Architect Hudu Ibrahim Mamonu & Anor V. Joseph D. Mato Dikat & Ors (2019)
LAWGLOBAL HUB Lead Judgment Report
AMIRU SANUSI, J.S.C.
The present appeal emanated from the judgment of Jos division of Court of Appeal (hereinafter referred to as “the lower or Court below”) which was delivered on the 26th day of January, 2012, which partially allowed the appeal of the appellant against the judgment of the Plateau State High Court (the trial Court) in suit No.PLD/J/285/2005 delivered on 13th April, 2006.
At the trial Court, the 1st and 2nd Respondents, as plaintiffs, instituted an action by writ of Summons against the other ten defendants seeking the under listed declaratory reliefs: –
- A DECLARATION that the 1st Defendant is not a member of Gadai Ruling House of Pyern Chiefdom and therefore not eligible to contest the throne of Sum-Pyem.
ii. A DECLARATION that only adult male members of the Gadai Ruling House of Sum-Pyem are eligible for selection to the throne of Sum-Pyem.
iii. A DECLARATION that for the purpose of filing the present vacancy in the stool of Sum-Pyem only the plaintiffs contest
iv. A DECLARATION that the kingmakers, to wit, 2nd-12th Defendants can only nominate, select, or vote for a person who is a member of Gadai Ruling House.
A DECLARATION that the selection of an eligible candidate to the throne of Sum-Pyem can only be in accordance with Plateau State gazette contained in Legal Notice No. 1 of 1992, dealing with appointment and deposition of chiefs (appointment of Sum-Pyem) Order, 1992 and dated 23rd April, 1992 (as amended).
vi. A DECLARATION that the purported selection of the 1st Defendant by the 2nd – 12th Defendants in Mangu Local Government Secretariat on 17th May, 2004, is unconstitutional, null, void and of no effect whatsoever.
vii. A DECLARATION that the exclusion of the 13th Defendant among the traditional selector and the purported selected exercise of Sum-Pyem held in Mangu Local Government Secretariat on 17th May, 2004, is constitutional, unlawful, null, void and of effect whatsoever.
viii. A PERPETUAL INJUNCTION restraining the 2nd -12th Defendants from nominating, selecting, voting or electing the 1st Defendant as the Sum- Pyem.
ix. A PERPETUAL INJUNCTION restraining the 1st Defendant, his offspring or any other person claiming through him from contesting and or ascending the stool
of Sum-Pyem or parading himself or holding out himself as the Sum-Pyem or in any other manner meddling in or interfering with the affairs of the chieftaincy stool of Sum-Pyem.
x. A PERPETUAL INJUNCTION restraining the 14th and 15th Defendant by themselves, their servants or agents from appointing, recognizing or dealing with the 1st Defendant as Sum-Pyem.
FACTS OF THE CASE LEADING TO THIS APPEAL
The origin of this appeal can be traced to the time after the demise of SUM PYEM OF PYEM Chiefdom of Mangu Local Government Council of Plateau State. The 3rd and 4th Respondents conducted a selection exercise on 17th May 2004 to fill the vacant stool of the Sum Pyem. The 4th Respondent set up a committee to conduct a selection exercise which wrote to eleven traditional selectors inviting them to a meeting fixed for the 17th May 2004. On the said date, the Presiding Officer of the Selection Committee read out the content of the Plateau State Legal Notice No. 1 of 1992 for the appointment of Sum Pyem (i.e Exhibit 9) to the eleven traditional selectors who turned up for the selection exercise. The candidates were the 1st Appellant, the 1st and 2nd Respondents.
During the meeting, the list of the candidates was read out to the traditional selectors and thereafter, the traditional selectors met outside the venue of the meeting within the Local Government Council chambers and on return they informed the Presiding Officer of their readiness to carry out the selection exercise.
