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Emmanuel Atungwu & Anor V. Ada Ochekwu (2013) LLJR-SC

Emmanuel Atungwu & Anor V. Ada Ochekwu (2013)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

This is an Appeal brought by the Appellants from the Judgment of the Court of Appeal (herein referred to as the court below) Jos Division in Appeal No. CA/J/2/2/2001 delivered on 29/6/2004, wherein that Court dismissed the Appeal and affirmed the Judgment of the trial Court.

Dissatisfied with the Judgment of the Court below, the Appellants have appealed to this Court upon the Notice of appeal containing 8 Grounds of Appeal. From the 8 grounds of Appeal 5 issues, which the Respondent adopted for determination were formulated. I shall come to the issues anon. However, the facts of this case which has a chequered History and intriguing circumstances must be first exposed. It is that sometimes about 29th day of April 1995, the Respondent herein was appointed the substantive Clan Head of Edikwu Community, following the death of the previous holder and the expiration of the Regency or period allowed by the Custom and Tradition of the people.

Upon the Appointment of the Respondent by the King Makers, the Respondent was “beaded” as the substantive Clan Head. Following the appointment and beading of the Respondent, the 1st Appellant, who was then laying claim to the Regency, upon the death of his own father, one ATUNGWU AJIMA, who himself was once a Regent, commenced proceedings against the Respondent at Otukpo High Court vide Suit No. OHC/196/95 challenging the appointment of the Respondent as the Clan Head of Edikwu Clan. The 1st Appellant also sought for an order of the court allowing him to continue in the acting capacity.

Issues having been joined, the Respondent filed a Motion No.OHC/50/M/95 seeking for an order dismissing the case on the ground that there was no further vacancy in the office of the Clan Head of Edikwu Clan to allow for the regency or acting period to continue.

On the 21st day of March 1996, the Otukpo High Court in a considered Ruling granted the application and struck out the case. In the course of the Ruling the trial court found that the Respondent herein, then the applicant in the motion is the substantive Clan Head of Edikwu Clan. It was also held that there was no vacancy existing in the clan Headship of Edikwu Clan after the Applicant was selected and beaded, and accordingly the case was struck out.

It was upon the above Ruling of KAKA’AN J that the Respondent commenced proceedings against the Appellants in suit No.MHC/63m/97, seeking for an order of Mandamus and injunction. In the course of the proceedings in the said Suit No. MHC/63m/97 the Appellants herein filed an interlocutory appeal to the Court of appeal in Appeal No. CA/J./160/97, challenging the Ruling of the trial court which had assumed jurisdiction to entertain the case.

The Court of Appeal, however, on the 25th day of October, 1995 in a well considered Judgment dismissed the appeal and ordered that the case be heard on the merit.

Upon the Judgment of the Court of Appeal in the said appeal No.CA/J/160/97 the trial court proceeded with the case and on 12th day of April 2001 granted the reliefs sought by the Respondent herein. Aggrieved by this decision, the Appellants appealed to the Court of Appeal upon Notice of appeal containing 7 grounds. Again,on the 29th day of June 2004 the court below dismissed the appeal and affirmed the Judgment of the trial court. It is against this Judgment of the Court below that the Appellants herein, have appealed to this Court.

As earlier stated in this Judgment the appellants’ Notice of Appeal contains 8 Grounds of Appeal from which 5 issues have been formulated as follows:

“3.01. Whether the Court of Appeal was right in striking out grounds 3 and 4 of the Notice of Appeal on the ground that no issues were formulated thereon.

3.02 Whether the Court of appeal was right when it held that the suit No.MHC/63m/97 seeking the relief of mandamus and injunction was not premature, pre-emptive and that no approval of relevant government agency was required for the selection/appointment and beading of the Clan Head of Ediwku.

3.03 Whether the Court of Appeal was right in confirming the order of injunction against the second appellant after having allowed the appeal on issue No. 2 concerning suit No.OHG/503m/95 which was the basis of the trial of the court order of injunction, particularly against the second appellant who was not a party in that case.

