Alhaji Chief Abu Momodu & Ors. V. His Highness Alhaji A. G. Momoh & Anor (1991)

LawGlobal-Hub Lead Judgment Report

L. UWAIS, J.S.C. 

The appellants were the plaintiffs in the High Court of Bendel State, sitting at Auchi. They instituted an action against the respondents, as defendants, claiming as follows, as per paragraph 16 of their amended Statement of Claim-

“16. Whereof the plaintiffs claim against the defendants the following reliefs, that is to say-

(1) A Declaration that in accordance with the Iyekhei/Auchi Customary Law and Practice the first defendant, as the Traditional Ruler of the entire Auchi people, cannot solely on his volition depose, remove or suspend from office, the 1st plaintiff as the Daudu of Iyekhei village of Auchi without the combined recommendation, concurrence, approval or sanction of the Eldest man in Iyekhei village acting in conjunction or collaboration with each of the eldest man in the seven kindreds that constitute Iyekhei village of Auchi.

(2) A Declaration that the purported removal on the 6th day of November, 1983 of the 1st plaintiff as the Daudu of Iyekhei by the first defendant is contrary to the Customary Law and Tradition of Iyekhei/Auchi and contrary to the Traditional Rulers and Chiefs Law, 1979 and therefore null and void and of no effect whatsoever.

(3) A Declaration that the appointment of the 2nd defendant as the Daudu of Iyekhei by the first defendant is wrongful in law and contrary to the provisions and tenets of the Iyekhei/Auchi Customary Law and Tradition and of no effect, null and void.

(4) A perpetual injunction restraining the 2nd defendant from performing the functions and duties of the Daudu of Iyekhei.

(5) A perpetual injunction restraining the first defendant from appointing any other person howsoever called to perform any of the functions of the first plaintiff which is contrary to the Customary Law and Tradition of Iyekhei/Auchi.”

In paragraphs 1, 4, 5, 12 and 13 of the amended statement of claim, the following averments were made –

“1.(a) The first plaintiff is a native of Iyekhei village, Auchi, and he is the Daudu (Village head) of Iyekhei Village.

(b) The second plaintiff is the eldest man and the father of Iyekhei village. He is also the Head of Afetetsemhe Kindred of Iyekhei village.

(c) The third plaintiff is acknowledged as the most knowledgeable and influential member of Iyekhei village and he is also the Tomho of Iyekhei.

(d) The fourth plaintiff is the eldest man in Afosigwe Kindred and the Head of the Kindred.

(e) The fifth plaintiff is the third eldest man in Afoge Kindred, while one Mallam Umoru Igwemi is the eldest man in Afage Kindred he being the elder brother of the second defendant who is also the second eldest man in the Kindred.

(f) The sixth plaintiff is the third eldest man in Afigiebo Kindred and he is the recognised and the effective leader of the Kindred.

(g) The seventh plaintiff is the third eldest man in Afikharia Kindred and the accredited representative of the eldest man and the Head of the Kindred – Abudu Maliki Ikharia who is in bad health.

(h) The plaintiffs are suing for themselves and as the accredited representatives of their people, the Iyekhei Community.”

“4. The plaintiffs state unequivocally that the first defendant as the Prescribed Authority for Auchi Clan, cannot appoint and/or confer the chieftaincy title of the Daudu of Iyekhei on any Iyekhei person whosoever nor turban him, which turbanning symbolizes approval, unless such a person was first appointed to and/or conferred with such chieftaincy title by those entitled to do so under Auchi/lyekhei Customary Law and that in accordance with the said Iyekhei Customary Law he cannot suspend and/or depose a Daudu for any reason whatsoever without acting on the recommendation of those entitled under Iyekhei Customary Law so to do.

5. The plaintiffs further state that the appointment to and/or conferment of the traditional chieftaincy title of the Daudu of Iyekhei is under Auchi/lyekhei Customary Law and practice the exclusive preserve of the Eldest man in Iyekhei Village and the heads of the seven Kindreds and that his deposition for any reason whatsoever can only be on their recommendation as those entitled under the said Customary Law. The eldest man and the heads of the Kindred are the king-makers for the purpose of the conferment of the traditional chieftaincy title of the Daudu of Iyekhei.”

