clear days between the service of the respondent’s brief containing the notice and the hearing of the objection is observed.

The preliminary objection as it is before the Court is in substantial compliance with the rules of Court pertaining to raising same before the Court. The submission of the learned counsel to the appellants regarding the placing of the instant preliminary objection before the Court is discountenanced.

Now on the merit or demerit of the preliminary objection. The objectors formulated the following lone issue for determination:
Whether the appellants’ grounds 1, 2, 3, 4, 5, 6, 10 and 11 are incompetent same having not related to the ratio of the judgment and or emanated from the judgment of the lower Court.

By obiter dictum is meant such statements or comments of the Court which does not necessarily determine the issues joined in the parties’ pleadings. Such will have no binding authority and cannot be the subject of an appeal. See Ngige vs. Obi (2006) 14 NWLR Pt. 999, pg. 1 at 163-165, Madu vs. Mbakwe (2008) 10 NWLR Pt. 1095, pg. 293 at 312-313 and Wilson vs. Osin (1998) 4 NWLR Pt. 88, pg. 324.

I have carefully perused the appellant’s amended notice of appeal, particularly grounds 1, 2, 3, 4, 5, 10 and 11 thereof and their respective particulars as they touch or do not touch on the judgment under appeal and I do not seem to share in the contention of the 1st – 3rd respondents that they do not emanate from the judgment being appealed against. The grounds enumerated by the 1st – 3rd respondents are in sync and relate to or arise from the ratio decidendi of the judgment of the lower Court. I have the firm view that each of the grounds of the appeal, is hinged on specific complaint of the appellants and their clear expectation of rebuttal of the said complaints by the respondents and that they clearly convey the grouse of the appellant. The apex Court in Unity Bank Plc vs. Denclag Ltd (2012) 18 NWLR Pt. 1332, pg. 293 at 323, paras. C-E unequivocally stated the law thus:
“This preliminary objection is an academic exercise as it can be seen very clearly indeed that the grounds of appeal including the ones complained of have stated what the problems between the contending parties are and have not left anyone in doubt including the objector of what the substance of the complaint is and what is expected of them in rebuttal. The rules of Court have not been breached and the grounds of appeal are competent. See Koya vs. United Bank for Africa Ltd (1997) 1 NWLR Pt. 481, pg. 251 at 274, Addax Petroleum Development (Nig.) Ltd vs. Duke (2010) 8 NWLR Pt. 926, pg. 1, 22.”

Ground 1 (one) of the Amended Notice of Appeal in the instant appeal, is a complaint against the final decision or finding of the learned trial Court having found and held at pages 2 – 4 of his judgment that the defendants (respondents herein) were seeking the listed 11 (eleven) reliefs from the Court, whereas the reliefs were actually sought by the plaintiffs (appellants). These reliefs were finally dismissed bythe lower Court. being one of the decisions of the lower Court, the appellant was aggrieved by the dismissal and so it formed part of the grounds i.e. ground 1 (one) of the appellant’s appeal.

Ground 2 (two) on its own part is a complaint by the appellant against the decision of the learned lower Court, which decision is contained at pages 7-8 of its judgment, wherein the learned trial Judge on his own volition shrank all the 7 (seven) issues formulated by the plaintiff’s (appellants) into only one issue. The appellants felt aggrieved by this step as they hold same to be against the settled principles of law that in an Originating Summons that it is only the plaintiff who is statutorily empowered to formulate issues for determination. This is to say that even the lower Court lacked the jurisdiction to formulate or even vary already formulated issues before it for determination. Ground 2 (two) clearly emanated from the rationale behind the lower Court’s decision to formulate a single issue in place of the several issues formulated by the appellants and as such is appealable. See Achu vs. Civil Service Commission of Cross River State(2009) 3 NWLR Pt. 1129, pg. 473 at 508.

Ground 3 (three) of the Amended Notice of Appeal has to do with the finding of facts which led the learned trial Judge to reach the decision that the power to create Chiefdoms and Chieftaincy titles or stools reside on the executive arm of government and not on the legislature. The appellants also queried the purported misapplication of the decided cases cited. See pages 24-25 of the lower Court’s judgment. Ground 3 (three) is clearly a fall out from part of the reasons that informed the final decision of the lower Court and as such appealable.

Coming to ground 4 (four) of the Amended Notice of Appeal, though it seems laborious and unwieldy but at the day the discontent of the appellants is seen to be directed at the status accorded Exhibit MOJ2 by the lower Court. the complaint vis-à-vis the decision in the said ground is appealable. See pages 25-26 of the judgment.

Ground 5 (five) is the ground I consider to be at large and far-fetched from the judgment or final decision of the lower Court. It does not appear to me to disclose any reasonable cause of action. (See pages 26-27 of the judgment of the lower Court. ground 5 (five) is in this vein struck out.

Ground 6 (six) of the Amended Notice of Appeal stems from the finding of the learned lower Court that the defendants/respondents do not require the backing of law to effect relocation of the headquarters of Gade Chiefdom and the palace of Gomo Babye, the subject matter of this appeal, from Gwargwada to Gadabuke. See page 27 of the judgment of the lower Court. Ground 6 (six) is a competent ground of appeal.

Grounds 10 (ten) and 11 (eleven) of the Amended Notice of Appeal bother with the purported neglect or inability of the learned trial Judge to pronounce or decide one way or the other on some issues raised or formulated for determination. This is obviously an attack at the judgment of the lower Court and as such constitute competent ground(s) for appeal.

In the vein of the foregoing findings, I am of the clear mind that grounds 1, 2, 3, 4, 6, 7, 8, 9, 10 and 11 are all competent grounds of appeal and as such are allowed. Ground 5 (five) of the Amended Grounds of Appeal is the only ground I find incompetent and so is struck down. The effect is that the Preliminary Objection raised by the 1st – 3rd respondents against grounds 1, 2, 3, 4, 5, 6, 10 and 11 of the Amended Notice of Appeal is allowed only in part.

