3PLR – MALLAM SIYAKA O. LAWAL & ORS V. ALHAJI M.J. IBRAHIM OHIDA & ORS

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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MALLAM SIYAKA O. LAWAL & ORS

V.

ALHAJI M.J. IBRAHIM OHIDA & ORS

IN THE COURT OF APPEAL OF NIGERIA

ON MONDAY, THE 12TH DAY OF JANUARY, 2009

CA/A/181/06

3PLR/2009/24 (CA)

 

 

OTHER CITATIONS

 

(2009) LPELR-8372(CA)

 

 

BEFORE THEIR LORDSHIPS

MARY U. PETER-ODILI, JCA

OYEBISI FOLAYEMI OMOLEYE, JCA

ABDUL ABOKI, JCA

 

BETWEEN

1. MALLAM SIYAKA O. LAWAL (Obobahin of Ihima)
2. MALLAM SALIHU ADEMOLA ADEMOH
3. ALHAJI (DR.) ADO IBRAHIM – Appellants

 

AND

1. ALHAJI M.J. IBRAHIM OHIDA
2. ALHAJI AHMODU ANIVASSA
3. ALHAJI MAIGIDA U. LAWAL
4. ALHAJI ISA SANNI OMOLORI
5. ENGINEER IDRIS SERIKI
6. COMRADE NWAHA MOMOH SANNI
7. MILITARY ADMINISTRATOR, KOGI STATE
8. ATTORNEY-GENERAL, KOGI STATE Respondents

 

REPRESENTATION

1. Mr. Oluwole Aladedoye
2. Akin Akintan
3. M.B. Aladesawe (Mrs.)
4. Mr. J. A. Abrahams HAG Kogi State
5. Mr. G.O. Salihu DCL – For Appellant

 

AND

Mr. O. A. Ayodele – For Respondent

 

MAIN ISSUES

 

1. WORDS AND PHRASES – “DECISION”: Meaning of the word “Decision”

“Decision” is defined in Black’s law Dictionary, 7th Edition as, a judicial determination after the consideration of facts and the law; especially, a ruling, order, or judgment pronounced by a court when considering or disposing of a case. In the case of: Falola Vs. U.B.N Plc. (2005) 7 NWLR (pt. 924) p. 417, paras. E – G., it was held that, by virtue of the provisions of Section 318(1) of the 1999 Constitution, “decision” means, in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation. From this definition, it is clear that “decision” includes “judgment” and 50 a “final decision” is and includes a “final judgment”. Further in the case of: Umar Vs. Onwudine (2002) 10 NWLR (Pt. 774) p. 129, a “decision of a court” was held to be a determination of that court in proceedings before the court and it is said to include or cover the determination of an application before it but does not include an observation or expression of opinion by the court not related to issues joined by the parties in dispute. See also the case of: Bello Vs. Gov., Kogi State (1997) 9 NWLR (Pt. 521) p. 496.”Per OMOLEYE, J.C.A.(Pp. 99-100, paras. E-F)

 

2. WORDS AND PHRASES – “OBITER DICTA”: Meaning of the phrase “obiter dicta”

“The phrase “obiter dicta” means statement constituting the opinion of the Judge which do not embody the resolution of the court. Although if may have considerable weight, it is not binding on courts as it is mere statement made in passing.”Per OMOLEYE, J.C.A.(P. 93, paras. D-E)

 

3. PRACTICE AND PROCEDURE – ACTION – ADMISSION: Whether admitted facts require further proof

“The trial Court rightly pronounced on this issue. It was an admission against the interest of the Appellants. It is irrelevant that it was not pleaded. In law, the admission needs no further proof. This legal position was rested on the cases of: (1) A.C.B. Plc. V Nwodika (1996) 4NWLR (Pt. 443) p. 470 at p. 490; (2) Iga V Amakiri (1976) II SC p. 1; (3) A.C.B. Ltd V Gwagwalada (1994) 4 NWLR (pt. 342) p. 25 at p. 42; (4) Alli V Alesinloye (2000) FWLR (Pt. 15) p. 2610 and (5) Ejebu V Okolo (2000) FWLR (Pt. 79) p. 1356.”Per OMOLEYE, J.C.A.(P. 42, paras. D-G)

 

4. INTERPRETATION OF STATUTE – CANON OF INTERPRETATION: Principles guiding the interpretation of Statute by Court

“The law is trite that it is the duty of the Court to interpret the law as it is and not as it ought to be. For, it is not the function of the court to make laws but to interpret the words used by the legislature whose primary function it is to make laws; while that of the court is to declare them. The Court cannot or permit anyone to write into a statute what its makers failed to insert either deliberately or inadvertently, as this would amount to a usurpation of the functions of the legislature under the thin disguise of interpretation of the statute. It is less justifiable when it is a guess work with what material the legislature would, if it had discovered the gap, have filed it in. It is a generally accepted principle of law that, in construing the provisions of a statute where the words are clear and unambiguous, it is the words used that prevails and not what the court says the provisions mean. The courts are enjoined to employ the literal Interpretation of such clear and unambiguous words except where the literal Interpretation of the provisions of the statute will result in absurdity or injustice. No court is entitled to substitute its words or the words of another for the words of an Act. The Supreme Court held in the case of: Amaechi Vs. INEC. (2008) 5 NWLR (Pt. 1080) p. 227 per Aderemi; J.S.C. at p. 437 paras. F-G., as follows: “The fundamental duty of the Judge is to expound the law and not to expand it. He must decide what the law is and not what it might be where the words used in couching the provisions are clear and unambiguous they must be given their ordinary and grammatical meanings, no more. Yes, it is true that it is said, that the “judex” must always have a resort to the intention of the legislator,’ that intention can only be found in the words used to frame the provisions and nowhere else. ” See also the cases of: (1) Abubakar Vs. A. – G., Fed (2007) 3 NWLR (pt. 1022) p. 601;(2) Mobil Oil (Nig.) Ltd V. F.B.I.R. (1977) 3 SC p. 53; (3) Nabhan V. Nabhan (1967) All NLR p. 47 and (4) Goodrich V. Paisner (1957) A. C. p. 65 at p. 85. In the case of: Mobil Oil (Nig.) Ltd V. F.B.I.R. (supra) at p. 74, the Supreme Court stated as follows: “The general rule for construing a statute is where the words of a statute are clear the court shall give effect to their literal meaning. It is only when the literal meaning may result in ambiguity or injustice that the court may seek internal aid within the body of the statute itself or external and from statute “impari materia” in order to resolve the ambiguity or avoid doing injustice. ” The law is equally trite that where a statute stipulates a particular method of performing a duty regulated by the statute, that method, and no other method must be followed in performing the duty. See the cases of: (1) Commerce Bank Nig. Ltd Vs. A.-G., Anambra State (1992) 8 NWLR (Pt. 261) p. 528: (2) Ibrahim V. I N E C. (1999) 8 NWLR (Pt. 614) p. 334 and (3) Abubakar V. A.-G., Fed (supra) at pgs. 643 – 644, paras. G-C”Per OMOLEYE, J.C.A.(Pp. 63-65, paras. D-D)