“12 The plaintiffs will lead evidence to show conclusively that the suspension and the subsequent deposition of the First Plaintiff by the First Defendant is contrary to the Auchil/Iyekhei Customary Law and made in flagrant breach of the Traditional Rulers and Chiefs Law, 1979 and the Constitution of the Federal Republic of Nigeria, 1979.

13. The plaintiffs state emphatically that the majority of persons entitled to be consulted in connection with the alleged suspension and the subsequent deposition of the First Plaintiff under Auchi/Iyekhei Customary Law were not consulted nor was their consent to such suspension and deposition sought and obtained.”

The respondents filed all amended statement of defence in which they denied paragraph 1 of the amended statement of claim and went on to plead in paragraphs 6, 7, 8, 9, 11, 12 and 16 thereof as follows-

“6. The averments in paragraph 4 are denied, and the defendants state that it is the prerogative of first defendant to appoint or depose a DAUDU; any Community or Kindred can only recommend or nominate any member of their Kindred upon the First Defendant’s request to them for any such nomination which the first defendant is not bound to accept.

7. With regard to paragraphs 5, 6, 7, 8, 9, 11, 12, 13, 14 & 15 the answer is to be found in “TRADITIONAL RULERS’ AND CHIEFS’ EDICT” 1979; the defendants will rely on the said Edict with particular reference to B.S.L.N.44 of 1979 on “APPOINTMENT OF PRESCRIBED AUTHORITIES”, B.S.L.N.46, on “APPOINTMENT OF PRESCRIBED AUTHORITIES”, B.S.L.N. 46, on DELEGATION OF POWERS TO A PRESCRIBED AUTHORITY (Areas of Application) ORDER, 1979 also EDICT No. 16 of 1979 S.28 (1) (3) & (4) on WITHDRAWAL OF APPROVAL OF APPOINTMENT, SUSPENSION AND DEPOSITION OF TRADITIONAL RULERS, REGENT CHIEFS.
8. The first defendant is the “Prescribed Authority” appointed by the Executive Council of Bendel State, in respect of Auchi Clan subject to no conditions; vide B.S.L.N.44 of 1979.
9. The first defendant further avers that by “The delegation of powers to a Prescribed Authority (Areas of application) Order, 1979, the powers conferred upon the Executive Council were delegated to the first defendant as the Prescribed Authority for Auchi Clan. “The Otaru of Auchi. B.S.L.N. 46 of 1979 at page 90 refers.”

“11 In the exercise of the powers thus conferred on the first defendant and finding it necessary in the interest of peace, order and good government by him and among his subjects and people, the first defendant deposed the first plaintiff as Daudu as contained in paragraph 11 in particular, of the Statement of Claim.

12. The defendants again aver and state that there is only one and one only Customary Law in Auchi which is “Auchi Customary Law” to which all clans Quarters and Kindreds are subject to, and the OTARU OF AUCHI is the Custodian and embodiment of that Customary Law. In effect The Otaru is the Customary Law, and it is he The Otaru who dictates and states what the Customary Law of Auchi is at any given time.”

“16 The first plaintiff in flagrant acts and speeches of disloyalty and intransigence to the first defendant issues orders to some subjects of the first defendant contrary to that of the first defendant, acts, conduct and speeches which according to Auchi Custom are sacrilegious and contrary to Muslim practice and tradition.”

After hearing the witnesses called and the evidence adduced by the parties as well as the addresses by their counsel, the learned trial Judge, Akpovi, J. (as he then was) made the following important findings-

“The 1st defendant said that the 1st plaintiff had become so recalcitrant that he defied all his orders and dismissed all his instructions by leading away his (1st plaintiffs) community from collaborating with him (1st defendant) and the other quarters, (of Auchi town). In short, he had split the loyalty of the town to the Otaru. The palace incident was peculiar and unique. For a minor chief to advance at his Clan head only to be restrained by his fellow chiefs was strange enough. He (1st plaintiff) refrained completely from attendance at the palace and support from his fellow Daudus at Auchi Assemblies. He isolated himself and also isolated his quarters by depriving them of access to the decrees of the Otaru and the system of administration in the town. The Otaru was aggrieved, the other Daudus were not happy, and the people of Iyekhei petitioned for his (1st plaintiff) removal and replacement so that they could once more become part and parcel of the administration of Auchi. The other issue is the question of the non-co-operation of the 1st plaintiff in not attending Friday prayers at the Central Mosque … What is important here is that the Central Mosque was not only a place for prayers, it was also a place where the Clan head made decrees and pronouncements concerning the administration of the town just as he could do at the palace … On the totality of the evidence, I hold the view that the removal of the 1st plaintiff from office of Daudu of lyekhei is justifiable.”

