IN THE HIGH COURT OF JUSTICE OF THE PLATEAU STATE OF NIGERIA
HOLDEN AT JOS
ON MONDAY THE 16TH DAY OF OCTOBER, 2006
BEFORE HIS LORDSHIP: JUSTICE M .I. SIRAJO………….JUDGE
PLD/J222/2002
BETWEEN:
1. MADAKI USMAN LAANKWAP )
2. ALHAJI HABU KAYO )
3. ALHAJI USMAN NDA MARAFA )-----------------------------PLAINTIFFS
4. BABA BAWA KOKUWA )
AND
1. HASSAN UBANGARI KYARI )
2. QUA’AN PAN TRADITIONAL COUNCIL )
3. QUA’AN PAN LOCAL GOVERNMENT COUNCIL )
4. MINISTRY FOR LOCAL GOVERNMENT AND )--------------------------DEFENDANTS
CHIEFTAINCY AFFAIRS, PLATEAU STATE )
5. ATTORNEY GENERAL AND COMMISSIONER )
FOR JUSTICE, PLATEAU STATE
JUDGMENT
The stool of the Sangari or Village Head of Kurgwi became vacant on 11th March, 1983 following the demise of the previous occupant, Late Alhaji Ibrahim Rabo Kyari. Since then the stool has been the subject of litigation including the current one subject of this judgment.
On the 15th August, 2002, the first Defendant, Hassan Ubangari Kyari was selected as the Sangari or Village Head of Kurgwi. The plaintiffs responded to that development by promptly filing a suit challenging his selection on 20th August, 2002.
By their Amended statement of claim dated 18th November, 2003 but deemed to have been duly filed and served by an Order of Court dated 20th November, 2003, the plaintiffs claimed against the Defendants jointly and severally as follows:-
1. A declaration that the QUA’AN PAN Traditional Council (Modification of Native Law and Custom Relating to the Selection of the (SANGARI) VILLAGE HEAD of Kurgwi) Order,2002, made on the 24th day of May, 2002 by the 4th and 5th Defendants, cannot be a valid basis for the selection of the first Defendant as the Village Head of Kurgwi in that the said Order is invalid, null and void, having been made;
(a)Pursuant to a non-existing power and law to wit: the Local Government Edict 1976, and
(b)By the 4th Defendant, a person or authority that has no power to make same at the date it was made.
2. A declaration that the method of selection of the Village Head of Kurgwi and the Traditional Selectors for the purpose of selecting the village Head remains and are as contained in the judgments of this court and the Court of Appeal in suit No.PLD/J33/85 and Appeal No.PLD/J145/86 and also The Plateau State Government White Paper on the Report of the Administrative Panel to look into Grievances of Kurgwi People and the Allegations Against some officials of Shendam Local Government as Published by the Government Printer, Jos.
3. A declaration that the purported nomination , election and or selection of the first Defendant on the 15/8/2002, as the Village Head of Kurgwi is invalid and contrary to customs and tradition of kurgwi people on method of nomination, election and or selection of the Village Head of Kurgwi and is accordingly null and void and of no effect whatsoever.
4. A perpetual injunction restraining the 1st Defendant from parading himself as and from performing any duties attached to the office of the Village Head of Kurgwi or from anyway conducting himself or holding out himself as the Village Head.
5. A perpetual injunction restraining the 2nd, 3rd, 4th and 5th Defendants, their Agents, Servants from recognising or treating the 1st Defendant as the Village Head of Kurgwi and from in anyway dealing with him as the Village Head on the strength of his purported selection of 15/8/2002.
6. Cost of this action including Solicitor’s fees.
In his Amended Statement of Defence dated 16th July, 2004 pursuant to an order of Court made on 14th July, 2004, the first Defendant denied the claim and urged the Court to dismiss same on the ground that the claim is unmeritorious, an abuse of Court process and for want of locus standi on the part of the Plaintiffs. The first Defendant also contended that the plaintiffs are estopped from raising the issue of the custom pronounced in the previous judgments of this Court and that of the Court of Appeal in suit No.PLD/J33/85 and Appeal No.CA/J/145/86.
On their part, the 2nd, 3rd, 4th and 5th Defendants also denied the plaintiffs’ claim in their Joint Amended Statement of Defence dated 9th December, 2003.They urged the Court to hold that the Plaintiffs are estopped from complaining about the method of selection having participated in the selection. They also contended that the plaintiffs have no locus standi to institute the suit having not contested for the vacant stool. They urged the Court to dismiss the suit as being frivolous, vexatious and lacking in merit.
The Plaintiffs are members of four of the five ruling houses in Kurgwi while the first Defendant is a member of the 5th Ruling house. It is common ground amongst the parties to this suit that Kurgwi Village had five ruling houses to wit;
The plaintiffs averred in their pleading that the first, second, third and fourth plaintiffs are respectively members of the Talmoep, Salmanu, Nupawa and Dangana ruling houses. They averred in paragraphs 5, 6, 7 and 8 of their Amended Statement of claim as follows:-
“5. Plaintiffs state that under the Native Law and Custom of Kurgwi people, there are six (6) King makers who are entitled to select the person to the stool of Village Head of Kurgwi. These traditional selectors for the purpose of selecting the Village Head of Kurgwi are:Madaki;
6. Of the six (6) Traditional King makers/Selectors, only two (2) are alive namely; the Galadima and the Kanglu. Till date the other four (4) selectors have not been replaced and until replaced there cannot be a valid selection of the Village Head of Kurgwi in accordance with the Native Law and Custom of the Kurgwi people.
7. Plaintiffs aver that the fact in six (6) above as to the proper method of selection of the Village Head of Kurgwi is as contained in the judgment of this Court in suit No. PLD/J33/85, the judgment of the Court of Appeal in Appeal No.CA/145/86 and the Plateau State Government White Paper on the Report of the Administrative Panel set up by the Government to look into the grievances of Kurgwi people and allegation against some officials of Shendam Local Government in 1987. The documents are hereby pleaded.
8. Plaintiffs contend that any method of selection that does not consist of the six (6) Traditional Selectors only, is invalid as it will amount to a contravention of the Customary/Traditional method of selection of the Village Head of the Kurgwi people.”
Plaintiffs also averred that between the Years 2000 and 2002 the 2nd, 3rd and 4th Defendants commenced arrangements towards selecting a Village Head for Kurgwi by asking each ruling house to nominate four selectors. This procedure was objected to by the plaintiffs in two correspondences respectively dated 24th September, 2001 and 11th March, 2002. In response to another letter from the 2nd Defendant (Quaan- Pan Local Government Traditional Council) dated 8th August, 2002 in which the date for the selection was fixed for 15/8/2002, the Plaintiffs again voiced their protest against the planned selection of the Village Head on the basis of the new method fashioned out by the Traditional Council, as according to them the method adopted contravened the Native Law and custom on the selection of the Village Head of Kurgwi which recognises only six selectors. Inspite of the Plaintiff’s protest, the first Defendant was purportedly selected as the Village Head on the basis of the new method of selection. In paragraphs 14, 15 and 16 of the statement of claim the plaintiffs further averred as follows:
“14. Subsequent to the purported selection of the1st Defendant, the plaintiffs discovered that the Defendants purport to have conducted the said selection of the 1st Defendant pursuant to a purported modification of the Native Law and custom of the Kurgwi people entitled The Quaan Pan Traditional Council (Modification of the Native Law and custom Relating to the selection of the (Sangari) Village Head of Kurgwi Order, 2002 allegedly made on the 24/5/2002, by the Plateau State Commissioner for Local Government and Chieftaincy Affairs, 4th Defendant
15. The Plaintiffs equally discovered that the purported modification of the Native Law and custom relating to the selection of the Village Head of Kurgwi, was made (on the 24th day of May, 2002) by the 4th Defendant pursuant to the powers conferred on the Plateau State executive Council by paragraph (c) of subsection (3) of section 72 of the Local Government Edict, 1976.
16. Plaintiffs shall at the trial hereof lead evidence to show that the said modification of 24/5/2002, by whoever or howsoever made, is invalid and incapable of being the basis for the valid selection of the 1st Defendant as the Village Head of Kurgwi.
PARTICULARS OF INVALIDITY.
A) The Plateau State Local Government Edict of 1976 was effectively and effectually repealed on the 1st day of December, 1999 (over two years before the making of the modification of 24/5/2002), by the Plateau State Local Government Law (No.1) of 1999.
B) Having been effectively and effectually repealed, the said Edict of 1976 cannot be a valid basis for the making of the modifications in issue more than two years after its repeal
C) Having been made pursuant to a non-existing law, i.e. Edict No. 19 of 1976, the said modification is null and void and of no effect.”
The declarations and injunction sought by the plaintiffs are predicated in the main, on the facts referred to above in their pleading.
In his detailed pleadings, apart from denying the claim, the first Defendant averred in paragraphs 2,3,4,5,7,,8,9,11,12,13,18,20 and 22 as follows:
“2. The first defendant deny paragraph 1 of the statement of claim and puts plaintiffs to proof. The first defendant further states that at all material times the plaintiffs are not persons entitled to contest for and be elected to the stool of the Village Head of Kurgwi and are not individual members of the five traditional ruling houses of the plaintiffs. The first defendant avers that the only people who are entitled at all material times to this suit to contest are:
i) Alhaji Hassan Sangari Kyari from the Kyari Ruling house.
ii) Alahji Abubakar Salmana from the Salmana Ruling house
iii) Danladi Idris from the Dangana Ruling house
iv) Mr Namlong Barau Dabang from the Talmoep Ruling house.
v) Alhaji Umaru Nda Marafa from the Nupawa Ruling house.
The first defendant shall rely on written representations made to the Chairman traditional Council of Chiefs Quaan –Pan LGC. Ba’ap dated 22/112/00 from Talmoep Ruling house, dated 22/12/000 from Kyari ruling house, dated 27/12/000 from Salmana ruling house, dated 27/12/00 from Dangana Ruling house.
The plaintiffs are estopped from alleging any other position having not been selected and/or elected from the Ruling houses enumerated above.
3 Further to paragraph 2 above the first defendant avers that the first plaintiff is not a member of any ruling family howsoever and in whatsoever manner. The 1st defendant shall contend at the trial that the 1st plaintiff the son of one Danwan later known as Humsuk a slave bought and/or sold by a one time ruler of Kurgwi known as Dabang.
4 The 1st defendant avers that the 1st plaintiff after having a family problem with the wife of the said 1st plaintiffs elder brother one Cpl. Alade (a soldier) left Kurgwi to Jos on refuge where the 1st plaintiff joined the defunct Native Authority Police (then called ‘Dandoka’) and on retirement the 1st plaintiff came back to Kurgwi and found one Mandong, the Madaki of Ankwai. Because of old age and political difference of the said Mandong being a member of the then defunct Northern Elements Progressive Union (NEPU) and the 1st plaintiff a member of the then defunct (NPC), Mandong was removed as Madaki Ankwai. The 1st defendant further avers that the 1st plaintiff’s father an ex-slave of Dabang was at no time ever a Madaki or a member of any ruling family save that the said 1st plaintiff’s father Humsuk was brought as a salve into the palace of Bian who was also a Madaki Akwkai. Save the above stated position the 1st defendant states that the 1st plaintiff is not and has never been a member of the Talmoep Ruling House or any ruling house.
5 The 1st defendant admits paragraph 2 of the plaintiffs’ statement of claim only to the extent that there are 5 ruling houses in Kurgwi but deny that all the plaintiffs are members of the said ruling houses or ever selected or nominated for the stool of Kurgwi in August, 2002’s selection, nomination and/or election.
7 The 1st defendant admits paragraph 4 of the statement of claim only to the extent that the 1st defendant is a person that is entitled to vie for the stool of the Village Head of Kurgwi but other plaintiffs were never nominated and/or selected to vie from any ruling house. The 1st defendant also admits that the 2nd defendant is amongst other things under the 3rd defendant only and the 4th defendant is the Ministry in charge of Chieftaincy affairs and indeed the 1st defendant admits paragraph 5 only to the extent that under the Native Law and custom of Kurgwi people there used to be 6 King makers who were entitled to select the person to fill the stool of Village head of Kurgwi and the then 6 King makers were: (a) Madaki (b) Galadima, (c) Wambai, (d) Kawap, (e) Shinduar and (f) Kanglu. However, the 1st defendant further states that the said King makers used to be appointed by Village head of Kurgwi, upon the demise of Late Alhaji Ibrahim Rabo Kyari who died on 11/3/83 about 20 years ago and who ruled Kurgwi for over 40 years, the stool was involved in litigation specially initiated by some people amongst which is the 1st plaintiff (though with no interest) up to the Court of Appeal division in Jos. That subsequently all the King makers died thereby making it impossible for the stool of the Village head of Kurgwi to be filled.