5. CUSTOMARY LAW – CHIEFTAINCY MATTERS: Effect of exclusion of persons with vested interest in the selection or appointment of a chief

“It follows that the non-inclusion of Secretaries of the Local Government Councils in the deliberations covered by Exhibit P5 meant that they have been deprived of their rights to partake in the proceedings of 9/5/97 as persons having vested interest in the selection or appointment of Ohinoyi: See: Ndayako V. Jikantoro (2005) 1 FWLR (Pt. 25) 857, 887. The exclusion of Secretaries to the Local Government Traditional Council who are entitled to attend the meeting as Kingmakers renders the proceedings of 9/5/97 (Exh. P5) as BAD and to that extent the meeting/proceedings is invalid I rely on Oladokun V. Military Government, Oyo State. (1996) 8 NWLR (Pt. 467) 387- 412 – 413.”Per OMOLEYE, J.C.A.(P. 57, paras. A-D)

 

6. CUSTOMARY LAW – CHIEFTAINCY MATTERS: Whether the procedure for ascension to the stool can deviated from

“I have also founded, upholding the views of the trial Court that, on the part of the Respondents, there was non-compliance with the provisions of Sections 3 and 5 of the Edict under which the stool of Ohinoyi of Ebiraland was established and the procedure for filling a vacancy in the said stool was laid down. The Council of Kingmakers did not even commence, not to talk of performing fully its functions pursuant to the provisions of Section 5 of the Edict in the matter of the selection, and appointment of Dr. Ado Ibrahim. The procedure prescribed by the Edict being a requirement of law, must be strictly adhered to. The Ohinoyi Chieftaincy is a creation of the said statute. The procedure for ascension to the stool is similar to a chieftaincy declaration which cannot be deviated from. See the cases of: (1) Sosanya Vs. Onadeko (2000)11 NWLR (Pt. 677) p. 34; (2) Mil Admin. of Ekiti State Vs. Aladeyelu (2007) 14 NWLR (Pt. 1055) p.619 and (3) Akuneziri vs. Okenwa (2000) 16 NWLR (Pt.691) p. 526.”Per OMOLEYE, J.C.A.(Pp. 86-87, paras. E-B)

7. CUSTOMARY LAW – CHIEFTAINCY MATTERS: Appointment of a successor to a vacant stool as a result of death, resignation or deposition of any Chief

“By virtue of Section 3 (1) & (2) of the Chiefs law, upon the death, resignation or deposition of any Chief, the Governor shall approve as the successor of such Chief any person appointed in that behalf by the Kingmakers under native law and custom. If no appointment is made before the expiration of such interval as is usual under native law and custom, the most senior traditional ruler in status in that domain shall carry out certain duties incidental to the Chieftaincy as it may be necessary to perform pending the appointment of the Chief by the Kingmakers. In case of any dispute, the Governor shall, after due inquiry and consultation with the Kingmakers be the sole judge as to whether the appointment has been properly made. In respect of chieftaincies which are creations of statutes, the procedure for appointment under Section 4(1) & (2) of the Chiefs Law as earlier on alluded to is quite different. For ease of reference and clear understanding, I will reproduce hereunder as follows, the said provisions of Section 4(1) and (2) of the Chiefs Law: “4. (1) The provisions of section 3 shall not apply to the office of a Chief which did not originate under Native Law and Custom but is a creation of Statute. (2) Upon the death, resignation or deposition of any Chief referred to in sub-section (1) of this section the Governor shall approved (sic) as the Successor of such Chief, any person appointed in that behalf by the Kingmakers in accordance with the provisions of the Statute creating the Chieftaincy, “Per OMOLEYE, J.C.A.(Pp. 44-45, paras. A-A)

 

8. PRACTICE AND PROCEDURE – APPEAL – CROSS-APPEAL AND RESPONDENT’S NOTICE: Distinction between a cross-appeal and a Respondent’s Notice

“In defining the distinction between a cross-appeal and a Respondent’s Notice, I must specify that they are opposed to each other. There are different reasons for filing a Notice of Appeal or a Respondent’s Notice. Order 9 Rules 1 and 2 of the Court of Appeal Rules, 2007, provide that a Respondent’s Notice is to be invoked in lieu of filing a Notice of Appeal or vice versa. A respondent has an option of invoking whichever one will be more beneficial in the circumstances of his case. A Respondent’s Notice has been used in cases with simple and straight forward uncomplicated judgments. See the cases of: (1) Pacers Multi- Dynamic M Vs. Dancing Sister (2000) 3 NWLR (Pt. 648) p. 241; (2) Ibe Vs. Onuorah supra; (3) Anyaduba Vs. N.R. T.C. L.td (1990) 1 NWLR (Pt. 127) p. 379 and (4) Ntuks Vs. N.E.P.A. supra.”Per OMOLEYE, J.C.A.(Pp. 101-102, paras. F-B)