Now to the appeal proper. The appellants donated the following 9 (nine) issues for determination:
i. Whether from the record of the Court, the Respondents have reliefs or claims as listed by the learned trial Judge in the judgment, and are the listed reliefs or claims actually that of the Respondents and is the learned trial Judge right in judgment in failing to state the reliefs sought by the Appellants. (Distilled from Ground 1 of the Appellants’ Notice of Appeal).
ii. On whom lies the duty to formulate questions for determination in an Originating Summons in the circumstance, and is the learned trial Judge correct in law in formulating his own question for determination and equally considering the question for determination formulated by the 1st – 3rd Respondents and refusing to consider all the issues for determination raised by Appellant, and of what effect. (Distilled from Ground 2 of Appellants’ Notice of Appeal).
iii. Whether the learned trial Judge appropriately applied the cases of Olanrewaju vs. Oyesomi (2014) 11 NWLR Pt. 1418, pg. 258 at 292, Adekeye vs. Adesina (2011) 20 WRN 2 at 34, lines 25-30, and Ogunbamibivs. Badagry L.G (2009) 9 WRN 156 at 171 lines 10-25 in the circumstances and facts of the case vis-à-vis who has right to create Chiefdoms and its headquarters in Nasarawa State. (Distilled from Ground 3 of Appellants’ Notice of Appeal).
iv. Whether Exhibits “MOJ1 and MOJ2” attached by the 1st – 3rd Respondents in their Counter-Affidavit are white papers and competent, are capable, and actually amended or reviewed Exhibits A and B attached by the Appellants to their affidavits, and by virtue of Sections 4(6) and (7) and 100(1) – (5) of the 1999 Constitution (as amended), does the Nasarawa State House of Assembly possess the power to make laws as in Exhibits “E1” and “E2” attached to Amended Originating Summons and or relating to the creation and relocation of the headquarters of Gade Chiefdom. (Distilled from Grounds 4, 6 and 7 of Appellants’ Notice of Appeal).
v. Whether the learned trial Judge rightly raised the issue of fair hearing regarding Exhibits“MOJ1” and “MOJ2”. (Distilled from Ground 5 of Appellants’ Notice of Appeal).
vi. Whether the learned trial Judge was justified to hold that the Appellants’ challenge of Exhibits “MOJ1,MOJ2 and MOJ3” were unfounded and belated and are the Exhibits worthy in the circumstance. (Distilled from Ground 8 of Appellants’ Notice of Appeal).
vii. Is the relocation of the headquarters of Gade Chiefdom from Gwargwada (New Settlement) to Gadabuke lawful under a supposedly existing law called Section 49 of Chiefs (Appointment and Deposition) Law Cap. 77 Laws of Northern Nigeria, Vol. II of 1963. (Distilled from Ground 9 of Appellants’ Notice of Appeal).
viii. Whether the 1st – 3rd DEFENDANTS FURTHER COUNTER AFFIDAVIT IN RESPONSE TO AMENDED ORIGINATING SUMMONS FILED ON 9TH OCTOBER, 2016 deposed to by one Alhaji Aliyu Sani and filed on 18th of December, 2014 is incompetent and fraudulent, and is Alhaji Aliyu Sani competent to even depose to the affidavit, and of what effect vis-à-vis controversion of Appellants’ Amended Originating Summons and of what effect of failure of the trial Judge to decide on this. (Distilled from Ground 10 of Appellants’ Notice of Appeal).
ix. Whether all the processes of Court and representation …

Since ground 5 (five) has earlier on been struck down for being incompetent, the foregoing issue (v) which takes its being from the said ground 5 (five) has lost the pedestal to stand on and therefore cannot also be allowed. Issue (v) in the event is struck out. while issues 1, 2, 3 and 4 still remain as numbered above, issues 6, 7, 8 and 9 shall be re-numbered as 5, 6, 7 and 8.

The 1st – 3rd respondents on their part formulated the following 7 (seven) issues in this main appeal for determination:
1. Whether in law every mistake or error committed by a Court can lead to a miscarriage of justice and/or a reversal of judgment. (Distilled from appellant’s Ground 1).
2. Was the sole issue re-framed and or formulated by the trial Judge from the appellants’ question and issues for determination occasioned (sic) a miscarriage of justice. (Distilled from appellant’s (sic) ground 2).
3. Was the learned trial Judge right in holding that Exhibit “MOJ2” attached to the 1st – 3rd Respondents’ further counter-affidavit is credible evidence of the acceptance of Exhibit “MOJ1” and that Exhibits “MOJ1” and “MOJ2” has reviewed/amended Exhibit “B” attached to the appellant’s (sic) amended Originating Summons (Distilled from appellant’s (sic) ground 4).
4. Was the learned trial Judge right in holding that before Exhibit “MOJ1” was made, full opportunity was given to all the people of Gade Chiefdom and if the answer is in the affirmative is the appellant’s (sic) action against the 1st – 3rd Respondents for relocating the palace of Gomobabye from Gwargwada (New Settlement) to Gadabuke justiciable (Distilled from appellants’ Ground (sic) 5 and 6).
5. Was the learned trial Judge right in holding that the 1st – 3rd Respondents do not require any law by the Nasarawa State House of Assembly to effect the relocation of the headquarters of Gade Chiefdom (New Settlement) to Gadabuke and are/were Exhibits ‘A’ and ‘B’ attached to the appellant’s amended Originating Summons have/had any legislative imputes ofthe Plateau State House of Assembly. (Distilled from appellant’s grounds 3, 6, 7 and 9).
6. Whether an affidavit must be sworn to by a party to an action and if the answer is in the negative was the learned trial Judge right in ascribing probative value to the 1st – 3rd Respondents’ further counter-affidavit dated 16/12/2014 sworn to by Alhaji Aliyu Sani and Exhibits “MOJ1, MOJ2 and MOJ3” attached thereto. (Distilled from Ground 10 of appellants’ notice of appeal).
7. Whether in considering the nature of plaintiffs’ case, the Office of Attorney-General, Nasarawa State represented by Y.Y. Ede Esq (sic) (State Counsel) can file processes and put in appearances for the 3rd defendants (sic). (Distilled from Ground 11 of appellants (sic) notice of appeal).

Notwithstanding that the foregoing issue 4 (four) of the 1st – 3rd respondents germinated from an incompetent ground 5 and a competent ground 6, the said issue 4 (four) cannot stand. This because, the combination one does not legally yield or throw up a competent issue for determination. The competent ground gets contaminated by the incompetent one. It is against this backdrop that issue 4 (four) distilled for determination by the 1st – 3rd respondents, is accordingly struck down.