8 Subsequently, it became imperative on the people of Kurgwi to which the 1st defendant is a member and indeed it became more imperative for the 2nd- 5th defendants and afortiori it became more imperative in the interest of peace, order and good governance to modify the mode of selection of the Village head of Kurgwi.
9 Further to paragrqaph 8 above, the 1st defendant avers that all the people and all of the segments of the people of Kurgwi agreed as to the best mode in filling the vacant stool. Meetings were called and convened by all ruling houses and all involved in deciding the best way out of the predicament. Subsequently a gazette modifying the Native Law and custom entitled PSLGLN of 2002 the Plateau State Local Government Edict 1976. The Qua’an-Pan Traditional Council (Modification of the Native Law and Custom relating to the selection of the (Sangari) Village Head of Kurgwi Order 2002 was made on 24th day of May, 2002 by the Commissioner for Local Government and Chieftaincy affairs pursuant to which the 1st defendant was selected and indeed ultimately elected and the appointment was approved by the Governor/Deputy Governor of Plateau State. The 1st defendant shall at the hearing of this suit rely on the aforesaid gazette and the approval of appointment dated 20/08/02. The 1st defendant shall also rely on the relevant documents in respect of this suit which includes but are not limited to the following:-
i. Plateau State Ministry for Local Government and Chieftaincy Affairs letter dated 13/8/02 addressed to the Chairman Transition Committee Qua’an – Pan Local Government Council.
ii. Plateau State Government white paper on the report of the administrative panel to look into grievances of Kurgwi people and allegations against some officials of Shendam Local Government inaugurated on 20/11/87.
iii. Qua’an Pan Local Government letter dated 5/1/01 addressed to the Ruling houses of Kurgwi.
iv. Minutes of emergency meeting of Qua’an -Pan Traditional Council of 24/1/01
v. Minutes of meeting of Qua’an-Pan Traditional Council held on 21 August 2000.
vi. Minutes of meeting of Quaan Pan Traditional Council held on 20/12/00.
vii. Ministry for Local Government and Chieftaincy Affairs letter dated 20/8/02 addressed to the Chairman Transition Committee Qua’an Local Government.
11 The 1st defendant further avers and shall contend at the hearing that the plaintiffs the Kingmakers are dead and none is alive that both Galadima and the Kanglu are also dead and that there is no way the 4 or any of the 6 King makers can be replaced unless there is a Village head who will appoint the Kingmaker, the 1st defendant further avers that the Native Law and custom of Kurgwi has been modified to the effect that the (SANGARI) Village Head of Kurgwi shall continue to be chosen by the Traditional selectors from the ruling houses of:
(1)Kyari Ruling house
(2)Dangana Ruling house
(3)Talmoep Ruling house
(4)Salmana Ruling house
(5)Nupawa Ruling house.
As provided by the gazettee.
12 The 1st Defendant in further answer to paragraph 6 & 7 of the statement of claim avers and shall contend at the hearing that the judgment of the Court of appeal in suit No. CA/J/145/86 and in the Plateau State High Court in suit No.PLD/J/33/85 is unenforceable impracticable and impossible to apply and that the native law and custom of Kurgwi people is dynamic and has now enjoyed modification.
13 The 1st defendant answer to paragraph 8 of the statement of claim say that order (sic) method of selection that is acceptable to the people of Kurgwi and accepted and modify (sic) in law is valid and that if it is only the 6 traditional selectors are to appoint a person to fill the vacant stool then Kurgwi shall forever not have a village head.
18 The 1st defendant shall further to paragraph 17 above contend at the hearing that the plaintiffs have no locus standi to institute this action and shall urge the court to dismiss same.
20 The 1st defendant in response to paragraphs 14, 15,& 16, 17 & 18 of the amended statement of claim avers that, it was not the Qua-an Pan Traditional Council (Modification of Native Law and custom Relating to the selection of the (SANGARI) VILLAGE HEAD of Kurgwi Order 2002, that modified the method of selection of the village head but, the agreement reached by the ruling houses. That the said order merely recognised the modification done by the ruling houses (i.e. merely codified what has been agreed upon).
22. The 1st defendant shall in addition to paragraph 1 -9 above contend at the hearing that:
(1) The plaintiffs are estopped from raising the issue of the pronounced custom in suit No.PLD/J33/85 and Appeal No.CA/8/145/86.
(2) The Plaintiffs are busy bodies and have no locus standi to institute this suit; and
(3) The suit should be dismissed as an abuse of Court process, unmeritorious ,trouble shooting , inimical to peace order and good governance and same should be dismissed with substantial cost.”
In their Joint statement of defence the 2nd to 5th Defendants pleaded the facts to be relied upon by them as follows:
“1.The defendants admit paragraphs 1 and 2 of the claim only to the extent that the plaintiffs are members of four out of the five ruling houses in Kurgwi but deny the fact that they were eligible to contest the stool of the village head of Kurgwi as they were not so presented by their respective ruling houses. The defendants further aver that those that were eligible to contest for the stool of the Village headship of Kurgwi at material time to this suit were.
1. Alhaji Abubakar Salmana - From Salmana Ruling House
2. Mr. Nanlong Barau Dabang - From Talmoep Ruling House
3. Alh Umaru Nda Marafa- - From Marafa Ruling House
4. Alh. Hassan Sangari Kyari - From Kyari Ruling House
5. Danladi Idris - From Dangana Ruling House
6. The Defendants admit paragraph 7 of the claim but will further aver that the said judgment of the Court of appeal and the Government white paper cannot be enforced due to the fact that by the Native Law and custom only the incumbent Village head of Kurgwi can appoint the six traditional selectors, and prior to the selection of the 1st defendant as village head of Kurgwi non of the traditional selectors was living and no incumbent village head in place to appoint traditional selectors.
7. The defendants deny paragraph 8 of the claim and further aver that since there is no village head in place to appoint the six traditional selectors who become deceased shortly after the judgment of the court of Appeal, the Village cannot be left without a head and therefore the need for the modification of the Native Law and custom in order to fill the vacant position.
6. Further to the paragraphs deny (sic) in paragraph 8 above the defendants avers as follows:
a) That by the native law and custom of Kurgwi, it is the Village head of Kurgwi that appoint the traditional selectors from each of the families of the traditional selectors.
b) That after the demise of the Village head of Kurgwi in 1983 and shortly after judgment of the Court of Appeal No. CA/J/145/86, all the traditional selectors died thereby leaving Kurgwi Village without a Village head and traditional selectors.
c) That because of the vacuum created the Qua’an Pan traditional Council summon (sic) all the members of the ruling houses of Kurgwi to suggest way by which the vacant stool of the village headship of Kurgwi could be filled.
d) That following from above, series of meetings were held with all the families where at they all suggested and agreed on the modalities to be followed in order to select the village head of Kurgwi.
e) That they agreed that each of the five ruling houses will bring in four names with one person as contestant while the remaining three would be traditional selectors and it is on that basis that on 15-8-2002, the 1st defendant was selected as the village head of Kurgwi.
f) The defendants aver that following the series of meetings with all the ruling houses who agreed on the mode of selection that a Gazette was sign in line with the agreement.
11. The defendant further aver that the plaintiffs are ESTOPPED by their conduct having participated actively in suggesting the modalities to be adopted and was accordingly adopted and followed in the selection of the 1st defendant as the Village head of Kurgwi on the 15-8-2002.
15. Further to the paragraphs deny (sic) above the defendants further aver that even if the said ‘THE QUA’AN PAN TRADITIONAL COUNCIL (MODIFICATION OF NATIVE LAW AND CUSTOM RELATING TO THE SELECTION OF THE (SANGARI) VILLAGE HEAD OF KURGWI, ORDER 2002 were invalid (which we do not concede) The plaintiffs are hereby estopped from complaining, they having actively participated in drawing/suggesting the ways and modalities to be followed which was actually followed to fill the vacant position of the sangari of Kurgwi.
16. The Defendants further aver that the plaintiffs have no LOCUS STANDI to challenge the selections of the 1st defendant because they were not contestants to the vacant stool of the village headship of Kurgwi.
17. The plaintiffs are just some selfish members of their respective ruling houses whose action is not with the sanction and support of their various ruling houses neither are they suing in a REPRESENTATIVE CAPACITY.
18. The defendants aver further that the plaintiffs are not interested in seeing that Kurgwi Village have a Village head because they have been operating and parading themselves as independent rulers thereby benefiting themselves that is why after fully participating in suggesting the modalities to be followed for the selection of village head of Kurgwi turn round to oppose it when it was used for the selection.”
These set of Defendants also relied on some documents which were duly pleaded.
The parties having joined issues in this matter, trial commenced on 23rd June, 2004. The plaintiffs called 3 witnesses and the Defendants called 5. The plaintiffs witnesses were:-
1. Madaki Usman Laankwap
2. Musa Madaki
3. Alhaji Adamu Musa
The first Defendant called the following witnesses:-
The 2nd to 5th Defendants did not call any witness but tendered several documents from the Bar which were admitted in evidence by consent of the parties and marked as exhibits L,M,N,O,P,Q,R,S,T,U,V,W. Earlier on before the commencement of Oral evidence, the plaintiffs also tendered some documents in evidence from the Bar and were admitted and marked exhibits A, B, C, D, E and F. They also tendered exhibits G and H through DW2 during cross examination. The first Defendant tendered two exhibits marked J and K. In all, a total of 22 exhibits were tendered, 8 by the Plaintiffs, 2 by the first Defendant and 12 by 2nd – 5th Defendants.
PW1, Madaki Usman Laankwap who is the first Plaintiff and a resident of Kurgwi testified that there are five ruling houses in Kurgwi, namely; Talmoep, Salmanu, Dangana, Kyari and Nupawa and he belongs to the Talmoep ruling house. The 2nd, 3rd and 4th plaintiffs respectively belonged to the Salmanu, Nupawa and Dangana ruling houses while the first Defendant belonged to the Kyari ruling house. Consequently, all the plaintiffs are entitled to contest for the stool of the Sangari or Village head of Kurgwi. He told the Court that there are six recognised Kingmakers or Traditional selectors, namely; Madaki, Galadima, Wambai, Kanglu, Shinduar and Kawap, out of which four have died. That by the custom of Kurgwi people the six selectors will meet before selecting a Chief and there can be no valid selection without the six traditional selectors. This custom, according to the witness was judicially pronounced upon by the High Court of Plateau State and the Court of Appeal. He testified that four years ago, the Long Pan summoned them and directed that they must select a Chief within one week using four persons from each ruling house to constitute the body of selectors. The plaintiffs protested this method of selecting the Village Head and wrote protest letters to that effect. PW1 identified exhibits E and F as some of the protest letters. Their protests were ignored and so they refused to participate in the selection. Shortly after the alleged selection, PW1 heard that he was removed from his traditional post as the Madaki. He said his father Homsuk was never sold into slavery. He told the Court that the Divisional Officer in Shendam removed Mandong as the Madakin Ankwe and conferred on him the post. That the ruling houses have never met and nominated persons to contest for the stool of the Village Head of Kurgwi. Similarly, none of the plaintiffs agreed to modify the mode of selection of the Chief of Kurgwi from six selectors generally to four selectors per ruling house. He did not know anybody called Alade. Witness urged the Court to grant their reliefs.
Under cross examination by Mr. Odigie, Learned Counsel for the first Defendant, PW1 said that his love for Kurgwi and its custom made him to insist on the preservation of the custom. He admitted that there are only two traditional selectors alive and did not want the Village Head to be selected by only the two surviving traditional selectors He opined that the families of the deceased traditional selectors should each nominate one person to serve as a traditional selector. He did not attend the meeting of 21/8/2000 but sent his son, Musa Madaki to represent him. That Nanlong Barau Dabang belonged to a different ruling house from his and that even though Dabang was lucky to be a Chief, he does not know Dabang’s ruling house. Dabang was Chief before he was born. He knows the trio of Sule Longtoe, Shehu Abu Dayen and Sentoe Horlong. Sule Longtoe is not a member of his family but the other two are members of his family. He contested for the stool of the Village Head with Abu Dayen and Horlong, not with their children. He testified that two days before his evidence in Court one of the surviving traditional selectors died. He said it is also the custom of Kurgwi people that it is the chief that appoints the traditional selectors. He denied the suggestion that he is not a member of Talmoep ruling house. He also denied the suggestion that his forebears were brought into the Talmoep ruling house as slaves. The witness refused to state his family tree as according to him they were not in Court to trace lineages.
