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Home » Nigerian Cases » Supreme Court » Alhaji Umaru Sanda Ndayako Vs Alhaji Haliru Dantoro & Ors (2004) LLJR-SC

Alhaji Umaru Sanda Ndayako Vs Alhaji Haliru Dantoro & Ors (2004) LLJR-SC

Alhaji Umaru Sanda Ndayako Vs Alhaji Haliru Dantoro & Ors (2004)

LAWGLOBAL HUB Lead Judgment Report

D.O. EDOZIE, JSC.

This appeal arose from a chieftaincy tussle over the succession to the stool of the Emir of Borgu in Borgu Local Government Area of Niger State which stool became vacant following the demise on 3rd February 2000 of the last incumbent by name Alhaji Musa Mohammed Kigero III. There were many contestants for the vacant stool but the principal candidates are Alhaji Haliru Dantoro a former Senator who is the 1st Respondent and Isiyaku Musa Jikantoro, Commissioner for Lands and Survey, Niger State Government, the 1st Appellant in these proceedings.

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Arrangement to fill the vacant stool was initiated by a letter dated 7th February 2000 (Exhibit NB/2) written by the Commissioner for Local Government (4th Appellant) at the instance of the Governor of Niger State (3rd Appellant) directing the Chairman of Borgu Local Government to set in motion within 48 hours from receipt of the letter the machinery for the selection of a successor to the Emir. At the material time, there were three surviving kingmakers to, wit, the 5th Appellant (deceased), 6th and 7th respondents, out of a total of five kingmakers two of whom had died. In apparent compliance with the directive in the letter Exhibit NB/2, a meeting of the aforesaid surviving kingmakers was convened on 9th February 2000 at which meeting Alhaji Haliru Dantoro the 1st Respondent herein was unanimously selected by the three kingmakers, in a ceremony that was witnessed by the Chairman Borgu Local Government, Commissioner for Local Government and Chieftaincy Affairs (4th Appellant) among others.

However, for inexplicable reason, the Governor of Niger State did not give approval to the selection of the 1st Respondent as the new Emir. Rather, the Governor of Niger State (3rd Appellant) pursuant to the Chiefs (Appointment and Deposition) Law Cap 19, Laws of Niger State, 1989 made an Order dated 10th day of February, 2000 titled “The Appointment and Deposition of Chiefs (Appointment of the Emir of Borgu) Order 2000” (Exh. NB/25/6) whereby he reconstituted the council of Borgu kingmakers by the addition of 6th and 7th Appellants as kingmakers to replace the two deceased ones. The Commissioner for Local Government (4th Appellant) then directed that a second selection exercise be conducted with the three surviving and the two additional kingmakers participating in the exercise, which was slated to take place on Saturday 12th February 2000. Angered by this development, the 1st to 5th Respondents herein, went to the Niger State High court to apply for and were granted an order of ex parte injunction (Exhibit NB/1) on 11th February 2000 by Auta J. restraining the five kingmakers, that is, the 5th, 6th, 7th Appellants and 6th and 7th Respondents from attending the meeting of 12th February 2000. Notwithstanding the said ex parte order (Exhibit NB/1), the meeting took place as scheduled and at the end of the second selection exercise, the 1st Appellant Isiyaku Musa Jikantoro was alleged to have emerged as the successful candidate. Those were in outline the background facts culminating in the suit by the 1st to 5th Respondents as Plaintiffs against the Appellant as Defendants. In their 42 paragraph statement of claim, they averred facts as substantially hereinbefore narrated claiming in paragraph 42 thereof reliefs formulated thus:-

“42 WHEREOF the plaintiffs claim against the defendants jointly and or severally as follows:-

(i) A DECLARATION that the 1st plaintiff has been duly and properly selected as the Emir of Borgu by the Traditional Kingmakers of Borgu in accordance with Borgu native law, custom and tradition on Wednesday, 9th February, 2000

(ii) A DECLARATION that the Emir of Borgu stool is a traditional institution rooted in the Borgu people’s customs and that the stool cannot be awarded to any Prince of Borgu as a political patronage by any Chief Executive of State, particularly the 3rd defendant.