On the appointment of the 2nd defendant as the new Daudu of Iyekhei, the learned trial Judge found as follows –

“The removal of the 1st plaintiff is lied up with the appointment of his successor, the 2nd defendant. Chief Akere argued that it was only a section of Iyekhei loyal to the 1st defendant who (sic) petitioned the removal of 1st plaintiff and (the) appointment of 2nd defendant.

The petition from Iyekhei is Exhibit “D1″ and it was signed by representatives of six kindreds. It should be noted that of the six, Alhaji Brai, number 5 in the petition, later backed out. This incident does not diminish the strength of the wish of Iyekhei people. In that petition three persons were nominated. They are

(1) Alhaji Momoh Igwemi (2) Usman Abu Obemeghie (3) Alhaji Umoru Momoh the Iyama of lyekhei. The 1st defendant in exercising his discretion as he had done in respect of the Daudu of Akpekpe, picked the first name i.e. Alhaji Momoh Igwemi, who is the 2nd defendant in the case.”

Finally, the learned trial Judge concluded the judgment thus”

On the whole, I hold that in accordance with the Customary Law of Auchi the 1st plaintiff was properly removed from the office of Daudu of Iyekhei and the 2nd defendant properly put in his place.”

It was from the judgment that all the Plaintiffs appealed to the Court of Appeal. In a majority decision (Ogundare and Musdapher, J.J.C.A. with Ndoma-Egba, J .C.A. dissenting) the Court of Appeal dismissed the appeal before us by the plaintiffs.

Hence the appeal before us by the plaintiffs.

At the hearing of the appeal on the 5th November, 1990, Chief Akinrinsola, for the respondents, brought to our notice that the 1st appellant, Alhaji Chief Abu Momodu, had died on the 23rd day of January, 1989. It was with unwillingness that Mr. Abolagba, learned counsel for the appellants conceded the death. This attitude of counsel which is unethical and reprehensible calls for condemnation by the Court in no uncertain terms. By Order 8 rule 9 sub rule (1) of the Supreme Courts Rules, 1985 it is mandatory for counsel to notify the Court as soon as he becomes aware of the death of his client, irrespective of whether the client is the appellant or respondent in the appeal. The rule reads –

“9(1) It shall be the duty of counsel representing a party to the appeal to give immediate notice of the death of that party to the Registrar of the court below or to the Registrar of the court (as the case may require) and to all other parties affected by the appeal as soon as he becomes aware of the fact.”

With the death of the 1st appellant taking place on the 23rd January, 1989 why should it take nearly twenty months before the Court becomes aware of the death Not only that, it was not learned counsel for the 1st appellant, whose duty it is under the Supreme Court Rules to alert the Court, but learned counsel for the respondent, who has no such obligation under the Rules, that took the initiative. Despite his despicable omission, counsel for the appellants was not forthcoming in admitting when it was revealed that his client had since died. It is a very serious matter and indeed sad for counsel who is a minister of the court and whose binding and inescapable duty it is to assist the Court, to appear to be intent in misleading the Court.

By reason of the death of the 1st appellant we made the order that his appeal had abated and consequently claims 1, 2 and 5 quoted above, which directly concerned the deceased, could not be pursued any longer before us. For order 8 rule 9(5) of the Supreme Court Rules, 1985 provides –

“(5) Where an appeal has been set down for hearing and the Court is or becomes aware that a necessary party to the appeal is dead the appeal shall be struck off the hearing list.”