Under further cross examination by N. D. Shase-et Esq.,learned Principal State Counsel for the 2nd – 5th Defendants, Mr. Laankwap told the Court that Madaki Ankwe and Madaki Abakwa riga (a traditional Selector) are not the same. He said that he is in Court because he wants only the six traditional selectors to select the Village Head of Kurgwi. He opined that where a family of a deceased selector appoints one of them to serve as a selector, the resultant selection of a Chief will be valid. They have not had any meeting with the Traditional Council or the Local Government on how to fill the vacant stool of the Village Head of Kurgwi but that he only attended one meeting with the Long Pan where the Long Pan said whether they like it or not he will cause the selection of the Village Head of Kurgwi. This witness was not re-examined.
Musa Madaki, the son of PW1 testified as the second witness for the plaintiffs. He is from the Talmoep ruling house and a resident of Kurgwi. He represented PW1 in a meeting called by the Long Pan who is the Chairman of Quaan Pan Local Government Traditional Council. The meeting was to deliberate on the stool of the Village Head of Kurgwi. When it was suggested that four persons from each ruling house should constitute the college of selectors, PW2 objected and said that members of ruling houses cannot be traditional selectors. He told the meeting that he stood by the six selectors which were confirmed by the Court. His opinion was not taken and so he returned home and informed his father, PW1. His father wrote a letter of protest which he identified as exhibit F. He said he did not agree to any modalities of selection adopted at the meeting. When confronted with exhibit C, PW2 said he did not know it.
Under cross examination by Mr. Shase-et, PW2 said that he represented his father in the meeting only once but did not know if his father attends other meetings called by the Long Pan. He said he was present when exhibit F was written and signed by his father. He confirmed that some members of the other four ruling houses were also present at the meeting in which he represented his father, the first plaintiff.
He stated under questioning by Mr. Odigie that apart from suggesting the use of six traditional selectors in selecting the Village head, he also suggested the use of exhibit ‘B’, the Government White Paper. Musa Madaki said that the position taken at page 7 of exhibit ‘B’ did not violate the custom of Kurgwi people. He stated that at the time of the selection of the first Defendant not all the six selectors were dead as the Galadima and the Kanglu inherited their titles from their respective houses.
PW3 was Alhaji Adamu Musa, Jukun by tribe and a resident of Kurgwi. He hails from the traditional selectors family of Madaki. He named the other selectors as Wambai, Galadima, Kawap, Shinduar and Kanglu. PW3 said that other than these six traditional selectors no other family can select the Village Head of Kurgwi. He testified that his family has participated in the selection of the following Chiefs of Kurgwi, namely; Na Allah, Dalla, Kayo, and Kokuwa, who were all selected by his Grand father. Upon the death of his Grand father, his father became the Madaki and therefore a traditional selector for the stool of the Village Head of Kurgwi. He testified that the custom of Kurgwi does not permit members of ruling houses to act as Kingmakers or traditional selectors for the purpose of selecting the Village Head. That there can be no valid selection of the Village Head of Kurgwi without the six traditional selectors coming together to select. He stated that in the event of the death of a selector and in the absence of a sitting Village Head, the family of the deceased selector will select one of them to serve as a traditional selector. PW3 testified that the first Defendant was not selected by the six traditional selectors and therefore his purported selection was contrary to the custom and tradition of Kurgwi.
Under cross examination by Mr. Odigie he said that his father, the late Madaki of Kurgwi who died about ten years ago was not replaced because of the case pending in Court with respect to the stool of the Village Head and not due to the absence of a Village Head who will confirm the selection of a new Madaki . That a traditional selector can be selected by his family and then presented to the village head for confirmation, but in the absence of a Chief the family of a selector will just select one of them to serve as a traditional selector. He told the Court that some traditional selectors were not appointed by the Village Head; these traditional selectors are Zakari Danbana (Galadima’s house), Alhaji Musa Wakili (Madaki’s house) and Danlami (from Kanglu’s house). He said that these Kingmakers were appointed at Shendam before the creation of Quaan Pan Local Government and at the time when Kurgwi had no Chief (Village Head). He is sixty one years old.
When further cross examined by the learned Principal State Counsel for the 2nd – 5th Defendants, this witness told the Court that his father did not participate in the selection of any Village Head as he was appointed by the immediate past Village Head. He admitted that before the creation of Quaan Pan Local Government it was the Long Goemai that appoints the Chief of Kurgwi. He denied the suggestion that there were no traditional selectors in Kurgwi before the creation of Quaan Pan Local Government. He denied the suggestion that it is only the Village Head of Kurgwi that can appoint traditional selectors. He said it is not true that Zakari Danbana, Alhaji Musa Wakili and Danlami were appointed by the immediate past Village Head of Kurgwi .That of the six selectors only one of them, i.e Danlami is alive as Zakari Danbana died some times in June, 2004. That Zakari Danbana was selected by his family as the Galadima and not by the immediate past Village Head.
With the testimony and cross examination of PW3, Mr. Oyawole closed the case for the Plaintiffs.
Alhaji Sambo WAZIRI Kurgwi, a farmer and a resident of Kurgwi opened the case for the defence by testifying as DW1. He is Eighty (80) years old and an adviser to the Village Head. He testified that Kurgwi had been without a Village Head for twenty (20) years before the selection of the first Defendant. He it was, in his capacity as the Waziri, that invited people of Kurgwi to a meeting at the Primary School in order to fashion out the mode of selecting a Village Head as the town has been without one for a long time and majority of the traditional selectors were deceased. At the end of the meeting members of the ruling houses were advised to go and meet and select a Chief for the people. That none of the traditional selectors were alive at the time of the meeting. He testified that traditional selectors are appointed by the Village Head and not by members of their respective families. That Adamu Bilat and Zakari Gayam were not traditional selectors just as Chindo Musa’s father has never been a traditional selector.
Under cross examination by Mr.Ugwuala, DW1 told the Court that he neither belong to any of the ruling house nor is he a member of any of the traditional selectors’ families. He said his father held the title of Galadima of Kurgwi but did not participate in the selection of Late Kyari because he was turbaned the Galadima after the selection of the Late Kyari and he died soon afterwards. This witness does not know how many traditional selectors selected the late Mallam Kyari as the Village Head of Kurgwi. He is also not aware that there are five ruling houses in Kurgwi and he is not aware of the meeting summoned by one Dr. Hamisu Garba in Kurgwi. He testified that at the time he called the meeting of all the people of Kurgwi the traditional selectors were all deceased. He denied the suggestion that he only testified to what he was told.
Under cross examination by Mr. Shase-et he said that the first Defendant was selected by members of the ruling houses. He was not privileged to participate in the selection meetings because he is not a member of any of the ruling houses.
DW2 was Longtoe Suleiman, a resident of Kurgwi and a farmer. He knows the ruling houses of Kurgwi and he belongs to the Talmoep ruling house. He testified that following the meeting called by DW1, all the ruling houses of Kurgwi decided that the town, which has been without a Chief for over 20 years, should have one. Members of the ruling houses decided that each ruling house should provide a number of persons for the purpose of selecting a Chief. When they went to the Local Government Traditional Council they were advised to select and forward the names of four persons from each ruling house, one to serve as a contestant while the other three were to serve as traditional selectors. That was how the first Defendant was selected as Chief of Kurgwi. The following persons, according to DW2, participated in the selection from Talmoep ruling house, they are; Nanlong Dabang, Sentoe Horlong, Shehu Habu Dayen and himself. Nanlong Dabang was a contestant while the other three were selectors. He told the Court that Talmoep ruling house does not have any problem with the selection of the first Defendant. He said the first plaintiff is not from Talmoep ruling house and is not related to him by blood. That there is only one Talmoep ruling house in which the first plaintiff is neither the head nor a member. He said that the first Plaintiff was appointed Madaki Ankwai after his (DW2’s) Grandfather was removed from that post. That all the previous Madaki Ankwai of Kurgwi with the exception of the first Plaintiff were members of Talmoep ruling house. Dw2 told the Court that the appointment of the first plaintiff was through political power during the first Republic under the defunct Northern Nigeria Government. He testified that at the time of selecting the first Defendant none of the traditional selectors was alive. He said that Adamu Bilat and Zakari Gayam are not traditional selectors.
Under cross examination by the learned Principal State Counsel, DW2, said that the first Plaintiff did not participate in the selection of the first Defendant. That it was the proposal of all the ruling houses that each ruling house should submit four names to the Local Government Traditional Council, that decision was not imposed on them.
Under further cross examination by Mr. Ugwuala, DW2 said he is 47 years old and that when his grand father was removed from the office of Madakin Ankwai some 43 -44 years ago, he was a small boy, and the fact of the removal was communicated to him by his father. He knows that Alhaji Habu Kayo, Alh. Nda Marafa and Baba Bawa Kokuwa are from Salmana, Nupawa and Dangana ruling houses respectively, but that the first plaintiff is not from Talmoep ruling house. He knows the first Defendant to be from Kyari ruling house. DW2 said that he neither wrote a petition against the first plaintiffeHe hhhH…………………..H in the year 2000 nor did he appear before the Local Government Traditional Council to defend the petition. He knows Simon Worlong Turnoe, but did not sign any petition along with the said Simon against the first Plaintiff. Exhibit “G” which is minutes of meeting of Quaan Pan Traditional Council held on 20/12/2000 was tendered by Mr Ugwuala through this witness for purposes of further cross-examination. Upon being further cross examined, DW2 said he has seen the contents of pages 2 and 3 of exhibit “G” and did not know if the exhibit is false. He further said that having read pages 2 and 3, the content of exhibit “G” is false. He said he is aware of the case involving the stool of the Village Head of Kurgwi in 1985 and that the first Plaintiff in this case was also the first plaintiff in that case which went up to the Court of Appeal but that the first Plaintiff prosecuted the previous case in his capacity as the Madaki Ankwai and not as representing the Talmoep ruling house. This witness said he was not present when the first Plaintiff represented the Talmoep ruling house in a meeting with the Local Government. He also denied writing a petition to the Local Government along with Nanlong Dabang, Sentoe Horlong and Shehu Habu Dayen in 2001. Again, the minutes of Emergency meeting of Qua’an Traditional Council held on 24/01/01was tendered in evidence as exhibit “H” by Mr. Ugwuala through this witness. On being further cross examined on exhibit “H”, DW2 said page 2 thereof concerned him and three others and that the contents of that page as it relates to them is not true. He also said that there are six traditional selectors in Kurgwi and that a traditional selector cannot come from a ruling house. He further said that one can be a member of a ruling house and a traditional selector at the same time. He told the Court that the meeting held at the Primary School at Kurgwi was called by DW1 but that no method of selection of the Village Head was agreed to at the meeting. He testified that historically it was the Long Goemai of Shendam that used to appoint the Chief of Kurgwi and that the Late Kyari was appointed by the Long Goemai. When shown exhibit “B”, he said that there are six selectors for the stool of the Village Head of Kurgwi at page 55 thereof.
Abdullahi Maimako Dalla was DW3. His testimony before the Court is thus: He hails from the Kyari ruling house of Kurgwi and was nominated by his ruling house to be a contestant during the selection of the first Defendant. He was nominated in a letter along with Zaidu Danlami Kyari and Abdu Kyari. He couldn’t locate the name of Abdu on exhibit “J” which is a letter addressed to the Local Government Traditional Council by the Kyari family in which the name of its contestant and those of selectors was forwarded. The number of ruling houses in Kurgwi is five while traditional selectors are six. It is the Village Head that appoints the selectors and that is the custom of Kurgwi. Having been without a Village Head for about 20 years, the Waziri of Kurgwi, DW1, called a meeting of elders and members of ruling houses and asked the latter to produce a Chief for the people of Kurgwi. That was how the ruling houses decided to forward four names each to the Traditional Council, one as contestant and the other three as selectors, for approval. This method was adopted because of the death of the traditional selectors or Kingmakers. He named the contestants from the various ruling houses as follows:
Nanlong Barau Dabang from Talmoep ruling house.
Danladi Idris from Dangana ruling house.
Alhaji Umaru Nda from Nupawa ruling house.
DW3 testified that the first plaintiff was neither a candidate nor a selector. He named the father of the first plaintiff as one Homsuk who came from a village near Kwande called Dungvaram and stayed with Madakin Ankwai Bian. The brother of the first plaintiff is one Alade. This witness said he is sixty five years old.
