Mohammed Husseini & Anor V. Mohammed Ndejiko Mohammed & Ors (2005)

LawGlobal-Hub Lead Judgment Report

IKONGBEH, J.C.A.

The appellants before us were the defendants before the High Court of Kwara State sitting at Ilorin. The respondents, as plaintiffs, had taken out a writ of summons against them claiming –

1. A declaration that the 1st defendant under the age long custom and tradition of Zambufu has no right whatsoever to ascend the throne as the Zhitsu of Zambufu.
2. A declaration that under the native law and custom relating to the selection and appointment of Zhitsu of Zambufu, the 1st defendant’s family is not a ruling house in Zambufu.
3. A declaration that the appointment and/or turbaning of the 1st defendant by the 2nd defendant on or about the 12th day of November, 1991 as the Zhitsu of Zambufu is illegal, null and void and of no effect whatsoever as same is against the age long custom and tradition of Zambufu relating to and in connection with the appointment of Zhitsu of Zambufu.
4. A declaration that the 1st plaintiff is the dully selected and appointed Zhitsu of Zambufu by the majority of Zambufu traditional counsellors or king-makers is in accordance with the custom and tradition of Zambufu relating to and in connection with the selection and appointment of Zhitsu of Zambufu.
5. An order commanding and/or directing the 2nd defendant to turban or install the 1st plaintiff as the duly selected and appointed Zhitsu of Zambufu by the majority of Zambufu traditional counsellors or King-makers.
6. A perpetual injunction restraining the –

i. 1st defendant from parading or presenting himself as the Zhitsu of Zambufu;

ii. 2nd defendant, his servants, agents, privies or any person or persons however from recognising, dealing or relating with the 1st defendant as the Zhitsu of Zambufu.”

As can be seen from their claims, the plaintiffs’ challenge to the appointment and turbaning of the 1st defendant was based on two main grounds. First, they alleged that the 1st defendant was not qualified to aspire to the stool of Zhitsu or traditional ruler of Zambufu, he not being one of the two ruling houses in Zambufu.

Secondly, they complained that, even if he was qualified, the manner of his selection and turbaning was contrary to the procedure laid down by their custom and tradition.

Each side called four witnesses in support of its case. After taking written addresses from counsel for the parties the learned trial Judge, A. A. Adebara, J., delivered his judgment on 29/11/2002 substantially in favour of the plaintiffs. He had considered the following five issues, which were canvassed before him:

“1. What is the Native Law and Custom guiding the selection and/or appointment of a Zhitsu of Zambufu?

2. Whether or not the 1st defendant is from a ruling house in Zambufu to be eligible to contest the stool of Zhitsu of Zambufu?
3. Whether or not the purported appointment of the 1st defendant as the Zhitsu of Zambufu is proper and in accordance with the native law and custom of Zambufu?
4. Has the 1st plaintiff been properly selected and appointed as the Zhitsu of Zambufu?
5. Whether the plaintiffs are entitled to the reliefs sought by them?”

He resolved in favour of the plaintiffs the two crucial questions, which were those raised in Issues 2 and 3, namely, whether or not the 1st defendant was from a ruling house and, therefore, qualified, and, secondly, whether or not his installation was in accordance with the customary procedure. On the first issue, he found that both sides were agreed on what the custom relating to the selection and turbaning of the Zhitsu was. Based on what he found that custom to be, he came to the conclusion that the selection exercise as it related to the candidates, whom he found to be qualified for the contest, excluding the 1st defendant, of course, was incomplete. He consequently ordered that the exercise be completed as it relates to those two candidates, namely, the 1st plaintiff and another person, with whom we are not really concerned in this appeal. Thus, he did not fully resolve the fourth and fifth issues fully in favour of the plaintiffs, who have, however, not appealed against that aspect of the decision.

Aggrieved, the defendants have appealed to this court. Out of the nine grounds of appeal filed on behalf of the appellants Mr. N. K. Ajide formulated the following 5 rather verbose, repetitive and, in some cases, irrelevant issues for determination:

“1. Whether in the light of glaring contradictions in the evidence of the plaintiff/respondents’ evidence before the trial court, the trial court was not in error in holding that the two named ruling houses by the respondents were the two known ruling houses in Zambufu thereby effectively making it impossible for the 1st appellant to vie for the stool or Zhitsu of Zambufu? – grounds 1 and 6.