By way of re-numbering the issues distilled by the 1st – 3rd respondents, while issues 1, 2 and 3 remain so numbered, issues 5, 6 and 7 shall now be re-numbered 4, 5 and 6 respectively.

A careful study of the issues donated by both parties, shows that those of the 1st – 3rd respondents are duly captured and encapsulated in those of the appellants. I shall therefore adopt with some variations the issues distilled by the appellants in determining the appeal in the first instance, I think that the issues as donated by both parties are unnecessarily proliferated. The following issues to my mind are enough to do substantial justice to this appeal:
i. Whether from the record of the Court, the Respondents have reliefs or claims as listed by the learned trial Judge in the judgment, and are the listed reliefs or claims actually that of the Respondents and is the learned trial Judge right in judgment in failing to state the reliefs sought by the Appellants. (Distilled from Ground 1 of the Appellants’ Notice of Appeal).
ii. On whom lies the duty to formulate questions for determination in an Originating Summons in the circumstance, and is the learned trial Judge correct in law in formulating his own question for determination and equally considering the question for determination formulated by the 1st – 3rd Respondents and refusing to consider all the issues for determination raised by Appellant, and of what effect. (Distilled from Ground 2 of Appellants’ Notice of Appeal).
iii. Whether Exhibits “MOJ1 and MOJ2” attached by the 1st – 3rd Respondents in their Counter-Affidavit are white papers and competent, are capable, and actually amended or reviewed Exhibits A and B attached by the Appellants to their affidavits, and by virtue of Sections 4(6) and (7) and 100(1) – (5) of the 1999 Constitution (as amended), does the Nasarawa State House of Assembly possess the power to make laws as in Exhibits “E1” and “E2” attached to Amended Originating Summons and or relating to the creation and relocation of the headquarters of Gade Chiefdom. (Distilled from Grounds 4, 6 and 7 of Appellants’ Notice of Appeal).
iv. Is the relocation ofthe headquarter of Gade Chiefdom from Gwargwada (New Settlement) to Gadabuke lawful under a supposedly existing law called Section 49 of Chiefs (Appointment and Deposition) Law Cap. 77 Laws of Northern Nigeria, Vol. II of 1963. (Distilled from Ground 9 of Appellants’ Notice of Appeal).
ISSUE 1 (ONE)
Whether from the record of the Court, the Respondents have reliefs or claims as listed by the learned trial Judge in the judgment, and are the listed reliefs or claims actually that of the Respondents and is the learned trial Judge right in judgment in failing to state the reliefs sought by the Appellants.

Appellants submitted that it was not the respondents who sought eleven reliefs and they neither had any claim nor counter-claim at the lower Court. they canvassed that failure of the learned trial Court to state in the judgment the reliefs sought by the appellants is against the well beaten track of writing judgments and breached the appellants’ right to fair hearing. See the cases of Pastor Ize-Iyamu Osagie Andrew vs. INEC (2017) 71 NSCQR 839, 941, Usiobaifo vs. Usiobaifo (2005) 3 NWLR Pt. 913, pg. 665and Mogaji vs. Odofin (1978) 4SC 65 at 67. Learned counsel for the appellants resorted to the latin maxim viz: Res judicata proveritateaccipitur, meaning: A matter adjudged is taken for truth. A matter decided or passed upon by a Court of competent jurisdiction is received as evidence of truth. See page 1310 of Black’s Law Dictionary (6th edition). Appellants submitted that to say that the respondents filed claims and sought reliefs as held by the learned trial Judge was untrue. If it is allowed as the law’s last word, then untruth triumphs. If the law’s last word is not true, untruth goes to eternity. Appellants urged on us to hold that the truth as borne out from the record is that the respondents have no claim and that the learned trial Judge erred in holding that the respondents have claims and this Court should correct it that the listed claims or reliefs in the judgment actually belong to the appellants. That this will make the crooked straight.

In their reaction, the 1st – 3rd respondents through their counsel admitted that the processes filed before the lower Court the 1st – 3rd respondents did not seek any relief or file any counter-claim. They relied on the cases of A.G., Ekiti State vs. Adewumi (2002) LPELR-3160 SC and Olubode vs. Salami (1985) 2 NWLR Pt. 7, pg. 282 to urge on us to hold that the appellants have failed to establish that the error complained of occasioned a miscarriage of justice or affected substantially the final decision of the trial Court.

The appellants in their reply on points of law submitted that counsel for the 1st – 3rd respondents cannot in his brief give judgment of “Mistake” and “error” of a Judge which are facts and that only this Court can say there is a mistake or error.

RESOLUTION OF ISSUE 1 (ONE)
As gleaned from the record and processes filed before the trial Court, it is clear that it is the appellants who filed and sought by way of Originating Summons the reliefs or claims earlier set out in this judgment. See pages 413-414 of the record of appeal wherein all the eleven claims of the appellants are contained. Albeit, the learned trial Judge whilst reproducing the eleven reliefs or claims in his judgment at pages 877-879 of the record of appeal, erroneously ascribed them to be the claims of the respondents. The respondents did not seek for any reliefs neither did they file any counter-claim. This erroneous and wrongful ascription of these eleven reliefs to the respondents as opposed to the appellants where they rightfully belong, is what the appellants regard as a breach of their right to fair hearing.

It is trite that the essence of an appeal is to correct manifest errors of the trial Court. in Ezeuko vs. State (2016) 6 NWLR Pt. 1509, pg. 529 at 577, the revered and respected Ngwuta, JSC., (of blessed memory) tapping from the authority of Oredoyin vs. Arowolo (1989) 4 NWLR Pt. 114, pg. 172 at 211, defined an appeal as:
“an invitation to a higher Court to review the decision of a lower Court to find out whether on proper consideration of the facts placed before it and the applicable law, the lower Court arrives at a correct decision.”
Also, sublime is the holding in S.C.C. Ltd vs. Kingston (2016) 4 NWLR Pt. 1501, pg. 172 at 189, per our own Ikyegh, JCA., that:
“A solemn statement by a Judge in a judgment or ruling is also given great weight and efficacy. See Nwizuk & Ors vs. Eneyok & Ors (1953) 14 WACA 354 at 355.”