3.04 Whether the Court of Appeal was right when it held that there was no need to call oral evidence on the issue of demand and that there was satisfactory proof of demand on the first appellant to handover the chieftaincy property to the respondent.

3.05 Whether the Court of Appeal was right when it held that the appellants failed to adduce convincing evidence of miscarriage of justice or injury suffered by them as a result of the trial court delivering its decision/ruling outside 90 days after that addresses as stipulated in the 1999 Nigerian Constitution.”

On the 23rd April, 2013, when this appeal came up for hearing, learned counsel for the Appellants, Ademola Bakre Esq. referred to the Appellants’ brief of argument which was deemed filed on 23rd November, 2010. He adopted the brief and without much ado urged this Court to allow the appeal.

In the same vein, P. A. Omengala Esq. learned counsel for the Respondent having identified his brief filed on behalf of the Respondent on 20th December 2010, adopted the said brief and without further amplifications of the issues, he urged the court to dismiss the appeal.

Arguing the first issue learned counsel for the Appellants submitted that, the court below was wrong in law to have struck out grounds 3 and 4 of the Notice of Appeal before it and that the action of the Court has occasioned grave miscarriage of justice as this has prejudiced the minds of the learned Justices in the consideration of the entire appeal before it. He referred to pp. 291-295 of the Record wherein the court below gave reasons for striking out the two grounds as failure to marry the two grounds to any of the issues formulated and canvassed before it. It is contended that the court having taken that stance proceeded on page 96 to state that the second issue formulated by the Appellants covers grounds 2 and 3 of the Notice of Appeal and also accommodated respondent’s issue No. 2. That the court held further that issue No. 3 in appellants’ brief was married to ground 4 and encapsulates the respondent’s issue No. 2. Further reference was made to page 259 wherein it was stated clearly that in the Appellants’ brief of argument under paragraph 4.02 thus – issue No. 2 (grounds 2 and 3) and at page 262 paragraph 4.03 – issue No. 3 (grounds 4). In the light of this learned counsel for the Appellants has submitted that the argument of the appellants under issues Nos. 2 and 3 amply covers grounds 3 and 4 which are grounds challenging the order of restraint against the 2nd appellants.

In the light of the above, learned counsel submitted that it is very clear that the views expressed by the court below that grounds 3 and 4 were not married to any issue canvassed before it is unjust, misconceived and perverse, and this has made the court below to dismiss the appellants’ appeal. It is accordingly urged that this issue be resolved in favour of the appellants.

Regarding the Appellants’ issue No. 2, Learned counsel submitted that the court below erred in consideration of its issue No. 1 in the appeal before it particularly on the questions of Guidelines, non-approval of appointment of the respondent and whether the Clan Head of Edikwu is a Chief within the meaning of the relevant laws and whether the application for mandamus was not premature or pre-emptive. It is contended that in consideration of the above issues, the court below completely failed to advert its minds to the appellants’ Reply brief dated 21/5/2002, contained on pages 283 – 287 of the Record. It is submitted that the failure of the court below to advert its mind to the Reply brief necessitated its erroneous approach to the resolutions of issue No. 1 against the Appellants.

Learned counsel submitted that the exclusion of the Clan head of Edikwu as a ‘Chief in its definition was contrary to express provisions dealing with the definition of Chief. Learned counsel referred to Exhibit ‘C’ attached to the Respondent’s application at the trial Court, which is a letter written by H.R.H. John Enefu Antenyi Odejo K. Apa dated 24/4/96, addressed to the Chairman of Apa Local Government. It is contended that since the chairman by this letter confirmed that the respondent was received by the Traditional Council, as one of the Traditional Rulers in the Local Government, the obvious implication of the content of the letter is that the Clan Head of Edikwu is a member of Apa Traditional Council and a functionary of Apa Local Government. For this contention reliance was placed on Section 2 (1) and (2) of Chief (Appointment and Disposition) Law Cap.20, Laws of Northern Nigeria, which defines “property” to include all regalia and other things whatsoever attaching to a chief by virtue of his chieftaincy status. To further buttress his point on the argument canvassed on this issue, learned counsel referred to S. (1) (a) of the Benue State Chief and Traditional Council’s Law No. 4 of 1991, which recognizes all traditional Rulers within the Area Traditional Council as members of the Council and Section 61 (1) and (2) of the Benue State Local Government (Establishment Law) 2000, which created the Local Government Council and therein recognizes the Clan Heads and all the Traditional Rulers as members of the Traditional Council. It is in this vein learned counsel has submitted that there is no iota of doubt that the Clan Head of Edikwu is a recognized Chief not only within the provisions of the Chiefs (Appointment and Disposition) Law Cap. 20, Laws of Northern Nigeria, but within the Benue State Laws. That the court below was in error when it held that the definition of Chief does not include Clan Head, and therefore that the Government approval is not required for the performance of the duties of the Clan Head of Edikwu. But that the appellants have shown by Exhibits 1, 2, 3, and Exhibit ‘E’ that approval is required and it is mandatory and must precede “beading” and performance of duties by the Clan Head of Edikwu. He referred to and relied on the case of SAVANAH BANK V. AJILO (1981) All NLR 26 at 45.