2. Whether the trial court was right in shifting the onus of proof on the defendants/appellants regarding whether a vital witness and party to the suit, that is the 2nd plaintiff/respondent, was sick and incapable of attending court to give material evidence?
3. Whether the trial court was right in granting consequential order, ordering the 2nd appellant to appoint one out of two candidates, namely, Mohammed N. Mohammed that is the 1st respondent and one Ibrahim Ndakogi who was not a party to the suit and who never participated in the proceedings of the trial when that was not the case of the plaintiffs/respondents before the trial court neither was such a relief sought, and after the trial court had refused two principal reliefs relating to the consequential order?
4. Whether the trial court was right in holding that there is established Native Law and Custom regarding the selection and appointment of Zhitsu of Zambufu when the evidence before the court were (sic) contradictory and when there is no known Native Law and Custom of Zambufu which has assumed notoriety to make the court to take judicial notice of it? – Grounds 4,8 and 9.
5. Whether the court was right in holding that the 1st appellant is not a member of any ruling house in Zambufu when such holding was based on hearsay evidence?”

Chief W. Olanipekun, SAN., for the respondents, formulated the following 4 issues:

“i. Whether the learned trial Judge was not right in nullifying the purported appointment of the 1st appellant by the 2nd appellant as the Zhitsu of Zambufu?

ii. Whether the learned trial Judge has not made the right findings with regard to or in connection with the roles of the traditional councilors of Zambufu in the selection and or appointment of a Zhitsu of Zambufu?

iii. Whether the learned trial Judge was not right in making a consequential order in favour of the plaintiffs?

iv. Whether the onus to disprove the state of health of the 2nd plaintiff/respondent does not lie on the defendants/appellants?”

I must observe straightaway that the fourth issue in the respondents’ brief, which raises the same question as does issue 2 in the appellants’ brief, is totally irrelevant to the resolution of this appeal. What the learned trial Judge said or did not say about the fact that the 2nd plaintiff did not testify has no relevance to his decision appealed from. This is so, considering the case made before him by each side in its pleadings and the evidence led in support thereof. What should be of concern to us is whether or not the evidence before him justified his decision. A party to an action is not bound to testify in person, provided he has other witnesses to prove his case and demolish his opponent’s case. If the evidence led by the plaintiffs in this case met the requirements just highlighted, then it was totally immaterial that the 2nd plaintiff did not testify in person. Therefore, the question as to who had the burden of calling him or of explaining his failure to be in court was totally irrelevant.

Another preliminary observation that I must make is that the real issues for determination in this appeal are not as many as counsel for parties have made them. Considering the parties’ cases before the trial Judge and his decision thereon, I think only three issues arise in this appeal, namely,

1. Whether or not the learned trial Judge was right in his conclusion that the 1st appellant was under the custom and tradition of Zambufu, not qualified to vie for the stool of Zhitsu of Zambufu?
2. Whether or not the Judge was light in his decision that, even if the 1st appellant was qualified to contest the stool, his selection and turbaning as such was not in accordance with the custom and tradition of Zambufu, and should, therefore, be declared a nullity?
3. Whether or not the Judge was right in making the consequential orders he made in favour of the respondents?

The first issue that I have identified, which raises the same question as the first, fourth and fifth issues formulated on behalf of the appellants is, without question, the most crucial one. If the 1st appellant was not in the first place qualified to contest, then the question whether or not the correct procedure had been followed in appointing and turbaning him would not arise. I must observe, however, that the appellants’ counsel did not give it the attention that it deserves. He spent more time on the secondary question whether or not the correct procedure had been followed in turbaning the 1st appellant. On the crucial question he made only one point, namely, that the evidence of PW2, on which, according to learned counsel, the learned trial Judge based his decision that the 1st appellant was not qualified to contest, was hearsay and, therefore, inadmissible. On this basis, learned counsel has urged us to resolve this issue in favour of the appellants.

