IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 13TH DAY OF FEBRUARY, 2015
BEFORE THEIR LORDSHIPS
IBRAHIM T. MUHAMMAD
JOHN A. FABIYI
JUSTICE, SUPREME COURT
MUSA D. MUHAMMAD
JUSTICE, SUPREME COURT
CLARA B. OGUNBIYI JUSTICE, SUPREME COURT
KUDIRAT M. O. KEKERE-EKUN JUSTICE, SUPREME COURT
1. ESLY YILBUK) …………………………… PLAINTIFF/RESPONDENT
2. ATTORNEY GENERAL OF
PLATEAU STATE) …………………………………
3. PANKSHIN LOCAL GOVERNMENT ……………….
In response to the foregoing, issues the 1st Respondent’s counsel relied copiously on the pleadings and evidence before the court wherein the issue of rotation as a feature of Somji Chieftaincy was an admitted fact between the parties and that the trial court was right when it upheld the concept of rotation. Without much ado, counsel in the circumstance, strongly urged the court to uphold the custom of rotation as a feature of Somji Chieftaincy since the holding of the trial court that: “Neha ruling house cannot take its turn, because they assisted Barn people to murder Kankalak and must first pay fine”, is perverse.
In further submission, counsel also re-iterates that the orders made by the Court of Appeal flowed from the claims of the Plaintiffs in the amended statement of claim and that the said decision of the trial court has not been appealed against. Further still, it is his submission that by Order 47 Rule (1) of the High Court (Civil Procedure) Rules of Plateau State 1987 and Sections 15, previously 16 of the Court of Appeal Act 2004 and 1976 respectively, the orders are justified.
He submits as true therefore, that from Kushada to Nde Boyi Goshit, Nees ruling house produced several Chiefs of Somji in succession but that the Plaintiffs in their pleadings and evidence before the court gave an explanation as to why Nees ruling house were allowed to produce such number of chiefs in succession against the custom of rotation; that the explanation was primarily because there were no eligible persons from Neha to ascend the throne and after enjoying the stool in succession for many years, members of Nees ruling house turned around and denied the fact that Neha is also a ruling house and this was what led to a dispute culminating into the case now before the court. Counsel submits therefore that the fact of absence of eligible candidates alone cannot be a negation of the admissions of the parties and the finding of the trial court that the Chieftaincy of Somji is rotational among the ruling houses of Somji.
It is the submission of counsel therefore that the orders made by the Court of Appeal are not a departure from the claims of the Plaintiffs on the amended statement of claim and do not also amount to making a new case for the parties; that both parties were ad-idem that there are two ruling houses not three for the purpose of the stool of village head of Somji which rotates between the ruling houses. In the result, the court is urged for a dismissal of the two issues therefore.
On the pleadings before the trial court, the Plaintiffs’ claims as distilled from the amended statement of claim are to the effect that the selection and installation of the 1st Defendant, now Appellant in this court, is null and void because it is the exclusive turn of Neha ruling house to select and present a candidate for installation as village head of Somji. The Plaintiffs also sought an order of perpetual injunction restraining the 1st Defendant/Appellant from parading himself about as village head of Somji and as well sought an order of perpetual injunction restraining the 2nd and 3rd Defendants from recognizing the 1st Defendant/Appellant as village head of Somji.
At Page 125 of the record of appeal, the learned trial judge in his judgment held and said:-
“I find that the evidence of the Plaintiffs and their witnesses is consistent regarding the tree of succession from Pus to Boyi Goshit. I do not find the same in the evidence of the Defence
witnesses… There is therefore a material contradiction in the evidence of the defence witnesses vis-a-vis D.W.2, D.W.3 and even D.W.5 (1st Defendant) who said that the first village head of Somji was DALDO. I find that most of the Defence witnesses could not trace the tree of succession from the 1st Chief to the last one.” However, at Page 133-134 of the record the trial judge had this conclusion to make:-
“On the whole I find that the Plaintiffs have only succeeded in establishing that Neha is a ruling house in Somji. They could not however establish that the stool is exclusively the turn of NEHA ruling house since NEHA house has not paid compensation for aiding the murder of KANKALAK by BAM people. They therefore lost their turn to succeed after the death of BOYI GOSHIT the last Chief of Somji.”