 

9. PRACTICE AND PROCEDURE – COURT – DUTY OF COURT: Duty of Court to limit itself only to the issue raised and or canvassed by the parties before it

“The law is firmly settled that, it is the duty of a court to confine or limit itself, only to the issue raised and or canvassed by the parties before it. There are so many decided authorities in this respect. See the cases of: Onwunalu & Ors. Vs. Osademe (1971) 1 All NLR p. 15; Adeosun V. Babalola (1972) 5 S.C p. 292; University of Calabar V. Dr. Essien (1996) 10 NWLR (Pt. 477) p. 225 at p. 251; Madam Obulor & Anar. V. Obara (2001) 8 NWLR (Pt. 714) p. 25; Nigerian Bank for Commerce & Industry Vs. Integrated Gas (Nig.) Ltd & Anor. (2005) 4 NWLR (Pt. 916) p. 617 and very recently, A. G. Leventis (Nig.) Plc. Vs. Akpu (2007)17 NWLR (Pt. 10.63) p. 416.”Per OMOLEYE, J.C.A.(P. 71, paras. C-F)

 

10. PRACTICE AND PROCEDURE – COURT – DUTY OF COURT: Duty of Courts to apply existing registered declaration in a chieftaincy dispute

“The law is therefore trite that, it is the duty of the courts to apply existing registered declaration in a chieftaincy dispute. This legal principle was adhered to in several other cases subsequently, one of which is the case of: Olanrewaju V Oyeyemi (2001) 2 NWLR (Pt. 697) p. 229 at p. 263. paras. C – G, Adamu, J.C.A. stated as follows: “… I wish to reiterate the trite principle of law that in a chieftaincy dispute as in the present case where a re9istered declaration is found to exist it is the duty of the court to apply and enforce it as it represents the customary law regulating the chieftaincy in question. The registered chieftaincy declaration is deemed to be the customary law regulating succession to the chieftaincy when a vacancy occurs and will remain in force until it is repealed, amended or set aside by a competent authority or court – See Adigun Vs. A. – G., Oyo State (1987) 1 NWLR (Pt. 53) p. 678; Adigun V Gov., Osun State (1995) 3 NWLR (Pt. 385) p. 513; Imonikhe V. A.-G., Bendel State (1992) 6 NWLR (Pt. 248) p. 396; Popoola V. Adeyemo (1992) 8 NWLR (Pt. 257) p. 1; Oyebisi V. Gov., Oyo State (1998) 1 NWLR (Pt. 574) p. 441 at p. 457 and Obanla of Otan Aiyegbaju V. Adesina (1999) 2 NWLR (Pt. 590) p. 163 at p. 181. Since it is not the duty or function of the court to make or declare the customary law of the community (which has been described as a mirror of accepted usages) the function or duty of the court is only to apply such customary law where it exists in form of a registered declaration, it is not also proper for the said court to look for another or other set of evidence on the said customary law where there is a registered declaration in existence which is more binding and authoritative until set aside. Thus a registered declaration is like legislation and once registered it has a statutory effect and supercedes any other evidence on the customary law or usages which are in conflict with it. See Edewor Vs. Uwegba (1987) 1 NWLR (Pt. 50) p. 313; Imonike V. A.-G., Bendel State (supra) and Dyelami Vs. Mil. Admin., Osun State (supra).”Per OMOLEYE, J.C.A.(Pp. 50-51, paras. B-D)

 

11. PRACTICE AND PROCEDURE – COURT – EXCLUSIVE JURISDICTION OF THE COURT OF APPEAL: Exclusive jurisdiction of the Court of Appeal to hear and determine appeals from final decisions in civil or criminal proceedings of the Federal High Court, the High Court of the FCT, Abuja, the High Court of a State, Sharia Court of Appeal of the FCT, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of the FCT, Abuja, Customary Court of Appeal of a State and a Court Martial or other Tribunals

“Generally, under and by virtue of the provisions of Section 240 of the 1999 Constitution, this Court is vested with exclusive jurisdiction to hear and determine appeals from final decisions in civil or criminal proceedings of the Federal High Court, the High Court of the FCT, Abuja, the High Court of a State, Sharia Court of Appeal of the FCT, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of the FCT, Abuja, Customary Court of Appeal of a State and a Court Martial or other Tribunals.”Per OMOLEYE, J.C.A.(P. 99, paras. E-G)

12. PRACTICE AND PROCEDURE – APPEAL – INTERFERENCE WITH FINDINGS OF FACT OF A LOWER COURT: When an Appellate Court can interfer with the assessment and evaluation of evidence of a Trial Court