The first question that immediately suggests itself is whether indeed the learned trial Judge based his decision on the evidence of PW2 alone as alleged on behalf of the appellants. The follow-up question would, of course be whether, if there was other evidence beyond that of PW.2, such evidence sufficed to justify the Judge’s decision. To answer these questions it is necessary, first, to see how the Judge dealt with the issue, which was the second of the five issues he dealt with. His consideration of, and decision on it are on pages 187-195 of the record. The case of the respondents in their statement of claim and reply to the statement of defence was that the 1st respondent was not qualified to vie for the stool because he did not belong to any of the two ruling houses, namely, the Jinu or Dzumu or Dzunu and Gbasa or Gbaza houses, as the two houses are variously referred to in the record. The appellants in their statement of defence agreed that there are only two ruling houses and that the 1st respondent hails from the Gbasa or Gbaza ruling house. With respect to the other house, it was their case that it is known as Ginda and not what the respondents claimed it to be. According to the appellants, the 1st appellant hails from the Ginda House through the line of Mohammed Kolo, of whom the appellants to be alleged him a great-grandson. It was their case that one Mohammed Nupayinko Nopanyiko, as he was variously called, allegedly the first settler of Zambufu, founded the Ginda house.

As to which of the two sides proffered a more credible evidence regarding who first settled in Zambufu, the learned trial Judge observed, commented and held at pages 189 – 190 of the record:

“The 1st defendant who claimed that he is of Ginda ruling house of Zambufu, traces the root of Ginda ruling house to one Mohammed Nupayinko whom he alleged was the 1st settler in Zambufu. That it was after they had settled that Maaji Bunu came during the reign of 6th Zhitsu and was received with open hands. He also testified that Maaji Gbasa followed and he too was openly received. It is however noted that the defendants had pleaded in paragraph 5 of their statement of defence that the first two settlers in Zambufu were Ginda and Gbasa. No doubt the evidence led by the defendants that the first settler was the leader of Ginda ruling house called Mohammed Nupayinko followed by Maaji Bunu during the reign of 6th Zhitsu and finally followed by Maaji Gbasa is at variance with the defendants’ pleadings. They therefore go to no issue. I disregard the evidence accordingly. See Alhaji Otam & Sons Ltd. & Ors. v. Audu Idris & Anor. (1999) 4 SCNJ 156; (1999) 6 NWLR (Pt. 606) 330; The Shell Petroleum Dev. Co. (Nig.) Ltd. v. Kwameh Ambah (1999) 12 SCNJ 152; (1999) 3 NWLR (Pt. 593) 1; Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290; (2001) FWLR (Pt.32) 12.

It therefore follows from the above that the only version of evidence before me as to the first settlers in Zambufu is that led by PW1 and P.W.2 which is in line with the plaintiffs’ pleading that the first two settlers in Zambufu were Jinu and Gbasa who were brothers and the said evidence is not patently and obviously improbable. I believe and accept the evidence. See Modupe v. State (1988) 4 NWLR (Pt.87) 130 at 137.” (Italics mine).

The first point to note here is that the learned Judge did not base his decision solely on the evidence of P.W.2. He based it, firstly, on the fact that the evidence proffered by the appellants in proof of the assertions in their statement of defence was at variance with their pleadings. Secondly, he based it on the evidence, not only of PW2, but also of PW1, and the fact that the evidence of the two witnesses was in consonance with their pleading that the first settlers were Jinu and Gbaza, who were brothers. A look at the pleadings of the parties and the evidence proffered in proof thereof easily shows the justification for the Judge’s conclusion on the point. In paragraphs 8 and 9 of their statement of claim, the respondents pleaded that –

“8. The plaintiffs aver further that Zambufu was founded in about 1730 A.D by two brothers namely Jinu or Dzunu and Gbasa.

9. Jinu was the first Majin of Zambufu and after his reign, he was succeeded by his brother Majin Gbasa who is the great-great-grand father of the 1st plaintiff herein.”

In proof of these assertions P.W.1 testified at pages 89 – 90 of the record that –

“There are no other ruling houses apart from Jinu and Gbasa. The Chief of Zambufu is called Maaji before but now beating Zhitsu. The founded of (sic) Zambufu are Majin Jinu and Majin Gbasa. The name of the first Chief of Zambufu was Maji Jinu. He was succeeded by Maji Gbasa. Maji Jinu and Maji Gbaza are brothers.”

It can be seen that this testimony is completely in line with the pleadings just highlighted. The pleadings of the appellants on this point is in paragraphs 5 and 6 of their statement of defence as follows:

“5. The defendants deny paragraph 8 and state further that the first two settlers at Zambufu are Ginda and Gbasa.