Under cross examination by Mr. Shase’et, he said that the first plaintiff is not a member of Talmoep ruling house. That as at the time of the death of the last Village Head of Kurgwi, all the Kingmakers were dead. He testified that the office of the Traditional selectors is not hereditary as it is the Village Head that appoints, he cited the example of Galadima Dahiru and Galadima Umaru who are not members of the same family.
Under further cross examination by Mr. Ugwuala, DW3 admitted that the first Plaintiff is older than him and that he has never seen Homsuk, the father of the first plaintiff, Madakin Ankwai Bian or Dabang. He said that the first Plaintiff and Dabang are never related and that whoever asserts the opposite is a liar. He said that Corporal Alade died in the eighties. He knows Madakin Ankwai Mandong. He does not know the plaintiff’s mother but said he was told by the first Plaintiff himself that the name of his Mother was Paji. He admitted that he was told of the stories he gave about the first Plaintiff. He reiterated that there were six traditional selectors for the stool of the Village Head of Kurgwi but that they were all dead. He said that Zakari Danbana and Danlami Allanana are not respectively the Galadima and the Kanglu. He testified that Danlami Allanana is alive. DW3 said it is the custom of Kurgwi for traditional selectors to select the Village Head and for the Village Head to appoint the traditional selectors. That it will not be contrary to the custom if a Village Head is selected otherwise than in accordance with the custom provided that the selection of the Village Head is done by the ruling houses. He admitted that the people of Kurgwi have never had a situation where members of ruling houses selects a Chief, until now. He said that the first Defendant was not selected by the six traditional selectors because the selectors were not alive at the time of his selection. He was instead selected by 15 people including this witness. He heard about the Government White Paper on the stool of the Village Head of Kurgwi but has never seen it. He confirmed that Alhaji Habu Kayo is from Salmana ruling house while Alhaji Usman Nda Marafa and Baba Bawa Kokuwa are from Nupawa and Dangana ruling houses respectively.
DW4 was Ukashatu Idrisu, a resident of Kurgwi and member of Dangana ruling house, one of the five ruling houses in Kurgwi. He participated in the selection of the first Defendant in August, 2002 as a selector. The contestant from his ruling house is Bawa Kokuwa. DW4 said the resort to the method of having one contestant and three selectors from each ruling house was necessitated by the death of all the traditional selectors. He testified that Bawa Kokuwa and Alhaji Danladi, though nominated in his ruling house to participate in the selection of the Village Head, objected to the procedure adopted.
Under cross examination by Mr. Shase-et, he said that he did not agree with the decision and views of the other members of his ruling house and that is why Usman Kwanya and himself participated in the selection of the Village Head.
Under further cross examination DW4 said that of the five ruling houses, Nupawa and Salmana did not vote at the selection. He said that Rislan (a.k.a Alhaji Danladi) did not vote from his ruling house. That Bawa Kokuwa was a contestant but he refused to contest. On being further cross examined, DW4 said his ruling house submitted the name of Alhaji Danladi Rislan as a contestant but that they communicated the change of name of the contestant from their ruling house when Alhaji Danladi fell ill. He said he did not sign any letter forwarding his name or that of any other person from the Dangana ruling house either as a contestant or a voter (selector). Dw4 never witnessed the selection of a Chief in Kurgwi. He put his age at 55 years. He admitted that there are six selectors for the stool of the Village Head of Kurgwi and that the first Defendant was not selected by the six selectors. That the method of selection used in the selection of the first Defendant was decided upon at Ba’ap, Headquarters of Qua’an Pan Local Government. He does not know which family the first plaintiff belongs, what he knows is that the first Plaintiff is not a member of the Talmoep ruling house. He said that any member of the ruling house can aspire to be the Chief of Kurgwi. This witness was not re-examined.
Usman Dangana testified as DW5. He is a resident of Kurgwi and member of Dangana ruling house. He said that Kurgwi has five ruling houses and six traditional selectors who were all dead. That the method adopted in the selection of the first Defendant was agreed to by all the five ruling houses in writing. He it was that signed the letter from Dangana ruling house. That letter was admitted as exhibit “K”.
Under cross examination by Mr.Shase-et, DW5 said that the first Plaintiff is not from any of the ruling houses. Under further cross examination by Mr. Oyawole he told the Court that he is related to the 4th Defendant, they are members of the same ruling house. That the 3rd Plaintiff is from Nupawa ruling house. He said that the first Plaintiff has never taken the first Defendant to Court and that there was no previous selection that led to a Court case. That the fourth Plaintiff is the Head of the Dangana ruling house because he (the fourth Plaintiff) is older than him but that it is this witness that signed the letter forwarding names of selectors from Dangana ruling house. The fourth Defendant did not attend the selection even though his name was forwarded as a contestant. DW5 said that Ukashatu (DW4) is his son and that only the two of them participated in the selection from Dangana ruling house. He does not know if any of the five contestants and eight voters or selectors is from Nupawa ruling house because he does not belong to that ruling house. He also knows Salmana ruling house but did not know if anybody participated in the selection from Salmana ruling house neither does he know if anybody voted from Talmoep ruling house. DW5 said that Kurgwi had six traditional selectors without whom there can be no selection of Chief. That members of the ruling houses adopted the method they used in the selection of the first Defendant because all the traditional selectors were dead and the commoners were accusing members of the royal families of destroying their town. He said that the family of a traditional selector cannot replace a dead selector in the absence of a Village Head. His son, DW4, was appointed Galadima by the first Defendant after he (the first Defendant) became the Village Head.
This witness was also not re-examined, and with his testimony, learned Counsel for the first Defendant closed the case for the first Defendant.
The learned Principal State Counsel for the 2nd – 5th Defendants tendered exhibits L,M,N,O,P,Q,R,S,T,U,V and W and without calling any witness, closed the case for the 2nd – 5th Defendants. Counsel for both parties then addressed the Court.
S.S. Obende, learned Counsel for the first Defendant formulated three issues for determination in this matter.
1. Whether this Court has the competence to entertain this action.
2. Whether the plaintiffs have the locus standi to maintain this action.
3. Whether the plaintiffs have proved their case to be entitled to judgment.
Before addressing the Court on the issues formulated, learned counsel submitted that the following facts are not in dispute between the parties.
(a) That the Defendant was elected as the Village Head of Kurgwi and his election was approved by the Governor of Plateau State.
(b) That the selection of the first Defendant was pursuant to the modified custom of the people of Kurgwi.
(c) This modification was predicated on the death of the traditional selectors for the stool of the Village Head of Kurgwi.
(d) It is also agreed that only the Village Head of Kurgwi can appoint traditional selectors
(e) The modification of this custom was reflected in exhibit “C” which is the Qua’an Pan Traditional Council (Modification of the Native Law and custom relating to the selection of the Sangari, Village Head of Kurgwi) Order, 2002.
Mr. Obende submitted that the point of disagreement is whether exhibit “A” remains the custom of the people of Kurgwi notwithstanding the desire or the decision of the Community to modify the custom reflected in exhibit “A”.
On issue number one, learned Counsel submitted that the applicable law governing chieftaincy in Plateau State is the Chiefs (Appointment and Deposition) Law, CAP 20, Volume one, Laws of Northern Nigeria, 1963, and that section 2(2) thereof recognises the stool of the Village Head of Kurgwi. He submitted that by virtue of section 3(2) of that law the Governor of Plateau State is the only prescribed authority vested with the power to determine whether the selection and appointment of the first Defendant as the Sangari of Kurgwi is in accordance with the native law and custom relating to the said selection. It is submitted for the first Defendant that the powers of the Court can only be invoked after the prescribed authority has exercised his powers or there is evidence of failure or neglect to do so. Learned Counsel submitted that where a law has given exclusive power to a body to decide a matter, the Court cannot come in before that body exercises its power as the jurisdiction of the Court can only be invoked to ascertain whether the power conferred on a body has been lawfully exercised or not. For this proposition of the law the Court is referred to the case of –
Ogologo V. Uche
(2005) 14 NWLR (Pt. 945) 226 at 245 E
Mr. Obende submitted that the provisions of section 3 (2) of the Chieftaincy Law is not unconstitutional, rather it is a safeguard against unnecessary litigations in Chieftaincy matters. He referred the Court to –
Owoseni V. Faloye
(2005) 14 NWLR (pt. 946) 719 at 757
That for the plaintiffs to obtain a remedy in Court they are obliged to exhaust every remedy provided by the Statute before they can resort to this Court, and when they do so, they are not entitled to claim declaratory reliefs in the nature of paragraph 18 (1) (2) (3) of the Amended Statement of claim as the Court’s jurisdiction to grant declaratory reliefs is generally ousted by section 3(2) of the Chief’s Law. That the Plaintiffs can only challenge the decision of the prescribed authority as to his findings but there is no iota of evidence that the Plaintiffs made any form of representation to the Governor. Learned Counsel submitted that in so far as this action does not seek to invoke the Court’s jurisdiction by way of a Prerogative Writ for judicial review, this action as constituted, is incompetent. The following authorities are cited in support of this submission.
Eleso V. Government of Ogun State
(1990) 2 NWLR (pt. 133) 420
Sokwo V.Kpengbo
(2003) 2 NWLR (pt. 803) 111 at 169 – 170
Ehikhamwhen V. Iluobe
(2002) 2 NWLR (pt. 750) 151 at 170 – 171
Mr. Obende distinguished the Supreme Court decision in Abu V. Odugbo (2001) 7 SCNJ 262 from the instant case in that in Abu’s case the section of the law that was declared inconsistent with the Constitution specifically and outrightly ousted the jurisdiction of the Court, which is not the case with the Chieftaincy Law of Northern Nigeria, 1963. He urged the Court to hold that this action is premature and therefore decline jurisdiction to entertain same. He cited the case of -
Ehoche V. Ijegwa
(2003) 7 NWLR (pt. 818) 139 at 158.
On the second issue, Counsel submitted that the Plaintiffs are neither suing in a representative capacity on behalf of their respective families nor are they suing as traditional selectors as the persons who are entitled to complain are those persons whose rights as traditional selectors have been violated by virtue of the selection of the first Defendant. He referred to the case of –
Mogaji V. Military Administrator, Ekiti State
(1998) 2 NWLR (Pt. 538) 425.
Learned Counsel submitted that the plaintiffs are obliged to go beyond saying that they are eligible to contest for the stool and show that their right to contest the election was violated, they can only do that by showing that they participated in the said selection. He referred the Court to.
Adewunmi V. A.G. Ekiti State
(2002) FWLR (Pt. 92) 1825 at 1871
He contended that since the Plaintiffs are not claiming the right on behalf of their ruling families but in their individual capacities they are required to show
On these requirements, Counsel also relied on
Ajagunbade V. Laniyi
(1991) 13 NWLR (pt 633) 92 at 110 –111
and submitted that the Plaintiffs have failed to show by their pleadings and evidence, the nature of their interest, entitlement and how their personal interest arose in the Chieftaincy. That even though the Plaintiffs are entitled to sue to protect the interest of their families, they can only do so where they sue for themselves and on behalf of their families in a representative capacity. Counsel cited and relied on
Ladejobi V.Oguntayo
(2004) 18 NWLR (Pt. 904) 149 at 169, 172-174
Emezi V.Osuagwu
(2005) 12 NWLR (Pt. 939) 340 at 359 – 360.
He submitted further that the right of a ruling house to approach a Court for a determination of whether the selection, as in this case, is in accordance with the custom of the people can only be sustained when the Plaintiffs are able to show that they are appointed representatives of their respective families, especially as the reliefs sought are common to all the ruling houses and does not confer direct benefits to only the plaintiffs. That the plaintiffs can only maintain this action as appointed representatives of their respective families. He referred to.
Daniyan V. Iyagin
(2002) 7 NWLR (Pt. 716) 346 at 376
and submitted that none of the ruling houses has complained against the selection of the first Defendant as theVillage Head of Kurgwi. He argued further that the public right of the generality of the people of Kurgwi and the ruling houses cannot be overridden by the private rights of the Plaintiffs who have failed to show what interest they have in the stool of the Village Head of Kurgwi. Counsel cited the case of –
A.G. Akwa Ibom State V. Essien
And submitted that the plaintiffs having not been contestants for the stool and having not been traditional selectors, lack the locus standi to maintain this action. He urged the Court to dismiss the action on this score.
