Augustus Wuyopondi Kimdey & Ors. V. Military Gov. Of Gongola State & Ors. (1988) LLJR-SC

Augustus Wuyopondi Kimdey & Ors. V. Military Gov. Of Gongola State & Ors. (1988)

LawGlobal-Hub Lead Judgment Report

G. KARIBI-WHYTE, J.S.C.

This appeal is against the judgment of the Court of Appeal Division, sitting in Jos delivered on the 8th December, 1986 by U. Abdullahi and Jacks JJ.C.A, Macaulay J .C.A. (dissenting). The Court of Appeal dismissed the appeal by the Appellants, who were also Appellants in the Court below, against the judgment of Buba Ardo C.J. Gongola State in the Yola High Court delivered on the 27th January. 1986. Appellants, who were Plaintiffs in the court of first instance, had brought an action against the Respondents’ who were defendants claiming as follows:-

“1. A declaration that the appointment installation and declaration of Alhaji Jibir Girema the 8th defendant herein as the Chief of Lunguda on or about the 17th of July, 1984 by the 1st-6th defendants is illegal, null and void.

2. A declaration that the purported installation and or appointment and declaration of the 8th defendant as the Chief of Lunguda was made in breach of Lunguda Native Law and Custom, tradition and the procedure of appointment and or selection of the Chief of Lunguda
3. An Injunction restraining the 1st-6th defendants from permitting, ordering or instructing the 8th defendant to perform the functions and or act or parade himself as the Chief of Lunguda, and hand over any property or properties of the Chief of Lunguda, in his possession to the 6th defendant.
4. A declaration that the Chief Makers of Lunguda Tribe can only select any of the following Bonsibe ruling clan Candidates submitted to the said Chief Makers by the 1st plaintiff in his capacity as Bonsibe ruling clan elder namely:

(i) Alhaji Umaru Sheji – 9th plaintiff

(ii) Alhaji Suleiman Jauro – 10th plaintiff

(iii) Mr. Wilfred Kimde – 1Ith plaintiff

(iv) Inspector Maidan Alkali – 12th plaintiff

An Order directing the 6th plaintiff and the Lunguda Traditional Council the 6th defendant to submit the names of the four candidates selected by the Bonsibe ruling clan namely:

(i) Alhaji Umaru Sheji – 9th plaintiff

(ii) Alhaji Suleiman Jauro – 10th plaintiff

(iii) Mr. Wilfred Kimde – 1Ith plaintiff; and

(iv) Inspector Maidan Alkali – 12th plaintiff

and confer with the Bilamas and Nakatebes (Traditional Chief Makers of the respective towns and villages of Lunguda land) and to select one of the said candidates as the next Chief of Lunguda.”

The trial learned Chief Judge dismissed all the claims of the Plaintiffs in their entirety. The appeal to the Court of Appeal was similarly dismissed on a majority decision – the court accepting the findings of fact of the learned trial Chief Judge. The appeal can be understood and the points raised better appreciated if the circumstances leading to this litigation are clearly out-lined.

The action arose from the claim by the Appellants to the succession to the second class chieftaincy of Lunguda rendered vacant by the death of Pastor Dishon Dansanda in August, 1983. There are 12 Plaintiffs. The 1st and 2nd Plaintiffs sued for themselves and on behalf of the Bwonsibe ruling clan. The 3rd and 4th Plaintiffs sued for themselves and on behalf of the Bwonkubebe ruling clan. The 5th, 6th, 7th and 8th Plaintiffs, sued for themselves and on bebalf of the Lunguda Traditional Chief Makers of Bakimbara and Bonjwaba. The 9th, 10th 11th and 12th Plaintiffs sued as heirs to the vacant chieftaincy. The Defendants were the Military Governor of Gongola State, the Hon. Attorney-General of the State, the Gongola State Council of Emirs and Chiefs, the Numan Traditional Council, the Lunguda Traditional Council, the Bilama of Guyuk, Mallam Boti Guyuk, Alhaji Jibir Grema.

The Lunguda Chieftaincy was created in 1957 for the seven villages of Dukul, Guyuk, Banjiram, Kola, Gwana, Lokoro and Bobini who constitute the Longuda District Council. The District Council was constituted in 1948 and Girema Parku, Chief of Guyuk was its first Chairman and representative of the District on the Native Authority Council in Numan in his capacity as Chief of Guyuk. Subsequently when the District Heads of Numan Native Authority were to be presented each with a 3rd class staff of office, the people of Longuda District in a referendum unanimously voted for the ruling houses of Guyuk only to produce a candidate.

After a series of meetings by the “Bilamaba” and “Nakatebebe” of the whole Longuda Villages, Mallam Yoila Joraingoru emerged as the popular candidate in 1956. Mallam Yoila Jaraingaru who was the first Longuda Chief to be presented with a 3rd class staff of office abdicated in 1965 and Pastor Dishon Dansanda was appointed the same year. It would appear to have been the case that of the seven villages which constituted the Longuda tribe only the Guyuk have ruling clans, and reeognised chieftaincy institution. Guyuk has two ruling clans, the Bwonsibe and Bwonkubebe. The chronology of Guyuk Chieftaincy up to 1956 shows that both ruling clans have had their fair share of the ascendancy to the Guyuk Chieftaincy. Strictly speaking, the genesis of Longuda Chieftaincy was in 1956 and went to Yoila Jaraingaru a Bwonsibe. The next incumbent was a Bwonkubebe, i.e. Pastor Dishon Dansanda. The contention of Plaintiffs/Appellants is that it is now the turn of Bwonsibe clan to fill the vacancy.