They were not brothers i.e., not related.

6. The defendants deny paragraph 9 of the statement of claim and state further that the first Majin of Zambufu was Mohammed Zhitsu Nopanyiko. He was succeeded by Umaruko. They were both from Ginda ruling house.”

And what was the evidence in support of these averments? At pages 122 – 123, the 1st appellant, who testified as DW1, stated:

“My family was the direct first settlers of Zambufu. My family migrated from a place called Atagara. When they were coming they first settled at a place called Raba. From Raba, they again settled at Etsu. They moved again and settled at Oku. They moved downward from Oku until they got to the Bank of River-Niger i.e., Gutu. When they wanted to cross to the other side of Niger River, there was no canoe or any other thing to carry them. The head of the family by name Mohammed Nupayinko due to his divine prowess told them that he would enter into the bush and anything that came out shall be instrument that would carry them to the other bank of the river. He did entered into the bush and a crocodile emerged. It was this crocodile that carried the members of the family to the other side of the river. From the river bank, they moved to the present place called Zambufu beside a stream. The name Zambufu was got from the wife of the leader of the family whose name was Fatima. Her trade was to prepare local pulp called Zambu. Travellers passing by used to buy Zambu from her. The name means a town where local pulp (Zambu) is made. The leader of the first settler Mohammed Nupayinko was from Ginda ruling house.” (Italics mine).

The 1st appellant clearly did not appear able to make up his mind whether the founder of Zambufu was the man called Ginda who, together with Gbasa, was the first settler as averred in paragraph 5 of the statement of defence, or the man called Mohammed Nopanyiko as claimed in evidence. Were Ginda and Mohammed Nopanyiko one and the same person? Did Mohammed Nopanyiko and Gbasa arrive together as claimed in the statement of defence or did they come one after the other as claimed in evidence. The appellants shed no light at all on these grey areas. In the circumstances, the learned trial Judge was, in my view, clearly justified in rejecting the appellants’ case and accepting the respondents’ to the effect that Jinu and Gbaza were the first settlers and started the chieftaincy stool.

On whether or not the appellants satisfactorily established the 1st appellants’ link to any of the two ruling houses the learned trial Judge observed, commented and found at pages 190 – 195:

“Evidence abound in this case from PW.1 – PW.4 that the 1st defendant is not from any of the two ruling houses in Zambufu. The defendants would not agree. The plaintiffs through PW1 and PW2 led evidence that 1st defendant is from Kada family of which Mohammed Kada was their progenitor. That the founder of 1st defendant family came with crocodile from which the family derived its name Kada as crocodile means ‘Kada’ in Hausa. PWI and PW2 also testified that though there is a Ginda House in Zambufu but it is not a ruling house.

PW.2 said that 1st defendant is not from Ginda house.

Also, it was led in evidence before me that the relationship of the 1st defendant to Ginda house is maternal through Azunkwo Kashi who had her third marriage to a man in Ginda house. Tracing the historical root of the first defendant PW 1 testified that Shaba Kada was the 1st defendant’s grandfather while Makun Eba was his father. Mohammed Kada was married to one Azunkwo Kashi, their marriage produced Shaba Kada. Shaba Kada in turn begat Makun Eba while Makun Eba gave birth to Mohammed Hussein (the 1st defendant).

The net effect of the above is to say that Mohammed Kada was the 1st defendant’s great grandfather. Shaba Kada was his grandfather while Makun Eba was his father. PW.1. Evidence also revealed that after the death of Mohammed Kada, his widow Azunkwo Kashi got remarried in the house of Ndejiko Kola Gaya to one Nda Mudan and begat Ndejiko Showoya. Upon the death of Nda Mudan, Azunkwo Kashi remarried the third time at Ginda house to Etsu Kolo, the then leader of the youths where she begat Nnakwa Wodu. Nnakwa Wodu the daughter of Etsu Kolo got married to Zhitsu Idris Legbo, the 10th Zhitsu of Zambufu from Gbasa ruling house. He said it was this Nnakwa Wodu that brought the 1st defendant and his father to her matrimonial home for care because there was no one to look after them. He added that none of the three houses where Azunkwo Kashi married, i.e., Kada House, Ndejiko House and Etsu Kolo House is a ruling house in Zambufu, and Zhitsu Idris Legbo house where the 1st defendant and his father lived under the case of their sister (Nnakwa Wodu) is not their father’s house. These piece (sic) of evidence were also corroborated by the evidence of PW.2 who testified in the same vein. PW2 added that Zhitsu Mohammed Kolo was his own great grandfather and not the grandfather of the 1st defendant. Tracing his relationship with Zhitsu Mohammed Kolo, he said that Zhitsu Mohammed Kolo gave birth to Zhitsu Usman Kolo and Mohammed Jiya Kuti.