“It is an aberration and indeed an appellate Court has no jurisdiction to interfer with the assessment and evaluation of evidence of a trial court in the absence of special circumstances warranting such interference. It is a basic principle of law that the evaluation of evidence and the ascription of probative value to such evidence are the primary function of a court of trial, which saw and heard and assessed the witnesses while they testified before it. The trial court has a near exclusive jurisdiction on matters of appraising evidence. Where therefore a court of trial has properly evaluated the evidence, the appellate court will generally not interfere with such findings. See the cases of: (1) Baridan V. The State (1994) 1SC (Pt.5) p. 12; (2) Bakare V. The State (1987) 1 NWLR (Pt. 52) p. 579; (3) Garba V. State (1999)11 NWLR (pt.627) p. 422 and (4) ISC Services Ltd. Vs. G.C Ltd. supra at p.519, paras. E-F Therefore, ascription of probative value to the evidence before the court is pre-eminently that of the trial court that saw and heard the witnesses. An appellate court will not lightly interfere with same unless for compelling reasons. See the cases of: (1) Ebba V. Ogodo (1984) 1 SC p. 372; (2) Ogbechie V. Omochie (1988) 1 NWLR (Pt.70) pg 370; (3) Omoregbe V. Edo (1971) 1 All NLR p. 282 and (4) Ayua V. Adasu (1992) 3 NWLR (pt. 231) p. 598. Such compelling reasons are as follows: (a) If the finding is perverse and cannot reasonably be supported having regard to the evidence or (b) If the finding is an interference from established facts so that an appellate court is in as vantage a position as the trial court to draw its own conclusions or (c) If the trial court has applied wrong principles of law or (d) When the decision of the trial Court has occasioned a miscarriage of justice.”Per OMOLEYE, J.C.A.(Pp. 57-58, paras. D-F)

13. PRACTICE AND PROCEDURE – COURT – JURISDICTION OF COURT: Whether Court has jurisdiction over issues not placed before it

“It is a basic principle of law that when an issue is not placed before a court of law, the court has no business whatsoever dealing with such an issue. On this legal position, reliance was placed on the cases of: (1) Yekini A. Abbas & Ors. Vs. Olatunji Solomon & Ors. (2001) 7 SCNJ p. 546 at p. 564; (2) Florence Olusanya Vs. Olufemi Olusanya (1983) 3 SC p. 41 at pgs. 56 – 57: (3) Ochona Vs. Umosi (196)1 NWLR p. 321; (4) Buhari Vs. Obasanjo (2005) 7 SCNJ p. 1 at p. 97 and (5) Olukale Vs. Alade (1976)2 SC p. 183.”Per OMOLEYE, J.C.A.(P. 80, paras. E-G)

14. PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – PERVERSE DECISION OF COURT: When a decision of Court is perverse

“A decision is perverse where it is persistent in error, different from what is reasonable or required. Where the Judge took into account matters which he ought not to have taken into account or where the judge shuts his eyes to the obvious. See the cases of: (1) Atolagbe V. Shorun (1985) 1 NWLR (pt. 2) p. 360; (2) Nwosu V. Board of Customs & Excise (1988) 5 NWLR (pt. 93) at p.225: (3) Egba V. Appah (2005) 10 NWLR (pt. 934) p. 464 and (4) Oju L.G. V. INEC (2007) 14 NWLR (pt. 1054) p. 242.”Per OMOLEYE, J.C.A.(Pp. 58-59, paras. G-B)

15. PRACTICE AND PROCEDURE – ACTION – PLEADINGS: Effect of evidence not supported by pleadings

“The law is trite that evidence not supported by the pleadings of parties goes to no issue and must be discountenanced. On this legal position, reference was made to the cases of: (1) Adepoju V. Awoduyilemi (1999) 5 NWLR (Pt. 603) p. 364: (2) Pascutto V. Adecentro (Nig.) Ltd (1997) 11 NWLR (Pt. 529) p. 467 and (3) Buhari V. Obasanjo supra at p. 223.”Per OMOLEYE, J.C.A.(P. 70, paras. A-C)

16. PRACTICE AND PROCEDURE – ACTION – PLEADINGS: Whether parties and the Courts are bound by their pleadings

“The law is settled that parties and the courts are bound by their pleadings in the determination of cases, and evidence led on facts which are not pleaded goes to no issue. The court is equally prohibited from entering into enquiry outside the pleadings and from adjudicating upon any matter not put in issue “vide” pleadings. This legal principle was founded upon in the cases of: (1) Overseas Construction Ltd Vs. Creek Ent. Ltd supra; (2) Odinigi Vs. Oyeleke (2001) 6 NWLR (Pt. 708) p. 12 at p.35; (3) Emeogkwue Vs. Okadigbo (1973) 4 SC p. 113; (4) Atanda Vs. Ajadi (1989) 3 NWLR (pt. l11) p. 511; (5) Agu Vs. Ikewibe (1991) 3 NWLR (Pt. 180) p. 385 and (6) Gbadamosi Vs. Dairo (2001) 6 NWLR (Pt. 708) p. 137 at p. 158.”Per OMOLEYE, J.C.A.(Pp. 37-38, paras. F-C)

17. PRACTICE AND PROCEDURE – ACTION – PLEADINGS: Rules of pleadings

“What is more, it is a settled principle of law that only facts in issue and not evidence are pleaded. See the case of: G.N.I.C. Ltd Vs. Ladgroups Ltd (1986) 4 NWLR (Pt. 33) P. 72 at p. 77paras. G – H., Nnaemeka- Agu JCA (As he then was) stated as follows: “The trend of the argument in this appeal dictates that I should re-examine certain elementary rules of pleadings. In Philips Vs Philips (1878) 4 QBD 133 these basic rules were stated to be that the pleader must plead: (i) Material facts, not law; (ii) Material facts, not evidence: (iii) Material facts only: (iv) All material facts; and (v) All facts in a summary form. – – – — – – — – – — – – — — —– – – — – – — – – — These basic rules have found their way into most of our rules of court. “Also in the case of: Ezemba Vs. Ibeneme (2004) 14 NWLR (Pt. 894) p. 617 at p. 649 para. H, Edozie JSC (Rtd.) had the following to say: “I consider it appropriate to advert to one of the cardinal rules of pleadings which are that, a party is only required to plead facts and not the evidence by which those facts are to be proved.” Further on this principle of law in the case of: Bamigboye Vs. Uni of Ilorin (1991) 8 NWLR (Pt. 207) p. 1 at p. 24 para. A., therein Ogundere JCA (of blessed memory) stated thus: ”A party is to state the facts constituting the wrong of which he complained, not the evidence by which they are to be proved Thanni Vs. Saibu (1977) 2 SC p. 89 at p. 177.”Per OMOLEYE, J.C.A.(Pp. 88-89, paras. A-A)

18. PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – RATIO DECIDENDI AND OBITER DICTUM: Distinction between a ratio decidendi and an obiter dictum

“It is also well established that the expression of a Judge in a judgment must be taken with reference to the facts of the case which he is deciding, the issues calling for decisions and answers to those issues. There is a distinction between a ”ratio decidendi” and an ”obiter dictum”. The ”ratio decidendi” of a case represents the reasoning or principle or ground upon which a case is decided. An ”obiter” simply means, in passing or incidental or cursory. An “obiter dictum’ reflects, “inter alia’; the opinions of the Judge, which do not embody the resolutions of the court. See the cases of: (1) Osafile V. Odi (No.1) 0990 3 NWLR (pt. 137) p. 130; (2) A.I.C Ltd V. NNPC (2005) 11 NWLR (Pt. 937) P. 563 and (3) Awakunle V. NEPA (2007) 15 NWLR (Pt. 10.57) p. 340.”Per OMOLEYE, J.C.A.(Pp. 71-72, paras. G-A)

19. PRACTICE AND PROCEDURE – APPEAL – RESPONDENT’S NOTICE: When a Respondent’s Notice will apply; meaning of a Respondent’s Notice

“A Respondent’s Notice applies only where the respondent intends to retain the judgment appealed against but at the same time wants it varied. The Respondent’s Notice will apply only where a particular point in the appeal is stretched by the respondent who contends for its maintenance but proposes a variation of it, if it is the only means by which he would be enabled to retain it or if on the fact and the law, the decision of the court appealed against will in any event be affirmed. A Respondent’s Notice is the notice you give when as a respondent you do not wish to appeal properly but to contend that the judgment of the lower court be varied under Order 9 Rules 1 and 2 of the Court of Appeal Rules, 2007. See the cases of: (1) Ibe Vs. Onuorah (1999)14 NWLR (Pt. 638) p. 430; (2) Ntuks Vs. N.E.P.A. (2000) 4 NWLR (Pt. 654) p. 639 and (3) Ogbeide Vs. Osula (2003) 15 NWLR (Pt. 843) P. 266″Per OMOLEYE, J.C.A.(P. 101, paras. A-E)

 

MAIN JUDGMENT

OYESISI F. OMOLEYE, J.C.A.: (Delivering the Leading Judgment):

This is an appeal against the judgment of the High Court of Kogi State holden at Anyigba in Suit NO.HCL/6/98, Alh. M.J. Ibrahim Ohida & 5 Ors. Vs. Military Administrator, Kogi State & 12 Ors., delivered on 3rd April, 2006.
In an action commenced by way of writ of summons and statement of claim dated the 31st of March, 1998, the 1st – 6th Plaintiffs now in this appeal 1st – 6th Respondents claimed against the Defendants, who are now the Appellants and the 7th & 8th Respondents among others, the following reliefs:

(i)      A DECLARATION that the 13th defendant having not vied or applied for the stool of Ohinoyi of Ebiraland and the 3rd – 11th defendants having not recommended the 13th defendant to the 1st defendant for the post or office of Ohinoyi of Ebiraland, the purported appointment of the 13th defendant by the 1st defendant as the Ohinoyi of Ebiraland in his letter dated 2nd June, 1997 is illegal null and void and of no effect whatsoever.

(ii)     A DECLARATION that the purported recommendation of the 13th defendant by the 3rd – 11th defendants to the 1st defendant as the Attah of Ebiraland at their meeting held on 9th May, 1997 is contrary to the clear provisions of Edict NO.3 of 1997 and, therefore, null, void and of no effect whatsoever.

(iii)    A DECLARATION that it is impossible for the 3rd – 11th defendants to have called for nominations of interested candidates for the post of Ohinoyi of Ebiraland screened candidates for the said office or stool, interviewed the candidates and short-listed them for deliberations, asked for or combed their antecedents within a period of three days, to wit, between 6th of May, 1997 to 9th of May, 1997 and therefore, the purported or any screening, interview, voting or selection of the 13th defendant or any other person as the Attah of Ebiraland by the 3rd – 11th defendants on or about the 9th day of May, 1997 is immoral, dishonest, unfair, untraditional, Illegal, null, void and of no effect whatsoever.

(iv)    A DECLARATION that the shutting-out or prevention of the plaintiffs who are bonafide indigenes of Ebiraland and primarily and eminently qualified to contest and ascend the stool of Ohinoyi of Ebiraland by the 3rd – 11th defendants is unfair, undemocratic, uncustomary and constitutes a breach of the clear provisions of Edict NO.3 of 1997.

(v)     A DECLARATION that the title of the paramount ruler of Ebiraland is Ohinoyi of Ebiraland and, therefore, the 13th defendant who styles, labels and presents himself as Attah of Ebiraland is not a paramount ruler, traditional chief or any chief of Ebiraland and has no power or right to perform the functions of a paramount chief or ruler of Ebiraland

(vi)    AN ORDER setting aside the purported appointment of the 13th defendant by the 1st defendant as the Ohinoyi of Ebiraland

(vii)   AN ORDER directing the 3rd – 11th defendants to set or put the necessary machinery in motion at appointing a new Ohinoyi of Ebiraland in line with the provisions of Edict No. 3 of 1997.