The Appellants/Plaintiffs in their statement of claim have maintained, relying on the customary law of Longuda, that the right to the Chieftaincy is by rotation between the two clans, and that the evidence that the Chieftaincy has been transferred to the other is indicated by the giving to and acceptance by the incumbent clan from the prospective clan of the cap, dresses, shoes to the family of the deceased for his burial and the transfer to the prospective clan of the ceremonial symbolic stone indicating the handing over of the Chieftaincy.

The Respondents/Defendants denied the existence of any such custom. They contend that the right to the chieftaincy’ is not by rotation and that both clans present their candidates and the Chiefmakers select from among them, the most suitable candidate for the position. It is important to appreciate that both parties are Guyuks and hitherto share the Guyuk Chieftaincy.

Again Plaintiff/Appellants contend relying on the practice during the appointment of Yoila Jaraingaru and Pastor Dishon Dansanda that the choice of the candidate is according to customary law made by a body composed of 59 “Bilamada” and “Nakatebebe” of the whole Longuda Villages, and that the 8th Defendant/Appellant was not chosen by such a body.

It was therefore contended the appointment was contrary to customary law and accordingly void. The Defendant/Respondent rejecting this contention admitted that the empanelling of 59 Bilamaha and Nakatebebe was done but was an aberration and contrary to customary law. The traditional selectors according to customary law of the Longuda pcople have always been the Bilama Dukul, Bilama Guyuk and Nakatebe Guyuk. They tendered as Exh. 4 and relied on a report on the Traditional methods of selection of Longuda signed by T.H. Ishaku Hoger, Chief Scribe of Numan Federation Native Authority.

It is pertinent to reproduce Exh. GGSN/2/84-4 for a better understanding of the contention.

It is as follows –

“Report Oil the traditional Methods of Selection of Chief of Longuda

The Traditional Selectors are:-

Bilama Dukul

Bilama Guyuk

Neketebe

Since from the beginning the three officers above arc responsible for the selection of the Chief of Longuda.

(a) When there is a vacant post of the Chief of Longuda then some people known as Ubanin Mase in Sarauta used to meet and select a person whom they consider will rule Longuda District then the Ubanin Masu Cin Sarauta then submits the name of the candidate of their choice to the three Officers referred to above who in turn looks into the matter to see if he is a man of good character all this investigation will be conducted in secret. If the choice is an unanimous one then they instruct the Ubanai to bring traditional spears, etc. If he is traditionally installed by them then he goes to worship juju before getting inside the house.

(b) In the old days, when a Chief is selected by them his name used to be sent to the Divisional Officer with a request that he should approve their choice so that nominee is appointed. At that time they do not normally put forward his name before the Council which is now a new thing.

We do not agree that 59 people are responsible for the Traditional Selection of the Chief of Longuda for the following reasons:-

(a) As it is said that 59 people are responsible for selecting the Chief of Longuda this is a new thing to use we only know of 3 people who are responsible as referred to above, and including Ubanais who will make their own selection before putting the name before us.

(b) There are three of us including Ubanai and we are the only people responsible for selecting the Chief and not 59 as done earlier.

(c) We will prefer to have three people including Ubanais just as in the past.”

Sgd. (T.H. Ishaku Holger)

Chief Scribe

Numan Federation Native Authority.”

Respondents also rely on the provisions of the Appointment of Chief of Longuda Order 1968 made on the 26th March, 1968. It provides as follows:”

THE CHIEFS (APPOINTMENT AND DEPOSITION)

LAW Cap. 20

The Appointment And Deposition of Chiefs (Appointment of Chief of Longuda) Order 1968.

Date of Commencement 26th March 1968

In exercise of the powers conferred on the Governor in Council by Section 4 of the Chiefs (Appointment and Deposition) Law the following Order is hereby made:-

Title – This Order may be cited as the Appointment and Deposition of Chiefs (Appointment of Chiefs of Longuda) Order 1968.

Interpretation.

2. In this Order:-

“Traditional Selectors referred to in Section 3.

“Divisional Officer” means the Divisional Officer, Numan Division.

Persons entitled to appoint.

3. Upon the death, resignation or deposition of the Chief shall be appointed by traditional selectors consisting of:-

(a) Bilama Dukul

(b) Bilama Guyuk

(c) Neketebe

Meeting of traditional selectors

4. On the death, resignation or deposition of the Chief of Longuda the Divisional officer shall summon a meeting of traditional selectors.

Nominations

5. At a meeting of traditional selectors where the two members of the traditional selectors may nominate a person for appointment to the Chieftaincy of Longuda and if no other person is nominated such person shall be appointed by the traditional selectors.

Elections

6. If more than one person is nominated in accordance with Section 5, the election at which all traditional selectors shall be entitled to vote and the candidate for whom most votes have been cast shall be deemed to be appointed by the traditional selectors to be Chief of Longuda.

Made by the Numan Federation Native Authority

This……………….day of………….. 19………….

The Common Seal of the Numan Fed. N.A. was hereto

affixed in the presence of Mr. Francis Direl, Chief of Batts, President Numan Fed. N.A.”

It is important to observe that the record of Guyuk Chieftaincy and rulers of Guyuk is traceable to a period before 1895. No such records are known in respect of the other villages. Indeed there was no common ruler for the entire Longuda Villages before 1957.

It was clear after the close of pleadings that the parties have joined issues in respect of the declaration sought as follows-

1. That the right to the Longuda Chieftaincy rotated between the Bwonsibe and the Bwonkubebe That the right to select the candidate to be appointed to the Chieftaincy vests in a panel of 59 Bilama and Nakatebebe and not in the 3 persons composed of the Bilama of Dukul, Bilama of Guyuk and Nakatebebe of Guyuk.