Mohammed Jiya Kuti gave birth to Zhitsu Mohammed Jiya while Zhitsu Mohammed Jiya gave birth to Zhitsu Mohammed Yissa (his own father).”

On the other hand, with a bid of proving that 1st defendant is from a ruling house in Zambufu, the defendants pleaded in paragraphs 11 and 20 of their statement of defence that he is from Ginda ruling house and he is the great grandson of Zhitsu Mohammed Kolo of Ginda ruling stock. The defendants are in effect saying that Zhitsu Mohammed Kolo was the great grandfather of the 1st defendant. The evidence produced by the defendants in respect of the above averments came from DW.1 and DW.2. They said that Mohammed Kolo who was the 8th Zhitsu of Zambufu begat 1st defendant’s father, Hussein Yissa. Expatiating, they said Azunkwo Kashi got married to Mohammed Kolo after the death of her first husband from Ndejiko family. She begat two children from Mohammed Kolo namely, Mohammed Shaba, who in turn gave birth to 1st defendant’s father and Awawu Nnakwa, a female. This in my view show that it is not true that Mohammed Kolo begat the 1st defendant’s father. The marriage between Azunkwo Kashi and her first husband produced Showoya. Though 1st defendant said his family is not known by any other name other than Ginda, he made a roundabout turn when he added that Kada was the name given to their ancestor for divine prowess.

However, DW.3 said Mohammed Kolo was the grandfather of the 1st defendant. It is to be noted however that both DW.1 and DW.2’s evidence are to the effect that Mohammed Shaba was the 1st defendant’s grandfather. Their evidence are therefore in contradiction to each other. He also said that the name of the 1st defendant’s great grandfather was Mohammed Kolo. However, under cross-examination he said Eba Yissa was the father of Makun Eba meaning that Eba Yissa was the grandfather of 1st defendant since Makun Eba was the 1st defendant’s father. Here, he has again contradicted himself as he had earlier said that Mohammed Kolo was the grandfather of 1st defendant. What I need to decide now is whether the 1st defendant was the great grandson of Mohammed Kolo, a one time Zhitsu of Zambufu. If he is, then the 1st defendant could be said to be from a ruling house irrespective of whether it is Gbasa or Ginda since both parties agreed that Mohammed Kolo was once a Zhitsu of Zambufu. On this, I need to observe that the evidence tendered by DW.1 – DW.3 as regards the relationship of the 1st defendant with Zhitsu Mohammed Kolo is confusing. In one breadth, DW.1 said Mohammed Kolo beg at his father, in another breadth, he said Mohammed Shaba beg at his father while Mohammed Kolo begat Mohammed Shaba. DW.3 did not fare better. He said Mohammed Kolo was the grandfather of the 1st defendant. In another breath, he said Mohammed Kolo was the great grandfather of the 1st defendant and yet in another breadth he said Makun Eba (the father of 1st defendant) was begat by Eba Yissa. All these contradictions did violence to the averments of the defendants in their pleading that 1st defendant was the great grandson of Mohammed Kolo. On the other hand, I prefer the evidence of PW1 and PW2 that Mohammed Kolo who reigned as the 7th Zhitsu was from Gbasa ruling house. I believe the evidence of PW2 that Zhitsu Mohammed Kolo begat Usman Kolo and Mohammed Yissa Kuti. I believe also that Mohammed Jiya Kuti gave birth to Mohammed Jiya who in turn begat Mohammed Yissa – the 1st plaintiff’s father.

My believe is strengthened by the evidence of PW.3, one Mohammed Jiya who gave evidence that Mohammed Kolo who reigned as the 7th Zhitsu was his maternal great grandfather. His evidence corroborated that of PW.2. He said Mohammed Kolo beg at Usman and Jiya Kuti. Usman was the 9th Zhitsu of Zambufu. He gave birth only to Nnadisa (a female) who in turn begat his own father Mohammed Jiya. He denied the 1st defendant being a descendant

of Zhitsu Mohammed Kolo. This witness as well as PW1 were nor cross-examined on this aspect of their evidence by the defendants.