Nomination forms were issued to the candidates and the Presiding Officer issued eleven ballot papers to the traditional selectors. At the end of the voting process only two persons were voted i.e. the 1st Appellant and the 1st Respondent who scored 8 and 2 votes respectively, while one ballot paper was declared invalid. The Selection Committee endorsed a report of the selection exercise and before the consideration of the report of the selection committee by the State Council of Chiefs with a view to presenting the report for the approval of the 4th Respondent, the 1st and 2nd Respondents instituted an action along with other ten defendants before the High Court of Plateau State. After exchange of pleadings by all the parties, the matter proceeded for hearing. On 13th April, 2006, the trial Court delivered its considered
judgment in favour of the 1st appellant (plaintiff). Aggrieved by the judgment of the trial Court, the present two respondents appealed before the lower Court which reversed the judgment of the trial Court. Dissatisfied by the judgment of the lower Court, the two appellants appealed to this Court.
In keeping with the rules and practice applicable in this Court, parties filed and exchanged briefs of argument. The Joint Brief of Argument for the two appellants herein, was filed on 16th May, 2016 by John Matthew Esq. In the said brief of argument five issues were decoded for the determination of this appeal by this Court which are set out hereunder: –
- Whether the Court of Appeal was right when its held that no proper notice as envisaged by Paragraph 6(1) of Exhibit 9 as amended was given prior to the election exercise of 17th May, 2004 (Distilled from Ground 2 of the Notice of Appeal).
- Whether the Court of Appeal was right when it held that the mere presence of Officers who were not provided for in Exhibit 9 at the venue of the selection exercise mere was sufficient to vitiate the outcome of the selection exercise of 17th May 2004 (Distilled from Ground 3 of the Notice of Appeal).
Whether the Court of Appeal was right when it set aside the selection exercise of 17th May, 2004 on the ground that one of the traditional Selectors did not participate in the selection exercise in the circumstance (Distilled from Ground 4 of the Notice of Appeal)
- Whether the Court of Appeal was right in annulling the selection exercise of 17th May, 2004 on the ground that there were gross breaches and irregularities of the provisions of Exhibits 9 and 10 (Distilled from Ground 1 of the Notice of Appeal)
- Whether in the light of the evidence, the Honourable Court of Appeal was right when it annulled the election of the 1st Appellant as Sum Pyem following the selection exercise to the stool which was conducted on 17th May, 2004 (Distilled from Ground of the Notice of Appeal)Suffice it to say, that the two appellants i.e. 1st and 2nd Appellants jointly filed Reply briefs which they entitled (a) “1st and 2nd Appellants Reply to 1st and 2nd Respondents’ Brief of argument” on 11th October, 2016 and (b) “1st and 2nd Appellants’ Reply to 3rd and 4th Respondents’ Brief of
Argument filed on 19/11/2017″. All these sets of briefs of argument were adopted and relied on by the appellants’ counsel when the appeal was heard on 13/11/2018.
Upon being served with the 1st and 2nd Appellants’ joint brief of argument, the 1st and 2nd Respondents filed their joint brief of argument on 28/6/2016. Therein, five issues for determination of the appeal were also proposed as reproduced below: –
A. Whether the lower Court was not right in its interpretation of Paragraph 6(i) of Exhibit 9 (Ground 9)
B. Having found that there was clear breach of the provisions of Exhibit 9, by the presence and participation of unauthorised persons, whether the lower Court was not right to have invalidated the selection of Sum Pyem held on 17th May, 2004(Ground 3)
C. Whether the Court of Appeal was not right when it nullified the selection of Sum Pyem conducted on 17th May, 2004 as a result of positive, deliberate and forceful disenfranchisement of one of the traditional selector who was present and willing to vote (Ground 4)
D. The trial High Court having found that were breaches of Exhibits 9 and 10 which funding was affirmed by
the lower Court whether it was not right for the lower Court to invalidate the selection of Sum Pyem held on 17th May, 2004 (Ground 1)