On the third issue for determination Mr. Obende submitted that the facts and circumstances of exhibit “A” are different from the facts upon which this Court is called upon to adjudicate because none of the Kingmakers recognised by exhibit “A” was alive as at the time of the selection of the first Defendant. That one of the features of custom is its flexibility and dynamism and therefore to suggest that the custom recognised in exhibit “A” should remain for eternity defeats the concept of custom as it is adaptable to changed circumstances. Learned Counsel cited in support of this submission the case of
Yusuf V. Dada
(1990) 4 NWLR (Pt. 146)657 at 673 G.
That the custom recognised in exhibit “A” which the plaintiffs want to enforce is no longer the mirror of accepted usage of the Kurgwi Community. He submitted that the custom in exhibit “A” is repugnant to natural justice, equity and good conscience because it is contradictory, inconsistent, incompartible, distasteful and objectionable. Learned Counsel submitted that since all the traditional selectors were dead as at 2002, it means that nobody can participate in the selection except the custom is changed or the town will remain forever without a Chief. He referred the Court to
Okonkwo V. Okagbue
(1994) 9 NWLR (pt.368) 301 at 335 – 336 and 341
He submitted that the Plaintiffs having not pleaded what the custom will be where all the traditional selectors are dead they cannot lead evidence as they did through PW1 and PW3 that members of a dead traditional selector’s family could select a traditional selector amongst themselves. The Court is urged to expunge this piece of evidence for want of pleadings and especially in view of the fact that exhibit” A” which is relied upon by the Plaintiffs did not support the evidence of PW1 and PW3 as to what should be done in the event of the death of all the traditional selectors.
Mr. Obende contended that exhibit “A” alone cannot be the basis for ascribing judicial notice to the custom pronounced therein as exhibit “A” is not a “frequent proof”. The case of Oyewumi v. Ogunsawo (1990) 3 NWLR (137) 182 at 216 was called in aid of this contention. That even if the Court is satisfied that exhibit “A” can be taken judicial notice of, the Court has power under the proviso to section 14(3) of the Evidence Act to refuse to enforce exhibit “A” if it is contrary to natural justice, equity and good conscience.
On exhibit “B”, learned Counsel submitted that it is inadmissible because as a public document, it was not certified. He referred to section 111 of the Evidence Act and the case of –
Okafor V. Okpala
(1995) 1 NWLR (Pt. 374) 749.
He also referred to Section 113 of the Evidence Act and submitted that if exhibit “B” were a Gazette or printed by the Order of Government then it can be admissible in the form in which it was produced, but exhibit “B” is neither a Gazette nor is there anything on its face to show that it was printed in compliance with section 113(a) (iv) of the Evidence Act.
Counsel submitted further that the applicable custom for the selection of the Village Head of Kurgwi is exhibit “C” and any evidence led which is contrary to exhibit “C” is unreliable. He referred to the case of –
Oyefolu V. Durosimi
(2001) FWLR (Pt. 69) 1422 at 1432
He submitted that exhibits M, N, O, P and S are in compliance with clauses 2 and 3 of exhibit “C” which prescribes the number of traditional selectors and how they are to be nominated. Mr. Obende further submitted that the reference made to the Local Government Edict, 1976, which is now repealed, cannot invalidate the modification in exhibit C because by the rules of interpretation recitals are not operative and that the powers vested in the Traditional Council to make declarations of customary law in Section 72 of the repealed Edict has been preserved by the Plateau State Local Government Law, 1999. He submitted that exhibit “C” is valid as it is a reflection of the desires of the people of Kurgwi and he urged the Court to so hold. He also urged the Court to dismiss the suit for want of proof so that the people of Kurgwi will enjoy a new lease of file by putting an end to the litigations over their Chieftaincy stool.
In his own address on behalf of the 2nd – 5th Defendants, learned Principal State Counsel, formulated four issues for the determination of this Court. The issues are:-
1. Whether the Plaintiffs have any Locus when they are not suing in a representative capacity.
2. Whether the Plaintiffs are not estopped from bringing this action having participated fully in the method adopted for the selection of the first Defendant as the Village Head of Kurgwi.
3. Whether there are contradictions in the evidence of the plaintiff’s witness.
4. Whether exhibits A and B are enforceable when none of the traditional selectors and the Village Head is alive.
Marshaling arguments on the first issue for determination, Mr. Shase-et submitted that since the plaintiff’s were not contestants for the stool of the Village Head of Kurgwi and are not suing in a representative capacity, merely being individual members of ruling houses cannot confer on them better right than all the other members of all the ruling houses in Kurgwi, consequently, they have no locus standi to institute the action. He submitted that being members of ruling houses cannot confer on the plaintiffs the right to sue on behalf of the ruling houses without endorsing on the Writ of summons the capacity in which they instituted the suit as required by Order 5 Rule 11 (1) (a) and Order 11 Rule 7 of the High Court (Civil Procedure) Rules. The Court is referred to the following judicial authorities-
Se’idu V. A. G. Lagos State
(1986)12 NWLR (Pt. 21) 165 at 173 B- H
Obala V. Adeshina
(1999) 2 SCNJ 1 at 24
Adewumi V. A.G. Ekiti State
(2002) FWLR (Pt. 92) 1835 at 1871 – 1873
Nworgu V. NLNG
(2005) ALL FWLR (pt.280) 1593 at 1601
He submitted that the Plaintiffs having not been contestants are mere busy bodies devoid of locus standi to institute this action and cannot therefore confer on this Court jurisdiction to entertain same. Learned Counsel cited in support of this submission, the case of
Alofoje V. Federal Housing Authority
(1996) 6 NWLR (Pt. 452) 559 at 567 F – G
On the second issue, Counsel submitted that the plaintiffs are estopped from bringing this action because the plaintiffs were parties to exhibit G which was the method adopted in the selection of the first Defendant. That in compliance with exhibit G, four ruling houses submitted to the Traditional Council exhibits M, N, O, P which contained lists of contestants and selectors. That by the submissions made, Plaintiffs are estopped having waived any right applicable to them. He called in aid of this submission the case of –
Fasade V. Babalola
(2003) 4 SCNJ 287 at 302 – 305
Ude V. Nwara
(1993) 2 NWLR (Pt. 278) 638 at 662- 663
Ude V. Osuji
(1998) 10 SCNJ 75 at 82
On issue number three, it is learned Principal State Counsel’s submission that exhibit “B” contradicts the evidence of PW1 – PW3 in that while exhibit “B” states that the Village Head can appoint traditional selectors from any family without restriction, PW1 testified in one breadth that only the Chief can appoint traditional selectors and vice versa and later said that only the families of the six selectors can appoint traditional selectors to replace dead ones. He (PW1) also said that where traditional selectors are dead only the elders of Kurgwi will determine what will happen. Mr. Shase-et contended that these are bundles of contradictions as equally evidenced by the testimony of PW3 who testified that in the absence of a traditional selector it is the family of the selector that appoints one of them and send him to the Village Head for confirmation. He urged the Court to out rightly dismiss the claim based on these contradictions. The Court is referred to–
Nsirim V. Nsirim
(2002) 2 SCNJ 46 at 57
Basil V. Fajebe
(2001) 4 SCNJ 257 at 269
On the fourth issue, learned Principal State Counsel submitted that with the death of all the six traditional selectors and the Village Head the native law and custom in exhibits “A and B” are incapable of performance and therefore unenforceable. That it was on the basis of the above facts that views of the ruling houses were sought for in exhibit “L” which led to the method adopted in exhibit “G”. Counsel submitted that since all the ruling houses agreed to the new method of selection the plaintiffs cannot complain of non compliance with Native Law and Custom. He further submitted that Native Law and Custom are not static as they change with prevailing circumstances and that was why the method of selection was changed to reflect the prevailing circumstance. Mr. Shase-et urged the Court to dismiss the Plaintiffs’ suit.
H. N. Ugwuala Esq. formulated four issues for determination on behalf of the Plaintiffs. The issues are:
1. Prior to the making of exhibit “C” on the 24/05/2002 by the 2nd – 5th Defendants what was the applicable Native Law and custom regulating the selection of the Village Head of Kurgwi.
2. Is exhibit “C” a valid modification of the Native Law and custom regulating the selection of the Village Head of Kurgwi.
3. Is the selection of the First Defendant on 15/08/2002 pursuant to exhibit “C” valid.
4. Are the Plaintiffs entitled to the reliefs sought.
On issue No.1, learned Counsel submitted that from the pleadings and the evidence of all the parties the applicable Native Law and Custom to the selection of the Village Head of Kurgwi is as contained in exhibits A and B, to the effect that there are six traditional selectors who can validly select the Village Head of Kurgwi under Native Law and custom as listed at page 2 of exhibit “B”, namely; the Madaki, the Galadima, the Wambai, the Kawap, the Shinduar and the Kanglu. Mr. Ugwuala contended that this Custom having been judicially pronounced upon by the High Court of Plateau State and the Court of Appeal, this Court ought to take judicial notice of same by virtue of section 14(2) of the Evidence Aft. He urged the Court to hold that the prevailing Native Law and Custom regulating the selection of the Village Head of Kurgwi before the making of exhibit ”C” is as agreed by the parties and as contained in exhibits “A” and “B”.
On the second issue, learned Counsel submitted that exhibit “C” is not a valid modification of the Native Law and Custom regulating the selection of the Village Head of Kurgwi as contained in exhibits “A” and “B”. He submitted that on the face of exhibit “C” which was made on 24/05/2002 by the 2nd – 5th Defendants acting on the recommendation of the 2nd Defendant, it is clear that it was made pursuant to the powers conferred on the Executive Council of Plateau State by section 72(3) of the Local Government Edict, 1976, an Edict that was repealed by the Plateau State Local Government Law, No.1 of 1999. Mr. Ugwuala submitted that the legal consequence of the repeal of that Edict is that with effect from 01/12/99 when the new law came into effect, the 1976 Local Government Edict ceased to be a living law and was therefore incapable of clothing anybody with any form of powers. Consequently, exhibit “C” was made without requisite legislative backing and is therefore a null and void document. He urged the Court to hold that exhibit “C” is not valid in itself having been made without powers and cannot therefore be a valid modification of the Native Law and Custom regulating the selection of the Village Head of Kurgwi. In reply to the submission that exhibit “C” is valid because it could have been made under the 1999 Local Government Law, Mr. Ugwuala submitted that nothing in the entire 66 sections of the Local Government Law, 1999, permits or enables the making of any document like exhibit “C” by any or all of the Defendants. He urged the Court to hold that exhibit “C” is a failed attempt at the modification of the custom judicially noticed in exhibit “A” and aptly stated in exhibit “B”
On issue No.3, it was submitted on behalf of the plaintiffs that the selection of the first Defendant on 15/8/2002 is invalid having not been done in accordance with the applicable Native Law and Custom as the selection was not in consonance with the custom shown in exhibits A and B. Learned Counsel submitted that since the first Defendant pleaded that his selection was in accordance with Exhibit “C”, and that exhibit C having been made pursuant to a non-existing law by persons bereft of the powers to make it, his selection, appointment or approval is invalid, as illegality can only beget illegality. Counsel referred the Court to
Nangibo V. Okafor
(2003) 14 NWLr (Pt. 839) 78 at 115 – 116 F – A
On the submission of the learned Principal State Counsel for the 2nd – 5th Defendants that even if exhibit “C” is held to be void there is still an agreement that can sustain the selection of the first Defendant, Mr. Ugwuala submitted that exhibits L - W which were dumped on the Court by the 2nd – 5th Defendants without any oral evidence called to explain their purpose cannot constitute evidence of agreement by the parties to modify the custom of Kurgwi. He urged the Court not to go into investigation with respect to these exhibits but rather to discountenance them for lacking in evidential value. He referred the Court to the case of
Alao V. Akano
(2005) 11 NWLR (Pt. 935) 160 at 178D – E
He submitted that exhibits G, L, Q, R, and H are all minutes of meeting of Qua’an Pan Traditional Council for which the Plaintiffs are not members and cannot therefore bind them. That the contents of those exhibits culminated in the making of exhibit “C” which is the only document this Court can look at, and where the Court finds exhibit “C” invalid, the minutes of meeting leading to the making of exhibit C cannot save the selection of the first Defendant as they are mere preliminary attempt towards codifying exhibit C. On this submission Mr. Ugwuala cited and relied on the case of
Ajibi V. Olaewe
(2003) 8 NWLR (Pt. 822) 237 at 272 – 273 G – B.
He urged the Court to hold that the selection of the first Defendant on the basis of exhibit “C” is invalid.