Rather, they chose to call evidence of their own which were not only confusing but contradictory as noted above.

“Be it noted that the plaintiffs asserted that the 1st defendant’s house name in Zambufu is Kada and that Mamman Kada was the founder. The 1st defendant himself agreed though with hesitation that Kada was the name given to their ancestor from divine prowess. He agreed that Kada is an Hausa word meaning crocodile. I find the denial by the 1st defendant and DW3 that their house is not Kada but Ginda as an attempt to put wool on the face of the court. From 1st defendant (DW.1) evidence that Kada (an Hausa word meaning a man with crocodile) was given to their ancestor for his divine prowess in addition to telling the court that the family rode on Kada (Crocodile) across river Niger to pass to Zambufu and with the admission by DW.2 that there is Mamman Kada house in Zambufu when 1st defendant grandfather himself was called Shaba Kada proves beyond any peradventure that 1st defendant is from Kada family in Zambufu and I so hold. I do not believe the attempt by the 1st defendant to say that he is from Ginda House in Zambufu let alone believing that Ginda is a ruling house in Zambufu. It is also my finding that Mamman Kada was the ancestor of the 1st defendant. He got married to Azunkwo Kashi who begat Shaba Kada who in turn begat Makun Eba, the first defendant’s father.

I therefore find that 1st defendant is not related to Zhitsu Mohammed Kolo as claimed, rather it is my finding that Zhitsu Mohammed Kolo was the great grandfather of the 1st plaintiff. I believe that the father of the 1st defendant contested along with the 1st plaintiff’s father for the vacant stool of Zhitsu in 1967. It is however my finding from the evidence before me that his candidatureship was rejected by the Zambufu traditional counsellors because he was not from any of the ruling houses. In view of this, one can see the rationale behind the rejection of the candidatureship of the 1st defendant by the Zambufu traditional counsellors. By the 1st defendant’s own showing, he said the names of the contestants must, under the Zambufu native law and custom, be forwarded to the 2nd defendant through the Ndejiko of Zambufu. He admitted that his name was not forwarded to the 2nd defendant through the Ndejiko. I find that his name was not forwarded by the Ndejiko because he was found not to belong to any of the ruling houses in Zambufu. I do not believe the testimony of DW. I that the Emir of Lafiagi in 1967 choose and turbaned the 1st plaintiff’s father contrary to the wishes of the people who preferred his own father. The evidence of DW.2 is very clear in this regard that if a candidate is agreed upon at the house of Ndejiko, the Emir of Lafiagi has no power to impose his own candidate.

I also accept the evidence of PW4, Ibrahim Kolo, a member of Jinu family who asserted as untrue the allegation of the defendants that there is no Jinu ruling house in Zambufu. He gave the names of Zhitsu that has so far reigned from Jinu ruling house in line with plaintiff pleading thereby corroborating the evidence of PW.1. This witness was not taken up under cross-examination on his testimony that there is Jinu ruling house and that he came from the said ruling house. On the whole, I find as a fact that the two ruling houses in Zambufu that are eligible to present candidate for the stool of Zhitsu are Jinu and Gbasa. I find also that 1st defendant having been shown not to have come from either of these two ruling houses but from Kada house is in my judgment not qualified to vie for the stool of Zhitsu of Zambufu.

It is to be noted that succession to chieftaincy title based on family rights simply connotes the person to succeed to a family title must belong to the family concerned. See Okulate v. Awosanya (2000) 2 NWLR (Pt. 646) 530; (2000) 1 SCNQR 149. In the case at hand, the title of Zhitsu of Zambufu resides in two families only. They are Jinu and Gbasa ruling houses.

Since it is my finding that 1st defendant does not belong to any of the two ruling houses, he is not qualified to be appointed as Zhitsu of Zambufu.” (Italics mine).

Reading from the portion of the judgment just set out, it can be seen that the learned Judge did not rely on only the evidence of PW2. He also relied on the evidence of PW1, PW3, PW.4 and the evidence of the 1st defendant (DW.1) himself and his witness, DW.2.

He also took into consideration the fact that the evidence proffered by the appellants was not quick in tune with their pleadings.