See also  Eme Orji Vs The State (2008) LLJR-SC

It is finally submitted that contrary to the decision of the court below that the action of the Respondent was timeous and not pre-emptive, the appellants have shown that the action before the trial court was not only illegal but premature and pre-emptive because the approval of Government is a pre-requisite or a precondition for the respondent to assume the duties of the Clan Head of Edikwu. On this contention, the counsel relied on the case of AKINTEMI & ORS. V. PROF. ONWUMECHILI (1986) SC 123, at 158, and De Smith’s Judicial Review of Administrative Action 4th Edition at page 557. It is therefore urged that this issue be resolved in favour of the Appellants.

Arguing issue No. 3, learned counsel for the Appellants submitted that the court below was wrong to have dismissed the appeal wherein the 2nd Appellant was restrained by the trial High Court from parading or holding himself as the Clan Head of Edikwu on the ground that the respondent was selected and beaded by the Elders of Edikwu on 29/4/1995. It is contended that the Appellants questioned the decision of the trial High Court on this issue in ground 3 of their Notice of Appeal before the Court below, but that, as it has been found, while arguing issue 1, the court struck out the Notice on the ground that no issue was married to it; but that the Appellants have shown that issue 2 was married to ground 3. It is therefore argued that in view of the order striking out ground 3 of the Notice, the Court below failed to consider the effect of the resolution of issue 2 in favour of the Appellants. It is submitted that the main reason for restraining the 2nd Appellant by the trial High Court, was because in his interpretation, the trial Judge in OHC/503m/95, struck out Suit No.MHC/196/95, to the effect that “there was no vacancy” existing in the acting Clan headship of Edikwu after the applicant (Respondent herein) was selected and beaded. Therefore the Court below having found for the appellants in resolution of issue 2 that the trial court was wrong to have relied on the decision of Kaka’an J. in OHC/503m/95 it ought to have proceeded to set aside the order of injunction placed on the 2no Appellant. It is submitted that since the court below did not strike out ground 3 of the Notice of Appeal before it, the court would have adequately considered the effect of the order of injunction against the 2nd Appellant after resolving issue 2 in favour of the Appellants. That this failure has occasioned miscarriage of justice and since there is no Cross-appeal against the resolution of issue No. 2 in favour of the appellants, the court below ought to have resolved issue No. 3 in favour of the Appellants, particularly, the 2nd Appellant.

On issue 4, learned counsel for the appellants has submitted that the court below wrongly held that there was no need to call oral evidence on the issue of demand or request to the Appellants to surrender the Chieftaincy regalia. According to the Appellants there was no evidence of demand ascribable to the two letters, Exhibits ‘B’ and ‘C’ which emanated from the Chairman of the Traditional Council, the Och’Idoma. It is submitted that if the lower court had carefully considered and evaluated the affidavit evidence of the parties, it would not have reached the conclusion it did on the issue of demand letters; and it would have been apparent to the court the authors of those letters of demand were not the king makers of Edikwu chieftaincy.