(viii)   AN ORDER OF INJUNCTION

(a)     Restraining the 1st defendant either by himself, agents, privies, servants or through any person or persons howsoever from installing the 13th defendant as the Ohinoyi or Attah or paramount ruler/chief of Ebiraland

(b)     Restraining the 1st and 2nd defendants either by themselves, agents, privies, servants or through any person or persons howsoever from recognizing or further recognizing, treating or further treating, presenting’ or further presenting and dealing or further dealing with the 13th defendant as the Ohinoyi or Attah of Ebiraland or as a paramount ruler or chief of Ebiraland

(c)     Restraining the 12th defendant from recognizing or further recognizing, dealing or further dealing with and treating or further treating the 13th defendant as the Ohinoyi or Attah or paramount ruler of Ebiraland

(d)     Restraining the 3rd – 11th defendants either by themselves, agents, privies, servants or through any person or persons howsoever from holding or further holding, treating. Or further treating or recognizing or further recognizing the 13th defendant as Ohinoyi or Attah or paramount ruler of Ebiraland

(e)     Restraining the 13th defendant from presenting, parading or holding himself out as the Ohinoyi or Attah or paramount ruler of Ebiraland and from performing any function or duty or enjoying or receiving any salary allowances or appurtenances relating or pertaining to any of the offices, particularly the office of Ohinoyi or paramount ruler of Ebiraland.”

The background facts of this matter briefly stated are that, following the death of Muhammed Sani Omolori on the 10th of July, 1996, the stool of the paramount ruler, the Ohinoyi of Ebiraland in Kogi State became vacant. After the performance of the funeral rites of the said deceased paramount ruler, interested persons including the 3rd Appellant, Alhaji (Dr.) Ado Ibrahim forwarded their applications to the Ebira Area Traditional Council for appointment and ascension to the throne.

Sometime in May, 1997, the 7th Respondent, the Military Administrator of Kogi State invited some key members of the Ebira Area Traditional Council to a meeting at the State capital, Lokoja where he enjoined them to commence immediately the process of the appointment of a new paramount ruler of Ebiraland. The Ebira Area Traditional Council subsequently met on 9/6/1997 to consider the applications that they have received from various interested candidates. The 3rd Appellant who scored the highest number of votes was one of the three candidates recommended by the Ebira Area Traditional Council to the Council of Chiefs, Kogi State for appointment. Following the said recommendation, the 3rd Appellant was appointed the new Ohinoyi of Ebiraland by the 7th Respondent, the Military Administrator of Kogi State by a letter dated 2/6/1997.

Dissatisfied with the appointment of the 3rd Appellant, the 1st – 6th Respondents commenced an action before the trial Court claiming the reliefs already reproduced supra. In the course of trial, parties filed, amended and exchanged their pleadings. Trial thereafter commenced, the 1st – 6th Respondent’s called four witnesses, while the defence made up of the Appellants on the first part and the 7th & 8th Respondents on the second part called three and one witness(es) respectively. Some exhibits were tendered. Written addresses were ordered by the learned trial Judge and the order was complied with by learned counsel for all the parties.

In the very well considered judgment delivered on the 3rd day of April, 2006, the trial Court granted all the reliefs sought by the plaintiffs/1st – 6th Respondents in their amended statement of claim.

The Appellants aggrieved by the decision of the trial Court appealed it to this Court, Thirteen grounds of appeal were raised in their notice and grounds of appeal filed on 12/6/06 as amended, (hereinafter referred to as the first appeal). These are contained in pages 438 to 447, Vol. II of the record of appeal.

The Appellants from the said grounds of appeal formulated six issues for determination in their further amended brief of argument which was deemed properly filed on 13/10/08. The issues are as follows:

(1)     Whether having regard to the materials before the trial court and the law on chieftaincy matters, the law governing the selection and appointment of Ohinoyi of Ebiraland is not the Kogi State Chiefs (Appointment, Deposition and Establishment of Traditional Councils) Law, 1992?

(2)     Whether having regard to the materials before the trial Court, the trial Judge was not wrong to hold that the Plaintiffs made a case of non-compliance with the provisions of Section 5 of Edict No. 3 of 1997?

(3)     Whether having regard to the pleadings, the issues settled for determination as distilled from the pleadings by the trial Court and the totality of evidence adduced, the learned trial Judge was not wrong to have invalidated the proceedings of the meeting of the Ebira Area Traditional Council held on the 9th of May, 1997 on the ground that the Secretaries to the Local Government Traditional Councils in Ebiraland were excluded or deprived of their rights to participate in the proceedings?

(4)     Whether the learned trial Judge was not wrong in his conclusion that the Kingmakers abdicated their responsibility and acted “ultra-vires” their powers by recommending names of three persons instead of appointing one person for approval by the Chief Executive of the State having regard to the materials and evidence before the trial Court?

(5)     Whether the learned trial Judge was not wrong to have set aside the appointment and installation of the 3rd Appellant as the Ohinoyi of Ebiraland on the ground that it was done at a time when the suit filed by the plaintiffs at the trial Court was pending having regard to the materials and evidence before the trial Court?

(6)     Whether the learned trial Judge was not wrong to have held that: “the Plaintiffs were shut out or prevented from contesting for ascension to the stool of Ohinoyi of Ebiraland by the Defendants”, having regard to the materials and evidence before the trial Court?

In addition, the Appellants filed a Reply Brief of argument on 14/3/07 which was deemed properly filed on 9/5/07.