After a lengthy examination of the evidence oral and documentary before him, the learned Chief Judge made the finding of fact that the selection of Chiefs of Longuda has never been traditionally by rotation, rather the most suitable of those nominated from both ruling clans was usually appointed. In thus holding he rejected the evidence of the 11th Plaintiff who gave evidence as PW1. He said,

“I find the evidence of this witness has not succeeded in establishing the averments in the pleadings of the plaintiffs of the existence of a body of 59 chief makers of the selection of candidates for appointment as Chief of Longuda or the existence of any custom of rotating the chieftaincy of Longuda between the two ruling houses of Bonsibe and Bokunbebe.”

The Chief Judge considered the evidence of PW2, who is the 4th plaintiff and observed that the stone considered to be the symbol of transfer of the Chieftaincy was not produced in evidence. He also observed that the evidence of the stone contradicted the evidence by PW1 that “the symbol of chieftaincy can be anything, like a stone.” He also commented on the failure of Plaintiffs to call as a witness Helma Gwaturan, who was part of the process of handing over of the Chieftaincy. Finally the learned Chief Judge rejected his evidence relating to the issue of succession to the chieftaincy of Longuda by rotation between the two families of Bonsibe and Bonkubebe and the existence of 59 traditional Chief makers comprising all the Bilamas and Nakatebes of Longuda land for selection of the Chief of Longuda. The learned Chief Judge similarly rejected the evidence of PW3 that there were as many as 59 chief makers. He said that as Bilama of Guyuk his evidence clearly demonstrated that there were only 3 Chief makers, namely himself, Nakatebe of Guyuk and Bilama of Dukul taking precedence in the performance of their functions.

The learned Chief Judge then turned to the evidence of the Defence. He considered the evidence of the Bilama of Guyuk who gave evidence for the defence as DW1 and one of the Defendants as to how the three Chiefmakers alone selected 8th Defendant, Jibir Grema and presented his name to the Numan Traditional Council. The selection he said was done in secret. He admitted that the Bwonsibe brought burial materials on the death of Pastor Disbon Dansanda which was accepted as invariably it ought to be. He however, added that acceptance of burial materials on the death of the incumbent Chief of Longuda did not signify a handing over of the Chieftaincy to the donor family. On cross-examination he admitted that the Chieftaincy of Longuda rotates between the Bwonsibe and the Bwonkubebe, but added that the Chiefmakers supervise and look after the rotation. He also admitted that 59 Chiefmakers selected Pastor Dishon Dansanda and the Nakatebe Boti of Guyuk and himself were the only of the present Chief makers among them. The Bilama of Dukul was someone else. He quickly added that it was politics that brought about the change into 59 which was subsequently abolished. He admitted that Yoila, i.e. the first Longuda Chief was selected by 59 Bilamas and Nakatebes. Witness later added –

“It was native law and custom of Longuda I made a mistake. This was not native law and custom of Longuda. Yoila was not the first Chief of Longuda. It was Grema who joined the whole of Longuda land together.”

In support of this new attitude that the selection procedure had been changed he said,

“The 59 persons were causing confusion and they were dissolved and 3 of us were chosen to select. We were informed of the change by the Chief of Numan. We were only called and told verbally during the reign of Dishon. I do not know if the change was brought to the notice of the Longuda Public.”

his witness continued to link the former practice with the current when he said:

“Names of candidates are brought to us from the two ruling houses and we select one of them as the new chief. Even in the past during the time of 59 the names were brought to me and I presented them at the meeting of the 59. And now when there are only three of us the names are considered only by the three of us.”

The learned Chief Judge, rejected the evidence of this witness as “highly contradictory and questionable, particularly with regard to the facts about the Chiefmakers and about the rotation of the Chieftaincy between the two ruling families “(see p. 96 of record of proceedings). He also dismissed the evidence of DW2 as unworthy of consideration. DW3 who claimed to be one of the elders of the Bwonkumbebe ruling clan, testified that he is one of the persons known as Ubanis who nominate the name of a suitable candidate who they want appointed and pass it to the traditional Chiefmakers. He claimed to be one of those who nominated the 8th Defendant. He stated that the Bilama of Guyuk, the Nakatebe Boli of Guyuk and the Bilama Dukul are the traditional Chiefmakers to who names of the persons nominated are sent for appointment whenever there was a vacancy. He denied that the Longuda chieftaincy rotates. He also stated that acceptance of burial materials is not evidence of hand over of the Chieftaincy. The learned Chief Judge was highly impressed by the evidence of this witness who he described as truthful. He appears to have been enamoured by the corroboration in certain respects of the evidence of DW3 and PWI when he said, at p.99

“It is significant that the substance of his evidence-in-Chief on the Longuda Chieftaincy succession, from the reign of Dukel down to the latest appointment of Jibir Grema tallies exactly with the evidence of the first witness for the plaintiffs (PW1) in cross-examination and is decisively in support of the Defendants’ case.”

DW4 an officer of the Civil Service of Gongola State tendered Exhibit 3 a Report on the traditional methods of selection of the Chief of Longuda, and Exhibit 4, a subsidiary legislation on the selection of Chiefs. The Learned Chief Judge accepted the evidence of this witness. He also accepted the evidence of DW5 another civil servant who gave evidence of how the traditional Chiefmakers reported to the Numan traditional Council their selectionof the 8th Defendant.

After reviewing the totality of the evidence before him the learned Chief Judge made the following findings of facts-

1. That there are only three traditional Chiefmakers in Longuda land at the time of the death of Pastor Disbon Dansanda. These are the Bilama of Guyuk, the Bilama of Dukul, the Nakatebe of Guyuk.
2. That the said traditional Chiefmakers selected Alhaji Jibir Grema for appointment as the Chief of Longuda. All the three traditional Chiefmakers went to Numan and jointly reported to a Committee of Numan traditional Council of their selection.
3. That the selection of Chiefs of Longuda have never been traditionally by rotation between the two ruling families as claimed by the plaintiffs, rather the choice always goes to the candidate, who, in the view of the Chiefmakers, appears to them the most suitable of those nominated from one or the other of the only two ruling clans.