There is no doubt that the 1st appellant was a necessary party to the appeal. The kernel of the subject-matter of the dispute in claims 1, 2 and 5 is the removal of the 1st appellant as the Daudu of Iyekhei. The 1st appellant’s interest in the appeal is not in doubt but it is futile and academic for the dispute in the claims to be pursued and determined in his absence, that is, when he is no more alive, since he was personally to be the beneficiary – See Green v. Green (1987) 3 N.W.L.R. (Pt. 61) 480 at pp. 492 to 493 per Oputa, J.S.C. Our reason for not striking out the appeal, as enjoined by order 8 rule 9(5), is because the death of the 1st appellant does not appear to affect claims Nos 3 and 4, which concern the 1st and 2nd respondents and in which the 2nd to 7th appellants could, from the peculiar facts of the case prima facie have interest. Furthermore, the action by all the appellants was brought as a representative action in the High Court ostensibly on behalf of the Iyekhei Community of Auchi, in which case the appeal subsists notwithstanding the death of the 1st appellant – see Okonji v. Njokanma (1989) 4 N.W.L.R. (Pt. 114) 161 at p.166.

I now turn to the substance of the appeal. The appellants filed no less than eighteen grounds of appeal. Happily, the grounds have been summarised in the appellants brief of argument under seven issues for determination which read as follows-

“4.1 Whether the failure of the appellate Justices in their majority judgment dated 15/4/88 to consider the appellants’ case as set out in their brief of arguments as could be gleaned at pages 266-310 of the Record of Appeal is not a denial of fair hearing of the appellants case on appeal.

4.2 Whether the 1st appellant was properly removed from the office of the Daudu of Iyekhei by the 1st respondent and the 2nd respondent properly put in 1st appellant’s place as was held by both the High Court, Auchi and Court of Appeal, Benin City in their judgments dated 7/10/85 and 15/4/88 respectively.

4.3 Whether the Court of Appeal in its majority decision was right in upholding the Auchi trial in the High Court that the 1st respondent was not in breach of the rules of natural justice in the deposition of the 1st appellant from the office of the Daudu of Iyekhei.

4.4 Whether the Court of Appeal was right in its lead judgment to hold that the 1st respondent as the Prescribed Authority was not bound to hold any inquiry, formal or informal before he could become “satisfied” that 1st appellant’s removal was necessary.

4.5 Was the Court of Appeal right in failing to hold that the trial High Court failed to make specific findings of fact on the applicable Auchi Customary (Law) governing appointment and deposition of the Daudu of Iyekhei on which the parties joined issue

4.6 Whether the Court of Appeal was right in holding that the conflicts contradictions and inconsistencies between Exhibit “C” respondent’s earlier sworn Statement and his evidence in the witness box do not derogate from 1st respondent’s evidence.

4.7 Whether the MINORITY JUDGMENT should not be preferred to the MAJORITY JUDGMENT of the Court of Appeal dated 15/4/88.”

Issues number 3 and 4 are not relevant and will not be considered because they relate to claims Nos. 1, 2 and 5 in the action which as already pointed out concern the 1st appellant only.

The respondents filed a joint brief in which the issues for determination are formulated differently from those contained in the appellants’ brief.

They read as follows-

(i) Whether the plaintiffs/appellants’ action was properly constituted.

(ii) Whether the appeal is competent, valid and not void, in view of the fact that the 1st plaintiff/appellant died even before the filing of this appeal.

(iii) In view of the fact that the 1st plaintiff/appellant is dead, is there any more, a cause of action in existence upon which to ground this appeal

(iv) Did the plaintiffs/appellants fulfil the condition precedent as required by section 22(1) and (6) of the Traditional Rulers and Chief Law 1979 of Bendel State amongst others, before the taking out of this writ, and or as amended

(v) If the answer to question (iv) above is in the negative, whether this action ab initio is competent.

(vi) Whether the trial court ab initio had jurisdiction in view of the failure of the appellants to fulfil a condition precedent as required by section 22(1) (3) and (6) of the Traditional Rulers and Chief Law, 1979 of Bendel State.

(vii) Whether the 1st appellant was given a fair-hearing before the 1st respondent suspended removed and/or deposed the 1st appellant.

(viii) Whether the 1st appellant was properly removed from the office of Daudu of Iyekhei by the 1st respondent.

(ix) Whether, upon the totality of the State of pleadings, evidence adduced and addresses of counsel, the Court of Appeal, by a majority decision of 2:1, affirming the judgment of the High Court, dismissing the case of the appellants, was right, correct and unimpeachable. In other words, whether the High Court’s judgment affirmed by the Court of Appeal was otherwise against the weight of evidence.