The 5th and last issue formulated by the Appellants, is on the question of whether the court below was right when it held that the appellants failed to adduce evidence of miscarriage of justice or injury suffered by them as a result of the trial court delivering its Judgment outside 90 days after the final addresses of counsel as stipulated in Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999. Learned counsel for the appellants has submitted that the reason adduced by the court below is a misconception of the position of the law on the issue of miscarriage of justice. It is contended that failure of the court to consider most of issues properly raised and canvassed before it has occasioned miscarriage of justice due mainly to the delay by the trial court to appreciate the issues on the records. It is submitted that the reason given by the trial court for the delay in delivering its ruling was untenable and clearly an afterthought.

The learned counsel for the Respondent has responded to the five issues raised and argued by the Appellants, Seriatim. On the issue No. 1, learned counsel has submitted that the complaint of the Appellants is baseless and unfounded because the lower court gave reasons for arriving at the conclusion at pages 294 – 295 of the Record of proceedings. That even though the lower court stated in those pages that no issues were formulated from grounds 3 and 4 of the grounds of appeal and proceeded to strike them out, but at page 296 of the Record of proceedings the court again stated that the 2nd issue formulated by the Appellants covers grounds 2 and 3 of the Notice of Appeal and also accommodated Respondent’s issue No. 2 and that issue No. 3, in the appellant’s brief is married to ground 4 and also encapsulates the Respondent’s issue No.2. In other words, issue No. 2 was considered by the lower court at pp. 302 to 307 while issue 3 was equally considered at pp. 308-310 of the Record of proceedings respectively.

It is thus submitted that the error of the court below, if any in stating that the grounds 3 and 4 are not covered by any of the issue formulated, when in fact the said grounds were considered by the court, occasioned no miscarriage of justice. That it is not every error in a Judgment that will lead to an appeal being allowed. Reliance was placed on the case of ABDULKADIR OBA ALAO V. VICE-CHANCELLOR OF UNIVERSITY OF ILORIN (2008) 1 NWLR (Pt.1069) 421 at pp 467 – 468.

Regarding issue No. 2, learned counsel for the Respondent submitted that the Appellants’ complain that the approval of Government is needed to the assumption of duties by the Respondent as the beaded Clan Head of Edikwu Clan is erroneous and baseless. It is submitted that upon performance of the traditional rites, the Clan Head immediately assumes office without awaiting the authority or approval of Government. On the Appellants’ reliance on the ‘Guidelines for the Appointment and Discipline of Traditional Rulers in Benue State” issued and circulated in 1991, learned counsel submitted that the findings of the trial court on the Guideline was concurred by the court below as supported by evidence and therefore this Court will not readily interfere with such findings. Reliance was placed on the cases of CHIEF OLUNTA ALIBO V. CHIEF BENJAMIN OKUSIN & ORS. (2010) ALL FWLR (pt.529) 1059, and MELFORD OGALA & ORS. V. CHTEF FELIX ONWUKIO EGWERE (2010) All FWLR, (Pt.532) 1609 at 1630.

Learned Counsel has submitted that the argument of the learned counsel for Appellants on the Status of the Clan Head of Edikwu, is of no moment as it has no effect whatsoever on the outcome of the Respondent’s case before the trial court. That contrary to the contention of the appellants, the Chiefs (Appointment and Deposition, Law Cap.20, Laws of Northern Nigeria 1963, does not provide for recognition or approval of Government before assumption of Office by Clan Heads or other categories of Chiefs. Similarly, the said provision made no provisions for issuance of Guidelines, on the Appointment and Discipline of Traditional Rulers. It is in this light the court is being urged to resolve this issue in favour of the Respondent.

On issue No. 3 it is the contention of the Appellants that the lower court having resolved issue No. 2 in favour of the Appellants ought not to have granted the injunction restraining the 2nd Appellant from parading himself as the clan Head of Edikwu. Having set out in paragraphs 603 and 6.03, some passages of the Judgment of the court below, the learned counsel submitted that it is abundantly clear that the reason why the Judgment of the trial court was affirmed despite resolution of issue No. 2 in favour of the Appellants was that there was no overwhelming evidence which the trial court considered, evaluated and believed before it arrived at its Judgment. It is contended that the findings of the lower court on this issue is not the subject of appeal in any of the grounds of appeal in the Appellants’ Notice of Appeal to this Court.