E. Whether there is sufficient evidence on the record to support the decision of the lower Court (Ground 5).
On their part, the 3rd and 4th Respondents filed their joint brief of Argument on 22/8/2016 settled by Jonathan Mamiyan, Esq., the learned Hon. Attorney General of Plateau State. The said brief was however deemed filed on 19/6/2017. In the said brief of argument, the learned Attorney General simply formulated a sole issue for the determination of the appeal which simply reads thus: –
“Whether the selection exercise of 17th May, 2004 to fill the vacant stool of the Sum Pyem of Pyem Chiefdom in Mangu Local Government Council of Plateau State was done in compliance with the Plateau State Legal Notice No. 1of 1992 (as amended).”
SUMMARY OF SUBMISSIONS BY COUNSEL ON THE ISSUES FOR DETERMINATION
Issue No. 1 deals with whether the Court below was right when it held that there was no proper notice as envisaged in Exhibit 9.
The learned appellants’ counsel submitted that there is no dispute that a notice summoning the traditional selectors to a meeting was issued on the 7th day of May, 2004 for a meeting scheduled for the 17th of May, 2004. He faulted the judgment of the Court below which held the view that two notices were required. He therefore submitted that the interpretation given to Paragraph 6(i) of Legal No.1 of 1992 by the Court below is not correct. He submitted further, that the trial Court got it right when it accepted Exhibit 29 which is notice to the traditional selectors served on the 7th May, 2004 requiring them to attend a meeting for the selection exercise on the 17th May, 2004, a period of 10 days, in compliance with Paragraph 6 (i) of the Legal Notice No.1 of 1992. He urged the Court to resolve this issue in favour of the appellants.
ISSUE NO. 2
This issue queries whether the Court below was right when it held that the mere presence of officials who were not provided for in Exhibit 9 can vitiate the outcome of the selection exercise.
On this issue, the appellants’ counsel contended that even though the trial Court found that some officials not provided for were present during the selection exercise,
there was however no evidence that they participated in the selection process either by nomination or voting. He therefore submitted that the mere presence of the officers not provided for in the enabling law without more, is not sufficient reason to vitiate the election of the 1st Appellant. He cited the case of OLANREWAJU v GOV. OYO STATE (1992) NWLR (pt.265) at 335 at 369.
He further argued that apart from the fact that there was no evidence of interference by the officials present during the selection exercise, each of the traditional selectors participated in the selection exercise of 17th May, 2004 as attested to in the result which was admitted in evidence at the trial Court as Exhibits 20 (1) – (xi) and 21 (i) – (xi) respectively showing clearly that it was strict affair of the traditional selectors. He urged the Court to resolve this issue in favour of the appellants.
ISSUE NO. 3
This issue deals with whether the Court below was right to have set aside the selection exercise on the ground that one of the traditional selectors did not participate in the selection exercise.
He contended that one of the traditional selectors who was provided for in Exhibit 10 was prevented from participating by the presiding officer for reason being that the amended Gazette, i.e. Exhibit 10, was not given to the selection committee nor did they see it as at the date of the selection. In other words, he argued that the Selection Committee had no knowledge that the 12th traditional selector was supposed to be one of the selectors as at the date of the selection. He therefore submitted that even if he had not been prevented from participating, his participation would not have materially affected the outcome of the selection having regard to the declared eight votes scored by the 1st appellant as against the one vote scored by the 1st respondent. He submitted further, that where election is shown to have been conducted in substantial compliance with the enabling law, the Court ought to uphold such an election. He cited the case of IBRAHIM V ALIYU (2000) 13 NWLR (pt. 683) 38 at 52.
ISSUE NO. 4
This issue deals with whether the Court below was right in annulling the selection exercise on the ground that there were breaches of the provisions of Exhibit 9.