From the foregoing findings by the trial court, two facts are established:- that Neha House to which the Plaintiffs belong is a ruling house for the purpose of the stool of village of head of Somji; the next point of contention and raised by the 2nd issue is whether the Plaintiffs did prove the fact of rotation at the trial court which calls for recourse to be had to the pleadings of parties. In other words, the reproduction of Paragraphs 28, 29, 31, 42 and 44 of the Plaintiff’s amended statement of claim are in point and which succinctly informs that by the customs and traditions of the people, the stool of village head of Somji rotates among the two ruling houses of Somji. The reproduction of Paragraphs 28, 29, 31, 42 and 44 state as follows:-
At Pages 40-42 and 44 of the record, the 1st Defendant now Appellant in response to the foregoing paragraphs replied on his statement of defence and admitted the fact of rotation as a feature of Somji Chieftaincy as pleaded by the Plaintiffs. The paragraphs said:-
By the state of pleadings at the trial court, the fact of rotation as feature of Somji chieftaincy was an admitted fact and as rightly submitted by counsel to the 1st Respondent; hence issues were therefore not joined on the fact of rotation with the fact having been admitted. It is deemed proved and needed no further proof. Section 75 of the Evidence Act and the case of Adedeji v. Oloso (2007) 1-2 S.C. 76 are well in support of admitted facts which needed no further proof. In addition to the admission on the pleadings, the evidence led before the trial court was overwhelming in support of the fact of rotation.
It is conclusive therefore that the evidence of rotation is of a general consensus by the parties. At Pages 133-134 of the record reproduced supra, the trial court in its judgment agreed with the Plaintiffs that the stool is rotational but went ahead to hold that Neha could not however establish that the stool is exclusively the turn of Neha ruling house since it has not paid compensation for aiding the murder of Kankalak by Barn people, so they lost their turn to succeed after the death of Boyi Goshit.
On the question as to why Nees ruling house produced several Chiefs of Somji in succession against the custom of rotation, the fact is only a confirmation that the practice of rotation is not strictly adhered to as if it is a Decree established like the laws of Medes and Persians. It only suggests that where a particular ruling house is unable to produce eligible candidates to ascend the office at particular times and in successions, when it is their turn, the other ruling house can produce Chiefs for purpose of fulfilling such successions. On the fact of rotation, the counsel for the Appellant cited the cases of Buraimoh v. Esa & Ors (1990) 4 S.C. 1.
As rightly submitted on behalf of the 1st Respondent, the cases are inapplicable to the one at hand because the people of Somji have proved that by their custom, there are instances where rotation may not be strictly followed and adhered to. The same is not the case with those cases under reference and they do not aid the Appellant’s case. The learned counsel for the Appellant also made reference to Page 201 of the record wherein the lower court held that the Plaintiffs did establish the rotational stool of the village head of Somji. In the view of counsel there was no pleading upon which the finding of the lower court was based. In other words, that there was no evidence led to establish the issue of rotation. With all respect to the submission of counsel, it would appear as if he had completely misconceived the judgment of the lower court at Pages 200 and 201 of the record wherein the concept of rotation was fully-testified to and the reason why the lower court endorsed the findings by the trial court and said:-
“The learned trial judge found at Page 128 of the record of appeal that the 1st Defendant/Respondent came from NEES ruling house.
The learned trial judge also found that the stool of village head of Somji was once occupied by NEHA ruling house which held the stool in succession until it was given to KUSHADA from NEES ruling house. He also found that NEES ruling house has since been holding the stool in quick succession from KUSHADA to BOYI GOSHIT, the last village head of Somji and that there were several frantic efforts by the NEHA ruling house to get back the stool, but on each occasion was met with promise which was never fulfilled.
The learned trial judge then found that the stool of the village head of Somji is rotational among the ruling houses. I agree with those findings by the learned trial judge. The findings are supported by credible evidence led before the trial court by the parties. There is evidence that NEHA ruling house ruled for some years and thereafter the NEES ruling house ruled for many years and that the stool is rotational.”
In my view, it is not correct as submitted by the Appellant’s counsel that there was no evidence led to establish the issue of rotation. The evidence is over whelming and positive when recourse is to the testimonies of parties and their witnesses.