On the fourth issue, learned Counsel submitted that the plaintiffs are entitled to all the reliefs sought in this matter in view of the fact that the selection of the first defendant is contrary to the Native Law and Custom of the people of Kurgwi and is predicated upon an invalid attempt at modifying and codifying that custom in exhibit “C”
On the submission of learned Counsel for all the Defendants that the Plaintiffs have no locus standi to institute this action, Mr. Ugwuala submitted that from their pleadings in paragraphs 1, 2, 3, and 4 and the evidence of PW1 – PW3, the Plaintiffs have shown abundant locus standi to approach this Court for the reliefs they are claiming. That the Plaintiffs are not just members of the ruling houses, they are eligible members of those ruling houses entitled to contest for the vacant stool of the Village Head of Kurgwi. He submitted that the plaintiffs have shown the great efforts they have made to protect their interest and stop the violation of established method of selection of the Village Head, they also protested the method adopted in exhibit “C” through exhibits E and F. The Court is referred to paragraphs 10 – 12 of the Amended Statement of claim together with exhibit “A” in support of this submission. Mr. Ugwuala drew the Court’s attention to exhibit “D” where the Local Government consigned the complaints of the Plaintiffs to the dustbin and submitted that the position of learned Counsel to the first Defendant on the authority of Owoseni V. Faloye (supra), will be of no moment. He also cited the case of
Tangale Traditional Council V. Alhaji Fawu
(2001) 17 NWLR (Pt.742) 293 at 320 – 321 F – D
On the two cases of Emezi V. Osuagwu (supra) and Ladejobi V. Oguntayo (supra) cited by Mr. Obende, Mr. Ugwuala submitted that the Plaintiffs have satisfied the second requirement of having locus standi in chieftaincy matter as they are not merely members of the ruling houses, they are interested members of the ruling houses. He referred to paragraphs 9 and 10 of the statement of claim and the judgment in exhibit “A” and urged the Court to hold that the Plaintiffs have shown abundant locus in this matter.
On the issue of estoppel raised by learned Counsel for the 2nd – 5th Defendants, Mr. Ugwuala submitted that the case of Ude V. Osuji (supra) has no application in this matter because here the central burning issue is the validity of exhibit “C” and secondly, that nobody gave evidence as to any promise or assurance given by the Plaintiffs to any of the Defendants. That even if there was any such promise or assurance, which he did not concede, the issue of the validity of exhibit “C” and anything done pursuant thereto cannot find a defense in estoppel. Mr. Ugwuala referred to the unreported judgment of this Court in –
Michael Lapang V. A. G. Plateau State and others
Suit No. PLD/S.5/2001 delivered on 14/07/05
On the submissions of learned Counsel for all the Defendants on the unworkability of the custom contained in exhibits A and B, Mr.Ugwuala submitted that even if the custom in these two exhibits is unworkable, until that custom is validly modified it remains the custom of Kurgwi people and the duty of the Court is to interprete the existing custom and not to give the people a new one. He cited and relied on Ajibi V. Olaewe (supra) at 272 F – G and 280 C – D.
On the submission by Mr. Obende that exhibit “B” cannot be tendered in its original form since it is a public document, learned Counsel submitted that by Section 93 of the Evidence Act, the original is the best evidence, secondly that since the document was printed by the Government Printer it is admissible under section 113 of the Evidence Act. That a certified copy is only relevant when the original cannot be found, besides the document was admitted by consent. He urged the Court to discountenance the submission of learned Counsel to the first Defendant on the admissibility of exhibit “B”. He urged the Court to grant all the reliefs sought.
Replying on points of Law Mr. Shase’et submitted that the last arm of Mr. Ugwuala’s submission contradicted his earlier submission on the documents tendered by him (Mr. Shase’et) by consent.
In his own reply on points of law, Mr.Obende submitted that section113 of the Evidence Act relates to weight to be attached and not to admissibility. That exhibit “B” did not show that it was printed by the order of Government to render it admissible. He referred to
Lambert V. Nigerian Navy
(2006) 7 NWLR (pt 980) 514 at 550 E – G.
Learned Counsel submitted that if a document is not admissible the question of proof, weight or value becomes immaterial. He further submitted on exhibit L – W that the Court is under obligation to read those documents because when tendered and admitted, documents speak for themselves. He relied on the case of –
Ayiki V. Idowu
(2006) 9 NWLR (Pt. 984) 47 at 65
and submitted that there is oral evidence from DW1 – DW5 tying these documents.
Mr. Obende submitted that by section 62 (f) of the Local Government Law, 1999, the Traditional Council is empowered to determine questions relating to chieftaincy matters. He submitted further that exhibits A and B are not codified which means that they can be modified without necessarily coming by way of exhibit C. He finally urged the Court to dismiss the claim.
In my view, issues 1 and 2 formulated by the first Defendant, issues 2 and 4 formulated by the 2nd – 5th Defendants and issues 2 and 4 formulated by the plaintiffs are more than adequate for the just determination of this suit. In line with these issues therefore, I reframe the issues for determination as follows:
1. Whether this Court has the competence to entertain this suit.
2. Whether the plaintiffs have the locus standi to institute this action
3. Whether the plaintiffs are not estopped having participated fully in the method adopted leading to the selection of the first Defendant.
4. Whether exhibits A and B are enforceable in view of the death of all the traditional selectors and the Village Head.
5. Whether exhibit “C” constitutes valid modification of the Native Law and Custom regulating the selection of the Village Head of Kurgwi as to confer validity on the selection of the first Defendant which was made pursuant thereto.
6. Whether the Plaintiffs are entitled to the reliefs sought.
Two of the three issues formulated by learned Counsel to the first Defendant which are issues 1 and 2 above, challenged the competence of this Court to entertain the suit and the locus standi of the Plaintiffs to institute the action. Both issues touches on the competence and jurisdiction of the Court to hear and determine this matter. Being preliminary matters that hinges on jurisdiction, I am duty bound to determine them first without delving into the merits of the case because jurisdiction is the stamp of authority of a Court to adjudicate between disputing parties. Absence of jurisdiction will render the entire proceedings of a Court a nullity no matter how well the proceedings are conducted as jurisdiction is the blood that gives life to the survival of an action in a Court of Law. See
Aribisala V. Ogunyemi
(2005) 6 NWLR ( Pt.121) 212 at 227.
It will therefore be an exercise in futility to proceed to the determination of the merits of this suit without determining the issues touching on jurisdiction which may or may not determine the suit in its entirety.
Issue No.1.
On the first issue, Mr. Obende for the first Defendant submitted that the Governor of Plateau State is the only prescribed authority vested with the powers to determine Chieftaincy matters in Plateau State by virtue of Section 3(2) of the Chiefs (Appointment and Deposition) Law, CAP 20, Laws of Northern Nigeria, 1963. That the powers of the Court can only be invoked after the Governor has exercised his powers or where he fails or neglects to exercise his powers. Learned Counsel submitted that the plaintiffs having not made any representation to the Governor before rushing to Court, their suit becomes incompetent and premature. On this submission, he cited a total of seven judicial authorities which have been referred to earlier in this judgment. Surprisingly enough, either out of inadvertence or deliberate omission, learned Counsel for the Plaintiffs did not address the Court on this all important preliminary issue of the competence of the Court following the supposed failure by the Plaintiffs to exhaust available remedies before coming to Court. But since submission of Counsel cannot be elevated to the pedestal of legal evidence, the above submissions of Mr. Obende shall now be subjected to judicial scrutiny in the light of the relevant law applicable to the peculiar facts of this case.
It has been settled in a long line of judicial authorities that where a statute prescribes a legal line of action for determination of an issue, be that issue an administrative matter, chieftaincy matter or matter of taxation, the aggrieved party must exhaust all the remedies in that law before going to Court. See –
Eguamwense V. Amaghizemwen
(1993) 9 NWLR (Pt. 315)
Aribisala V. Ogunyemi
(2005) 6 NWLR (Pt. 921) at 231 -232
Owoseni V. Faloye (supra)
The Supreme Court considered the provision of section 22(2) to (7) of the Chiefs Law, Ondo State, 1978, in the case of Aribisala which the Court said is similar to the provisions of sections 21 and 22(1) – (6) of the Traditional Rulers and Chiefs Edict No. 16 of Bendel State, 1979, which was considered by the same Court in Eguamwense’s case. These laws made ample provisions of the steps to be taken by an aggrieved party in a chieftaincy dispute. In Owoseni’s case, the Supreme Court considered the provisions of Section 13(4) – (7) of the Ondo State Chiefs Edict,1984 which provides:-
“13(4) Where there is a dispute as to whether a person has been appointed in accordance with customary law to a minor chieftaincy the prescribed authority may determine the dispute and the person concerned shall be notified of the decision.
(5) Any person who is not satisfied with the decision of the prescribed authority may within 21 days from the receipt of the notification make representation to such members of the executive council to whom responsibility for chieftaincy affairs are assigned that the decision be set aside and he may after consideration of the representation confirm or set aside the decision.
(6) Before exercising the powers conferred by sub-section (5) of this section, the member of the executive council responsible for chieftaincy affairs may make inquiries to be held as appear to him to be necessary or desirable.
(7) Where the member of the executive council responsible for chieftaincy affairs in his determination under subsection (6) of this section sets aside an appointment to a chieftaincy, he shall require the persons responsible under customary law for the appointment to fill the vacancy in that chieftaincy in accordance with the customary law within such time as he may specify.”
This Law sets out in sequence the procedural steps to be taken by an aggrieved party in a chieftaincy dispute. It is only when all the steps are exhausted that a party aggrieved by the decision of either the prescribed authority or the Commissioner in charge of chieftaincy matters or both of them that he can then have recourse to the Court. In Owoseni’s case (supra), the Supreme Court held that the suit was competent because the Appellant has exhausted the procedural steps without success before he resorted to the Court. The Court held that the Appellant was entitled to sue and seek the declarations as he did since the prescribed authority and the commissioner in charge of the chieftaincy matters had neglected or refused to exercise the powers vested in them by the law.
Let me now examine the provision of the Chiefs (Appointment and Deposition) Law, CAP 20, Laws of Northern Nigeria, 1963, applicable to Plateau State, in the light of the attitude of the apex Court in chieftaincy matters vis-à-vis the peculiar facts of the instant case. The Law provides in section 3(2) as follows:-
“3(2) In the case of any dispute the Governor, after due inquiry and consultation with the persons concerned in the selection, shall be the Sole judge as to whether any appointment of a chief has been made in accordance with native law and custom.”
This is the only substantive as well as procedural provision with respect to chieftaincy dispute under the Chiefs Law of Northern Nigeria, 1963. Detailed, benevolent, and civilized provisions and procedures that are to be followed by an aggrieved party under the Chieftaincy Laws of Ondo, Oyo and defunct Bendel States, referred to in this judgment cannot be found in the Chieftaincy Law of Northern Nigeria, 1963. This law did not state what remedies are available to an aggrieved party but only states that the Governor shall be the Sole judge in such matters, thereby clothing him with judicial powers. How complaints are to be lodged before the Sole judge, how the Sole judge determines the complaints, and how he communicates his decision to the aggrieved party are not provided for. There is also no provision for appeal against the decision of the Governor because he is the Sole judge. As if that is not enough, the law clearly and unequivocally ousted the jurisdiction of the Courts in chieftaincy disputes. Section 11 of the Law provides:-
“11. Notwithstanding anything contained in any written Law whereby or whereunder jurisdiction is conferred upon a Court, whether such jurisdiction is original, appellate or by way of transfer a Court shall not have jurisdiction to entertain any civil cause or matter instituted for-
(a) the determination of any question relating to the selection, appointment, installation, deposition or abdication of a chief.”
This piece of legislation is reminiscent of Military Decrees and Edicts. But even the Chiefs Edict of Ondo State, which is a military law, does not contain such outright ouster of Courts’ jurisdiction. Much as chieftaincy stools deserved to be safeguarded against unnecessary litigations with their attendant rancour and bitterness, provisions such as section 11 of the Chief’s Law of Northern Nigeria, 1963, which was enacted in 1948 by the Colonial administration ought not be allowed to remain in our statute books as doing so will be an affront to the Supremacy of the Constitution over all other written laws. Any section of the law that expressly confers judicial powers on the Executive and unequivocally ousted the jurisdiction of the Courts is clearly inconsistent with the provision of the Constitution and by virtue of section 1(3) of the Constitution of the Federal Republic of Nigeria, 1999, that section of the law shall to the extent of its inconsistency with the Constitution be void. A State Law cannot override the Constitution by putting a clog on the constitutional right of a citizen to resort to Court.