It is clear from these that the respondents base issues Nos.(1), (ii), (iii) on the death of the 1st appellant and issues Nos. (iv), (v) and (vi) on observance, by the appellants, of the condition precedent to be satisfied under Section 22 subsections (I), (3) and (6) of the Traditional Rulers and Chiefs Law, 1979 of Bendel State before the action brought by them could validly be filed. The point that arose on the death of the 1st appellant was disposed of on the 5th day of November, 1990 as stated above, when learned counsel for the respondents gave the date of his death as the 23rd day of January, 1989 and not a year earlier i.e. the 23rd January, 1988 mentioned in the respondents brief and on the premise of which issues Nos.(i) (ii) and (iii) have been predicated. The point was not raised by any of the grounds of appeal nor the issues framed by the appellants for determination. Therefore, issues Nos.(i), (ii) and (iii) in the respondents’ brief are irrelevant to the appeal and will as such be ignored.

Similarly issues Nos.(iv), (v) and (vi) raise matters not adverted to in the grounds of appeal nor comprised in the issues for determination formulated by the appellants. It has been stated now times without number that issues for determination formulated in a brief must be based on the ground or grounds of appeal filed by the parties – see Onifade v. Olayiwola (1990) 7 N.W.L.R. (Pt.161) 130 at p.157. If they are not related to any ground of appeal, then they become irrelevant and go to no issue. Any argument in the brief in support of such issues will be discountenanced by the Court.

An analogy needs to be drawn between a writ of summons and a statement of claim on one hand and the grounds of appeal and issues for determination formulated in a brief of argument on the other hand. In both instances the latter supercedes the former. In other words, the issues for determination in a brief of argument though necessarily based on the grounds of appeal are meant and considered to have displaced the grounds of appeal. Hence the argument in the brief follows the issues for determination and not the grounds of appeal directly. The issues may comprise the substance of the grounds of appeal or may contain less but cannot contain more than what have been alleged by the grounds of appeal. In the present case issues Nos. (iv)(v) and (vi) in the respondents’ brief are irrelevant and go to no issue since they are not related to any of the grounds of appeal in the case. For the respondents to validly raise the issues they should have filed an appeal of their own as cross-appeal or file a respondent’s notice in accordance with the provisions of Order 8 rule 3 of the Supreme Court Rules, 1985. Moreover, it is too late now in the day for the respondents to raise the points. The proper time to challenge the procedural irregularity was when the proceedings commenced in the High Court see Noibi v. Fikolati (1987) 1 N.W.L.R. (Pt.52) 619 at p.632; and Adebayo & Ors. v. Shonowo & Ors. (1969) 1 All N.L.R. (Pt. 1) 229 at p.234.

The complaint with regard to the first issue for determination in the appellant’s brief is that in reaching their decision, the majority in the Court of Appeal failed to advert to the argument in the brief filed by the appellants in that Court. The appellants therefore argued that they were denied fair hearing in violation of the provisions of Section 33 of the 1979 Constitution. This argument is misconceived. What the Court of Appeal did was to consider each and every issue for determination raised in the appellants brief, but what the learned counsel for the appellants expected the Court of Appeal to do was to deal seriatim with the grounds of appeal filed by the appellants and mentioned in the appellants’ brief. As earlier indicated in this judgment the issues formulated for determination take the place of grounds of appeal and when the issues have been considered by the appellate Court that is equivalent to considering the grounds of appeal. That is the essence of the practice of brief writing. It is a revolutionary departure from the old practice whereby grounds of appeal were orally argued by counsel and the court in its judgment specifically refers to such grounds of appeal whilst addressing the argument. It is the intendment of both the current Rules of the Court of Appeal and this Court that the argument contained in a brief shall be based on the issues formulated and not on the grounds of appeal. Consequently, the Courts resolve the controversy in appeals by reference to the issues for determination and not the grounds of appeal – see Adejumo v. Ayantegbe (1989) 3 N.W.L.R. (Pt. 110) 417 at p.430 and Onifade’s case (supra) at p.157. I am therefore unable to see how the appellants’ right to fair hearing under the Constitution had been violated by the Court of Appeal.