Learned appellants’ counsel submitted that the excluded 12th traditional selector did not complain about his exclusion as testified by the 1st and 2nd respondents as 13th defendant and 13th respondent at the trial respectively. He submitted that the failure of the 12th traditional selector to complain about his alleged wrongful exclusion despite the opportunity to do so, amounts to a waiver of his right to complain about such wrongful exclusion. He cited the case of AUTO IMPORT EXPORT v ADEBAYO (2005) LPELR 642. He therefore submitted that the selection of Sum Pyem on the 17th day of May, 2004 was in substantial compliance with all the requirements set out in the enabling law.
ISSUE NO. 5
Issue No. 5 queries whether the lower Court or Court below was right when it annulled the election of the 1st Appellant. He adopted his argument in issues 2 and 3 and submitted further that the evidence adduced at the trial Court confirmed that the Court below failed to apply the law or the evidence on record. He argued that the finding of the Court below of non-service is perverse and has occasioned a miscarriage of justice. He urged this Court to restore the judgment of the trial and set aside that of the Court below.
In reaction to the argument of the appellants’ learned counsel, the learned counsel to the 1st and 2nd respondents, as I stated above, also distilled 5 issues for determination.
Issue No. A :- Deals with interpretation of Paragraphs 6 (i) of Exhibit 9. He referred to the judgment of the Court below at pages 666-667 of the Record and submitted that the Court below was right in interpreting the above provisions where it stated that the presiding officer had the obligation of giving not less than 7 days notice of intention to summon a meeting before actually summoning the meeting. He therefore submitted that the notice of intention to summon a meeting is not and can never be the same with a notice of the meeting. He argued that the rules of interpretation requires that every word in a statute should be given effect and that word “intention” used in the said provision must be given effect to. He cited the case of ONOCHIE v ODOGWU (2006)6 NWLR (pt. 975) 65 at 89. He argued that if the intention of the drafters of Exhibit 9 was that the presiding officer could waive that requirement, then the word “intention” would not have been used.
He urged this Court to resolve this issue in favour of the respondents.
Issue B deals with whether the presence of unauthorised person can invalidate the selection exercise. He submitted that the inclusion of an unauthorised person not provided for by the enabling law, is a violation of the clear and express provisions of Exhibit 9. He urged the Court to resolve this issue in favour of the respondents.
Issue C Deals with disenfranchisement of one of the traditional selectors. He argued that the 12th selector, who had all along been present at the selection venue, ready and willing to vote was deliberately and forcefully prevented from participating at the selection exercise and was therefore denied his right to vote. He submitted that the prevention of the 12th traditional selector by the presiding officer from voting was unlawful and has thereby rendered the entire exercise liable to be set aside as same was done in flagrant violation of the clear and express provision of Exhibits 9 & 10. On whether the 12th selector has waived his right, he submitted that the submission of the appellant on that was misplaced as it is not “all rights”
that can be waived. He submitted that the 12th selector occupies a position of trust and his position is a representative one and that he is answerable to his people before taking decision for them. He submitted that it is not within his power to waive the rights of his community. On the issue of substantial compliance, he submitted that the issue of substantial compliance is a creation of statute and that it must be included in a statute before same can see the light of the day as in the Electoral Act which specifically provides for substantial compliance.
ISSUE D & E
Issue Nos. D & E deal with whether the Court below was right to invalidate the selection of Sum Pyem and whether there is sufficient evidence on record to support the decision of the Court below.
With regard to Issues D and E, the learned respondents’ counsel condensed the two issues into one. He submitted that the concurrent findings of the two lower Courts, are that there were breaches in the selection exercise and therefore those concurrent findings should not be disturbed by this Court. He urged the Court to resolve the two issues in favour of the respondents.
The learned counsel to the 3rd and 4th respondents raised a lone issue for determination. The issue deals with whether the selection was done in compliance with Exhibit 9.