With the greatest respect to the Learned Counsel for the first Defendant, the provision of the Chief’s Law of Northern Nigeria is quite distinct from the provisions of all the laws under which all the judicial authorities cited by him on this point were decided. The Northern Nigeria law is a different piece of legislation altogether. The two sections of that law herein quoted are affronts to the judicial powers of the Federation and of the States which, by virtue of section 6 of the Constitution is vested in the Courts.
Furthermore, the Supreme Court has held in the case of Abu V. Odugbo (2001) 7 SCNJ 262 at 293 that for decisions of the Supreme Court to be applicable and binding, the facts and issues pronounced upon by the Supreme Court must be on all fours with the case under consideration by the lower Court. Permit me to add that the provisions of the law that were applied to the facts and issues before the Supreme Court must also be similar with the provision of the law under consideration by the lower Court. The provisions of the laws upon which the cases cited and relied upon by Mr. Obende were decided, are distinguishable from the provisions of the law under consideration in the present case.
It may be argued that my findings on the provisions of some sections of the Chieftaincy Law is outside the ambit of the case put forward before me by the Plaintiffs. It is true that the Plaintiffs did not challenge the validity of the Chiefs (Appointment and Deposition) Law, 1963. But Learned Counsel for the 1st Defendant brought to the fore the Constitutionality of the Chiefs Law in his address where he submitted that the Law is not unconstitutional. On this submission, I am bound to make a decision and this is what I have attempted to do supra. For all the reasons stated above, I hereby resolve the first issue in favor of the plaintiffs and hold that the Court has the competence to entertain the suit.
Assuming that I am wrong in my pronouncement on the Chiefs Law of Northern Nigeria, 1963, the attack by the first Defendant on the competence of this Court to entertain the suit on the basis of non-compliance by the Plaintiffs with the provisions of the Chiefs Law can still be viewed from the angle of pleadings. The non compliance raised in the address of learned Counsel for the first Defendant is a fact that was never pleaded in the statement of defense of the first Defendant. That being so, he is precluded from raising the issue in his address because the issue of representation to the prescribed authority by an aggrieved party in a Chieftaincy dispute or the lack of such representation is an issue of fact which must be pleaded and proved. This is particularly so as in this case where the first Defendant is now relying on it as a special defense. I find support for this view in the contributory judgment of Oguntade, JSC, in Owoseni V. Faloye (supra) at 758. His Lordship said -
“I agree that the question of absence of jurisdiction in a Court to adjudicate on a matter can be raised at any stage of the proceedings and indeed for the first time on appeal. But before a defendant can raise the matter before evidence is led, the material giving rise to the complaint of absence of jurisdiction in the court before which the suit is brought must be apparent on the face of the statement of claim. Alternatively the defendant may plead the issue himself. A defendant is not entitled to rely upon a defence, which is based on facts not stated in the statement of claim unless he alleges such facts specifically in his pleadings by way of special defence. See N.I.P C. Ltd V. Bank of West Africa Ltd (1962) 1 All N.L.R 556; (1962) 2 SCNLR 324 and Sketch V. Ajagbemokeferi (1989) 1 N.W.L.R. (Pt. 100) 678. In this case the Plaintiffs/Appellants did not plead that they did not comply with section 13 of the Ondo State Chiefs Law. The Defendant did not plead such non-compliance. On the contrary, the defendants in paragraph 35 of their statement of defense pleaded that the relevant Commissioner had said that any party who was dissatisfied should go to Court”
Similarly, in this case like in the case just cited, contrary to the contention of Counsel, the first Defendant averred in paragraphs 15 and 16 of his amended statement of defense that the protest of the Plaintiffs on the new method of selection has no basis and that the protest was adequately answered by the relevant authorities. It is trite law that a party must be consistent in his pleading and consistent in proving it. In the same vein, Counsel address must be in line with the pleadings and evidence adduced in support thereof and not contrary to it. Since neither the Plaintiffs nor the Defendants pleaded non –compliance with section 3(2) of the Chiefs Law, and the non-compliance been an issue of fact, Counsel address challenging the jurisdiction of the Court on the basis of the non compliance even if there is evidence in support is of no moment for want of pleadings.
Issue No.2.
The second issue deals with the locus of the plaintiffs to institute this action. The two sets of defendants have copiously pleaded the lack of locus standi on the part of the Plaintiffs. Mr. Obende argued for the first Defendant that the plaintiffs lacked locus standi to institute the action as they are neither contestants for the stool nor traditional selectors. He argued further that since the Plaintiffs are not suing on behalf of their respective ruling houses they are mere busybodies with no interest to protect. He again cited a total of seven judicial authorities in support of his submission on this second issue which I do not consider necessary to repeat them here having already listed them in my review of counsel address. I will however refer to them in the course of this judgment. Mr. Shase’et, the learned Principal State Counsel for the second set of Defendants also submitted with equal force that the plaintiffs have no locus standi to institute the action. He cited five authorities in support of his contention. For the same reason just stated, I will not reproduce the authorities again but I will refer to them at the appropriate time in the course of the judgment. In his response, H. N. Ugwuala Esq. submitted on behalf of the Plaintiffs that the Plaintiffs have shown abundant locus standi to institute the action as they are not merely members of ruling houses but eligible to contest for the stool in contention. That the Plaintiffs have shown the great efforts they have made to stop the violation of the method of selection of the Village Head through exhibits “A”, E and F. He referred the Court to paragraphs 1,3,4,9 and 10 of the statement of claim which, according to him, clearly shows the interest of the Plaintiffs in the stool of the Village Head of Kurgwi. Mr. Ugwuala submitted that the Plaintiffs have satisfied the second requirement laid down in the case of Ladejobi V. Oguntayo (supra) and Emezi V. Osuagwu (supra)
The term locus standi or standing to sue denotes the legal capacity to institute proceedings in a Court of Law. It is not dependant on the success or merits of a case, rather it is a condition precedent to a determination on the merits. Where a plaintiff is found not to have locus standi to initiate an action, his case must be struck out for being incompetent. Lack of Locus standi is a fundamental vice that goes to the jurisdiction of the Court. For a Plaintiff to maintain his action he must show clearly that he has a right to protect and that his coming to Court is to seek remedy so that the right will not be violated.
In a chieftaincy case such as this, it is not enough for a Plaintiff to state that he is a member of a ruling house, he has to state further that he had an interest in the chieftaincy title and how his interest arose. See Momoh and Anor V. Olotu (1970) 1 ALL NLR 117 at 123. The decision of the Supreme Court, per Ademola, CJN in this case was cited by approval in nearly all the authorities on locus standi cited by counsel for both parties before me. His Lordship (of blessed memory) said –
“We are of the view that it is not enough for the Plaintiff to state that he is a member of the family; he has to state further that he has an interest in the chieftaincy title and furthermore, state in his statement of claim how his interest in the chieftaincy title arose.”
But where evidence has been adduced as in the instant case, the statement of claim and evidence adduced must show the nature of the interest of the Plaintiffs and their entitlement to the stool. See Ladejobi V. Oguntayo (supra).
Dealing with this question of locus standi in chieftaincy matters, Akintan, JSC, stated the law thus: -
“The position of the law on the subject is that the right of a Plaintiff to sue in a Chieftaincy matter may arise in two ways:
(i) he may establish in his statement of claim and lead evidence to show that the right that is being asserted is that of his family by reason of any hereditary interest. In such situation, the action should be by the family through their representatives and it must be clearly pleaded that it is the civil right of the family that is being claimed or pursued;
(ii) the Plaintiff may assert his own right to the chieftaincy stool if he could show from his pleadings and evidence, if evidence has been led, the nature of his interest and his entitlement to the stool. It is not enough for him to merely say that he is a member of the family. He has to say further that he had an interest in the chieftaincy title and plead further in his statement of claim how his interest arose.” See Emezi V. Osuagwu (2005) 12 NWLR (Pt.939) 340 at 359- 360.
Applying this test to the case in hand it is clear that the plaintiffs have not shown in their pleading that they are suing the Defendants in a representative capacity for themselves and on behalf of other members of their respective ruling houses. The first test or criteria of how a plaintiff in a chieftaincy matter can be clothed with locus standi did not therefore apply to the plaintiffs in this case. Learned Counsel for the Plaintiffs submitted that his clients have satisfied the second criteria in that they have abundantly disclosed their interest in the chieftaincy stool. The Plaintiffs averred in their statement of claim that apart from being members of Talmoep, Salmanu, Nupawa and Dangana ruling houses respectively, they are also persons entitled to contest for the stool of the Village Head of Kurgwi . In pursuit of their interest they wrote protest letters to the 2nd, 3rd and 4th Defendants when the latter wanted to violate the custom of selection contained in exhibits A and B, judgment of the Court of Appeal and the Government white paper respectively. The plaintiffs led evidence to show that their non-participation in the selection of 15/8/2002 was due to the violation of the native law and custom relating to the selection of the Village Head of Kurgwi as judicially expounded in exhibit A by the Court of Appeal as well as the Government white paper on the stool. They decided to head for the Court when the 4th Defendant in exhibit D consigned their protest to the dustbin. The first Defendant denied that the Plaintiffs are members of any ruling house but the second- fifth Defendants admitted in their pleading that the Plaintiffs are members of four out of the five ruling houses of Kurgwi .
I am satisfied from the evidence before me and particularly exhibits G, H, L,, Q, and R which are minutes of various meetings of the Quaan Pan Traditional Council that the Plaintiffs are members of ruling houses in Kurgwi. At least the Local Government Council and the Traditional Council have held them to be so. They have been summoned several times as members of Kurgwi ruling houses by the Traditional Council in the Council’s quest to fill the vacant stool of the Village Head of Kurgwi. Furthermore, the evidence of PW2 is to the effect that he represented PW1 at one of the meetings of the Traditional Council where he stated the position of Talmoep ruling house. This evidence was not challenged. So the question is, if the first Plaintiff is not a member of Talmoep ruling house how comes he was always invited to represent that ruling house in the meeting of the Traditional Council and to make representations on behalf of Talmoep ruling house. Surprisingly, even DW2 who testified that the first Plaintiff is not a member of Talmoep ruling house, confirmed that the 2nd, 3rd and 4th Defendants are members of Salmana, Nupawa and Dangana ruling houses respectively contrary to the pleadings of the first defendant on whose behalf DW2 testified. Apart from being members of ruling houses, their participation in the series of meetings geared towards producing a Chief for Kurgwi people and their insistence on the use of the method of selection in exhibits A and B which represents their custom is a pointer to the interest they had over the stool; it is an interest that is higher and above the interest of other members of their respective ruling houses. Exhibits E and F which is a reply to their protests shows the level of interest the Plaintiffs have in the stool that is above those of other members of the ruling houses. Besides it is in evidence through DW4 that the 4th Plaintiff was nominated as contestant from Dangana ruling house in the selection of 15/8/2002 but that he turned down the nomination because he was against the improvised method of selection enshrined in exhibit “C”. What is more, from the contents of exhibit “A” the first Plaintiff had in 1985 contested for the same stool with the first Defendant leading to litigation, the result of which is exhibit “A”.
The sum total of my analysis and observations above is that the Plaintiffs are not only members of the various ruling houses in Kurgwi they are eligible to contest and have interest in the stool of the Village Head of Kurgwi. Their interest in the stool clearly superseded the interest of other members of their respective ruling houses. It is my finding therefore that the Plaintiffs have locus standi to institute this action. Accordingly, I hereby dismiss the objection of the two sets of defendants on this issue of locus standi.
Having resolved the two jurisdictional issues of competence of the Court and locus standi in favour of the plaintiffs, I will now proceed to the consideration of the other issues which touches on the merits of the case.
Issue No. 3
The two sets of Defendants pleaded, and learned Counsel for the 2nd – 5th Defendants submitted that the Plaintiffs are estopped from challenging the selection of the first Defendant having fully participated in the process leading to the making of exhibit “C” which is the modification of the Native Law and Custom relating to the selection of the Village Head of kurgwi. That having thus participated they are now estopped from contesting the method used in the selection as well as the actual selection of the first Defendant. There is no evidence before me that the Plaintiffs, whom I have held to have interest in the chieftaincy stool over and above the interest of other members of their ruling families, have waived their right to the use of the method of selection of the Village Head of Kurgwi recognised in exhibits A and B. On the contrary the evidence before the Court and the exhibits tendered all points to one direction; that the Plaintiffs have insisted on the use of exhibits A and B in the selection of the Village Head and in so doing outrightly rejected the use of exhibit “C” which is the modified custom of selection of the Village Head. See particularly exhibits D, E and F and the testimonies of PW1, PW2, DW2 and DW4. I therefore reject the submission of learned Principal State Counsel for the 2nd – 5th Defendants that the Plaintiffs have fully participated in the selection of the first Defendant and are therefore estopped from contesting same in Court. Accordingly, issue No.3 is resolved against the Defendants.