The 1st – 6th Respondents in response to the appeal, filed their brief of argument which was deemed properly filed on 26/5/08. In it, four issues were distilled for determination. The issues are as follows:

1. Whether the learned trial Judge properly held that the failure of the Ebira Area Traditional Council (E.A.T.C) to abide by the provisions of Edict NO.3 of 1997 voided the appointment of the 3rd Appellant herein?
2. Whether or not the proceedings of the 9th May, 1997 “vide” Exhibit P5 was properly set – aside for fundamental non-compliance on several points?
3. Whether from a holistic appraisal of the evidence adduced at the trial Court, on the date of the enactment, provisions and exercise of the functions by stakeholders under Edict No. 3 of 1997 with regard to the meeting of the 9th of May, 1997, the learned trial Judge rightly held that the 1st – 6th Respondents were not given equal opportunity to contest and ascend the throne of the Ohinoyi of Ebiraland?
4. Whether judging from the admissions of the witnesses for the Appellants those steps in contempt of the order of the Court of Appeal were taken which interfered with the proper administration of justice, the learned trial Judge properly exercised his punitive jurisdiction to set aside the contemptuous steps taken?

The 7th & 8th Respondents did not file any Respondents’ brief of argument in the first Appeal.

However, the 7th & 8th Respondents were equally unhappy with the judgment of the trial Court. They filed their notice and grounds of appeal dated 28/4/06. There are ten grounds of appeal in the said notice and grounds of appeal. These and their particulars are contained in pages 420 to 427, Vol. II of the record of appeal. In the 7th & 8th Appellants’ brief of argument filed on 8/2/07 and deemed properly filed on 12/2/07, four Issues were distilled from the said ten grounds of appeal for the determination of their appeal (hereinafter referred to as the second appeal). These issues read as follows:

1. Whether having regard to the pleadings and the issues settled for determination, the learned trial Judge was not wrong to have held that the exclusion of the Secretaries to the Local Government Traditional Councils in Ebiraland from the meeting held on 9/5/97 by the Council of Kingmakers rendered invalid the proceedings of the said meeting?
2. Whether having regard to the pleadings and the issues settled for determination, the trial Court was not wrong to have held that the functions set out under Section 5 of Edict NO.3 of 1997are not such which can be exercised in one fell swoop as to suggest that by the minutes of the meeting held on 9/5/97 by the Ebira Area Traditional Council, Exhibit 5, all those functions were explored and exercised by the Council of kingmakers?
3. Whether the learned trial Judge was not wrong in his conclusion that the Council of Kingmakers abdicated their responsibility and acted ”ultra vires” their powers by recommending the names of three persons instead of appointing one person for the approval of the Chief Executive of the State having regard to the pleadings, issues settled for determination and the evidence before the trial Court?
4. Whether the learned trial Judge was not wrong in his conclusion that the installation of the 3rd Appellant as the Ohinoyi of Ebira land was done at the time the suit challenging the said appointment had already been initiated and was still pending?

The 1st – 6th Respondents filed on 3/4/07 a notice of preliminary objection against the second appeal on the ground that it is incompetent and a gross abuse of the processes of court. The arguments in respect of the preliminary objection are contained in the 1st – 6th Respondents’ brief of argument in the second appeal filed on 3/4/07. In the said brief of argument, two issues were formulated for determination. The issues are as follows:

1. Whether or not the learned trial Judge was right in holding that the Council of Kingmakers did not follow and observe all the steps required of it in the purported appointment exercise of 9th May, 1997?
2. Whether or not the learned trial Judge properly considered the evidence before him to have set-aside the appointment and subsequent installation of the 3rd Appellant, Alhaji (Dr.) Ado Ibrahim?

The 1st- 6th Respondents/plaintiffs were also not pleased with some of the findings of the trial Court and they therefore filed their Cross-Appeal on 30/05/06 “vide” the notice and grounds of cross-appeal containing eight grounds of appeal. These are contained in pages 428 to 437, Vol. II of the record of appeal. The 1st – 6th Respondents in their Cross-Appellants’ brief of argument which was deemed properly filed on 26/5/08 formulated three issues from the said grounds of appeal for determination. The issues state thus:

1. Whether the trial Court was right to have held that Exhibits P7/D9 was/were properly considered by the Council of Kingmakers duly constituted under Edict No. 3of 1997?
2. Was the trial Court right in holding that Exhibits P7/D9 was/were application(s) in respect of the title of Ohinoyi of Ebiraland written under and by virtue of Edict No. 3 of 1997?
3. Whether the trial Court properly declared Alhaji (DR) Ado Ibrahim as qualified to vie for the stool of Ohinoyi of Ebiraland despite the uncontradicted evidence of his Unbecoming antecedents?

The Appellants filed a notice of preliminary objection to the competence of the cross-appeal on the grounds that a litigant who has all his reliefs granted by a trial court’s judgment cannot competently seek to upturn that judgment vide a cross-appeal; and that a litigant can only ventilate his grievances by filing a respondent’s notice in that regard. In the alternative, the Appellants in their brief of argument filed on 14/3/07 identified two issues for the determination of the cross-appeal. The issues are as follows:

1. Whether the conclusion of the learned trial Judge that Alhaji Dr. Ado Ibrahim’s application for the vacant stool of the paramount ruler of Ebiraland was regular and competent can be faulted having regard to the materials and evidence before the trial Court?
2. Whether or not the finding of the learned trial Judge that Alhaji Dr. Ado Ibrahim was duly qualified to contest for the vacant stool of the paramount ruler of Ebiraland can be faulted having regard to the materials and evidence before the trial Court?

On 13/10/08 when this appeal was heard in this Court, the learned counsel for the Appellants, Mr. Oluwole Aladedoye from the Chambers of Chief Afe Babalola (SAN) the lead senior counsel for the Appellants, identified the Appellants’ brief, Appellants’ Reply brief and Appellants/Cross-Respondents’ brief. The submissions in respect of the preliminary objection filed by the Appellants/Cross-Respondents against the cross-appeal were incorporated in the Appellants/Cross-Respondents’ brief of argument. He adopted, relied on all these briefs and urged that the appeal be allowed; while the preliminary objection should be upheld and the cross-appeal struck out. In the alternative, he urged that the cross-appeal be dismissed as lacking in merits.