Even, the Black’s Law Dictionary (6th Edition) at page 842defined judgment, inter alia as:
“The law’s last word in a judicial controversy, it being the final determination by a Court of the rights of the parties upon matters submitted to it in an action or proceeding.”
The latin legal maxim has it thus:
“Res judicata pro veritateaccipitur, which means: A matter adjudged is taken for truth. A matter decided or passed upon by a Court of competent jurisdiction is received as evidence of truth.”
It goes without saying that judgment makes white to be black, black to be white, crooked to be straight and the straight to be crooked, hence the other latin maxim to wit:
“Res judicata facit ex albo nigrum; ex nigro, album; ex curvo, rectum; ex recto, curvum which is to say: A thing adjudged (the solemn judgment of a Court) makes white, black; black, white; the crooked, straight; the straight, crooked. (See page 1310 of the Black’s law Dictionary supra).”

The learned trial Judge could not have in the face of the foregoing truism and with his eyes wide open, hold as a truth that the eleven reliefs or claims are those of the respondents. Judges are human after all and as such are prone to errors, mistakes and slips as has obviously happened in the instant case. For the learned trial Judge to ascribe the eleven reliefs or claims in the appellants’ amended Originating Summons as has played out at page 877 of the record of appeal, to the 1st – 3rd respondents, is clearly an error of the hand as opposed to that of the head and therefore inadvertent. This is where the beauty of appeal radiates.

There is nothing on record to show that the learned trial Court was intent on causing a miscarriage of justice, neither are there facts suggestive that any miscarriage of justice was indeed caused in that regard. The whole body of the judgment is replete with facts that the final judgment would have remained the same with or without the slip or error as it were. I am of the firm view that the appellants were just out to make a mountain out of an ant hill as they have failed to establish that the error occasioned a miscarriage of justice or affected substantially the final outcome of the judgment appealed against. I cannot help but resolve issue 1 (one) and it is so resolved in favour of the respondents and against the appellants.

ISSUE 2 (TWO)
On whom lies the duty to formulate questions for determination in an Originating Summons in the circumstance, and is the learned trial Judge correct in law in formulating his own question for determination and equally considering the question for determination formulated by the 1st – 3rd Respondents and refusing to consider all the issues for determination raised by Appellant and of what effect.

Learned counsel for the appellants submits that for the lower Court to frame its own question for determination and neglect the questions raised in the Originating Summons is against the purport of Originating Summons and impinged on fair hearing. They submit that appellants were not fairly heard. Appellants argued that the issue framed by the learned trial Judge did not even relate to or cover the 5th and 6th questions raised for determination. They submitted that the defendants in an Originating Summons cannot raise questions for determination unless they have their own counter-claim. That for the learned trial Judge to say again that he is considering the 8 issues formulated by the 1st – 3rd defendants (respondents) is very curious. Appellants urged on us that issues or questions formulated by the 1st – 3rd respondents be expunged and all the questions or issues raised by the appellants are to be considered as they are.

The 1st – 3rd respondents on their part submitted that a close look at the appellants’ questions and issues for determination contained in the amended Originating Summons at pages 412-414 of the record of appeal leaves no one in doubt that they have been unnecessarily proliferated by counsel and that the central or main issue framed by the learned trial Judge adequately covered the appellants’ questions and issues for determination. The learned counsel for the 1st – 3rd respondents contended that there is nowhere in the record or judgment the learned trial Judge considered and at conclusion arrived based on the issues formulated by the 1st – 3rd respondents’ further counter affidavit. See page 898 of the record of appeal. While assuming though not conceded that the sole issue formulated by the learned trial Judge did not cover the 5 and 6 questions raised in the amended Originating Summons, the 1st – 3rd respondents canvassed that such omission has not substantially affected the outcome of the judgment of the trial Court, because the 4 main questions were adequately considered 1st – 3rd respondents submitted that what the trial Judge did was in accordance with the authority of Unity Bank Plc vs. Bouari (2008) 7 NWLR Pt. 1086, Pg. 372 at 401. Para. C. Learned counsel for the 1st – 3rd respondents urged on us to discountenance the authority of Shoboyede vs. Min. of Lands and Housing W.N. (1974) NSCC Vol. 9 Pg. 264 at 369 and other authorities cited and considered in the appellants’ brief.

In their reply brief, the learned counsel for the appellants submitted that the case of Unity Bank Plc vs. Bouari (supra) relied upon by the 1st – 3rd respondents is distinguishable from the instant case and he urged us to do so hold. That non-consideration of all the issues for determination in an originating summons is in breach of fair hearing and contrary to Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and which cannot be overlooked or waived or reason out or its breach acquiesced in. See Igbinedion vs. ESBIR (2017) 13 NWLR Pt. 1583, pg. 503 at 513-516.

RESOLUTION OF ISSUE 2 (TWO)
The learned trial Judge in his judgment at pages 882-883 of the record of appeal had observed as follows:
“A careful perusal of the questions raised by the counsel shows that the issues or questions have been unnecessarily proliferated by Counsel. The Court is of the view that a single central or main issue suffices for the determination of the Amended Originating Summons as follows:
Whether the relocation of headquarters of Gade Chiefdom by the Defendants from Gwargwada to Gadabuke was illegal, unlawful and unconstitutional? This central or main issue framed by the Court covers all the 6 issues or questions raised by the plaintiffs in their Amended Originating Summons and also covers issues 1-6 of the 1st – 3rd Defendants in their address. The Court will consider the ancillary issues Nos. 7 and 8 of the 1st – 3rd Defendants address as well as other sundry issues raised by the plaintiffs’ Counsel in his written address if need be.” (Underlining mine for emphasis).