Issue No. 4
This issue deals with the workability and enforceability of Exhibits A and B. Exhibit “A” is the judgment of the Court of Appeal in Appeal number CA/J/145/86 delivered on 17/06/1987 where the Court confirmed the judgment of the Plateau State High Court in Suit No. PLD/J33/85 in which Uloko, C.J., declared that the following persons are the traditional selectors of the Village Head of Kurgwi.
1. Madaki
2. Galadima
3. Wambai
4. Kawap
5. Shinduar
6. Kanglu
Exhibit B on the other hand is Government White Paper on the Report of the Administrative Panel to look into grievances of Kurgwi people and allegations against some officials of Shendam Local Government. Learned Principal State Counsel submitted that with the death of the Village Head of Kurgwi, and all the six traditional selectors the Native Law and Custom in exhibits A and B are incapable of performance and therefore unenforceable. Earlier on learned Counsel to the first Defendant had submitted that the custom in Exhibit “A” is no longer a mirror of accepted usage of the Kurgwi people as it is repugnant to natural justice, equity and good conscience because insisting on that custom will mean that Kurgwi will forever remain without a Chief. In response, learned Counsel for the Plaintiffs submitted that even if the custom in exhibits A and B are unworkable, until that custom is validly modified it remains the custom of Kurgwi people.
I am in agreement with Mr. Obende that one of the features of customary law is its flexibility. Customary law is not static but dynamic. It is amenable to changes. Therefore where a custom will work hardship it can be modified to reflect the wishes and aspirations of the people to which it applies. But as stated by Mr. Ugwuala, until the custom is validly modified it remains the custom of the people. So my simple answer to issue number 4 is that notwithstanding the death of the traditional selectors and the Village Head the custom in exhibits A and B is enforceable until it is validly modified.
But there is yet another issue raised by Mr. Obende on the admissibility of exhibit B. He submitted that exhibit B is inadmissible in law because as a public document it was not certified. He referred to sections 111 and 113 of the Evidence Act and said that since Exhibit B is neither a Gazette nor was it printed on the order of Government, it is inadmissible notwithstanding the fact that it is already admitted. Mr Ugwuala on the other hand submitted that since exhibit B is printed by the Government Printer it is admissible in its original form under Section 113 of the Evidence Act.
It is not in dispute that exhibit B, being a Government White Paper, is a public document. Sections 111, 112 and 113 of the Evidence Act made provisions in respect of how public documents are to be proved. For our present purpose, Section 113 (a) (iv) of the Act is most relevant. That section provides –
“113. The following Public documents may be proved as follows:
(a) Acts of the National Assembly or laws of State legislature, proclamations, treaties or other acts of state, orders, notifications, nominations, appointments and other official communications of the Government of Nigeria or of any State thereof or of any Local Government -
(iv) by any document purporting to be printed by order of Government.”
Exhibit “B” contains Government views and decisions on the Report of the Administrative Panel to look into grievances of Kurgwi people and allegations against some officials of Shendam Local Government. The document is an original copy and is therefore not certified. It is printed by the Government Printer, Jos, and sold to the public at a tagged price of N3.50K. There is no inscription on the face of the document stating that it was printed by the Order of Government. But is the absence of such an inscription sufficient to read into the document the meaning that it was not printed on the order of Government? Is it a condition of admissibility of original public documents under this section that they must have inscription stating that they are printed by order of Government? I think not. If that was the intendment of the makers of the Evidence Act, it would have been expressly stated. In my view, it suffices that the document is “purported” to be printed by the order of Government with or without an inscription to that effect. This is exactly the contention of the Plaintiffs and I am inclined to believe them because the document was printed by the Government Printer, Jos. I am satisfied that exhibit “B” is an admissible document and is properly admitted by consent of both parties.
Issue No.5
This issue deals with the validity of exhibit “C” which is the Quaan Pan Traditional Council (Modification of the Native Law and Custom relating to the selection of the (Sangari) Village Head of Kurgwi) Order, 2002. This order was approved by the Commissioner for Local Government and Chieftaincy Affairs, Plateau State on 27/05/2002 and it is deemed to have come into operation on 24/05/2002. The selection of the first Defendant on 15/08/2002 was made pursuant to this order. From the heading and the recitals the order was made by the Plateau State Executive Council in exercise of the powers conferred on it by section 72 (3) (C) of the Plateau State Local Government Edict, 1976. This means that the enabling law from where the Executive Council derives its powers is the Plateau State Local Government Edict, 1976. Learned Counsel for the first Defendant, S. S. Obende Esq. submitted that the applicable custom for the selection of the Village Head of Kurgwi is exhibit “C” wherein the number of traditional selectors and how they are to be nominated are prescribed. e He
He submitted that the reference made to the repealed Local Government Edict, 1976, cannot invalidate the modification in exhibit C because recitals in a law are not operative. He submitted further that the powers of the Executive Council in the repealed Edict is preserved in the 1999 Local Government Law. H. N. Ugwuala Esq. learned counsel for the Plaintiffs on the other hand argued that exhibit “C” is not a valid modification of the native law and custom recognised in exhibits “A” and “B”. He submitted that with effect from 01/12/99 when the Local Government Edict 1976 was repealed by the Local Government Law of 1999, the 1976 Edict ceased to be a living law and was incapable of clothing anybody with any form of powers. Furthermore, he argued that nothing in the Local Government Law, 1999 enables the making of any document like exhibit C by any of the Defendants. He urged the Court to declare exhibit C invalid.
The Quaan Pan Traditional Council (Modification of the Native Law and Custom relating to the selection of the (Sangari) Village Head of Kurgwi) Order, 2002, (Exhibit C), is a subsidiary instrument made by the Plateau State Executive Council under powers enabling them in that behalf by section 72 (3) (c) of the Local Government Edict, 1976, which was repealed by the Plateau State Local Government Law No.1 of 1999. That Edict was repealed in 1999. Exhibit C was made in 2002 when the Edict enabling the making it was not a living law. The legal status of a repealed law is that it is regarded as if it has never existed, it is lifeless and incapable of enabling the doing of any act by anybody. Therefore any act purportedly done under a repealed and non-existing law is ab initio void for want of legislative backing. See Nangibo V. Okafor (supra). By the Constitutional separation of powers between the three arms of Government, the Executive Council of a State has no legislative powers, they cannot make any law, order, rules or any kind of subsidiary instrument without relying on a law enabling them in that behalf. For any subsidiary instrument made by the Executive Council to be valid, the source of power of the Executive Council must equally be valid. Where the Council purport to exercise a power under a non-existing legislation by making a subsidiary instrument, the exercise of that power and the subsidiary instrument made there under would be null and void.
However, there is this argument by Mr. Obende that the reference to the Local Government Edict 1976 was made in the recitals and that by the rules of interpretation recitals are not operative. Recitals are the background or origin of what is to be done. In the case of a subsidiary instrument, the recital must state where the makers of the instrument derive their powers in order to give validity to the instrument. Where a repeal law is recited as the source of the power of the makers of the instrument, the Court may even suo motu raise the issue of the validity of the instrument. Besides, our concern here is not the interpretation of the content of exhibit “C”, rather, we are concerned with the source of power of the makers of exhibit “C” as well as the validity of exhibit “C” itself. Therefore the rule of interpretation of enactment which excludes heading and recitals in the construction of an enactment does not apply to the issue at hand.
There is yet another argument by Mr. Obende that the powers of the Plateau State Executive Council under the repealed law is preserved in the1999 Local Government Law. He did not make any reference to any section of the Law. It therefore behoves on me to carefully scrutinise all the 66 Sections of the Local Government Law 1999, and I did as expected. Other than Section 62(6) which confers on the Local Government Traditional Council powers to determine traditional matters where appropriate, no reference is made to the power of the State Executive Council in respect of chieftaincy declaration to enable them make exhibit “C”. Therefore even if exhibit C was made under the Local Government Law, 1999, it would still have been a subsidiary instrument made without the necessary legislative backing and therefore invalid. You cannot put something on nothing and expect it to stand, it will collapse. See Macfoy V. UAC (1962) AC 152. That answers the last attempt of the learned counsel for the first Defendant to save exhibit “C”.
In conclusion, the totality of my comments, observations and legal analysis of exhibit “C” is that having been made pursuant to powers derived from a repealed law, that exhibit is bereft of legal validity from the onset and is hereby declared invalid, null and void.
Issue No.6
Learned Counsel for the first Defendant urged the Court to expunge the evidence of PW1 and PW3 to the effect that family members of deceased traditional selector could select one of them to replace him,on the ground that the Plaintiffs did not plead what the custom will be where all the traditional selectors or some of them are dead. Further that this piece of evidence is in conflict with exhibit “A” relied upon by the Plaintiffs. It is settled law which does not require the citing of judicial authority that parties are bound by their pleadings and any evidence given on facts not pleaded goes to no issue and shall be disregarded by the Court. I have perused the entire pleadings of the parties and my finding is that issues are not joined on the fact of selection of a deceased traditional selector by members of his family because that fact was not pleaded by the Plaintiffs. Consequently, the evidence of PW1 and PW3 in that regard is hereby disregarded.
It was also submitted for the Defendants that the Plaintiffs cannot seek for declaratory reliefs in a chieftaincy matter; that their remedy lies in an action by way of Prerogative Writ challenging the decision of the prescribed authority. I have already held in this judgment that there is a total absence of both substantive and procedural provisions which an aggrieved party can pursue under the Chiefs (Appointment and Deposition) Law, 1963. No remedy is provided for an aggrieved party other than the blanket provision that in the event of dispute the Governor shall be the Sole judge. Therefore, the present case is clearly distinguishable from the case of Owoseni Vs. Faloye (supra) in that the statute under consideration in this case did not provide any particular remedy to an aggrieved party. With this Lacuna in the provision of the Chiefs Law, 1963, I am of the view that nothing prevents an aggrieved party from seeking before the Court declaratory reliefs in the form in which the present Plaintiffs did. I find support for this view in the dictum of Karibi –Whyte JSC, in Eguamwense V. Amaghizemwen (supra) at 20.
“It is accepted that the action for declaration is a useful and important procedural method for ascertaining and determination of a point of law or the construction of a document, and for the determination of the validity of orders or decisions of inferior Courts or tribunals… Its nature is very much misunderstood. The action for declaration is used in a great variety of circumstances and is usually accompanied by ancillary reliefs. This procedure has been very commonly adopted in cases of disputes as to title to land held under customary law. It is also generally used in disputes as to title to chieftaincy”
In conclusion, consequent upon my findings and decision on all the six issues above, I hold that the Plaintiffs are entitled to the reliefs sought. I accordingly make the following declarations and orders:-
1. The Quan Pan Traditional Council (Modification of Native Law and Custom relating to the selection of the (Sangari) Village Head of Kurgwi) Order, 2002 is hereby declared invalid, null and void.
2. The method of selection of the Village Head of Kurgwi and the traditional selectors for that purpose remains and are as contained in the judgment of this Court and the Court of Appeal in Suit No.PLD/J33/85 and Appeal No. CA/J145/86 and also the Plateau State Government White Paper on the Report of the Administrative Panel to look into grievances of Kurgwi People and the allegations against some officials of Shendam Local Government as Published by the Government Printer, Jos.
3. The purported nomination, election and/or selection of the first Defendant on 15/8/2002 as the Village Head of Kurgwi having been made contrary to the custom and tradition of Kurgwi relating to the method of nomination, selection and/or election of the Village Head of Kurgwi is hereby declared invalid, null and void and of no effect whatsoever.
4. The first Defendant is hereby restrained from parading himself as the Village Head of Kurgwi and from performing any duties attached to that office or from anyway conducting himself or holding out himself as the Village Head of Kurgwi.
5. The 2, 3rd,,4th and 5th Defendants, their Agents or servants are hereby restrained from recognising or treating the first Defendant as the Village Head of Kurgwi and from in any way dealing with him as such on the strength of his purported selection of 15/08/2002.
JUSTICE M. I. SIRAJO
JUDGE
16/10/2006