Regarding issue No. 3 on the question of demand to the appellants to surrender traditional regalia, Learned counsel submitted that there was overwhelming affidavit evidence before the trial court showing that demands were made on the Appellants and that the court below was right in arriving at the conclusion that there were no conflicts in the affidavit evidence to warrant the calling of oral evidence. That the lower court having accepted the evidence of the Respondent granted the reliefs sought by him. It submitted that it is not the duty of the court below, on the consideration of the case of the parties to have commended on each and every document exhibited to the affidavit evidence as the acceptance of the case of the Respondent meant the rejection of the case of the Appellants. It is contended that the trial court has properly evaluated and considered the evidence before it before arriving at the conclusion that there were no conflicts in the affidavit of the parties and it is in the same vein the lower court confirmed the findings of the trial court on the issues, which findings this court would be loathe to interfere with.

On the final issue, on the failure to deliver Judgment by the trial court within 90 days of the final addresses, learned counsel has submitted that the Appellants have failed to show that they have suffered any injury or there has been miscarriage of justice by reason of such delay. In the light of this, the court is urged to resolve the issue in favour of the Respondents.

See also  Taofik Disu & 13 Ors. V Alhaji Silifat Ajilowura (2006) LLJR-SC

Now to the consideration of all the issues raised and canvassed by the respective parties. I shall consider first issue 5 since the validity of the Judgment of the trial court is put to test. The parties are ad idem that the trial court delivered its Judgment outside the 90 days contrary to Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999.

“Every court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter with duly authenticated copies of the decision within seven days of the delivery thereof.”

However, in Section 294 (5) of the said Constitution it is provided that:

“The decision of a court shall not be set aside or treated as a nullity solely on the ground of noncompliance with the provisions of subsection (1) of this section, unless the court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof’”

In the light of the foregoing provisions, it must be noted that delay in delivery of Judgment per se, does not lead to a Judgment being vitiated. The delay must occasion a miscarriage of justice to result in such a conclusion. In other words, it has to be established that the delay occasioned a miscarriage of justice in that the trial Judge did not take a proper advantage of having seen or heard the witnesses testify or that he had lost his impressions of the trial due to such inordinate delay. See AKPAN V. UMOH (1999) 7 SC (Pt.II) 13.

In resolving this issue the court below at pp.312-313, of the Record of Proceedings, has this to say:-

“In the instant case, there is no doubt that the Lower Court delivered its ruling outside the 90 days period stipulated in the Constitution. That notwithstanding, for this court to declare the decision a nullity on the ground of the delay in delivery of the ruling, the Appellants have to produce convincing and credible evidence that they actually have suffered miscarriage of justice by reason of such delay. The Appellants in this regard did not or have failed to adduce such evidence occasioning miscarriage of justice to them in any respect. They have not shown that they suffered injury of any sort by reason of such delay. And even if they showed they suffered any injury, such injury must also be shown to have been suffered as a result of such delay or could actually be traceable to such delay in delivering the ruling lately. All these, the Appellants have failed to establish. I therefore refuse to declare the decision of the Lower Court a nullity or invalid.”

The Appellants have contended that failure of the trial court to consider and appreciate the issues and the records placed before it was due to inordinate delay by the trial court. With due respect the Appellants have failed to show that the late delivery of the Ruling affected the Judgment of the trial court resulting in a miscarriage of justice. The court below in the Judgment on appeal held that the trial court properly considered and evaluated the evidence before it before arriving at its Judgment in favour of the Appellants. I am of the respectful view that the delay in the delivery of the Judgment did not affect the Judgment of the trial court as all the issues raised before it were adequately considered and resolved. The Appellants have failed to show satisfactorily that they have suffered any miscarriage of justice by the late delivery of the Judgment.

It is for this reason I must resolve this issue in favour of the Respondent and it is so resolved.

