Wayo Ubwa V. Tyowua Bashi (2007)

LawGlobal-Hub Lead Judgment Report

BELGORE, J.C.A.

This is an appeal against the decision of the Benue State High Court holden at Katsina Ala, contained in the judgment of Hon. E. Eko, J., delivered on the 27th day of July, 1994. The dispute between the parties arose from the selection of a district head for the newly created Usar District in Kwande Local Government Area of Benue State. The plaintiffs (now respondents) claimed that the 1st respondent was selected for the vacant stool on 3rd day of June, 1992, by five (5) votes to two (2) and one (1) abstention, of the accredited kingmakers, at the selection exercise conducted at the Local Government Secretariat, Adikpo and it was a conclusive selection exercise. The defendants on the other hand insisted that the exercise of the 3rd day of June, 1992 was inconclusive and was disrupted by protests. (The 1st defendant shall hereinafter be referred to as the appellant.) They maintained that the only conclusive selection exercise was that of the 8th day of July, 1992 where the appellant was selected to the vacant stool by five (5) votes to three (3). Initially, the respondent had sued in representative capacity for himself and on behalf of six kingmakers of Usar District. Five of the kingmakers later came in as co-plaintiff on their own stand. They are (1) Duza Usar; (2) Ityokigbir Agu; (3) Akawa Gwar; (4) Tongo Ikyanyon; and (5) Tyowua Bashi.

The claim of the respondents as finally formulated was as contained in paragraph 24 of their amended joint statement of claim, namely –

(i) A Declaration that the 1st plaintiff was and is, the only selected person for the office of District Headship of Usar, having validly obtained an overwhelming majority of lawful votes of the accredited/kingmakers on 3/6/92 and in accordance with the custom, tradition and practice of Usar people in particular and Tiv people generally.

(ii) A Declaration that the purported selection of the 1st defendant by unknown and unqualified ‘kingmakers’ and at unlawful instance of the Secretary to the 2nd defendant as District Head of Usar on 8/7/92 and purportedly approved by 2nd and 4th defendants, without authority, was wrong, illegal, therefore null and void and of no effect whatsoever.

(iii) An Order of perpetual injunction restricting the 2nd, 3rd and 4th defendants, either by themselves or through their agents, servants or privies (sic), from ever recommending the 1st defendant to the 5th defendant for approval and appointment as District Head of Usar; and if any such recommendation and/or approval have already been made and/or given such be declared as null and void and of no effect whatsoever.

(iv) An Order of perpetual injunction restraining the 1st defendant from parading himself, or causing anybody to regard or accord any regard to him, as the District Head of Usar.

(v) An Order of perpetual injunction restraining the 5th defendant from approving and/or appointing the 1st defendant as the District Head of Usar.

(v) Any other or further order or orders as the Honourable Court may deem fit to make in the circumstances, and as the Justice of the case demands.

It was the case of the respondents that after the selection exercise of the 3rd day of June, 1992, the Secretary to the 2nd defendant, instead of submitting the name of the 1strespondent to the appropriate authorities for approval and appointment, he, on or about the 8th day of July, 1992, held an unlawful meeting with the appellant and other persons and the appellant was purportedly at that unlawful meeting, selected by a new set of kingmakers as the District Head of Usar. His name was hurriedly forwarded to the 4th and 5th defendants for approval and appointment. 1st respondent later got to know of this new development but all his efforts to acquaint the 4th defendant with the position of things were to no avail. Hence this action.

On their part, the appellant, and his co-defendants stood their ground that the only conclusive selection exercise was that of the 8th day of July, 1992 and that there was no minutes of the meeting of the 3rd day of June, 1992. The appellant in his separate statement of defence, out rightly denied that there was any meeting held on the 3rd day of June, 1992. To him, it was the meeting of the 8th day of July, 1992,where he was purportedly elected/selected, that was lawfully convened, held and fully attended by all those entitled and that the accredited kingmakers voted five (5) against 3 (three) votes in his favour, thereby selecting him as District Head of Usar by majority votes. He was emphatic in his pleadings that his selection was lawfully done.

In the joint statement of defence of the 2nd, 3rd, 4th, 5th and 6th defendants it was averred that the meeting of the 3rd day of June, 1992 was actually scheduled but it did not actually take place nor was the selection exercise conducted because the intended meeting of the 3rd day of June, 1992 was disrupted and aborted by youths who were neither kingmakers nor were they supposed to take part in the deliberation of the panel who came to the venue.

Both sides led evidence and at the end of the proceedings, the learned trial Judge, Eko, J., believed the evidence of the respondents and their witnesses. He rejected the evidence of the appellant and his co-defendants and their witnesses. He believed and held that a meeting for the selection of a District Head of Usar was held on the 3rd day of June, 1992, at which the 1st respondent was duly elected or selected by majority votes of five (5) kingmakers to two with one abstention. He also believed and held that there were minutes of the said meeting which he said were being mischievously kept away by the Secretary of the 2nd defendant. In his considered judgment, the learned trial Judge lamented that he was not told as to who had the job of canceling the election of the 3rd day of June, 1992 even if it was disrupted either in the middle or towards the end. He also lamented for not being told as to who constituted the panel that purportedly did the fresh election of the 8th day of July, 1992. He went ahead to enter judgment in favour of the respondents declaring the 1st respondent to have been validly elected the District Head of Usar.

It is against that judgment that the appellant herein has now appealed. His co-defendant at the lower court, apparently having not been aggrieved by the judgment, have not joined him in this appeal, the appellant filed five grounds of appeal, namely –