Looking at the pleadings and the evidence before the court, one cannot fault the learned trial Judge. Quite a part from the fact that the respondents proffered evidence, supported to some extent, I must say, by the evidence of the 1st appellant and DW2, which tended to show that the 1st appellant hails from the Kada family and not the Ginda family as he claimed, the appellants did not proffered any straight forward evidence of his link to any of the two ruling houses, namely, Gbasa, upon which both sides are agreed and Ginda or Bunu or Jinu, or whatever the second House is called. The appellants claimed that the 1st appellant is linked to the Ginda ruling house through Mohammed Kolo. The onus was therefore, on them to prove, on a balance of probabilities, not only how the 1st appellant is linked to Mohammed Kolo, but also how Mohammed Kolo was linked to the other ruling house by whatever name it is called, the 1st respondent being from the Gbasa ruling house.

The evidence of his link to Mohammed Kolo, as given by him did not quite tally with the pleading in paragraph 11 of the statement of defence wherein the defendants pleaded that –

“11. The defendant vehemently deny paragraph 18 of the statement of claim and state further that the first defendant is from Ginda ruling house and is the great-grand son of Zhitsu Mohammed Kolo who was from Ginda ruling house.”

The evidence of the 1st appellant on page 122 of the record is as follows:

“I am connected with Mohammed Kolo. He begets my father. He was also the 8th Zhitsu of Zambufu. Mohammed Kolo is the husband of one woman called Azunko Kashi.

He was not the 1st husband of Azunko Kashi. Her 1st husband was the present Ndejiko family who she gave birth to Showoya. After the birth of Showoya, the 1st husband died and later got remarried to Mohammed Kolo.

She had two children for Mohammed Kolo – a male and a female. The name of the male child was Mohammed Shaba, who later gave birth to my father. The name of the female child was Awawu Nnakwa.”

After this rather detailed account of the chain that linked him to Mohammed Kolo, who from the account, was his great grandfather he went on at page 127 to say that –

“There were other ancestors of mine apart from Zhitsu Mohammed Kolo that were Zhitsu. They are Zhitsu M. Legbo and myself. Zhitsu Mohammed Legbo was also my grandfather. I know the meaning of grandfather.”

How can Mohammed Legbo be his grandfather if Mohammed Shaba begat his father? Although he testified, as we have seen, that he knew the meaning of grandfather, one might give him the benefit of the doubt and take it that he had used “grandfather” synonymously with “ancestor”. That has, however, not helped to clear the air regarding his alleged link to Mohammed Kolo. As if enough damage had not already been done to the appellants’ case, DW.3 had to throw more spanners in the works. Quite contrary to the evidence of the 1st appellant, which was, as we have seen, that Mohammed Kolo, his great grandfather, was the 8th Zhitsu of Zambufu, DW.3, unequivocally in his evidence-in-chief at page 133 of the record stated that –

“The name of the 1st defendant grandfather is Mohammed Kolo. Mohammed Kolo was never a Zhitsu in Zambufu but his father was. Mohammed Kolo’s father was the great grandfather of the 1st defendant… The name of Mohammed Kolo’s father was also Mohammed Kolo. The name of the wife of Zhitsu Mohammed Kolo was Azunkwo Kashi.”

As against the contradictory and, as the learned Judge rightly pointed out, confusing, evidence proffered by the appellants, the respondents led evidence that the 1st appellant had an ancestor known as Kada and that their house is known as Kada House. Although the 1st appellant under cross-examination initially denied that his family was known by any other name than he was later forced to admit at least one important fact stated by the plaintiffs’ witnesses, and as found by the Judge, namely, that the 1st defendant was linked to Kada. See page 126 of the record where he admitted that –

“Kada is a name given to our ancestor for divine prowess.”

As I said earlier on, on the state of the pleadings and evidence, the learned trial Judge was perfectly justified in his decision that the 1st appellant was not qualified to vie for the stool of Zhitsu of Zambufu, not being from any of the two ruling houses. Not only did he fail to show satisfactorily that he hails from one of the two ruling houses, but also the respondents proffered enough evidence to show, on the balance of probabilities, that he did not. I must, therefore, resolve this issue against the appellants.