I shall now consider the remaining Four issues serially. I have considered the comprehensive arguments and submissions of the respective counsel on issue No. 1. Appellants have complained under this issue that the court below was wrong to have struck out grounds 3 and 4 of appeal on the ground that no issues were formulated from them. There is no basis for this complaint. The court below gave reasons for arriving at the conclusion it reached that no issues were formulated from the grounds that were struck out (i.e grounds 3 and 4). Even though it did strike out grounds 3 and 4 of the grounds of appeal, however at page 296 of the Record the court below retracted its findings and now noted that:

“… I notice that the 1st issue for determination proposed by the Appellants relates to grounds numbers 1 and 5 and cover No. 3 in the Respondent’s brief of Argument. The second issue formulated by the Appellants covers grounds Nos: 2 and 3 of the Notice of Appeal and also accommodated Respondent’s issue No. 2. Issue No. 3 in the Appellant’s brief is married to ground 4 and also encapsulates the Respondent’s issue No. 2. Also the Appellants’ issue No. 4 which is lifted from ground of appeal No. 6 covers issue No. 2 of the Respondent. Finally issue No. 5 formulated by the Appellants which has been distilled from ground of appeal No. 7 incorporates Respondent’s issue No. 4. I shall consider the issues serially except issues 3 and 4 which I shall consider together.” The underlined portion is for emphasis.

The above extract of the Judgment of the court below shows that the grounds of appeal complained of by the Appellants under this issue were considered even though the court had initially said that the grounds were not covered by the issues formulated by the Appellants. The record of Appeal at pages 302 and 307 show that issue No. 2 distilled from grounds 2 and 3 of the ground of appeal was considered by the court below, while Issue No. 3, distilled from ground 4 was as well considered at pages 308 – 310, of the Record of Proceeding. Therefore it is my view that the statement of the court below that the grounds Nos. 3 and 4 are not covered by any of the issues formulated, when in fact the said grounds were considered by the court occasioned no miscarriage of justice.

It has long been settled that it is not every mistake or error in a judgment that will result in the appeal being allowed. See ABDULKADIR OBA ALAO V. VICE CHANCELLOR. UNIVERSITY OF ILORIN (supra). The Appellants having failed to show how the Judgment of the court below has occasioned miscarriage of justice, the issue must be resolved in favour of the respondent.

ISSUE NO. 2. Is on a narrow point of whether the court below was right when it held that suit No. MHC/63m/97 seeking the relief of mandamus and injunction was not premature, pre-emptive and that no approval of relevant Government agency was required for the selection/appointment and beading of the Clan Head of Edikwu. Appellants complained that the approval of the Government of Benue State is a condition precedent to the assumption of duties by the Respondent as the beaded Clan Head of Edikwu Clan and that in the absence of such approval, the Respondent had no locus standi to commence proceedings as he did, against the Appellants seeking for the Orders of mandamus and injunction before the trial court.

In resolving this issue the learned Chief Judge of Benue State held at page 241 of the Record of proceedings thus:

“It was strenuously argued for the Respondent that since the Governor of Benue State has not approved the appointment demand by the Applicant is premature and pre-emptive. I do not accept this argument. Selection and beading are some of the processes leading to the approval of a candidate for the appointment. From the available evidence and reaction of both the King-makers and Apa Local Government Traditional Council once a person has been duly selected and beaded the paraphernalia of office are handled over to him. The approval of the Governor is to stamp what has been done by relevant appointing bodies, the most relevant of all being the King-Makers.”

The court below dealt with the same issue on page 300 of the Record, and succinctly put it this way:

“I have considered the submissions of the learned counsel to the parties on this issue. I am in agreement with the submission of the learned Counsel for the Respondent that the learned Appellants’ Counsel heavily relied on the provisions of the “Guidelines.” I have thoroughly examined the provisions on pp. 161 – 164 of the Record of Proceedings. I agree that on the face of the said “Guidelines,” it was not shown what laws/enactment the author of the “Guidelines” drew his power to issue same. It has not been signed by anybody. Similarly, the commencement date that such “Guidelines” will be effective or would start operating was also not stated.”