He contended that having regard to the provisions of Paragraph 6 (i) of the Legal Notice No. 1 1992, the notice of intention to summon a meeting is a condition precedent to the actual meeting of the traditional selectors for the purpose of conducting the selection of Sum of Pyem. He argued further, that the duty imposed on the presiding officer is a mandatory or statutory one which does not give room for exercise of any discretion by him. He argued that Exhibit 29 only qualifies as a notice of intention to summon a meeting and no more. He urged the Court to interpret the contents of Exhibit 24 in the light of Exhibit 29, bearing in mind, the provisions of Paragraph 6(i) of Exhibit 9. He then urged the Court to dismiss the appeal.
With regard to the Reply briefs by appellants to various sets of briefs filed by the two sets of respondents, I must say that looking at them closely has clearly indicated that they are mere amplification, repetition and/or fine-tuning of the arguments earlier
proferred by the appellants. In true legal sense, none of them satisfied the purport of filing a Reply Brief since they are mere repetition of arguments.
RESOLUTIONS OF ISSUE FOR DETERMINATION
As I posited above, the three sets of issues formulated by the two appellants and the two sets of respondents in their respective joint briefs, are issues or argument which are very much similar. I therefore opine that treating this appeal on the appellants’ Joint brief which had subsumed all the other sets of issues raised by all the respondents, can comfortably determine the instant appeal.
ISSUE NO. I
On this issue, the appellants query whether the Court below was correct when it held that there was no proper notice as envisaged by Paragraph 6 (i) of Exhibit 9 (as amended) i.e the Legal notice No. 1, prior to the election exercise held on 17/5/2004. It is apposite to stress here, that the subject matter or core issue of this appeal revolves on the interpretation of the Exhibit the Legal Notice No. 1 1992 which obviously governs the selection or election of Sum Pyem. The appellants herein, query the interpretation given by the Court below to Paragraph
6(i) of the Appointment and Deposition of Chiefs (Appointment of Sum Pyem) Order of 1992 (hereinafter simply referred to as Legal Notice”) i.e Exhibit 9 which was amended by Exhibit 10. Since Paragraph 6(i) is the catch-phrase or focal point of the arguments by learned counsel on this issue, it will not be out of place to reproduce hereunder, the said Paragraph 6(i) which reads thus: –
“The presiding officer shall summon a meeting within the local Government Area of the Traditional Selectors after giving a notice of not less than seven days of his intention to summon such a meeting.” (underlines supplied).
It will be pertinent to say that according to the Court below, by the above quoted paragraph, the presiding officer was expected to summon meeting of traditional selectors after giving a notice of not less than seven days indicating his intention to summon such meeting since the paragraph in question used the article “SHALL”, hence that then made it mandatory or a precondition before the meeting for selection could be validly summoned and that compliance with paragraph 6(i) was a mandatory feature, failure of which vitiates the
convening of the meeting and would thereby render such meeting of traditional selectors nugatory, null and void in view of the omission to give the seven days notice. Or to put it in another way, the learned respondents’ counsel as well as the lower Court maintained the stance that breach of the condition laid by Paragraph 6 constituted a far reaching breach of Exhibit 9 as would vitiate the entire selection exercise convened and held by the presiding officer.
The learned justices of the lower Court seemed to have fallen into such trap when it got swayed to the respondents’ counsel stance by holding that such breach of Paragraph 6 rendered the selection proceedings an exercise in futility due, inter alia, to non-issuance of the seven days notice. Hear the finding of the lower Court which featured on page 666 of the record as reproduced below: –
“As rightly submitted by the learned appellants’ counsel, it is expected that the presiding officer who must give not less than 7 days notice of his intention to summon a meeting and it is only after the expiration of the seven days that a meeting for the selection is to be summoned….
“The lower Court was right in rejecting the testimony of DW8 and Exhibits 18, 19 and 20 relied on by the appellant to represent compliance.”