(iii) A DECLARATION that the 3rd defendant has no power or right to constitute an Electoral College including the 7th and 9th defendants for the people of Borgu in order to ensure the ascendance of his own candidate (1st defendant) to the throne of Emir of Borgu.

(iv) A DECLARATION that the purported Order made and signed by the 3rd defendant on 10th February, 2000 amending the Chiefs (Appointment and Deposition) Law Cap. 19 Laws of Niger State 1989 is irregular, illegal, unconstitutional, null and void and of no effect whatsoever because:-

(a) The purported Order was made pursuant to a non-existing Law, to wit, Section 3(1)(A) of the Chiefs (Appointment and Deposition) (Amendment) Law 1997.

(b) The purported Order (though styled as an Order) effected substantial amendments to the Chiefs (Appointment and Deposition) Law of Niger State without such amendments passing through the Niger State House of Assembly.

(c) The 3rd defendant exceeded his jurisdiction and breached the Constitution of the Federal Republic of Nigeria 1999 by making or promulgating such an Order.

(d) The said Order changed, upturned and corrupted the tradition of Borgu people in relation to the filling of the stool of the Emir of Borgu.

(e) The Order conflicts with and abrogates the vested rights of the 1st plaintiff who has already been duly selected as the Emir of Borgu.

(v) A DECLARATION that the 7th and 9th defendant being not related to any of the families of the traditional kingmakers of Borgu cannot be appointed as kingmakers of Borgu or members of an Electoral College for the purpose of selecting a new Emir of Borgu.

(vi) A DECLARATION that the purported meeting of the Electoral College set up by the 3rd defendant on 12th February, 2000 despite the service of a court Order on the defendants is irregular, contemptuous of the institution of the Judiciary, illegal, null and void and of no effect whatsoever.

(vii) AN ORDER setting aside the Order made by the 3rd Defendant on 10th February, 2000 titled. Appointment and Deposition of Chiefs (Amendment of Emir of Borgu) Order 2000 and all processes conducted pursuant to that Order, including any meeting of the Electoral College held, the purported selection and appointment of the 1st defendant as the Emir of Borgu etc, etc.

(viii) AN ORDER commanding the 1st defendant to approve the selection of the 1st plaintiff by the Traditional Kingmakers of Borgu as the Emir of Borgu since 9th February, 2000

(ix) AN ORDER of perpetual injunction restraining the 2nd, 3rd and 4th defendants either by themselves, agents, privies, servants or through any person or persons however from treating, presenting, or dealing with or installing the 1st defendant as the Emir of Borgu or handing over to him the staff of office of the Emir of Borgu.

(x) AN ORDER of perpetual injunction restraining the 1st defendant from parading, presenting or styling himself as the Emir or Borgu or from putting on or wearing any paraphernalia or insignia of the Emir of Borgu.

(xi) AN ORDER of perpetual injunction restraining the 7th and 9th defendants from parading themselves as Kingmakers or members of any Electoral College for the purpose of selecting any candidate for the stool of Emir of Borgu.

(xii) AN ORDER of perpetual injunction restraining the 5th, 6th and 8th defendant from dealing with:-

(a) the 1st defendant as the Emir of Borgu.

(b) the 7th and 9th defendant as Kingmakers for the purpose of selecting any candidate to the stool of Emir of Borgu.