Ordinarily this should have ended the matter. I will nevertheless tackle the second issue, which is whether or not the proper procedure was Followed in turbaning and installing the 1st appellant as the Zhitsu of Zambufu. Based on the evidence of PW.1 and PW.2 and that of DW.1 and DW.2, the learned trial Judge came to the conclusion at p. 187 of the record that –

“Under the native law and custom of Zambufu relating to the selection and appointment of Zhitsu, that the traditional counsellors are gathered in the house of Ndejiko with the members of the two ruling houses and the community after the various contestants have shown their intention to vie for the stool. If an agreement is reached as to a single candidate by the traditional counsellors and the ruling houses among the contestants, the name is forwarded to the 2nd defendant whose duty is to turban the candidate without demur. I need to add that the traditional counsellors has the right to determine whether any of the contestant is eligible to contest and the only yardstick for this is whether the contestants belonged to any of the two recognised ruling houses in Zambufu. However, if no agreement is reached at the house of Ndejiko, the names of all the eligible contestants are forwarded to the 2nd defendant by the Ndejiko of Zambufu and having regard to my earlier decision, the 2nd defendant will appoint as the Zhitsu the most suitable among the candidates forwarded to him.

From the foregoing therefore, I hold that both the traditional counsellors and the 2nd defendant has a role to play in the selection and appointment of Zhitsu under the native law and custom of Zambufu.”

He came to the ultimate conclusion at pages 195 – 196 that-

While expatiating on the native law and custom regulating the selection and appointment of Zhitsu, the 1st defendant DW.1 testified under examination-in-chief that the whole town would gathered in the house of Ndejiko where the contestants would be shown to the whole community. He also said later the Ndejiko will present the names of the candidates to His Royal Highness, the Emir of Lafiagi (the 2nd defendant), who will, with the consent of his traditional counsellors/kingmakers choose one of the best candidates among the contestants. He added that the procedure stated above were followed in his appointment as the Zhitsu of Zambufu.

However, while being cross-examined, he re-stated that the position of the custom of Zambufu is that the Ndejiko of Zambufu will send the names of the contestants to the 2nd defendant but the Ndejiko did not send his name to the 2nd defendant. I believe this piece of evidence which tallies with that of the plaintiffs witnesses in some material respect. Therefore, on the showing of the 1st defendant, the aspect of the Zambufu native law and custom which requires that the names of the contestants are to be forwarded to the 2nd defendant by the Ndejiko of Zambufu has not been complied with. I have not been told that this aspect of the custom can be waived, neither is there any pleading nor evidence that it can be waived. I therefore hold that the appointment of the 1st defendant by the 2nd defendant when his name has not been forwarded to the 2nd defendant by the Ndejiko the person recognised under the tradition and custom of Zambufu to do so, is contrary to the native law and custom of Zambufa and therefore improper.”

In the face of the first portion of the judgment just set out on this point, learned counsel for the appellant still found it possible to complain that “the trial court never determined the proper role and function of the traditional counsellors in Zambufu before he (sic) concluded and arrived at its decision and judgment on the matter.” I find this complaint rather strange, to say the least. The learned Judge certainly determined the role of the traditional counsellors as can be seen from the judgment.

In any case, it is clear to me that the appellants’ counsel missed the real point here. As the learned trial Judge pointed out, both sides are agreed that the correct procedure in appointing a Zhitsu is for the name of a sole candidate or, if there are more than one, the names of such candidates, to be sent to the 2nd appellant by the Ndejiko.

After considering the evidence before the court, I must resolve this issue against the appellants. The trial Judge was right in his conclusion that the correct procedure was not followed in turbaning the 1st appellant.

This brings me to the final point canvassed. The complaint here is that the consequential orders made in favour of the respondents were not in tune with the decision of the court. Having read the entire record I find no merit in this complaint. The Judge found that under Zambufu tradition and custom the 2nd appellant was obliged to pick one name from among the names forwarded to him. He found also that the 1st plaintiff and another candidate were the ones qualified to contest and whose names should have been forwarded. He was, in my view, therefore, tight in ordering the 2nd appellant to pick one out of the two. I do not see how such order should give the right of complaint to the 1st appellant, who has been found not to be qualified.

On the whole, I see no merit in this appeal, which is accordingly dismissed. The decision of the trial Judge is affirmed. The appellants are to pay costs of N10,000.00 to the respondents.

Other Citations: (2005)LCN/1705(CA)