This Court in the highly elucidating authority of Achu vs. Civil Service commission of Cross-River State & Anor (2009) 3 NWLR Pt. 1129, pg. 475 at 508, paras. A-D, had held as follows:
“In the instant appeal, the adjudication obviously dealt not with the questions raised by the appellant on the originating summons. The learned trial Judge wrongly abandoned the main questions raised by the appellant for determination in the originating summons and proceeded to consider issues purportedly formulated by respondents’ counsel in his oral submission which did not go to any legal issue. Where an issue is not properly before the Court, it has no business whatsoever to deal with it. A Court must confine itself to the issue raised by the plaintiff in the originating summons. See Shoboyede vs. Min. of Lands and Housing W.N. (1974) NSCC (Vo. 9) 264 at 369. In the instant appeal it is the questions and the accompanying reliefs or prayers that the appellant raised that embody the issue for determination in the action commenced by originating summons. See Obasanya vs. Babafemi (2000) 15 NWLR Pt. 689, pg. 1, 17. It was therefore palpably wrong for the trial Judge not to place the appellant’s case in the proper perspective…”
See also Alubankudi vs. A.G., Federation (2002) 17 NWLR Pt. 796, pg. 338 at 357, where the learned trial Judge rightly stated the law thus:
“… The Defendant in an action commenced by Originating Summons does not formulate issues for determination. It is the issues or questions as raised by the plaintiffs that are considered, canvassed by both parties and resolved by the Court one way or the other. The Court must confine itself to the issues formulated by the plaintiff in the Originating Summons. See the cases of Achu vs. C.S.C. Cross-River State (supra) at 508 and Alubankudi vs. A.G., Federation (supra) at 359 (both cited by the Plaintiffs’ Counsel in his reply address).
The learned trial Court went further to state that:
“A defendant who intends to raise or formulate issues for determination different from the questions raised by Plaintiff in his Originating Summons ought to file a counter-claim, otherwise he is barred from formulating issues for determination. See the Supreme Court case of Dejonwu vs. Dejonwu (2000) 3 WRN 74 at 78.
I am in agreement with the learning (sic) Counsel for the Plaintiffs when he submitted that this Court cannot in law consider the issues formulated by the 1st – 3rd Defendants in this case. The issues formulated by the Counsel to the 1st – 3rd Defendants in this case are hereby discountenanced.” (See pages 897-898 of the record of appeal).
One position of the law which has stood out in the foregoing authorities is that a Court is generally not forbidden from formulating and or re-formulating issues for determination. It is my firm view that while the Court reserves the power to formulate issues, the said Court is to confine itself to or with the issues earlier raised by the plaintiff or appellant as the case may be. To confine oneself does not in anyway connote rejection of the issue(s) already formulated by the parties particularly the plaintiff as in the trial Court or appellant where on appeal, rather it demands of the Court whilst so varying or re-formulating the issues, not to lose sight of or touch with the meat of the issues earlier raised or formulated by the plaintiff or appellant as the case may be. This is to say that any re-formulated issue by the Court must revolve around or take its bearing from the pleadings where applicable and or the grounds of appeal as in an appellate jurisdiction such as in the instant scenario.

In a similar vein, the Court is bound to consider the issues raised by the parties before it and pronounce on them one way or the other, as failure to do so affects the right of the parties to fair hearing thereby occasioning miscarriage of justice. See The Estate of L. A. Mustafa vs. L.A. Ind. Ltd. (2015) 16 NWLR Pt. 1486, pg. 423 at 428, Oyefolu vs. Durosinmi (2001) 7 NSCQR 67 at 76, (2001) 16 NWLR Pt. 738, pg. 1,Adeogun vs. Fashogbon (2011) 1 NSCQR 594, (2011) 8 NWLR Pt. 1250, pg. 427 and Owodunni vs. Reg. Trustees of Celestial Church of Christ (2000) 10 NWLR Pt. 675, pg. 315.

A fine look at the questions and or issues spelt out for determination by the appellants in their amended Originating Summons as can be gleaned at pages 412-414 of the record of appeal, are obviously unnecessarily proliferated and unwieldy. It is my considered view that the law does not preclude the Court from pruning and or compressing questions or issues framed for determination, if the same are found to be unwieldy and prolix as in the instant case. That way they are reduced to a precise, comprehensible and an elegant order. The learned trial Judge in the instant appeal did not derogate from the crux and substance of the questions and issues formulated by the appellants. This is to say that the central or main issue framed by the learned trial Judge adequately covered the appellant’s issues and questions raised by them for determination. This is in line with the decision in Unity Bank Plc vs. Bouari (2008) 7 NWLR Pt. 1086, pg. 372 at 401, para C., where Ogbuagu, JSC., had this to say:
“Of course, it is now firmly settled that a Court is entitled to re-formulate issue or issues formulated by a party or parties or Counsel in order to give it precision and clarity.”

As rightly submitted by the learned counsel for the 1st – 3rd respondents, there is nowhere in the judgment under appeal where the learned trial Judge considered and arrived at conclusion based on issues formulated in the 1st – 3rd respondents’ further counter affidavit. See page 898 of the record of appeal where the Court stated inter alia as follows:
“I am in agreement with the learning (sic) counsel for the plaintiffs when he submitted that this Court cannot in law consider the issues formulated by the 1st – 3rd Defendants in this case. The issues formulated by counsel for 1st – 3rd Defendants (Respondents herein) in this case are hereby discountenanced. This Court will consider and determine this case based on the arguments of Counsel on both sides relating to the 6 issues raised by the plaintiffs’ Counsel in the Amended Originating Summons…” (Emphasis mine).

It is crystal clear from the above that the learned trial Judge decided the case based on the issues of the appellants as reformulated. The main and sole issue reformulated by the learned trial Court, obviously reflected and covered substantially all the questions raised by the appellants for determination in the amended Originating Summons. The learned trial Judge even went a step further to discountenance the issues formulated by the 1st – 3rd respondents. The authorities relied on by the appellants are thus inappropriate in the circumstances of this case. Issue 2 (two) is hereby resolved in favour of the respondents and against the appellants.

ISSUE 3 (THREE)
Whether Exhibits “MOJ1 and MOJ2” attached by the 1st – 3rd Respondents in their Counter-Affidavit are white papers and competent, are capable, and actually amended or reviewed Exhibits A and B attached by the Appellants to their affidavits, and by virtue of Sections 4(6) and (7) and 100(1) – (5) of the 1999 Constitution (as amended), does the Nasarawa State House of Assembly possess the power to make laws as in Exhibits “E1” and “E2” attached to Amended Originating Summons and or relating to the creation and relocation of the headquarters of Gade Chiefdom.