Relying On these findings of facts and on Kodilinye v. Mbanefo Odu 2 WACA. 336, 337, he held that the Plaintiffs failed to prove their claim.

Plaintiffs appealed to the Court of Appeal challenging the judgment of the learned Chief Judge both for errors in law and his consideration of the evidence before him. I have not seen the grounds of appeal reproduced in any of the judgments of the Court of Appeal, or indeed summarized, although the record of appeal at pp. 105-106 contains four grounds of appeal, counsel for the Appellant at p.116 claims to rely on six. Furthermore the briefs of argument in the court below are not also part of the proceedings before us.

However, as set out in the majority, judgment, the issues to be determined in the court below, are exactly the same issues before us. In the Court of Appeal, the issues were as follows:-

(1) Whether the Chieftaincy of Longuda is rotational between the two ruling clans of Bonsibe and Bonkumbebe

(2) Whether the Chiefmakers in Longuda land are 59 in number or only 3.

These were precisely the questions which the learned Chief Judge answered in his findings of fact. The majority decision of the Court of Appeal was of the view that they were in no position to interfere with the findings of fact of the learned Chief Judge in respect of the two issues, which they considered depended on the credibility of the witnesses before him. The Court of Appeal affirmed the judgment of the learned Chief Judge and dismissed the appeal of the Appellants.

This is now the appeal before this Court. With leave of the court below Appellants have filed six grounds of appeal against the judgment of the Court of Appeal. The grounds of appeal excluding particulars are as follows

“1. The Court of Appeal erred in law in failing to set aside the judgment of the High Court by entering judgment for the plaintiffs and dismissing the order declaring that the 8th defendant was validly appointed as the Chief Longuda.

“2. The learned Justices of Appeal misdirected themselves in law in failing to observe that they have a clear duty to consider and weigh carefully the whole of the evidence in the case and thereby came to a wrong conclusion in law and miscarriage of justice.

“3. The learned Justices of Appeal misdirected themselves in law in failing to evaluate correctly the evidence on whether the chieftaincy of Longuda is rotational between the two ruling clans of Bonsibe and Bonkumbebe and whether the Chief makers in Longuda land are 59 in number or only 3.

“4. The learned Justices of Appeal (Umaru Abdullahi and R.K. Jacks JJ.C.A.) misdirected themselves in law and on the facts in failing to hold that the plaintiffs’ case was proved and that the defendants’ counterclaim was not established at the trial.

“5. The learned Justices of Appeal misdirected themselves in law and on the facts when they held as follows:

“It is also shown earlier on in this judgment that the learned trial judge believed and accepted the evidence of DW3, 4 and 5 because the evidence given was in accord of Exhibits 3 and 4 admitted at the trial.”

“6. The judgment of the Court of Appeal is against the weight of evidence.

Counsel on both sides have filed their briefs of argument. They have both relied on their briefs of argument but elaborated on aspects they considered deserved special emphasis. Counsel have formulated the issues for determination in this appeal differently. Appellant has formulated the following three issues-

ISSUES FOR DETERMINATION

“3.1 Whether the learned Justices of Appeal Umaru Abdullahi and Reider Joe Jacks JJ .C.A. did not shrink from interpreting and evaluating correctly Exhibits 1 and 2 and paragraph 20 of the Statement of Defence and the totality of evidence led by the parties.

3.2 Whether the Chieftaincy of Longuda people subject-matter of this appeal was rotational between the Bonsibe and the Bonkumbebe Ruling Clans.

3.3 Whether the averment in paragraph 25 of the Statement of Defence is a counterclaim and if so, were the learned Justices of Appeal Umaru Abdullahi and Reider Joe Jacks JJCA not wrong in holding that the defendants were entitled to the relief claimed therein.

Counsel to the Respondents has adopted the issue as formulated in the Court of Appeal. They are as follows –

(i) Whether the Chieftaincy of Longuda is rotational between the two ruling clans of Bonsibe and Bonkumbebe

(ii) Whether the Chiefmakers in Longuda are 59 in number.

It seems to me that the first two issues as formulated by the Appellants are the same as the issues formulated by the Respondents. The third issue formulated by the Appellant stands alone. Consequently there are three issues for determination before us. On a careful analysis of the grounds of appeal it appears to me that grounds 1, 2, 3, 5, 6 could be argued under the first two issues for determination formulated. I think it is more convenient to start with the second issue for determination of the Appellant, which is the 2nd issue for the Respondent even though both counsel have argued the two issues together. This is the issue whether the Longuda Chieftaincy rotates between the two ruling families.

I have already stated that one of the findings of fact of the learned Chief Judge is that Appellants failed to establish before him on their evidence that the Longuda Chieftaincy rotates between the two families of Bonsibe and Bonkumbebe.

The Court of Appeal felt obliged to accept the finding of fact having found no justification to interfere with this finding. Counsel to the Appellants has urged on us the argument that the claim by appellants that the Longuda Chieftaincy is rotational was never impeached at the trial. He cited and relied on Exhibit 2 (pp.1-2) which clearly stated that the chieftaincy of Guyuk is rotated between the two ruling houses that is Bonsibe and Bwonkubebe. He therefore submitted that the evidence of the Appellants was supported by documents. Counsel also referred to Exh. 2 and submitted that great weight ought to be attached to it. Relying on Section 131(1) of the Evidence Act counsel submitted that any oral evidence in conflict with Exh.1 and 2 is inadmissible – Elias v. Omo-Bare (1982) 5 SC at p.43. Counsel submitted that the fact having not been denied specifically in the pleadings is taken as admitted and evidence is not required – British India General Insurance Co. Nigeria Ltd. v. Thawardas (1978) 5 SC. 21. It was further submitted that Exhibits 1 & 2 being public documents are binding on the defendants.