For instance, it is on record before the trial court that the Plaintiff/Respondent pleaded and proved that Ndam Wuryep was succeeded by the son of his full blood sister by name Kushada whose father was from Nees family. In other words the Plaintiffs/now first Respondent showed how the stool was transferred through Kushada to Nees family and Kushada thereby marked the beginning of the reign of Nees family down to Boyi Goshit, the last village head.
The lower court could not therefore be faulted in its view that the evidence of the Plaintiffs/1st Respondent and their witnesses was very consistent regarding the line of succession from Pus to Boyi Goshit. The same however could not be said of the Defendant/Appellant on his evidence. For instance D.W.1 testified that the founder of Somji was one called Gosomji who had two sons by name Barn and Nees. D.W.2 in his evidence however contradicted the Appellant wherein he said the first village head of Somji was Kankalak. The witness neither knew Gosomji nor could he say who succeeded Kankalak on the throne. He only knew Gowon and Boyi Goshit as the last village head of Somji. D. W. 3 on his part knew Goshit only whom he said was the first village head of Somji. The Defendant/Appellant now before us testified as D. W. 5 and gave evidence that the 1st village head of Somji was one Daldo. The totality of the Defendants/Appellant’s witnesses, himself inclusive, had confirmed that none of them could trace the tree of
succession from the first village head to the last one.
In the course of this judgment the fact has been explained as to why Nees ruling house produced Chiefs of Somji in succession against the custom of rotation. The fact which has not been challenged cannot now be a negation of the clear findings of rotation. In my view, the lower court was on a sound footing and reasoning when it reviewed as it did, the evidence before the trial court and I also endorse.
From the foregoing, it follows that relief 48(b) of the Plaintiffs’ claim to the effect that Neha ruling house is the sole house or have the right to aspire to the stool after the demise of Nde Boyi Goshit, is founded on the custom of rotation that, if the immediate Chief is from Nees and the next House Neha has an eligible candidate, then it will be their (Neha’s) sole right to produce a candidate to occupy the stool. Therefore, contrary to the submission by the Appellant’s counsel, the said relief cannot be interpreted as if Neha is the only recognized Ruling house in Somji. For purpose of recapitulation the following facts are well settled; that is to say that Neha is a ruling house for the purpose of the stool of village head of Somji; that there are two ruling houses in Somji namely (a) Neha and (b) Nees (Nees and Barn are blood brothers and therefore they belong to the same ruling house, which evidence was not contradicted); that the selection to the Chieftaincy of Somji is rotational between the two ruling houses-Neha and Nees.
The trial court in its judgment agreed with the Plaintiffs that the stool is rotational but however went ahead to hold that the Neha ruling house could not establish that the stool was exclusively the turn of its ruling house, since it had not paid compensation for aiding the murder of Kankalak by Barn people and that it had lost its turn to succeed after the death of Boyi Goshit. At Page 204 of the record, the lower court opined that: “It is my view that the NEHA Ruling house has proved that the stool was exclusively the turn of NEHA ruling house on the death of Boyi Goshit …” It is submitted on behalf of the Appellant that the proof of the foregoing assertion is on the Plaintiffs; that none of the Plaintiff’s witnesses testified positively as to the exclusive nature of the turn of the NEHA family to produce a candidate for the stool; that the only evidence by P.W.6 on which the lower court relied was not sufficient.
It is pertinent to emphasize that there was no evidence on record before the trial court that people of Neha ruling house aided Barn people in murder of Kankalak and must pay compensation before they ascend the throne. To the contrary, it was admitted by both parties at the trial court that it was Barn people without the assistance of any family that assassinated Kankalak and for that reason, Barn people were driven out of Somji.
The issue as to who murdered Kankalak was an admitted fact therefore and which needed no further proof. Section 75 of the Evidence Act is in point on facts admitted. As rightly held by the lower court, there was no pleadings or any evidence led by any witness to show that Neha ruling house assisted or aided the Barn people as alleged. The payment of compensation sought to ascribe to the NEHA ruling house was certainly without any foundation but probably invented primarily, with the intention of depriving the Neha ruling house of their right to the office. It is not open for a court to make out a case for any party. That assertion was a mere and baseless calculation which was not part of the case of the parties before the trial court. See the case of Akinsumi v. Adio (1997) 8 NWLR (Pt. 516) 277 where it was held that a court is not competent to make a case for any of the parties; to do so will be against all known principles of fair hearing or fair trial. In the circumstances of the foregoing, and in view of the state of pleadings and the evidence adduced before the trial court, the court below was not in error when it held and concluded that the allegation relating to the murder of Kankalak could not be ascribed to Neha ruling house. I therefore endorse the view held by the lower court that the finding by the trial court was grossly perverse and I so hold.