In reaction to the claim, the 1st to 7th Appellant as Defendants in their statement of defence denied the claim impugning the selection of the 1st Respondent on the ground that it was contrary to their custom and confirming the appointment of the 1st Appellant as the new Emir. The 6th and 7th Respondents herein as the 6th and 8th Defendants in their joint statement of defence conceded to all the claims of the plaintiffs. There was also Reply to the statement of defence of 1st to 7th Appellant filed by the 1st to 5th Respondent. After due trial at which four witnesses testified for the Respondents and two for the 1st to 7th Appellants, the learned trial Judge Ahmed Bima J. of the High Court, Suleja, meticulously reviewed the evidence before him and the submissions of counsel and in a reserved judgment delivered on 11th September, 2000 entered judgment for the Plaintiff/Respondents. On appeal by the Appellants, that judgment was subsequently affirmed substantially in a unanimous decision of the Abuja Division of the Court of Appeal delivered on 26th April, 2002 (Coram Muntaka-Coomassie, Fabiyi, Oduyemi JJCA). Against that decision, the Appellants have now approached this court with a number of complaints seeking a judgment in their favor. The first is the main appeal by the Appellants and the second is the appeal by the Appellant/Interested party, the Chairman, Niger State Council of Chiefs, who with leave of the court below is appealing against the Order of that court which he perceived to undermine the right of the Council of Chiefs to be consulted by the Governor of Niger State for its advice before the approval of the appointment of an Emir.

See also  Christopher E. Nwanji Vs Coastal Services (Nig.) Ltd (2004) LLJR-SC

In respect of both appeals, several briefs of argument were filed by learned counsel as follows:-

L.O. Fagbemi Esq. SAN.

(a) Appellants’ brief of argument dated 11/10/2002 filed on 15/10/2002.

(b) Appellants’ Reply of argument to 1st-5th Respondents’ brief dated 16/1/2002 filed on 21/1/2003.

Chief Wole Olanipekun, SAN-

(a) 1st to 5th Respondents’ brief of argument dated 9/12/2003 filed on 11/12/2003.

(b) 1st to 5th Respondents’ brief in Reply to Appellant/Interested Party brief dated 9/12/2002 filed on 11/12/2002/

A.O. Muhammed Esq –

(a) 6th and 7th Respondents’ brief of argument dated 23/12/2002 filed on 23/12/2002.

(b) 6th and 7th Respondents’ brief of argument to the Appellant/Interested Party brief dated 23/12/2002 filed the same date.

O.I. Olorundare Esq. –

(a) Appellant/Interested Party’s brief of argument dated 15/10/2002 filed the same date.

(b) Appellant/Interested Party’s Reply to the 6th and 7th Respondents’ brief dated 4/8/2002 filed the same date.

(c) Appellant/Interested Party’s Reply brief of argument dated 8/1/2003 filed the same date.

At the hearing of the appeal, each counsel adopted and relied on his briefs of argument. In the main appeal, the Appellants raised six issues for the determination of the appeal. The 6th and 7th Respondents adopted those issues but the 1st to 5th Respondents framed only three issues. It is pertinent to mention that a brief of argument is meant to assist the court in appreciating the issues in controversy between the parties and thus enhance and facilitate the easy resolution of those issues. It is not meant to befog and becloud those issues or put unnecessary strain on the court in the determination of the issues in controversy. In a contentions and voluminous appeal of this nature where the Appellant formulated six issues for determination with some of the issues containing three or more sub-issues, I think that even if the Respondents’ counsel does not quite agree with the approach of the Appellants, it is advisable that he endeavours, as far as possible, to tailor or present the arguments in his brief in a manner consistent with the sequence of the topics canvassed in the Appellants’ brief.

This will obviate the necessity of the court having to scan often through the Respondents’ brief in search for the corresponding topic being treated in the Appellants’ brief with the attendant risk of inadvertently glossing over relevant arguments. For the determination of the main appeal in this case, I am prepared to adopt the six issues as identified in the Appellants’ brief which are as follows:-

“(1) Whether in all the circumstances of this case, it can be said that the 1st respondent’s purported selection was done strictly in line with Exhibit NB/2 and if not, whether the court below was right in affirming the decision of the High Court that he was properly appointed Ground 4.

(2) Whether the plaintiffs proved their case that 1st plaintiff was appointed in accordance with the native law and custom of Borgu and whether the onus of proof placed on the plaintiffs was discharged on the basis of admission, if any of some of (sic) only some of the defendants or even all the defendants – Grounds 1,2 and 3.