The passages of the Judgment of the court below are findings of fact made in agreement with that of the trial court. These are concurrent findings of facts by the two courts below in this appeal. It is settled law that this court will loathe to interfere with the concurrent findings of fact by the two courts below once such findings are on evidence legally admissible and it is not shown that the findings are perverse and/or palpably erroneous and cannot be supported by such evidence. See the cases of CHIEF OLUNTA ALIBO & ORS. V. CHIEF BENJAMIN OKUSIN & ORS. (supra) and MELFORD AGALA & ORS. V. CHIEF FELIX ONWUKIO EGWERE & ORS. (supra). The findings of facts made by the two Lower Courts concerning the approval of Government of Benue State with regards to the appointment and assumption of duties by Clan Head cannot be faulted. From the affidavit evidence before the trial court, it was not in doubt that the appointment of the Clan Head is exclusively the responsibility of the Elders and/or King makers of the community and not the Government. It is only after the appointment of a person is validated by the Elders/King makers in accordance with the Custom and Tradition of the people and has performed the Traditional Rites and beaded that the question of recommendation to the Government arises.

See also  Usman V. Kareem (1994) LLJR-SC

In its Judgment the court below based its opinion of the status of the Clan Head on the definition of ‘Chief in Section 2(2) of the Chiefs (Appointment, and Deposition) Law Cap. 20, Laws of Northern Nigeria, 1963 applicable in Benue State, and said that the definition does not include “Clan Head”. The court also held that the law neither provided for recognition/approval nor for issuance of Guidelines on the Appointment and Discipline of Traditional Rulers.

The Appellants also relied on Section 8 of the said Law in their Brief of Argument in support of their contention for prior Government approval to assumption of office. I do not think there is such provision in the said section, which provides;

“8. If any person declines or neglects to take the oath when any Oath required to be taken by him under Section 7 is duly tendered, he shall:-

(a) If he has already entered his office of Chief or Head Chief, vacate the same; or

(b) If he has not entered his office of Chief or Head Chief, be disqualified from entering same.”

The above provision clearly deals with the taking of oath of office by the Chief and not Government “approval as a prerequisite to assumption of office as a chief or Clan Head. Oath taking is not synonymous with Government’ “approval”. The Appellants’ reliance placed on the chief (Appointment and Deposition) Law (supra) to allege that the findings of the two courts below are perverse is absolutely unfounded and unsupportable by that Law. At page 300 of its Judgment, the court below stated as follows:

“Even Section 7 of the same Law which was relied on, did not talk of approval by government as a prerequisite to the performance of function of a Clan Head and it even said oath can be taken as soon as may be after the appointment.’

It is in the light of the foregoing this issue is resolved in favour of the Respondent but against the Appellants.

In issue No. 3 the Appellants’ grouse is that the court below erred when it affirmed the Order of injunction made against the 2nd Appellant by the trial court. It is the contention of the Appellants that the error arose because the court below failed to consider their Ground 3 in their Notice of Appeal on the ground that the said Ground 3 was not covered by any of the issues formulated and argued by the Appellants. It is their contention that the court below having resolved issue No. 2 in favour of the Appellants ought not to have granted the injunction restraining the 2nd Respondent from parading himself as the Clan Head of Edikwu. In the opinion of the appellants the main reason why the Court below restrained the 2nd appellant was because of that court interpretation of the decision of Ka’akan J. in OHC/503m/95 striking out Suit No. MHC/196/95 to the effect that no vacancy existed in the acting Clan Head of Edikwu after the Respondent herein was selected and beaded. The contention of the Appellants on this issue shows complete misrepresentation of the views expressed in the Judgment of the Court below. That court after resolving issue No. 2 in favour of the appellants and against the Respondent proceeded further to state at page 307 of the Record of proceedings as follows:

“I must however quickly point out at this stage, that despite the erroneous reliance by the lower court on the said two decisions of Kaka’an J. (supra), that did not however mean that it did not consider the evidence adduced before it in arriving at its final conclusion. The trial court had before it overwhelming credible evidence which it had rightly considered evaluated and believed before it arrived at its conclusion. I will come back to this when treating issues Nos. 3 and 4”

From the passage of the Judgment of the Court below reproduced above it is crystal clear that the reason why the Judgment of the trial court was affirmed despite the resolution of issue No. 2 in favour of the Appellants was that there was overwhelming credible evidence which the trial court considered and evaluated before arriving at its decision.