In canvassing issue No.2 the appellants argued that the responsibility for the conferment of the title and appointment of the Daudu of Iyekhei rests with the people of Iyekhei, who act through their kindred groups, and not with the 1st respondent whose position as the “prescribed authority” under section 22 subsection (1) of the 1979 Law contemplates two functions. The first function entails the conferment of chieftaincy title on those qualified by those who are competent under the customary law of Auchi to make the conferment. The second function is the approval of the conferment so made, which is the responsibility of the 1st respondent. Consequently, it was submitted, that the provisions of Section 22 subsection (1) do not confer on the 1st respondent the privilege or prerogative to appoint or confer the title. The Court of Appeal was as such in error, it was argued, when it failed to apply the provisions of Section 22 of the 1979 Law to the facts and circumstances of this case; particularly since the learned trial Judge failed to make specific findings of facts on the customary law applicable to the appointment and removal of the Daudu.

In the Court of Appeal the first issue for determination in the appellants brief reads as follows –

“Whether the 1st respondent (the Prescribed Authority) has powers under the Traditional Rulers and Chiefs Edict, No.16 of 1979 to depose the 1st plaintiff/appellant (Daudu of Iyekhei) in view of the order contained in Bendel State Legal Notice, 46 of 1979.”

In considering the issue the Court of Appeal adverted to the provisions of sections 21, 22 and 28 of the 1979Law and paragraph (2) of Bendel State Legal Notice No.46 of 1979 before inter alia holding as follows (per Ogundare, J.C.A.)

“having now stated the provisions of section 5 of the Traditional Rulers and Chiefs Law relevant to this appeal and the relevant Legal Notices, I shall now proceed to consider them in relation to issue 1. After a careful consideration of Section 28(1), Section 22(1) the appointment of the 1st respondent, who is the Otaru of Auchi as the prescribed authority in respect of the Daudu of Iyekhei (or Iyoke as wrongly spelt in the second schedule to the Law) and the delegation to him of the powers of the Executive Council of Bendel State under Section 28(1) and (2) of the Law, I must hold that the 1st respondent had powers to depose the appellant from his office of Daudu of Iyekhei and to approve the appointment of the 2nd respondent as the new holder of the office from which the 1st appellant was deposed.”

And as to the customary law applicable to the appointment of the Daudu, the Court of Appeal found that the learned trial Judge had made a finding and the Court of Appeal agreed with the finding. This is what the Court of Appeal stated on the point –

“The learned trial Judge in commenting on the evidence of custom appears to have accepted the version given by the Otaru and D.W.2 and rejected that given by Chief Abiri. For he said:

“There is no doubt that Auchi clan has the kindred system in which the oldest men or their representatives play an important role in the administration of the town in co-operation with the Clan head. Chief Abiri maintains that in Iyekhei the elders meet to select one candidate for Dauduship who is presented to the Otaru for approval by turbanning and that he has no choice in the matter. The Otaru who is the acknowledged repository of the custom says this is not correct. His opinion is supported by that of the Daudu of Akpekpe who said that when nominations for Dauduship are called for, it is those who apply who are considered by the Otaru and his choice is final. It seems to me that the custom as narrated by Chief Abiri is either out of date or had never existed. If a minor chief has to be imposed upon a traditional ruler and prescribed authority, the situation might be likened to the case of the tail wagging the dog and making the clan head a toothless bull dog. As the evidence stands, the Daudus of Auchi are the ministers of the Otaru of Auchi Clan.”

Judging from the uncontradicted evidence of D.W.2 as to what happened when he was appointed a Daudu in recent a time as 1982, I am not prepared to say that the trial Judge was in error in rejecting the evidence of Chief Abiri. Relating the custom as impliedly accepted by him to the appointment of the 2nd respondent as the new Daudu of Iyekhei, he said:-

“The petition from Iyekhei is Exhibit ’01’ and it was signed by representatives of six kindreds. It should be noted that of the six, Alhaji Brai number 5 in the petition later backed out. This incident does not diminish the strength of the wish of Iyekhei people. In that petition three persons were nominated, they are (1) Alhaji Momoh Igwemi (2) Usman Abu Obomeghie (3) Alhaji Umoru Momoh the Iyama of Iyekhei. The 1st defendant, in exercising his discretion as he had done in respect of the Daudu of Akpekpe, picked the first name i.e. Alhaji Momoh Igwemi, who is the 2nd defendant in this case.”