(3) Whether the Court below was right in holding that, 1st plaintiff must be approved as the Emir of Borgu when such directive negates clear provisions (of) the Chief(s) Law of Niger State and whether 1st plaintiff has any vested right in all the circumstances of this case to forbid the Appellants from conducting a second exercise Grounds 5 and 6.

(4) Whether the complaint of a breach of court order is available to the plaintiffs and was any breach proved to entitle the court below to confirm the assumption of jurisdiction by the High Court to entertain such a complaint – Grounds 7, 8, 9, 10, 11 and 12.

(5) Whether the ex-parte order of 9th (sic) February 2000 is not a nullity having been made without jurisdiction and whether the Appellants’ rights to fair hearing was not breached when the original trial judge who was quite aware of the facts of the case failed to disqualify himself from adjudicating on same until he had granted an order of injunction ex-parte. – Ground 15.

(6) Whether estoppel can be validity raised in this case against the Appellants. – Grounds 13 and 14.”

The first issue for determination deals with the validity of the selection of the 1st Respondent as the Emir of Borgu with respect to the compliance or non-compliance of the directives of the 3rd and 4th Appellants as per the letter of 7/2/2000 (Exhibit NB/2) in which the Chairman of Borgu Local Government was instructed to set in motion within 48 hours from the receipt of the letter the machinery for the selection of a successor to the late Emir of Borgu. The said letter Exhibit NB/2 further directed that “the Chairman of Borgu and Agwara Local Governments should observe the proceedings during selection while the Hon. Commissioner for Local Government, Community Development and Chieftaincy Affairs and the Permanent Secretary of the same Ministry will witness the entire process”.

A meeting of the three Kingmakers was convened on 9/2/2000 for the exercise. According to the minutes of the proceedings of that exercise Exhibit NB/5, it was recorded that when the chairman of Borgu Local Government asked the kingmakers whether or not they would like to conduct the selection through open or secret balloting, the kingmakers requested that they be left alone to consult with one another for ten minutes. In consequence, the meeting hall was vacated by all except the kingmakers who after due consultation called in the officials present at the meeting and made a resolution to the effect that all the three kingmakers had unanimously selected the 1st Respondent as the next Emir. The pith of learned counsel’s complaint is that the officials who were to witness the selection process as directed in the letter Exhibit NB/2 were not allowed to do so as the selection was done behind their backs and this learned counsel submitted was in breach of or non-compliance with Exhibit NB/2.

It was further contended that since Exhibit NB/2 was made in exercise of the power of the Governor (3rd Appellant) pursuant to the Chiefs (Appointment and Deposition) Law Cap 19, Laws of Niger State, (Chiefs Law for short) a breach of the former is an infringement of the latter and amounts to non-compliance of a statutory provision thereby rendering as nullity the selection of the 1st Respondent as the Emir of Borgu. As ingenous and attractive as these arguments are, with much respect to learned counsel, they are by no means sound. In the first place, Exhibit NB/2 did not spell out the mode of selection by the kingmakers, that is, whether it should be by balloting, secret or open. The kingmakers, quite rightly in my view chose a method of selection by consulting among themselves, a procedure typical of our custom and tradition.

See also  Chief R.O. Nkwocha V. Governor Of Anambra State & Ors (1984) LLJR-SC

That selection did not derogate from the directive in Exhibit NB/2. Secondly, the officials mentioned in the said Exhibit NB/2 were merely to act as witnesses or observers in the selection exercise; they were not to participate therein. Since they were present when the three kingmakers announced their unanimous choice of the 1st Respondent, the directive in Exhibit NB/2 was duly complied with. It is with respect absurd and indeed invidious to suggest, as learned counsel has done, that the supposed breach of Exhibit NB/2 amounts to a breach of a statutory provision, to wit, section 3 of Cap 19. Exhibit NB/2 is not part of Chiefs Law nor was it made pursuant to it. Consequently, non-compliance therewith is not a breach of the Chiefs Law. The question whether the selection exercise of 9/2/2000 conformed with the directive in Exhibit NB/2 is a question of fact. The trial court addressed this issue and at pages 200, 205 of the record it held thus:-

“I now come to issue No.2: That is whether or not the 1st plaintiff has been appointed/selected as the Emir of Borgu in compliance with the directives of the 3rd defendant in Exhibit NB/2 of 20th February, 2000.