In its further justification for affirming the Judgment of the trial court, the court below at page 310 of the Record of Proceedings held thus:

“Although I had earlier held when treating issue No. 2 that the court was wrong in holding that there were no appeals on those applications or that the lower court erroneously relied on or referred to those rulings, that does not mean it solely based its finding on those rulings. The lower court had duly considered the evidence adduced before it in the instant case before it arrived at its conclusion. Even without referring to or relying on those rulings the court had enough evidence before it and had rightly relied on the evidence adduced before it which could independently make the respondent’s case to stand on its feet.

I therefore hold that the lower court’s finding was not perverse as would justify this court to disturb or interfere with it.”

What I have garnered from the extract of the Judgment of the court below is that reason for its affirming the Judgment of the trial court granting an order of injunction against 2nd Appellant was not solely tied to the two Rulings of Kaka’an J. The court below stated clearly that there were abundant evidence before the trial court outside the said Rulings which the trial court acted upon in entering Judgment in favour of the Respondent. It was for this reason the court below refused to set aside the Judgment of the trial court on the ground that its findings were not perverse as would allow appellate court to interfere with. In the light of the foregoing this issue is equally resolved in favour of the Respondent.

The grudge of the Appellants on issue 4 is that there were conflicts in the affidavit of the parties on the issue of demand of the regalia of the office of the Clan Head of Edikwu, as such there was need for oral evidence to resolve the conflicting affidavits. The Respondent’s counsel has submitted that there was overwhelming affidavit evidence before the trial court which showed conclusively that demands were made on the Appellants to surrender the chieftaincy property and there were no conflicts in the affidavit evidence to warrant calling of oral evidence.

At page 309 of the Records the court below made some crucial findings based on the annexures to the affidavit supporting the application with regard to the demands made for the return of the Regalia of the chieftaincy of Edikwu. The annexures include:

(1) Annexure ‘D’ titled Request for Handover of Chieftaincy Regalia of Edikwu

(2) Annexure ‘F’ Letter signed by 8 King makers of Edikwu Clan dated 14th June, 1996 addressed to the 1st Appellant.”

On the same page 309, the court below found that there were other correspondences in the body of the Ruling addressed to law enforcement agencies and other kingmakers or chiefs on which the issues of plea made to the appellants for the return of regalia featured prominently. The court then concluded thus:

“With these correspondences, I feel it will not be correct for the Appellants to say there had not been any request or demand made to them to surrender the said regalia. The Lower Court had therefore, in my view, duly considered the affidavit evidence adduced before it in arriving at its conclusion that there was formal and proper demands made to the Appellants to surrender the Chieftaincy property regalia/paraphernalia of office. With the overwhelming affidavit evidence before it, which I hold was not conflicting. I do not think there was any need for the trial court to venture into calling of oral evidence as doing so will be futile and unnecessary since it will ultimately lead to the same conclusion.”

The above passages were based on the findings of the trial court which the court below affirmed. The trial court in its Ruling on page 241 of the Record held:

“From the above documentary evidence, it is clear that both the kingmakers of Edikwu and Apa Traditional Council demanded from the first respondent the return and handover of the paraphernalia of the Clan Head of Edikwu of the applicant. There was therefore a demand on the first respondent….. There is no evidence that he has accepted the demand.”

Consequently, upon the above findings the court ordered the 1st respondent to surrender the paraphernalia appertaining to the office of the Clan Head of Edikwu.

Again, here the two courts below were concurrent in their findings. I cannot find any reason to interfere with such findings as there is no obvious error on the appraisal of evidence and ascription of probative value thereto.

In conclusion, I find no merit in this appeal and it is accordingly dismissed. I affirm the Judgment of the court below delivered on 29th day of June, 2004 in Appeal No.CA/J/2/2001. However, I order that parties bear their respective costs in the circumstances and antecedent of this case.

Appeal dismissed.


SC.248/2004

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