The learned counsel for the appellants answered the issue in the negative and then went on to submit that only a law or White Paper can lawfully amend or review Exhibit B, and that both Exhibit MOJ1 and Exhibit MOJ2 are not laws or White Papers to review or amend Exhibit B. Counsel contended that Exhibit MOJ1 was a report of the committee set up by the Governor and which report was not accepted by the said Governor. They argued that the terms of reference in Exhibit MOJ1 attached to the 1st – 3rd Defendants/Respondents’ affidavit showed that the Committee was never mandated to relocate the headquarters of Gade Chiefdom from Gwargwada to Gadabuke. The terms of reference was principally to resolve the venue of installation ceremony of the GomoBabye and an installation ceremonycannot be equated with relocation of headquarters of a Chiefdom. Learned counsel for the appellants canvassed further that Exhibit MOJ2 which was written by one Ibrahim B. Galadima and addressed to Chairman, Gadabuke Development Area, Gadabuke and the 3rd Respondent cannot be regarded as a White Paper. See Olanrewahu vs. Oyesomi (supra) at 299-300. Counsel also argued that Exhibit MOJ2 cannot be a Chieftaincy Declaration and so is not a White Paper. Counsel submitted that there is no evidence on record that the terms of reference of Exhibit MOJ1 is to review, revoke, replace, modify, change or amend the White paper called Exhibit B attached by the appellants to their affidavits.

Learned counsel for the appellants contended that it is only the Legislature that can make laws removing the headquarters of Gade Chiefdom from Gwargwada (New Settlement) to Gadabuke. It is not the work of a Civil Servant called Ibrahim B. Galadima. That there is no White Paper that had removed the headquarters of Gade Chiefdom from Gwargwada (New Settlement) to Gadabuke. See Cookey vs. Fombo (supra) and Tao & Sons Ltd vs. Gov. Oyo State (supra) at 299-300, on the meaning, purport and workings of a white paper. He also canvassed that the Executive can set up committees, bring out White Papers but it is the Legislature that enacts it into law by way of a bill in line with the 1999 Constitution. So that Exhibits MOJ1 and MOJ2 are not laws and are not White Papers and never amended Exhibits A and B attached by the appellants. Appellants urged on us to hold that the headquarters of Gade Chiefdom is still Gwargwada (New Settlement). Counsel argued that the sweeping powers of the legislature to make laws cannot be abridged or checkmated and donated to the executive.

In their reaction on this issue the learned counsel for the 1st – 3rd respondents submitted that Exhibit MOJ2 attached to their further counter-affidavit for all intents and purposes is an acceptance of Government views in respect of the Committees recommendation contained in Exhibit MOJ1. They contended that the Committee did recommend in Exhibit MOJ1 among other things that the administrative Seat of Gomobabye of Gade Chiefdom should be at Gadabuke. That this recommendation was however, accepted by the Government vide Exhibit MOJ2. 1st – 3rd respondents argued that the contention of the appellants that Exhibit MOJ2 is not a White Paper because same was not gazette is therefore misplaced in law. Counsel argued that where the government sets up a Panel of Inquiry, there must be some overt act by the Government to signify its acceptance or rejection of the Panel’s recommendations and the overt act in the circumstances of this case is vide Exhibit MOJ2. Learned counsel further canvassed that in Nigeria today, there is no law which provides specific format how Government’s decisions/views should be published. Also, in Nasarawa State there is no law which provides that the Committee’s recommendations (Exhibit MOJ1) which relate to the Stool of Gomobabye of Gade Chiefdom must be published in specific format and/or an official gazette before such recommendations could be accepted. Therefore, the issue of whether or not Exhibit MOJ2 attached to the 1st – 3rd respondents’ further counter-affidavit is a gazette is a matter of inference to be drawn from established facts as contained in the 1st – 3rd respondents’ further counter affidavit. The 1st – 3rd respondents submitted that Exhibit B attached to the appellants’ amended Originating Summons had been modified/amended or overtaken by Exhibits MOJ1 and MOJ2 respectively. Exhibits A and B are products of government policies and executive policies are not static but change from time to meet the demand of people at a given situation. Counsel canvassed that since Exhibit B was made out of the desire to promote peaceful and harmonious co-existence among the various ethnic groups, so also Exhibits MOJ1 and MOJ2 were made with a view to promote peaceful co-existence among the ethnic groups in Gade Chiefdom. He finally urged on us to hold that the learned trial Judge was right in holding that Exhibit MOJ2 constitutes an acceptance of government’s view in respect of the Committee’s recommendations contained in Exhibit MOJ1 and that the said Exhibits MOJ1 and MOJ2 attached to the 1st – 3rd respondents’ further Counter-Affidavit have modified or amended Exhibit ‘B’ attached to the appellants’ amended Originating Summons.

RESOLUTION OF ISSUE 3 (THREE)
It is common ground that in the year 2004, the Nasarawa State Government set up a Committee to investigate the circumstances surrounding the rift between the then Gomobabye and his subjects regarding the venue for his installation as a 2nd Class Chief. The Committee came up with a report which was later to be admitted at the lower Court as Exhibit MOJ1 and wherein the Committee made some far-fetching recommendations which amongst others included that the administrative Seat of the Gomobabye of Gade Chiefdom should be at Gadabuke. This recommendation was accepted by the Government vide Exhibit MOJ2 the part of which is reproduced hereunder for purposes of clarity:
2. In line with the Committee’s findings, I have been directed to convey Government’s decision as follows:
(i) That both the venue for the installation and Administrative seat for Gomobabye should be in Gadabuke.
(ii) That His Royal Highness, the GomoBabye should always carry his people of Gwargwada along in order to enhance the quest for peace and stability in the Chiefdom.
(iii) That a process be immediately put in place for the selection of a Village Head of Gwargwada in order to make the people have a sense of belonging following the relocation of Gomo Babye from Gwargwada to Gadabuke.
3. This letter is for immediate compliance…
Sgd.
Alh. Ibrahim Galadima
Director Local Govt. Admin. (See pages 686 – 702 of the record of appeal).