…………………………..………………

……………………………………………

I shall in the light of the foregoing hold that the 1st Plaintiff has been appointed/selected as the new Emir of Borgu in compliance with the directive of the Governor in Exhibit NB/2 of 7th February, 2000 and in accordance with Borgu Native Law custom and tradition.”

This finding was upheld by the court below when in page 295, 296 of the record, it observed, inter alia, as follows:-

“It was the submission of the counsel to the appellants that the exercise of 9/2/2000 was not conducted in accordance with the provisions of the Chiefs (Appointment and Deposition) Law of Niger State. This being that some government officials were excluded from the proceedings. With due respect to the learned counsel to the appellants, this submission sounds strange to me. The evidence of P.W.4 which was not challenged is very clear on this point.”

On page 122 of the records of proceedings, the learned trial judge said-

‘……………………………………….

…………………………………..

……………………………………..

This witness was not cross-examined on this evidence and the neither was any evidence adduced in rebuttal. The position of law in situation like this has been settled in the case of I.B.W.A. V. Imano Ltd (2001) 3 SCNJ 160/183……….…… ……………………………………………………………….

The only evidence before the court in respect of the conduct of the exercise of 9/2/2000 was that provided by evidence of P.W.4 which gave details of how the 1st respondent was selected by the existing 3 kingmakers. No other evidence was provided by the Appellants and neither was this witness cross-examined on this point. In the circumstances, I hold that the exercise conducted on 9/2/2000 for the selection of a new Emir of Borgu by the traditional kingmakers as directed by the 3rd Appellant was conducted as directed in Exhibit NB/2, and by extension, complied with the provisions of the Chief (Appointment and Deposition) Law of Niger State.

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I therefore hold that the selection of the 1st Plaintiff/Respondent as the Emir of Borgu on 9/2/2000 by the three existing traditional kingmakers as directed by the 3rd defendant and witnessed by the 4th Defendant and other government officials was valid.”

There is thus a concurrent finding by two lower courts. The principle has long crystallized that an appellate court will not interfere with the concurrent findings of the two lower courts on issues of fact except there is established a miscarriage of justice from perverse finding or a violation of some principle of law or procedure: see National Insurance Corporation of Nigeria V. Power and Industrial Engineering Co. Ltd (1986) 1 N.W.L.R. (Pt.14) 1 at 36; Enang V. Adu (1981) 11 – 12 S.C. 25 at 42, Nwangwu V. Okonkwo (1987) 3 N.W.L.R. (1987) 3 N.W.L.R. (Pt.60) 314 at 321, Igwego V. Ezeugo (1992) 6 N.W.L.R. (Pt. 248) 561 at 574, Ebevuhe V. Ukpahara (1996) 7 N.W.L.R. (Pt. 460) 254 at 278. Nothing has emerged from the arguments of learned counsel for the Appellant to bring this case within the ambit of the exception to the age long principle enunciated above. I am therefore persuaded to resolve the issue under consideration against the Appellants and in favor of the Respondents.

The 2nd issue for determination posed the question whether the 1st Respondent’s selection as the Emir was in accordance with the custom of the people of Borgu. The central issue agitated by the parties on the issues is the number of kingmakers that can form a quorum of the purpose of the selection of an Emir of Borgu. The 1st to 5th Respondents had in paragraph 25 of their statement of claim pleaded that three kingmakers constituted a quorum for the selection, the Appellants as the 1st set of Defendants in paragraph 10 and 21 of their statement of defence denied that averment.