On behalf of the Appellant, it was also submitted that the lower court awarded reliefs which were not sought on the Plaintiffs’ statement of claim at the trial court.
The law is trite and well settled that an appeal is a continuation of the original claim and the lower court as rightly submitted by the Appellant’s counsel is obliged to resolve issues that emanate from the claim in the trial court.
It is the submission by the counsel for the Appellant for instance that the Plaintiffs did not only change the nature of their reliefs in the trial court but that they completely departed from the state of their pleadings; that reliefs 4(b) and (c) in their notice of appeal before the lower court were completely different and alien from the ones sought before the trial court per Paragraph 48(b); that in the circumstance, the counsel has called on this court to interfere with the findings of the lower court for the reasons that the reliefs granted were not sought in the trial court and also that no leave was sought and obtained from the lower court to incorporate them in the notice of appeal.
In response, it is submitted on behalf of the 1st Respondent that contrary to the contention put forward by the Appellant, the Plaintiffs did not depart from their reliefs in the high court, when they appealed before the lower court; that all the reliefs sought at the Court of Appeal flowed from the reliefs in the high court which were granted in part by the high court. The reliefs sought by the Plaintiffs/Respondents at the trial court are all spelt out and reproduced in the course of this judgment.
The following facts are also proved conclusively in the course of the judgment that: – Neha is a ruling House for the purpose of the stool of village head of Somji; that there are two ruling houses in Somji namely Neha and Nees Ruling houses and that the Chieftaincy is rotational between the two ruling houses; that it is now the turn of Neha ruling house to present a candidate for installation as village head (chief) of Somji. In other words, with the stool now being declared an exclusive turn of the Neha ruling house it follows naturally that the purported nomination, selection and/or election as well as appointment and installation of the 1st Defendant/Appellant is null and void and of no effect as rightly confirmed by the lower court. The court also proceeded to make a consequential order that a fresh election be made for the stool of the village head of Somji and that the selection is to be restricted to the Neha ruling house alone.
For all intent and purpose, there could not have been a different conclusion expected on the outcome of this appeal. In other words and as rightly submitted by the counsel for the 1st Respondent. All the orders made by the court below are a consequence of the finding of the trial high court that Neha is a ruling house in Somji for the purpose of the stool, of village head of Somji and the stool is rotational among the ruling houses of Somji. If Neha is a ruling house and the stool is rotational, equity demands that they take their turn; and if it is their turn, Nees ruling house cannot, while it is the turn of Neha ruling house select and present a candidate to occupy the stool of village head of Somji. The reliefs ordered by the Court of Appeal in the circumstance, are a natural consequence of the finding of the trial court that Neha is a ruling house and which has not been appealed against. It is therefore binding on all the parties. The cornerstone of the Plaintiffs/Respondent’s case was the findings by the trial court that Neha is a ruling house and is eligible to produce a candidate to occupy the stool of village head of Somji. That fact cannot now be erased but is very well established. Contrary to the contention held by the learned counsel for the Appellant, all the reliefs claimed in the Court of Appeal are as a consequence of the reliefs partially granted by the high court; they are not independent and different but came sequentially as a result of the trial court failing to make the order in respect thereof, had proper consideration been given to the case. Put differently, the orders are natural having flowed as a result of the outcome of the case presented before the trial court.
Furthermore and even in the face of Order 47 Rule 1 of the Plateau State High Court (Civil Procedure) Rules 1987, it is open to the court in all causes and matters to make any order which it considers necessary for doing justice whether or not such order has been expressly asked for by the person entitled to the benefit there from. The error made by the trial court was appropriately
remedied by the lower court in invoking the provision of Order 47 Rule 1 of the High Court (Civil procedure) Rules supra. Contrary to the wrong contention conceived by the Appellant’s counsel, the order made, did not amount to making a new case for the parties; rather, they were made, to do justice in the circumstance of the case, which is the foundation and cornerstone of our judicial system and the Constitution.