It is clear from the foregoing that Exhibit MOJ2 is an expression by the Nasarawa State Government of its acceptance of the recommendations contained in Exhibit MOJ1 and the said Exhibit MOJ2 remains what it says it is, in the absence of a contrary documentary evidence Exhibit MOJ2 may not be a White Paper in the real sense of it, but it is obviously an overt act on the part of Government, signifying its acceptance of the recommendations of the Panel of Inquiry set up by it. While a government White Paper connotes a public statement of its policy, Exhibit MOJ2 herein only signifies that the government has accepted the recommendation which may end up being published as its policy in an official gazette. See the cases of Olanrewaju vs. Oyesomi (2014) 11 NWLR Pt. 1418, pg. 258 at 292, Adekeye vs. Adesina(2011) 20 WRN 2, 34, Lines 25-30 and Diamond Bank Ltd. vs. Ugochukwu (2008) 1 NWLR Pt. 1067, pg. 1 at 30.
Exhibits MOJ1 and MOJ2 attached to the 1st – 3rd respondents’ further counter-affidavit is neither a White Paper nor a Chieftaincy Declaration. There is obviously no law in Nasarawa State that has it that the Committee’s recommendations such as in Exhibit MOJ1 which relates to the stool of Gomobabye of Gade Chiefdom must be published in a specific format and or an official gazette before such recommendations could be accepted. The rationale which necessitated the emergence of Exhibit B attached to the appellants’ amended Originating Summons, may be the same situation that brought about Exhibits MOJ1 and MOJ2 attached to the further counter-affidavit of the 1st – 3rd respondents. However, what is certain is that Exhibit B was made to address amongst other things Chiefdom-related disputes in Plateau State, while Exhibits MOJ1 and MOJ2 were aimed at addressing Chieftaincy-related issues arising in Nasarawa State. (See pages 444 – 475 and 685 – 702 respectively of the record of appeal). Indeed, the learned trial Judge was right in his finding and holding that Exhibit MOJ2 constitutes an acceptance by the Nasarawa State Committee’s recommendations contained in Exhibit MOJ1 and attached to the further counter-affidavit of the 1st – 3rd respondents.
Exhibits MOJ1 and MOJ2 are not White Papers strictly speaking and by their contents are incapable of and actually did not amend and or review Exhibits A and B attached to the appellants’ affidavits in support of their amended Originating Summons. By the combined provisions of Sections 4(6) and (7) and 100(1) – (5) of the Constitution of the Federal Republic of Nigeria as amended in 2018, the power to make laws for each State of the Federation is vested in the respective Houses of Assembly assented to by the Governor. While the date of assent to Exhibit E1 is on 13th March, 2003, that of E2 was assented to on 19th of a month which is not legible in 2013 respectively. This is to say that it was the 4th respondent who made Exhibits E1 and E2, while the Governor (Executive) assented to them. The creation of Chiefdom and their headquarters in Nasarawa State is by law and law-making resides with the legislature. It follows that it is only the Legislature that can make laws re-locating the headquarters of Gade Chiefdom from Gwargwada (New Settlement) to Gadabuke. There is indeed no government White Paper that authorized the removal of the headquarters of Gade Chiefdom from Gwargwada (New Settlement) to Gadabuke. See Cookey vs. Fombo (2005) 15 NWLR Pt. 947, pg. 182 at 207, and Tao & Sons Ltd vs. Gov., Oyo State (2011) 6 NWLR Pt. 1242, pg. 1 at 15.
Exhibits MOJ1 and MOJ2 are neither laws nor White Papers and thus never amended or reviewed Exhibits A and B attached to the affidavits of the appellants. As earlier noted in this judgment, the Nasarawa State House of Assembly is imbued with the power to make laws pursuant to Sections 4(6) and (7) and 100(1) – (5) of the Constitution supra such as in Exhibits E1 and E2 which relate to the creation of Chiefdoms and their headquarters. Exhibits “MOJ1 and MOJ2” attached by the 1st – 3rd Respondents in their Counter-Affidavit are not white papers and therefore are incapable, of amending or reviewing Exhibits A and B attached by the appellants to their affidavits. It is against this backdrop that issue 3 (three) is resolved in favour of the appellants and against the respondents.

ISSUE 4 (FOUR)
Is the relocation of the headquarter of Gade Chiefdom from Gwargwada (New Settlement) Gadabuke lawful under a supposedly existing law called Section 49 of Chiefs (Appointment and Deposition) Law Cap. 77 Laws of Northern Nigeria, Vol. II of 1963.

Learned counsel for the appellants submitted that the holding of the learned trial Judge in the issue as framed is wrong and has no basis in law. Counsel opined that the Chiefs (Appointment and Deposition) Law Cap. 77 Laws of Northern Nigeria Vol. II of 1963 particularly Section 49 is not in existence. That the truth of the matter is that Chapter (Cap) 77 of the then Laws of Northern Nigeria Vol. II of 1963 is called Native Authority Law and that law no longer exists and is not applicable to Nasarawa State. Learned counsel went on to reproduce the provisions of Section 49 of the Native Authority Law, Cap 77, Laws of Northern Nigeria, Vol. II of 1963 upon which he contended that there is no Native Authority again in Nigeria. That the Constitution of the Federal Republic of Nigeria, 1999 does not recognize Northern Nigeria. Counsel argued that Native Authority which is part of the vestiges of colonialism is long gone and for the learned trial Judge is resurrecting a dead law to justify unconstitutionality and unlawfulness of respondents, is injudicious and out of place. The 1999 Constitution recognized only States and Local Governments/Area Councils – See Section 3(1) – (6) of the Constitution. Learned counsel canvassed that even if Exhibit A attached to “applicants” affidavits made mention of Chiefs (Appointment and Deposition) Law, 1983 (Cap 20) Laws of Plateau State. It means that the Plateau State Government as at 1983 is no more relying on 196 Laws of Northern Nigeria. He argued that Section 4(6) and (7) and 100 of the 1999 Constitution (supra) has given the Legislative arm of Nasarawa State Government the powers to make laws for the good government of Nasarawa State. The defunct 1963 Laws of Northern State. Native Authority Law of Northern Nigeria is not one of the existing laws in Nigeria and besides, the said Section 49 of the Native Authority Law has to do with registered declaration, and the instant case has nothing to do with selection and appointment of a chieftaincy stool/throne. Counsel finally urged that since the judgment of the lower Court is anchored on a non-existing law, this Court is to “uphold” (sic) this appeal and set aside the judgment of the lower Court and grant all the reliefs of the appellants at the lower Court.