The complaint therefore made by the appellants that no finding was made, by the trial court and the Court of Appeal in particular, on the customary law applicable to the removal and appointment of the Daudu of Iyekhei is not correct and is misconceived. It is clear from the foregoing that the 1st respondent has statutory powers, as delegated to him by the Executive Council, to remove the Daudu. As to the appointment of a new Daudu, the custom proved and accepted by both lower courts is that the heads of the kindreds, as the eldest persons amongst the communities, that constitute Iyekhei Quarters, select or nominate the candidate or candidates for the conferment of the title of Daudu and the 1st respondent as the Otaru does the conferment or appointment.

In issue No.5 the appellants contend that the Court of Appeal was wrong in failing to make specific findings of fact on the Auchi custom governing appointment and deposition of the Daudu of Iyekhei. In my opinion this complaint is without foundation for it is very clear from the exerpts above that the Court of Appeal not only quoted in detail the specific findings made by the learned trial Judge on the contention but it also came to the conclusion that the learned trial Judge preferred the evidence of custom given by the 1st respondent and the 2nd defence witness on behalf of the defence to that given by the 3rd appellant – Umaru Itselakhor Abiri, who was the leading witness for the plaintiffs on the Auchi custom applicable to the case. Since the trial Judge preferred the defence evidence of custom to that adduced by the plaintiffs, that is a clear indication that the trial Judge had accepted the evidence adduced by the defence. Furthermore, the learned trial Judge rejected in no uncertain term the plaintiffs’ evidence on the subject. With the rejection of the plaintiffs’ evidence the trial Judge was left with the evidence of the defence only to act upon and hence acting on that evidence the learned trial Judge found for the defence and dismissed the plaintiffs’ claim. How can the plaintiffs, therefore, be right in contesting that no specific finding on the custom applicable was made by the Court of Appeal when that Court held that the trial court was not in error in rejecting the evidence of the 3rd plaintiff, that is Chief Umaru Itselakhor Abiri. I, therefore, see no merit in the appellants’ argument in support of issue No. 5.

In issue No.6, the complaint is that the evidence given by the 1st respondent at the trial was inconsistent with the counter-affidavit exhibit C – sworn to by him on the 9th day of January, 1984 in the course of the proceedings in the High Court. Learned counsel for the appellants argued, in the appellants’ brief of argument, that where such inconsistency exists the testimony of the witness ought to be discountenanced; and submitted that had that course been followed the evidence of Auchi custom on the appointment of Daudu given by the 1st respondent would have been rejected and judgment entered for the appellants. Learned counsel relied on the provisions of Section 209 subsection (c) of the Evidence Act, Cap.62 and the decision of this Court in Akpapuna & 3 Ors. v. Obi Nzeka II & 3 Ors. (1983) 2 S.C.N.L.R. 1 at page 2 per Obaseki, J.S.C. and Mbamali & Anor. v. Osiako & Anor. (1975) 5 E.C.S.L.R. 236 at p. 244 per Oputa, C.J. (as he then was), in support of his contention.

Now let me examine the deposition of the 1st respondent in exhibit C which had been referred to in the appellants’ argument. Paragraph 3 of the exhibit reads-

“3. That I am the prescribed authority for Auchi Clan who has the powers to approve the appointment of a Daudu for any quarters after those entitled by customary law so to do have conferred such traditional Chieftaincy title on any person.”

In his evidence-in-chief the 1st respondent testified thus-

“When a vacancy occurs, the Otaru calls for nomination from the people. This will include an application from anybody who is interested. When all the applications arrive, I consider them on their merits. I consider the loyalty, integrity, behaviour to the Otaru and the public. I then make my decision and convey same the appointee and the people. I then turban him at the Otaru’s palace.” (italics mine).

And under cross-examination the 1st respondent said –

“It is not true that I do not appoint a Daudu but appointment is made by the people and I merely turban.”