On his part, counsel to the Respondents has submitted that the findings of fact that the Longuda Chieftaincy is not rotational having been accepted by the Court of Appeal constitutes a concurrent finding of fact in two courts below which this court will be very reluctant to interfere with – counsel relied on Ogbero Egri v. Ededho Uperi (1974) 1 N.M.L.R. 22. Counsel submitted that the evidence of PW1 under cross-examination revealed the non-rotational nature in the chronological order of the Chieftaincy. It was pointed out that what was discussed in Exh. 2 is the Chieftaincy of Guyuk and its chronology. It was submitted that the change of title from Chief of Guyuk to Chief of Longuda was only a change in nomenclature without a change in substance. The two clans of Bonsibe and Bonkumbebe who shared Guyuk Chieftaincy also share the Longuda Chieftaincy. Counsel relied for this submission on the evidence of DW3 that the Longuda Chieftaincy was not rotational.

I will like to attempt a solution however diffidently to the semantic confusion arising from the use of the word ‘rotation’ in describing the sharing of the ascendancy to the Longuda Chieftaincy between the two ruling clans of Bonsibe and Bonkumbebe. The expression ‘rotation’ was used in official document such as Exhibit 2, by the witnesses on both sides, by counsel, and by the courts. It is not in dispute that the right to the Longuda Chieftaincy, and indeed the Guyuk chieftaincy before it, was exclusively preserved for the Bonsibe and Bonkumbebe. The ordinary meaning of the word ‘rotate,’ is to move round an axis or centre, revolve. Thus when the word is used with reference to succession it conjures a succession by more than two. However, when there is a succession between two rightful claimants, it seems to me more opposite to describe it as alternate rather than rotatory. Be that as it may it depends upon the accepted order of succession between the two rightful claimants.

This court has been invited to reverse the findings of fact of the two courts below that the right to the Longuda chieftaincy between the Bonsibe and the Bonkumbebe is not rotational. There is the well settled presumption of the correctness of the findings of fact of courts below, and the presumption must be displaced to reverse the finding of fact – See Williams v. Johnson (1937) 2 W.A.C.A. 253. It is also well settled that this court will not lightly interfere with concurrent findings of fact of the courts below. In Ogundipe v. Awe & ors (1988) 1 N.W.L.R. 118 at p.125 this court affirmed its often repeated proposition that it will not interfere where there have been concurrent findings of facts by the courts below unless such findings are shown to be perverse or not the result of a proper exercise of discretion. (See Obaseki, J.S.C. at p.125, Wali, J .S.C. at p.127).

It is not the primary function of this or any appellate court to make findings of facts or to appraise evidence – Also where the finding of fact is based entirely on the credibility of the witness, this court will be reluctant to interfere. See Kponuglo v. Kodaja (1932) 2 W.A.C.A. 24. The duty to make primary findings of fact by the evaluation of the evidence before him by the additional advantage of watching the demeanour of witnesses is essentially preserved for the trial court – see Egiri v. Uperi (1974) 1 N.M.L.R. 22. However, where the issue relates to the proper inference to be drawn from the facts proved, the Court of Appeal, including this court, is in as good a position as the court of trial, and will draw the proper inference naturally following from the facts so proved – see Akesse v. Akpabio (1935) 2W.A.C.A. 264.

The Court of Appeal will reverse the findings of fact if in its opinion, it is not supported by the evidence – see Lengbe v. Imale (1959) W.R.N.L.R. 325. This Court will however not reverse the finding of fact of the court below merely because it would have found differently – See Ogundulu v. Phillips & Ors. (1973) N.M.L.R. 267.

The learned Chief Judge in this case gave no reason for rejecting the evidence of PW1 on the issue of rotation other than that in his evidence two successive Bonsibe and Bonkumbebe had held the Guyuk Chieftaincy. The learned Chief judge did not consider the uncontradicted explanation of the witness that

“‘Never a time Bonsibe’s candidates and Bonkumbebe’s candidates were brought together and considered at the same time.

When Birike followed Dukel both Bonsibe, the Bonkumbebe were not participating in the Chieftaincy. During Potu’s time Bonsibe conceded chieftaincy to Bonkumbebe.”

This witness went on to explain the interference in the traditional pattern of succession by the Colonial District Officer.

But it is pertinent to refer to Exhibit 2 and the motive behind having a Chief of all seven Longuda villages. The fact that Yoila Jaraingaro, a Bonsibe, was the first over-all Chief of all Longuda villages in 1956. It has not been denied that he was succeeded immediately on his abdication by Pastor Dishon Dansanda who is a Bonkumbebe. It seems clear that the policy of alternate succession was observed. It is the breach of this pattern that has resulted in this litigation.

It is difficult to appreciate the finding that the custom was not proved. The evidence of PW1, PW2 who is a Bonkumbebe is a participant in the exercise. The learned Chief Judge rejected his evidence describing it as contradictory merely because he described the symbol of handing over as a specific stone, whereas PW1 said “it can be anything, like a stone.” The evidence was also rejected because Helma Gwaturan, 4th Plaintiff, who did the handing over was not called as a witness to confirm the handing over event. The evidence that the handing over is not binding was also regarded as a weakness. The fact that the mourning family may reject the burial materials and accordingly refuse to hand over was also regarded as a weakness in the evidence of the Plaintiff.

I think Mr. Lasisi’s criticism that the learned Chief Judge did not properly evaluate the evidence before him is justified. The fact that a custom may be breached is not evidence that it does not exist. The evidence of the witnesses is not that no such custom exists with respect to the Longuda Chieftaincy. Their contention is that it either is not obligatory or that it has been abolished. For instance DW1 said at p.95 lines 32-34 that the acceptance of burial materials does not mean that the accepting family will hand over the chieftaincy to the donor family. He was emphatic that

” ….. unless something untoward happened they would accept the materials. There never had been an occasion when one ruling family refused to accept the burial materials supplied by the other” lines 28-31 at p.95.