Even in the face of repetition, it has been declared in the course of this judgment that rotation applies and Neha ruling house should take its turn to present a candidate to occupy the
stool; the consequential effect is that the selection of 1st Defendant/Appellant from the Nees ruling house is not proper. In my view and as rightly held by the lower court, and I also hold, the justice of this case will best be served that his purported selection and installation should be, and is hereby nullified so that Neha ruling house can take its turn in accordance with the established custom. The orders made by the Court of Appeal are not a departure from the claims of the Plaintiffs on the amended statement of claim and do not also amount to making a new case for the parties.
The submission by the Appellant’s counsel in that respect is grossly misconceived. Issues 2 and 3 are therefore resolved against the Appellant. The 4th and last issue challenges the findings of the lower court, which the Appellant submits as perverse, that the kingmakers or selectors of the stool of the village head of Somji are the council of elders of the ruling houses. The Appellant’s counsel, for purpose of substantiating the foregoing issue submitted emphatically that there is nothing from the evidence of the defence witnesses to show that the elders of the ruling houses select the Chief; it is therefore difficult to ascertain which evidence the lower court relied on for its conclusion, that “the kingmakers or selectors are the council of elders of the ruling houses.”
In summary, it is the submission of counsel that the Plaintiffs’ evidence was inconsistent and contradictory as to how the next ruling house produced the village head of Somji. Also that the Plaintiffs did not plead or lead evidence to establish who the traditional selectors to the stool of the village head of Somji are; that the Plaintiffs/Respondent’s evidence of the selectors in one breath supported that of the Defendant/Appellant and in another breath contradicted each other.
The counsel submits finally that the selection of the 1st Defendant/Appellant was in accordance with the customary law of the people of Somji. In contradicting the Appellant’s submission, the 1st Respondent related to a portion of the trial court’s judgment which accepted the method of selection as described by D.W.1. The Plaintiffs were unhappy with that decision and appealed successfully to the lower court which allowed same and reversed
the decision of the trial court, and held that the real kingmakers or selectors are the council of elders of the ruling houses. In summary, it is the submission of counsel therefore that, contrary to the Appellant’s contention, the finding of the Court of Appeal relating the kingmakers of Somji as council of elders (supra) is not perverse as same is supported by the admissible evidence placed before the trial court. He urged in favour of dismissing this appeal and affirms the decision of the lower court in its entirety.
At Page 211 of the record of appeal the lower court held and said:- “When the evidence led by the Appellants is considered along with the conflicting evidence led by the Respondents witnesses, it seems to me and I so hold that the real kingmakers or selectors are the council of elders of the ruling houses who select one among princes and present same to the so called six (6) title holders as a candidate for installation, whereby the village head of Bolkon and the Sim Wari would present the candidate with traditional spear (i.e. staff of office) and the tradition costumes.” It is pertinent to note that the lower court arrived at its decision as a result of its findings that the Appellant before it and now Respondent before us presented consistent and credible evidence before the trial court as against the Respondent before it who is now the Appellant before us, whose evidence was characterized as conflicting. The determination of this issue calls for a review of the evidence by the witnesses of both parties, given before the trial court.
The law is well positioned that where there are material contradictions in the evidence adduced by a party, the court is enjoined to reject the entire evidence as it cannot pick and choose which of the conflicting versions to follow. The entire evidence must be rejected. See: Mogaji v. Cadbury (1985) 7 S.C. (Reprint) 31. The lower court, I hold, was right, when, having reviewed the entire evidence, it rejected that of the Defendant/Appellant and preferred those of the Plaintiffs/Respondent on the issue of the kingmakers and the king making process of Somji. It is not true, as wrongly submitted on behalf of the Appellants, that there were material contradictions in the evidence of the Respondents on this point.
The court does not reject the evidence of a party simply on minor contradictions. This is more so especially in situations where proof is based on evidence of traditional history, as it is in the case at hand; there are bound to be slips in the evidence of witnesses; absence of such would certainly give reason for casting doubts on the credibility and the truth of the witnesses. Traditional history of witnesses cannot come out in mathematical exactness or exactitude. See Ezekwesile v. Onwuangu (1998) 3 NWLR (Pt. 541) 217 at 245 CA.