In considering whether there was conflict between the deposition in Exhibit C and the testimony of the 1st respondent, the Court of Appeal observed as follows –

“To the extent that the Otaru’s evidence conflicted with Exhibit C, I would say that the trial Judge should have viewed such evidence with some caution and, if I may add, reject same. Unless, the appointment of the 2nd respondent as the Daudu of Iyekhei was in accord with the custom as revealed in Exhibit C. it should be difficult indeed to uphold its validity. But Otaru in his evidence under cross-examination said;

‘That those entitled by customary law to appoint 2nd defendant had done so and I approved. That the six kindreds in Iyekhei recommended 2nd defendant.”

The question is: Is there any contradiction between exhibit C and the evidence of the 1st respondent As can be seen from the quotations above what the 1st respondent deposed to was that he, as the prescribed authority, approves the appointment of Daudu when made according to custom. In his evidence-in-chief he said that when a vacancy exists he asked the people to nominate the candidates for the appointment before taking his decision. The people who nominate candidates or confer the title of Daudu are the elders of the kindreds that constitute the quarters that the Daudu is to be appointed for. As shown under the provisions of Section 21 and 22 subsection (2) of the Traditional Rulers and Chiefs Law, 1979, and the Delegation of Powers to Prescribe Authority (Areas of Application) Order 1979, Bendel State Legal Notice No.46 of 1979, the 1st respondent as the prescribed authority has the power to approve the appointment of the Daudu. It is a matter of law and not evidence that the title of Daudu is to be conferred by those entitled under the custom to do so and the responsibility of the 1st respondent as the prescribed authority is to approve the appointment. Section 22 subsection 2 of the 1979 Law provides-

“(2) Where a traditional chieftaincy title is conferred on a person by those entitled by customary law so to do and in accordance with customary law the prescribed authority or the Executive Council as the case may be, may approve the appointment.”

There is no contradiction between exhibit C and the evidence-in-chief of the 1st respondent. His evidence in cross-examination quoted above does not also appear to be in conflict with his deposition in exhibit C quoted above, because the evidence appears vague. Does it mean that the 1st respondent appoints a Daudu and the people equally appoint the Daudu before the Daudu is turbanned by the 1st respondent If, at best, that is what the evidence means, then it is undoubtedly equivocal and ambiguous. In any event, even if it is accepted, which I do not, that the evidence in cross-examination contradicts exhibit C, as submitted by the appellants; the question as to who appoints the Daudu and who approves the appointment is a matter of law which the Court is enjoined to the judicial notice of. Therefore what needs not he proved by testimony cannot by virtue of rejecting the evidence of 1st respondent on ground of its inconsistency with his deposition in exhibit C become proveable – See Sections 72 and 73 of the Evidence Act.

Finally, the appellant urge upon us in issue No.7 to reject the decision of the majority in the Court of Appeal and adopt the minority decision of Ndoma-Egba, J .C.A. I see no basis for this submission. There is nothing which has been found in this judgment to have been wrong with the majority decision.

In the result the appeal has failed in toto and it is hereby dismissed with N500.00 costs to the respondents.

S. M. A. BELGORE, J.S.C.: I read in advance the judgment of my learned brother, Uwais, J.S.c. with which I am in total agreement. Contradictions alleged to be in the evidence of the first respondent and his affidavit, Exhibit C, to my mind are self-imagined by the appellants, as in fact there are no contradictions. I find no merit in this appeal and as concluded in the judgment of Uwais, J.S.C., I dismiss it on all grounds with N500.00 costs to the respondents.

AGBAJE, J.S.C.:

Editorial Note:

The Hon. Justice-Abdul Ganiyu Olatunji Agbaje, J.S.C. (retired) was in the panel that heard this appeal at the Supreme Court.

He indicated that he concurred with the leading judgment of Hon. Justice Muhammadu Lawal Uwais, J.S.C. He however retired from the Supreme Court Bench before the Reasons for Judgment were delivered on Friday, 1st February, 1991.

O. OLATAWURA, J.S.C.: I had a preview of the judgment of my learned brother, Uwais, J.S.C. just delivered. I agree in toto with the reasoning and conclusion. I will also dismiss the appeal with costs of N500.00 to the respondents.

E. O. I. AKPATA, J.S.C.: I have read in draft the judgment of my learned brother, Uwais, J.S.C. I am in agreement that the appeal be dismissed for the reasons stated by him. I adopt his orders as to costs.

Appeal dismissed.

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SC.286/1988