It would seem to me that given the finding of the lower Court supra, the Court below has envisaged that pursuant to Paragraph 6 (i) of Exhibit 9, the Presiding Officer must give two notices, that is to say, (i) a notice to be given for not less than 7 days for the selection exercise notifying them of the intent to call a meeting for the selection exercise and (ii) when the traditional selectors convene then they will be served with yet another second notice indicating the date for the meeting. Personally, I do not agree with that proposition for it would not only be a waste of the valuable time of the selectors but also it was uncalled for. That in my view, could not have been the intention of the legislators or the framers of Paragraph 6 (i) of Exhibit 9. The interpretation given by the lower Court is to say least, too extensive and burdensome. Looking closely at the paragraph under reference, it nowhere admits for requirement of summoning “two meetings” but ONLY one meeting or notice and NOT “notices.
It is a cardinal principle of interpretation that where words used in a statute are clear, plain and unambiguous, such words must be given their plain and ordinary meaning. This Court in the case of Abegunde v The Ondo State House of Assembly & Ors(2015) LPELR 24588 (SC) had this to say per M Mohammed CJN (as he then was) at page 41 Para B-E:
“The law is trite that in the interpretation of the provisions of the Constitution the entire provision must be construed together as a whole and not in parts as stated in the Court in several cases including Nafiu Rabiu Vs The State (1980)8-11 SC 130. The general rule of interpretation of statement has also been laid by this Court in several decisions and the rule is that where the words of a statute are plain clear and unambiguous, the Court shall give effect to their literal meaning. It is only when the literal meaning may result in ambiguity or injustice that the Court may seek internal aid without the body of the statute itself or external aid from statutes in pari materia in order to resolve the ambiguity or avoid doing injustice. See Ogbunyiya Vs Okudo (1979)6-9 SC 32; and Ogunmade Vs Fadayiro (1972)8-9 SC.
See also Olanrewaju vs Governor of Oyo State & Ors (1992) 9 NWLR (pt. 265) 335; Nwankwo vs Yar’Adua (2010) 12 NWLR (pt.1209) 578 at 589 C-E.
In the instant case, it is apparent that the trial Court did accept the notice of meeting served on 7/5/2004 i.e Exhibit 29 summoning the traditional selectors to attend the meeting to be held on 17/5/2004. By that exhibit, a period of ten (10) days notice was given to the selectors in compliance with Paragraph 6 (i) of Exhibit 9 (as amended by Exhibit 10). It is my candid view that the purpose of giving a fairly long notice of meeting is to give the traditional selectors enough or adequate notice to enable them prepare for the impending selection exercise. Happily enough, the 10 days notice given by the presiding officer had served its intended purpose in that all of them had appeared and took part assiduously at the deliberations or selection exercise without any hindrance, inhibition or complaint. None of them had seemingly objected or raised the issue or had complained to the presiding officer on any failure to give the alleged seven days notice. Also none of them appeared to show that the presiding officer’s omission to give
the seven days notice had occasioned any miscarriage of justice to him or that he was over-reached at all.
Having posited above, I do not subscribe to the view of the lower Court that the alleged breach of Paragraph 6(i) of Exhibit 9 was so fatal enough as to have vitiated the selection exercise.
I hold that the alleged failure to give the said seven days notice could, at best, be termed as a minor breach which is not fatal enough as to vitiate the selection exercise or to render it a nullity as held by the lower Court. Such failure, if at all one may call it so, was never aimed at or intended to circumvent the provisions of the LEGAL NOTICE I i.e Exhibit 9. It could also not be correct to say that alleged omission or non-compliance was capable of rendering the entire exercise a nullity or as an exercise in futility. I therefore resolve this issue in favour of the appellants herein, and against the respondents.
ISSUE NO. 2
On this second issue, it queries whether the Court below was correct in its finding that the mere presence of some officers who were not supposed to be present at the selection exercise were allowed to be present by the
presiding officer on 17th May, 2004 even though Exhibit 9 did not permit their presence.