But the 6th and 7th Respondents as the second set of Defendants admitted that averment. Learned counsel for the Appellants then submitted that in the face of the pleading where one set of the Defendants denied that three kingmakers constituted a quorum, the court below was in error to have held that there was an admission on that matter and that in any case since the Respondents were seeking declaratory reliefs an admission could not sustain such reliefs. He craved in aid the case of Bello V. Eweka (1981) 1 S.C. 101. It is the submission of counsel that the Respondents had failed to plead and lead evidence on the evolution and devolution of the custom with the particulars of those people or persons who had been appointed by three kingmakers as the Emir. The case of Egbo V. Agbara (1987) 1 N.W.L.R. (Pt.481) 293 at 317-318; Mogaji V. Cadbury (Nig) Ltd (1985) 2 N.W.L.R. (Pt.7) 393 and Balogun V. Oligbede (1991) 8 N.W.L.R. (Pt.208) 233 at 231 were cited support.

Learned counsel for the two sets of Respondents contended in their briefs that by letter of the 7th February 2002 Exhibit NB/2 and the Appointment and Deposition of Chiefs (Appointment of the Emir of Borgu) Order of 10th February 2000 Exhibit NB/25/6, the Appellants admitted that three kingmakers constituted a quorum for the selection of the new Emir. I am inclined to accept this proposition.

It is conceded that the Appellants denied the averment in paragraph 25 of the statement of claim to the effect that three kingmakers constitute a quorum for the purpose of the selection of the Emir. That denial however was not made honestly as I will show anon. Paragraph 3 of Exhibit NB/2 is pertinent and it reads as follows:-

“3 The kingmakers are:

(i) Waziri Borgu, (ii) Ba Kara Bonde (iii) Liman New Bassa (iv) Magajiye and (v) Ba Tafu.

However, the last two positions (iv-v) above are vacant. Hence for quorum the three others (i, ii and iii) shall deliberate and take binding decisions in the overall interest of the Emirate.

See also  Efcc V. Reinl (2020) LLJR-SC

(underlined for emphasis)

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The letter Exhibit NB/2 was written by the Commissioner for Local Government (4th Appellant) at the instance of the Governor of Niger State (3rd Appellant) and it expressly stated from the underlined extract quoted above that the three surviving kingmakers should form a quorum. As if that was not enough, the Appointment and Deposition of Chiefs (Appointment of the Emir of Borgu) Order, 2000, Exhibit NB/25/6 made by the 3rd Appellant on 10th February, 2000 provided in section 4(3) thereof as follows:-

“Three members of the Electoral College shall constitute a quorum for any meeting of the Electoral College.”

In the face of Exhibit NB/2 and NB/25/6, the contention that the Appellants did not in their pleading admit that three kingmakers constitute a quorum is preposterous and puerile. Clearly Exhibits NB/25/6 belie their denial in that regard. I am of the view that the two lower courts were justified in holding, as they did, that there was an admission to that effect.

Admittedly, as rightly submitted by learned counsel for the Appellants, the court does not grant declarations of right either in default of defence or indeed on admissions without hearing evidence and being satisfied by such evidence; see Bello V. Eweka (1981) 1 S.C. 101; Motunwase V. Sorungbe (1988) 4 N.W.L.R. (Pt.92) 90, Ogunjuma V. Ademola (1995) 4 N.W.L.R. (Pt.389) 254 at 269. The making of a declaration order is within the discretion of the trial Judge and the discretion should not be too readily exercised, per Taylor JSC. in Ogundairo & Ors. V. Okonlawon & ors. (1963) 1 ALL N.L.R. 358. In considering the relevance of this principle to the case in hand, I will pause to examine critically some of the reliefs sought by the Respondents. In this regard, relief 42(i) is germane and for case of reference it reads:-

“A DECLARATION that the 1st plaintiff has been duly and properly selected as the Emir of Borgu by the Traditional kingmakers of Borgu in accordance with Borgu native law, custom and tradition on Wednesday, 9th February, 2000.”

It is evident that by that relief, the Respondents did not specifically seek a declaration that three kingmakers constitute a quorum for the purpose of the selection of the Emir of Borgu. Therefore the admission by the Appellants through Exhibits NB/2 and NB/25/6 as demonstrated above is full proof of that fact, for it is well settled that what is admitted needs no further proof: See Egbunike V. A.C.B. Ltd (1995) 2 N.W.L.R. (Pt.376) 34 at 53, Obimiami Brick and Stone (Nig) Ltd V. A.C.B. Ltd (1992) 3 N.W.L.R. (Pt.229) 260 at p.301, Akpan Obong Udofia and Anor V. Okon Akpan Udo Afia (1940) 6 W.A.C.A. 21 at 218, 219.