It is significant to point out that this evidence was rejected. The witness admitted that

“Bonsibe and Bonkumbebe are the two ruling houses. There is rotation, but we the Chiefmakers do supervise and look after the rotation ….”

DW3, Peter Bashawa did deny that there is rotation. He said that even if there is, it is not done equally between the two ruling clans. In his evidence any member of the two ruling clans is entitled to seek nomination to the vacant Longuda chieftaincy. The learned Chief Judge accepted the evidence of this witness.

It is well settled that customary law is a question of fact to be proved by evidence. There is undoubtedly evidence before the learned Judge if accepted will lead to the recognition of the custom that the right to the Longuda Chieftaincy is shared, between the Bonsibe and Bomkumbebe. The evidence which has been admitted of the donation of burial materials and the handing over of the chieftaincy are indicative of the existence of such a custom. Customary law has been described in Owonyin v. Omotosho (1962) 1 All N.L.R. 304 at p.309 as a mirror of accepted usage. It is one of the characteristics of customary law that it must be in existence at the relevant time and must be recognised and adhered to by the community. As was stated in Lewis v. Bankole (1908) 1 N.L.R. 81 at p.83, that the native law and custom which the courts enforce must be “existing native law and custom, and not that of bygone days.” There is conclusive evidence that the custom of rotation did exist.

The finding of fact that the selection of chiefs of Longuda has never been traditionally by rotation between the two ruling families as claimed by the plaintiffs, rather the choice always goes to the candidate who, in the view of the chiefmakers is the most suitable but who must be a member nominated from one or the other of the only two ruling families is clearly not supported by the evidence. The Longuda Chieftaincy which embraced the whole tribe was created in 1956 for the purpose of bringing all the Longuda together. The two families which only had the claim to the Guyuk Chieftaincy continued by unanimous decision to he the only families to aspire to the Longuda Chieftaincy. The short history so far of the Chieftaincy and the custom of providing burial materials and transfer of the chieftaincy which has been adhered to if properly evaluated point unmistakeably to a custom of the chieftaincy alternating between the two families, except where the family entitled, surrendered its right.

One of the characteristics of native law and which provides for its resilience is its flexibility and capacity for adaptation. It modifies itself to accord with changing social conditions. In the old case of Lewis v. Bankole (1909) 1 N.L.R. 100-101 Osborne C.J. said,

“One of the most striking features of West African native custom …. is its flexibility; it appears to have been always subject to motives of expediency, and it shows unquestionable adaptability to altered circumstances without entirely losing its character.”

The evidence of rotation of the Guyuk Chieftaincy between the Bonsibe and Bonkumbebe is contained in Exhibit 2, which states as follows –

“The Chieftaincy of Guyuk is rotated between two ruling houses that is Bonsibe and Bonkumbebe. Mallam Yoila who belonged to the Bwonsibe ruling house was installed in 1957 and thus was the first Longuda Chief to be presented with a third class staff of office. After his abdication in 1965 Pastor Dishon Dansanda, the present chief who is from the Bonkumbebe ruling house was installed,”

Exhibit 2 is “Brief on the Chieftaincy Institution of the Longuda.” I think all that Plaintiffs are required to do is to call witnesses acquainted with the particular custom to give evidence of such custom – See Angu v. Attah – Buraimo v. Gbamgboye (1940) 15 N.L.R. 139. Giwa v. Erimolokun (1961) 1 All N.L.R. 294. I agree with counsel for the Appellants that the learned Chief Judge did not adequately evaluate the evidence before him on the question of the rotation of Longuda chieftaincy. The Court of Appeal was in error in not themselves evaluating the evidence. There is ample evidence in the materials before it to evaluate the evidence not based on the credibility of the witnesses of the trial, and make the correct findings which the Court of trial ought to have made, – see Shell-BP v. Pere Cole & ors. (1978) 3 SC. 183. The conclusion on the evidence and material before this Court is that there was the native law and custom that Guyuk Chieftaincy rotates between the two ruling houses of Bwonsibe and Bwonkubebe. However, whether it still does so in respect of Longuda Chieftaincy at the time of the dispute is what determines this claim. I shall come to that issue later.

The second question is whether the candidate for the Longuda Chieftaincy is selected by a panel of 59 Bilamas and Nakatebes as contended by the Appellants or by the three traditional Chiefmakers as claimed by the Respondents. The learned Chief Judge rejected the contention of the former and accepted the claim of the latter basing his findings on the evidence before him. The Court of Appeal has accepted this finding on the grounds that it is the primary responsibility of the trial court to make findings of fact.

Now, how did the learned trial Chief Judge come to his finding The evidence of the existence of a body of 59 Bilamas and Nakatebes constituted for the selection of the Chief of Longuda was first made in 1957 during the selection of the first Chief of All Longuda, Mallam Joila, a Bonsibebe. The same body was relied upon during the selection of Pastor Dishon Dansanda, in 1965 a Bonkumbebe, for the Longuda Chieftaincy abdicated by Mallam Joila that year. Both witnesses for the Appellants and Respondents were unanimous on this issue. The learned Chief Judge rejected the evidence of the witnesses for the Plaintiffs. No reason was given for rejecting the evidence of PW1, that where the candidates are more than one, the Bilama of Dukul would summon the 59 Bilamas and Nakatebes of all Longuda land to select one of the candidates for appointment as the Chief of Longuda land. The selected name will be given to the Wakili of Longuda who will then inform the Numan Traditional Council. PW2’s evidence was that the selection by a body of 59 was according to an “order made by the Longuda Council and approved by the D.O. at Numan.” This evidence was rejected because Plaintiffs did not produce this “order” which he considered ought to be in writing. He was therefore unable to accept the oral evidence of the content of the said order, being a document, having regard to the provisions of sections 92-96 of the Evidence Act. The evidence of PW3 was rejected on this issue because as the learned Chief Judge said, at p.94

“Although the witness (i.e. PW3) has indicated that all the 59 Bilamas and Nakatebes in Longuda land are chiefmakers for the selection of the Chief Longuda he has been able to mention the actual names and titles of only three including himself, out of the 59, the other two being the Bilama of Guyuk and the Nakatebe of Guyuk. Even when the question of his knowledge of the 59 was directly raised all that the witness said was “Being the Bilama of Dukul I know some but not all of the Bilama.”