Admittedly, some officials not allowed by the enabling law i.e Exhibit 9, were present at the selection exercise/deliberations held on 17/5/2004 and that was a fact as rightly found by the trial Court. The lower Court in its finding on the presence of the official however decried the presence of such officials as it offended the provisions of Exhibit 9 which it held amounted to breach and had condemned it and held that such lapse on the part of the presiding officer to constitute one of the vitiating factors of the selection exercise held on 17th May, 2004.
The question one may ask is, can the presence of the officials though not allowed, permitted or contemplated by Exhibit 9, be serious enough to invalidate the selection exercise In answering this hypothetical question, it will be apt to examine what role if any, did the unauthorized officials play at the deliberations of the traditional selectors. In this instant case, as rightly found by the trial Court, there was no evidence that they participated in the selection exercise either by either nomination or
voting during the selection exercise. Similarly, no evidence abounds to show that any of or all the officials present had influenced the selection exercise in any manner or respect. It is my view therefore, that the lower Court was wrong when it held that their mere presence at the selection exercise venue without more, even though not permitted by Exhibit 9, was a sufficient reason to vitiate the election of the 1st appellant.
This Court in the case of Olanrewaju vs Gov. of Oyo State (1992) NWLR (pt. 265) 335 when considering similar question had this to say at page 369:
“The question is whether the presence of Secretary and official per se invalidates the meeting. I do not think mere presence of the secretary and officials at the meeting of kingmakers is sufficient to invalidate the meeting. There was no evidence that they participate at the meeting and deliberated in the deliberation to select the successful candidate. It is clear from the evidence before the learned trial judge that there was no dispute about the decision of the kingmakers. The three kingmakers namely the 5th, 6th and 7th defendants agreed with the result of the election.
It was also evident from their testimony (sic) that only the three kingmakers deliberated and participated in the selection of the 4th defendant. It is clear that they were not influence by the presence of the secretary of the local government and his officials as was being suggested by learned counsel to the appellant.”
To my mind, in this instant case, it was nowhere suggested or canvassed that the unauthorized officials presence at the selection exercise had made any interference during their presence or had in any manner whatsoever influenced the selection exercise held on 17/5/2004. The lower Court is therefore, in my candid view, wrong to have held that the presence of such officials even though not authorized by Exhibit 9, was enough to vitiate the selection exercise. I so hold. The second issue is also resolved against the respondents and in favour of the appellants.
ISSUE NO. 3
In this issue, the appellant challenged the judgment of the Court below for nullifying the selection exercise of Sum Pyem because of the positive, deliberate and forceful disenfranchisement of one of the traditional selectors who was present, ready and willing to vote,
which tantamount to breach of Exhibit 9, as the presiding officer had no right/power to prevent the 12th traditional selector from participating in the election exercise.
It was argued by appellants that the 12th traditional selector as shown by evidence, was present at the venue and was ready and willing to take part in the voting but was refused or excluded as argued by the appellants. It would appear to me and in fact it is evident, that the 12th traditional selector was not at the meeting as an observer but rather in his capacity and legal right as a member who as such had to have been accorded that legal position in the selection exercise. I agree with the lower Court that he ought not to have been excluded or disenfranchised by the presiding officer. However, such exclusion in my view, might be a breach of his constitutional right and a breach of the Exhibit 9 which of course, was promulgated pursuant to relevant constitutional provisions. However, such breach in my view, was not enough to invalidate the selection exercise for reasons that I shall give presently.
It is pertinent to note that Exhibit 9 made provisions for the procedure to be adopted in selection and appointment of Sum Pyem. By virtue of Paragraph 4 of Exhibit 9 eleven traditional selectors were provided. However Exhibit10 was later promulgated to amend Exhibit 9 which increased one additional selector to jerk up the number of the selectors to twelve. As at the time of the selection exercise as borne out by the record, the presiding officer was guided by Exhibit 9 and therefore allowed eleven traditional selectors in keeping with what Exhibit 9 provided only, hence he thereby disallowed the 12th traditional selector the Madakin Langai. The reason for excluding him was because the presiding officer and other traditional selectors did not see or were not aware of the existence of Exhibit 10 (the amendment). In any case, notwithstanding the exclusion of 12th traditional selector, when the voting was conducted, it is on record that the 1st appellant scored 8 votes as against the two votes scored by 1st respondent plus one invalid vote. Therefore, even if the 12th selector was allowed to vote and had really voted even that could not change the fate or position of negative the 1st appellant by less than eight votes.