Notwithstanding the above admission, the Respondents called witnesses to reinforce the fact that the three kingmakers including the 6th Respondent – Baa Kara Bonde constitute the customary quorum for the selection of the Emir of Borgu and that the selection of 1st Respondent on 9/2/2000 by the 6th and 7th Respondents and the late Waziri Borgu is valid and in accordance with the custom and tradition of Borgu. It is the prerogative of the trial court to admit, assess and evaluate evidence and when these have been satisfactorily done, an appellate court does not interfere with the findings of facts made by the trial court: see the case of Michael Romanie V. Christopher Romaine (1992) 5 SCN J 25 at 23 where this court held:-

“A judge of trial is in pre-eminent position to make findings of facts based on the evidence before him. When this exercise is properly done, an appellate court cannot interfere to change the findings. But when a trial Judge abdicates this sacred duty or when he demonstrates that he has not taken proper advantage of his having heard and seen a witness testify, the matter is at large for the appellate court.”

See also Akinolu V. Olowu (1962) 1 SC. N.L.R. 352 or (1962) 1 All N.L.R. (Pt.11) 224, Ebba V. Ogodo (1984) 1 SC. N.L.R. 372.

From the arguments canvassed by learned counsel, I see no jurisdiction for interfering with the finding of the court below on the issue under consideration, which is resolved in favor of the Respondents against the Appellants.

The 3rd issue for determination deals with the approval by the Governor of the selection of the 1st Respondent as the Emir of Borgu. The contention of learned counsel for the Appellants is that contrary to the finding of the lower court, the 1st Respondent has no vested right by reason of his selection as the Emir of Borgu because whatever right he acquired by that exercise is a contingent right since the selection was not done in compliance with the directive in Exhibit NB/2, the 1st Respondent had not been notified of his selection by the kingmakers and the Traditional Council of Chiefs had not discharged its statutory responsibility of advising the Governor for his approval pursuant to section 7 of the Chiefs (Appointment and Deposition) Law supra. It was further contended that the order made by the trial court even as modified by the Court of Appeal to the effect that the 1st Respondent is entitled to receive the approval of the Governor implied that once the kingmaker select a person as an Emir to be, what remains is the approval of the Governor, a situation that compromise the right of the Council of Chiefs under section 7 of the Chiefs (Appointment and Deposition) Law supra.

The New Webster’s Dictionary of the English Language defines ‘vested interest’ as “personal interest or right to derive or share a benefit, protected by law, custom etc.”

Blacks Law Dictionary 6th Edition, defines vested right thus:

“In constitutional law, right which have so completely and definitely accrue to or settled in a person that they are not subject to be defeated or cancelled by the act of any other private person and which is right and equitable that the government should recognize and protect as being lawful in themselves and settled according to the then current rules of law and of which the individual could not be deprived arbitrarily without injustice or of which he could not justly be deprived otherwise than by the established methods of procedure and for the public welfare.”

The substance of the contention of learned counsel for the Appellant is that because the selection of the 1st Respondent had not been approved by the Governor, he the 1st Respondent had not acquired a vested right. With due respect to counsel, I do not share that view. The 1st Respondent having been duly and validly selected as the Emir as earlier noted and the Council of Chiefs not having advised against the approval of that selection, had acquired an interest or a vested right enforceable at law to restrain the conduct of another selection exercise. The Governor of Niger State, 3rd Respondent, cannot, in my view, arbitrarily jettison that selection and direct another selection exercise to secure the appointment of a candidate of his own choice. I am reinforced in this view by the decision of this court in the case of Ojo V. Governor of Oyo State (1989) 1 N.W.L.R. (Pt.951) 1 at 22 cited by Chief Wole Olanipekun SAN, in his brief.


S.C. 186/2002

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