For the above reason, the learned Chief Judge concluded as follows – at p.94

“Consequently I do not believe the evidence of PW3 that there were as many as 59 Chiefmakers for the selection of the new Chief of Longuda, during his time, and I reject it without any hesitation.”

It is fair and I think legitimate to infer that the evidence of PW3 on the issue was rejected because he could remember only the names of 3 out of a fluctuating membership of 59, which are assembled only for selecting a candidate for the Longuda chieftaincy.

The claim of the plaintiffs was supported by the evidence of D.W.1 a Bonkumbebe who under cross examination testified on oath as follows – at pages 95-96

“There are elders in the two families. 59 Chiefmakers selected Dishon Dansanda. Only myself and Nakatebe Boki were among the 59. We joined the other Bilamas. The Bilama of Dukul was somebody else, and to Kwamaliko. It was politics that brought all this 59. Later it was abolished.’

He continued:

“Yoila was selected by 59 Bilamas and Nakatebes. This was the method followed by the Chiefmakers. It was native law and custom of Longuda. I made a mistake. This was not native raw and custom of longuda…”

Testifying as to the existence of the custom and the practice when it was observed D.W.1 said.

“The 59 persons was causing confusion and they were dissolved and 3 of us were chosen to select. We were informed of the change by the Chief of Numan. We were only called and told verbally during the reign of Dishon. I do not know if the change was brought to the notice of the Longuda Public.

It is important to observe that this is the first time the procedure for selecting the Longuda Chief was followed. This is because as DW1 said,

“Even in the past during the time of 59 the names were brought to me and I presented them at the meeting of the 59. And now when there are only three of us the names arc considered only by the three of us.”

This is the evidence of the Bilama of Guyuk, the most influential and accepted leader of the new trio. Although in several respects corroborating the evidence of the plaintiffs witnesses was rejected by the learned Chief Judge as contradictory and questionable. Surely evidence against interest is always admissible against the person making it. It is not to be rejected on that account. It is important to observe that even the evidence of DW3, Peter Bashawa who the learned Chief Judge described as a truthful witness admitted that there was a body of elders (or Ubanis) who nominated candidates who they pass to the traditional Chiefmakers for appointment as the Chief of Longuda. He claimed to be one of the members who nominated the 8th Defendant, Alhaji Jibir Grema. The learned Chief Judge relied on the evidence of DW4 and DW5 who he described as truthful witnesses and Exhibits 3 and 4 tendered in evidence. Herein lies the solution and not on the evidence relied upon. It is significant to observe that Exhibit 4 was claimed to have been made during the reign of Pastor Dishon Dansanda. It is not dated but is signed by the Chief Scribe of Numan Authority.

It is of crucial importance to reiterate the fact that the Chief of Longuda Land as distinct from the Chief of Guyuk or any of the associated villages constitutive of Longuda land is entirely a creation by the Colonial government – See Exh.2. The choice of the incumbent was not in accordance with native law and custom but by a referendum. It is conceded that the Chief of Guyuk appears to have given way thereafter to the Chief of Longuda land, and the same families which were entitled to the Chieftaincy of Guyuk are the same as of Longuda Land; but the fact still remains that the latter is not a creation of or evolution from Native law and custom; accordingly, no rules of native law and custom stricto sensu are applicable. Herein lies the question of the application of native law and custom to Longuda chieftaincy. Accordingly, having evolved by process outside native law, the method of appointment of such a Chief can only be determined in a manner other than by native law and custom. There is statutory provision in respect of such cases. Section 4(1) (2) of the Chiefs (Appointment and Deposition) Law, Cap. 20 Laws of Northern Nigeria, applicable in Gongola State provide-

“4(1) The provisions of section 3 shall not apply to the office of a chief or head chief which –

(a) has not originated from native law and custom but has been created by the legislative or administrative act of any competent authority; and

(b) is recognised as such by the Governor;

but the provisions of subsections (2) and (3) of this section shall apply thereto ..

(2) Upon the death, resignation or deposition of any chief or head chief of a kind described in subsection (1) the Governor may approve as the successor of such chief or head chief, as the case may be, any person appointed in that behalf by those entitled to appoint in accordance with the provisions of any order made by the Governor in Council prescribing the method of appointment of such a chief or head chief; and if no appointment is made before the expiration of any interval prescribed in any such order the Governor may himself appoint such person as he may deem fit and proper to carry out such duties incidental to the chieftaincy as it may be necessary to perform.”

It seems obvious from the provisions of section 4(2) of the above enactment; already cited above, that where the appointment of a chief is not governed by native law and custom, as in the instant case, the Governor is empowered to make the appointment in accordance with the method prescribed in the Order-in-Council enabling the appointment, or on the expiration of any period prescribed in the Order-in-Council, the Governor may appoint such person as he deems fit and proper. The appointment of the 8th Respondent could have been made under the Chiefs (Appointment of Chiefs of Longuda) Order 1968, if that subsidiary Legislation had been made in accordance with section 28 of the Chiefs (Appointment and Deposition) Law, Cap. 20. There is no evidence that the Order was made by the Governor-in-Council. However, notwithstanding this defect, the appointment having been made by the Military Governor, was valid and in compliance with the provisions of section 4(2) of the Chiefs Law already reproduced.