By the provision of Paragraph 8 (i) of Exhibit 9, the presiding officer shall declare only person with largest number of votes scored as Sum Pyem subject to the approval of Governor after consultation with Council of Chiefs.
Thus, it is my view that the exclusion of the 12th traditional selector could not be regarded to have vitiated the selection exercise since the 1st Appellant was the undisputed winner of the election. I resolve this issue against the respondents in favour of appellants.
ISSUES 4 AND 5
These two issues relate to the propriety or otherwise of the annulment of the selection exercise of 17/5/2004 by the lower Court due to alleged gross breaches and irregularities of the provisions of Exhibit 9 and also whether sufficient evidence abound to warrant the annulment of the selection of 1st appellant as Sum Pyem by the lower Court.
In the first place, the trial Court in its considered judgment, found that there were breaches of Exhibit 9 and its amendment, Exhibit 10. Such finding of the trial Court was affirmed by the lower Court even though the latter Court opined and ruled that those breaches were serious enough to lead to the annulment of the
entire selection exercise which said finding of the lower Court indeed triggered this appeal.
I must state here, that some of the prominent breaches of the provisions of Exhibits 9 & 10 highlighted include:-
(i) Failure to give 7 days notice of intent to summon the meeting for selection exercise to the traditional selectors.
(ii) The inclusion of person not approved to participate by the provisions of Exhibit 9.
(iii) Exclusion of the 12th Respondent from participating in the selection exercise even though he was ready and willing to participate.
(iv) Convening the meeting at Mangu instead of Bwalbwang.
(v) Use of list in Exhibit 10 as candidate from whom the traditional selectors made their nominations.
Some of the above-mentioned breaches were prominently made by the presiding officer in clear violation of the provisions of Paragraph 6(1) and (2) of Exhibit 9 which, as stated by the lower Court have Constitutional favour having been promulgated pursuant to the Constitution of Federal Republic of Nigeria, 1999 (as amended). Needless to emphasize the fact that the selection of Sum Pyem must be in compliance with the provisions of Exhibit 9 as amended by Exhibit 10.
Much as I agree with the trial Court and the learned justices of the lower Court that there had been some breaches of the provisions of Exhibits 9 & 10, I do not however endorse the lower Court’s view that those breaches were fatal enough and capable to vitiate the selection exercise. Those breaches are to my mind, merely on procedural aspect which should not have led to the annulment of the selection exercise by the Court below. The selection exercise was not totally done in non-compliance with Exhibit 9. A free and fair election was conducted with virtually all but one traditional selector and the 1st appellant emerged as the winner of the election out of the two contestants. To my mind, there was substantial compliance with the enabling instrument guiding the selection exercise i.e Exhibit 9. The mere non-issuance of 7 days notice, allowing the presence of officials not approved by Exhibit 9 and the exclusion of 12th selectors are of no moment and can not vitiate the election exercise or affect the result of the exercise as held by the lower Court. These two issues are therefore resolved against the respondents in favour of the appellants.
On the whole, all the five-issue raised and argued by the appellants are resolved in their favour and against the two sets of respondents. I have therefore come to inevitable conclusion that this appeal is meritorious and must be allowed. The instant appeal therefore succeeds and is accordingly allowed by me. The judgment of the lower Court is hereby set aside and, in its stead, the judgment of the trial Court delivered on 12th April, 2006 is hereby restored. I make no order as to costs, so each party should bear his/its respective costs.