The Court of Appeal was on a sound footing and could not be faulted when it preferred the evidence of the Plaintiffs/Respondent on this issue as against that of the Defendant/Appellant. In the same vein, and like the sum of issues 1, 2 and 3 (supra), issue no. 4 is also devoid of any merit and is hereby dismissed accordingly.
In the result and with all the issues resolved against the Appellant, the totality of the appeal is lacking in merit and dismissed. On the issue of costs, I make an order that each party should bear its costs of prosecuting this appeal. Appeal is hereby dismissed with no order made as to costs.
On the Cross-appeal:- The 2nd and 3rd Respondent in the main appeal occupied the same position as 2nd and 3rd Respondents in the court below which reversed the judgment of the trial court and ruled that the Plaintiffs/Respondent had proved their case and were entitled to judgment. In other words, the Court of Appeal allowed the appeal and held that having proved that they, (Plaintiffs/Appellant before it and 1st Respondent/Cross-Respondent in this court) belong to a ruling house in Somji and the stool of village head of Somji is rotational and it is now the turn of their ruling house, it is therefore their exclusive right to occupy the stool.
On the one hand, the 1st Defendant/Respondent/Appellant before us felt dissatisfied with the judgment of the Court of Appeal and hence filed the main appeal in this court. The 2nd and 3rd Respondents/Cross-Appellants are in total support of the said appeal and urged in favour of allowing same thereof. On the other hand however, the 2nd and 3rd Respondents/
Cross-Appellants were dissatisfied also with the same judgment of the lower court and did file their notice of cross-appeal on the 16th November, 2011 containing three grounds of appeal and their particulars.
In accordance with the rules of court, the Cross-Appellant filed their joint Cross-Appellants’ brief of argument on the 16th November, 2011 but deemed properly filed on the 27th November, 2012. The 1st Respondent/Cross-Respondent’s brief of argument to the cross-appeal was also filed on the 3rd January, 2013. No brief was filed on behalf of the Appellant/1st Cross-Respondent.
At the hearing of the cross-appeal, counsel relied on their respective briefs of arguments. While Mr. Pwajok representing the Cross-Appellants urged in favour of allowing the cross-appeal, Mr. Gotom on behalf of the 1st Respondent/Cross-Respondent submitted against the cross-appeal as lacking in merit and that it should be dismissed. The three issues raised for determination in the cross appeal are as follows:-
Issues for determination
1. Whether the court has jurisdiction to entertain this suit, having regard to the fact that all
venues prescribed by the relevant statute have not been exhausted. (Ground 3).
2. Whether the case as made out by the 1st Respondent was that ascension to the stool of
the village head of Somji was rotational to warrant judgment being entered for the 1st
Respondent/Cross Respondent by the court below when his claim was clearly that. NEHA
and NEES are the ruling houses of Somji village, any member of which can aspire to the
throne of Somji village. (Ground 1).
3. Whether the documents which were admitted in evidence without objection should not have probative value ascribed to them (Ground 2).”
Without having to dissipate energy or belabour effort unnecessarily, I will point out quickly that the issues raised and argued in the 2nd and 3rd Respondents/Cross-Appellants brief of argument are substantially the same as those raised and argued in the Appellant’s brief of argument. There cannot be a different approach to resolving the issues; rather, the obvious is for the cross-appeal to suffer the same fate as the main appeal. In other words, and as rightly submitted by the counsel Mr. Gotom, the cross-appeal, like the main appeal is totally devoid of any merit and should be dismissed. I so hold and dismiss the cross-appeal therefore with no order made as to costs.
On the totality of the appeal and cross-appeal, both are hereby dismissed with no order made as to costs.
QUOTE: By the provisions of Section 236(1) of the 1979 Constitution which is same as Section 272(1) of the 1999 Constitution, the high court of a state has unlimited jurisdiction to hear and determine any civil proceeding in which the existence of a legal right, power, duty, liability, interest, obligation or claim is in issue.
The Constitution is also held as supreme by virtue of Section 1(i) of the 1979 provision which is also same in the 1999 Constitution. The effect is, if any law is inconsistent with the provisions of the Constitution, the other law shall to the extent of the inconsistency be void while the Constitution shall prevail.