The 1st – 3rd respondents on the reverse pointed out that it is worthy of note that the Gade Chiefdom was created by the then Military Governor of Plateau State in 1983 vide Exhibit A (Gazette) attached to the appellants’ amended originating Summons. They argued that the fact that the then Military Governor of Plateau State exercised his powers pursuant to Section 4 of the Chiefs (Appointment and Deposition) Law, 1983 (Cap 20) to create Gade Chiefdom does not make Exhibit ‘A’ a law, hence Exhibit ‘A’ is an executive act. Learned counsel contended that the then Military Governor of Plateau State while issuing Exhibit ‘A’, exercised such powers as an executive arm of government and not as legislature arm. He submitted that the appellants failed to prove by credible evidence that Exhibit ‘A’ is an Edict made by the then Military government of Plateau State or that the said Exhibit A was later adopted by either the Plateau State House of Assembly or the Nasarawa State House of Assembly as a law hence the relocation of the palace of Gomobabye by the 1st – 3rd respondents does not require a law. The foregoing arguments of the 1st – 3rd respondents go likewise for Exhibit B also attached to the appellants; amended Originating Summons. Counsel argued that Gade Chiefdom was not created by Nasarawa House of Assembly. The 1st – 3rd respondents countered that the arguments of the appellants that it is only the Nasarawa State House of Assembly that can make a law to relocate the palace of Gomobabye from Gwargwada to Gadabuke because the then Military Governor of Plateau who created the Chiefdom possessed both executive and legislature powers is unfounded in law. Counsel canvassed that Exhibit A was not created by Edict but that the then Military Governor of Plateau State used his executive power to create same in 1983, hence the 1st – 3rd respondents do not require any law before relocating the palace or headquarters of Gomobabye from Gwardwada to Gadabuke.

RESOLUTION OF ISSUE 4 (FOUR)
It is important to note in the first instance that the Gade Chiefdom was created by the then Military Governor of Plateau State in 1983, pursuant to Section 4 of the Chiefs (Appointment and Deposition) Law, 1983. See Exhibit A (Gazette) attached to the appellants’ amended Originating Summons. Incidentally, under the military the functions and responsibilities of the legislature and the executive are merged and vested in the Military Governor, hence Exhibits A and B, though an act of the executive, equally have the force of law. As rightly submitted by the learned counsel for the 1st – 3rd respondents’ what makes an instrument a law, is not only the institution that made the law but also the process through which it passed. In a civilian dispensation, for an instrument to become law it must pass through a legislature process by way of a Bill and further has to be assented to by the Governor. However, that is not the position under the Military as both the legislature and the executive functions reside in the Military Governor, as was the case with the making of Exhibits A and B in law such military orders and or executive orders as regarded as subsidiary legislations and they are binding as laws. By the provisions of Section 18(1) of the Interpretation Act, a subsidiary legislation has the force of law.

See Yaki vs. Bagudu (2015) 18 NWLR Pt. 1491, pg. 288 at 319, para. A.
As it were, Nasarawa State which was subsequently carved out of Plateau State in 1996, is vested with power pursuant to Section 4(6) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, and vide its State House of Assembly, to make laws for the good governance of the State. By virtue of Section 315 of the Constitution supra, pre 1999 existing laws were preserved. The Plateau State Government in 1995 set up Committee to look into the issues as contained in Exhibit B and make recommendations where necessary. The Committee in the course of its assignment made the following recommendation inter alia:
“12. After giving careful consideration to the various view points and the historical importance attached to Gwargwada by all the Gade village heads, the Committee recommends that the Chiefdom headquarters should be at Gwargwada (New Settlement). However, the district headquarters should continue to be at Gadabuke.
GOVERNMENT VIEW
Government accepts these recommendations. (Underlining mine). (See page 450 of the record of appeal).
The foregoing underlined phrases areindicative of the fact that the recommendations that the Chiefdom headquarters should be in Gwargwada (New Settlement), while the district headquarters was to remain in Gadabuke. (See para. 32 at page 450 of the record of appeal). Given its status as an Edict, Exhibit B which arose from the earlier cited provisions of Section 4 of the Chiefs (Appointment and Deposition) Law, 1983 has a legal backing. Therefore, for the Chiefdom headquarters of Gade to re-locate from Gwargwada (New Settlement) to Gadabuke or any other place at that, the movement or re-location ought to be supported by law. This is to say that it behooves the Nasarawa State House of Assembly to back any re-location of the palace of Gomobabye from Gwargwada (New Settlement) to Gadabuke. This is because the then Military Governor of Plateau State who created the Chiefdom possessed both the executive and legislature powers to do so. Since the then Military Governor of Plateau State under the instrument of his hands by way of an Edict, established the Gade Chiefdom with its seat at Gwargwada (New Settlement), the said seat cannot be moved or re-located to another place save by a law duly made by the Nasarawa State House of Assembly. The trial Judge was therefore wrong in holding that the 1st – 3rd respondents did not need any legislature imputes before re-locating the palace of Gomobabye from Gwargwada (New Settlement) to Gadabuke. This is to say that the re-location of the seat of the Gomobabye from Gwargwada (New Settlement) to Gadabuke by the 1st – 3rd respondents without the requisite legal backing is illegal and of no effect. Issue 4 (four) is at the end of the day resolved in favour of the appellants and against the respondents.

With the resolution of issues 1 (one) and (two) in favour of the respondents and against the appellants, whilst issues 3 (three) and 4 (four) are in favour of the appellants but against the respondents, it follows that the appeal has succeeded in part only.
Appeal succeeds in part.

IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, HON. JUSTICE C. IFEOMA JOMBO-OFO, JCA, and I am in complete agreement with the reasoning and conclusion of my Lord in his lead judgment on all the issues raised.

On the whole, I adopt them as mine to also hold that the Appellant’s appeal succeeds in part.

MUSLIM SULE HASSAN, J.C.A.: My Lord, CORDELIA IFEOMA JOMBO-OFO, JCA, obliged me with the draft of the leading judgment delivered now. I agree with the reasoning and the conclusion that this appeal succeeds in part as set out in the leading judgment.

Appearances:

The Appellants were served hearing notice through their counsel Idumodin Ogumu, Esq. on phone nos. 08035990382 on 2nd March, 2022 but he failed to put in appearance in Court for the hearing of the appeal For Appellant(s)

Y. Y. Ede, Esq. Director of Public Prosecution, Ministry of Justice, Nasarawa State – for 1st, 2nd and 3rd Respondents

The 4th Respondent was served hearing notice through his counsel D. C. Rikko, Esq. on phone nos. 08067606181 on 2nd March, 2022 but he also failed to put in appearance in Court for the hearing of the appeal For Respondent(s)

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