There was nothing before the court in support of the contention that the appointment of the 8th Defendant under the Chiefs Law is illegal null and void. It is an elementary and fundamental principle of our law that an existing native law and custom may be altered or entirely abrogated by a valid legislation in conflict with it. Accordingly, where the status regulated is not a creation of native law and custom, any native law and custom which has developed and grown around it can be abolished or indeed controlled by a suitable contrary legislation.

There being no native law and custom applicable to the appointment and approval of the Chief of Longuda at the time of the appointment of the 8th Respondent, there was no breach of Longuda Native Law and Custom. It follows therefore that the custom of rotation which was transmitted from the Guyuk Chieftaincy to the Longuda Chieftaincy is not applicable. Accordingly it is not necessarily the turn of the Bonsibe ruling house to provide a candidate.

The third issue and the subject-matter of ground 4 whether the averment in paragraph 25 of the statement of Defence is a Counter-claim, and if so whether the Court of Appeal was not wrong in holding that the defendants were entitled to the relief claimed. It seems to me counsel for the Appellant was being unduly tedious in his contention. There was nothing to show that Defendants were making a counter-claim. I agree with the observation of the Court of Appeal that Defendants were asking for an order which will naturally follow from the dismissal of the substantive orders. This ground of appeal lacks merit and is accordingly dismissed.

All the grounds of this appeal must be and are thereby dismissed. In conclusion therefore, because the Longuda Chieftaincy is a chieftaincy within the meaning of section 4 of the Chiefs (Appointment and Deposition) Law, Cap 20, it is a chieftaincy created by administrative act. Therefore the appointment of the Chiefs thereunder is not governed by section 3 of the Chiefs (Appointment and Deposition) Law. Cap. 20 which prescribes compliances with native law and custom. Section 4 of the Law is concerned with the appointment of Chiefs otherwise than in accordance with native law and custom. Section 4(2) enables the Governor-in-Council to make order approving persons entitled to appoint in accordance with such order, the successor of such a chief or head chief in the event of a vacancy created by death, resignation or deposition. The Governor may in his absolute discretion in the absence of such persons, appoint the Chief in similar circumstances.

This was what happened in this case. The appointment of Alhaji Jibir Grema is in accordance with the provisions of the law and is valid and legal. There was no breach of native law and custom, which in any event is inapplicable. All the grounds of appeal having failed are hereby dismissed. Appellant shall pay N500 as costs to the Respondents.A. O. OBASEKI, J.S.C.: I have had the advantage of reading in advance the draft of the judgment just delivered by my learned brother, Karibi-Whyte, J.S.C. His opinions on all the issues for determination in this appeal accord with mine and I adopt his opinions lucidly set out in the said judgment as mine. I agree with him that the appeal must fail and I hereby dismiss it with N500.00 costs to the Respondents.

This appeal deals with a chieftaincy matter, the Chief of Longuda. The chieftaincy was of recent creation. It was created in 1957. It is not one of the traditional chieftaincies that have lived with us from ancient times down the ages created and regulated by native laws and custom. It was created by an administrative act during the colonial era by the British Administrators.

Appointment to the office was and is regulated by section 4(1) of the Chiefs (Appointment and Deposition) Law Cap. 20.

Section 4(1), and (2) of the Chiefs (Appointment and Deposition) Law under which the Order was made is conclusive on the matter and reads:

“4(1) The provisions of section 3 shall not apply to the office of a chief or head chief which –

(a) has not originated from native law and custom but has been created by legislation or administrative act of any competent authority; and

(b) is recognised as such by the governor but the provisions of subsection (2) and (3) of this section shall apply thereof;

(2) Upon the death, resignation or deposition of any chief or head chief of a kind described in subsection (1), the governor may approve as the successor of such chief or head chief, as the case may be, any person appointed in that behalf by those entitled to appoint in accordance with the provisions of any order made by the governor in council prescribing the method of appointment of such a chief or head chief; and if no appointment is made before the expiration of any interval prescribed in any such order, the governor may himself appoint such person as he may deem fit and proper to carry out such duties incidental to the chieftaincy as it may be necessary to perform.”

The native law and custom, tradition and the procedure of appointment or the selection of the chief of Longuda does not exist and so the basis on which the Appellants claim rests does not exist. The portion of the trial in the High Court devoted to the ascertainment of the native law and custom was a wasteful and an unnecessary exercise. If the claim for declaration and injunction had been laid under and couched as a violation of the Chiefs (Appointment and Deposition) Law, the trial would have been a useful exercise even though the decision would not have favoured the Appellants.

Parties and their counsel should be able to identify and distinguish native law and custom from statutory legislation including subsidiary legislation.

The law is that the Bilama of Dukul, Bilama of Guyuk and the Nakatede of Guyuk are the traditional nominators and selectors of candidates for the Longuda chieftaincy family. The law having so provided, evidence of native law and custom is not required to establish it. It was a misconception on the part of the plaintiffs to allege as they did that there was in existence native law and custom regulating the appointment. The appointment challenged was made after the commencement of the Order empowering the traditional selectors to nominate and select candidates came into force. There was therefore nothing before the court in support of the contention that the appointment of the 8th Defendant under the Chiefs (Appointment of Chiefs of Longuda) Order 1968 is illegal, null and void.

The absence of native law and custom further emphasised by the fact that since the creation of the chieftaincy in 1957, the death of Pastor Dishon Dasanda in 1983is the first death of a Chief of Longuda creating a vacancy to be filled. The vacancy filled by the deceased was created by abdication and as such, the evidence of native law and custom given in proof of customary procedures for filling the vacancy could not have been established for this chieftaincy.

For the above reasons and the reasons set out in the judgment of my learned brother, Karibi-Whyte, J.S.C. I hereby dismiss the appeal.

SC.110/1987