James Achilaka V. Oliver A. Atonko (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: (Delivering the Leading Judgment)

This is an appeal against the decision of the Benue State High Court, Vandeikya Division delivered on 12th March, 2004 in suit No: VHC/5/2003. The Respondent herein was the plaintiff of the Lower Court. In a statement of claim dated 13/2/2003, he sought for a series of declaratory and injunctive reliefs, They are:-

1. A declaration that by the Tiv Native Law and Custom of Eat and Give to Your Brother (Ya na Anigbian), the plaintiff ought to have been returned as the kindred Head of Mbaikyoluv Kindred having come from Mbanyel sub-kindred of Mbatseva Ruling House or Lineage who have never enjoyed the Chieftaincy at any time.
2. A declaration that, the 1st Defendant, having come from Mbanom who have had fair share of the Chieftaincy Institution was not qualified even to contest or be presented as a candidate at the selection of the Kindred Head of Mbaikyoluv Kindred
3. A declaration that the selection panel that conducted the selection exercise for the Kindred Headship of Mbaikyoluv Kindred on the 27/6/2002 had no right to constitute King Makers different from the ones properly constituted previously and thereby breached the procedures
4. A declaration that having been earlier unanimously selected as the Kindred Head of Mbaikyoluv Kindred, the plaintiff ought to have been confirmed by the selection panel.
5. An order returning the Plaintiff as the Kindred Head elect of Mbaikyoluv Kindred, and setting aside the purported selection of the 1st Defendant.
6. An order of injunction restraining the 2nd – 4th Defendant from recognizing the 1st Defendant as the Kindred Head elect or in any way according him Staff of Office or paying him salaries, stipends or allowances of that office till the determination of this suit.
7. An order of injunction restraining the 1st Defendant from parading himself as the Kindred Head elect of Mbaikyoluv Kindred.

The Appellant herein was the 1st Defendant before the Lower Court. In an amended statement of defence dated 16/07/20023 but deemed properly filed and served on 23/10/2003, he denied all the key and material averments in the statement of claim and indicated that at the trial, he would contend that District Headship Stool and Kindred Headship Stool are not the same and the process of fair sharing (Ya Na Angbian) they are not treated interwovenly but separately, thereby contesting the basis of the entire claim before the Lower Court. Other defendants also filed respective memoranda of appearance and defence. The 2nd, 3rd and 4th Defendants at the Lower Court are not concerned with this appeal. So issues having been duly joined, the matter proceeded to trial.

At the trial the Plaintiff/Respondent gave Oral Evidence as PW4 and also further relied on the Oral Evidence of PW1, PW2 and PW3. At the end of the Oral Evidence on behalf of the Plaintiff/Respondent, the 1st Defendant/Appellant gave Oral Evidence as DW1 and the defence continued with the additional evidence of DW2, DW3 and DW4. A number of documents were tendered and admitted in evidence through the various witnesses. Thereafter respective learned counsel took turns to address the Court at the end of which the matter was adjourned for judgment.

In a very well-considered Judgment, the learned trial judge found that the family of the 1st Defendant/Appellant had in the past enjoyed the Headship of the contested Traditional title while the family of the Plaintiff/Respondent had not had any chance and so were entitled to take their turn now under the Traditional Tiv principle of “Ya Na Angbian” – eat and give your brother. To crown his effort the learned trial judge held that:-

“the principle of “eat and give your brother” is of general application throughout the length and breathes of Tiv land; and having found that Mbanom has enjoyed some turns of Chieftaincy in the past but that their brothers in Mbanyel has (sic) never enjoyed or tasted any Chieftaincy turns; it is my opinion that the principle this time operates in favour of the Plaintiff regarding the Kindred Headship in contest.”

Upon this finding the Lower Court proceeded to grant all the reliefs in the claim of the Plaintiff/Respondent.

The 1st Defendant/Appellant was dissatisfied with the findings and decision of the Lower Court and appealed to this Court in a notice of appeal dated 17th March, 2004 but filed on 19/03/2004. The grounds of appeal and their particulars are hereby set out as follows:-

GROUNDS OF APPEAL

1. The decision of the Trial Court is unreasonable and unwarranted having regard to the weight of evidence adduced.
2. The Trial Court erred in Law when it entered Judgment in favour of the Respondent not withstanding his failure to establish that the principle of rotation (Eat and give your brother) ever applied or was in existence at Mbatseva sub-kindred of Mbakyoluv Kindred.

PARTICULARS OF ERROR

a. By S.14, 135 and 136 of the Evidence Act Cap. 112 burden of proving that such a Custom was in existence at Mbatseva was on the Respondent.

b. The evidence of Respondent that 3 persons had in the part occupied such Chieftaincy positions from Mbanam, while none benefited from Respondent side is confirmation that such a Custom was not proved to exist in the area.

c. The fact that majority of the Kingmakers voted in favour of the Appellant further confirm the non-existence of such a Custom in the area.

3. The Trial Court erred in Law when it held that Appellant had failed to establish the Tiv Native Law and Custom in which the elder son or unit benefits from Chieftaincy or any position first before the younger son or unit.

PARTICULARS OF ERROR