On behalf of the 7th & 8th Respondents/Appellants, Mr. J. A. Abrahams, the Honourable Attorney-General and Commissioner of Justice of Kogi State identified, adopted and relied on the 7th & 8th Respondents/Appellants’ brief of argument, the 7th & 8th Respondents/Appellants’ reply brief and the 7th & 8th Respondents’ brief in respect of the cross-appeal. He urged that the second appeal be allowed while the cross-appeal should be dismissed.

The learned counsel for the 1st – 6th Respondents/Cross-Appellants, Mr. A.O. Ayodele identified the 1st – 6th Respondents’ brief of argument and the Cross-Appellants’ brief of argument. The two briefs were incorporated together and deemed properly filed on 26/5/08. He also identified the Reply to the Appellants/Cross-Respondents’ brief of argument including the Reply brief to the Notice of Preliminary Objection filed by the Appellants/Cross-Respondents against the cross-appeal, these were filed on 3/4/07; the Reply brief of the 1st-6th Respondents/Cross-Appellants to the 7th & 8th Respondents/Cross- Respondents’ brief of argument in the cross-appeal, and the 1st – 6th Respondents’ counsel’s submissions on the Preliminary Objection against the second appeal, both were filed on 16/4/07. He adopted and relied on all these briefs of argument. The learned counsel for the 1st – 6th Respondents/Cross-Appellants applied to withdraw the notice of preliminary objection filed by him against the second appeal and the submissions thereon. He urged this Court to dismiss the two appeals, dismiss the preliminary objection against the cross-appeal, allow the cross-appeal and affirm the decision of the trial Court.
I will now consider the two appeals and the cross-appeal seriatim.

FIRST APPEAL

I have carefully read the issues formulated by the learned senior counsel and the learned counsel for the Appellants and the 1st – 6th Respondents respectively. I am convinced that the issues formulated by the learned senior counsel for the Appellants will adequately address and resolve the grouse about this appeal. I shall adopt and consider them along with the issues formulated by the learned counsel for the 1st – 6th Respondents. However, I shall take issues one, two and three together because they are interrelated.

ISSUES ONE, TWO & THREE

Whether having regarded to the materials before the trial court and the law a chieftaincy matters, the law governing the selection and appointment of Ohinoyi of Ebiraland is not the Kogi State Chiefs (Appointment, Deposition and Establishment of Traditional Councils) Law, 1992?

Whether having regard to the materials before the trial court, the trial Judge was not wrong to hold that the Plaintiffs made a case of non-compliance with the provisions of Section 5 of Edict No. 3 of 1997?

Whether having regard to the pleadings, the issues settled for determination as distilled from the pleadings by the trial court and the totality of evidence adduced, the learned trial Judge was not wrong to have invalidated the proceedings of the meeting of the Ebira Area Traditional Council held on the 9th of May1997 on the ground that the Secretaries to the Local Government Traditional Councils in Ebiraland were excluded or deprived of their rights to participate in the proceedings?

The learned senior counsel for the Appellants submitted that both parties in this matter are ”ad idem” that the stool of Ohinoyi, the paramount ruler of Ebiraland became vacant on the demise of the then incumbent, Alhaji Muhammed Sani Omolori on 10/07/96. He referred to the relevant portions of the pleadings of both parties and the evidence of some witnesses who testified at trial confirming this position of fact. According to the learned senior counsel, the cause of action in this regard arose on that date, that is, 10/7/1996. Therefore, the law applicable in the matter of ascension to the stool of the paramount ruler of Ebiraland is the Kogi State, Chiefs (Appointment, Deposition and Establishment of Traditional Councils) Law, NO.7 of 1992 (hereinafter referred to as the Chiefs Law) and not Edict No.3 of 1997 which was enacted and came into force on 6/5/1997 about one year after the demise of Alhaji Mohammed Sani Omolori.
It was canvassed in favour of the Appellants that Sections 19 and 21 of the Chiefs Law, NO.7 of 1992, provide for the establishment and functions of the Ebira Area Traditional Council. That the Council has always been and is the body of Kingmakers in Ebiraland. For, even when Edict NO.3 of 1997 came into force, the Ebira Area Traditional Council continued to be the body of Kingmakers. This is the effect of Section 4 of Edict No.3 of 1997 which provides that the Ebira Area Traditional Council (hereinafter referred to as E.A.T.C. or Council) shall remain the Council of Kingmakers. This is in accord with the well established rule of interpretation which requires that the meaning and intention of the framers of a statute must be ascertained from the language of that statute. On this legal principle, reliance was placed on the cases of:

(1)     A.G., Lagos State Vs. A.G., Federation (2004) 18 NWLR (Pt. 904) p. 1 and

(2)     Uwaifo Vs. A.G., Bendel State (1982) 4 NCLR p. 1.

That was the reason, after the demise of Alhaji Mohammed Sani Omolori, persons interested in ascending to the vacant stool forwarded their applications in this regard to and the applications were acknowledged by the Ebira Area Traditional Council even before the enactment of the Edict. It is therefore not correct that the Ebira Area Traditional Council only became a body of Kingmakers on 6/5/1997 when the Edict came into force. Reference was also made to the provisions of Section 5(a), (b) & (c) of Edict NO.3 of 1997 which ”inter alia” include the procedure of announcement of the passing away of an incumbent Ohinoyi. At the commencement of the Edict on 6/5/97, the stool of Ohinoyi was vacant, because Alhaji M. S. Omolori had died on 10/7/96. The announcement of Alh. M. S. Omotori’s death had been made and his funeral rights performed. Hence there was no incumbent Ohinoyi as at the commencement of the said Edict on 6/5/97. The announcement of his passing away could not be made all over again as was wrongly advocated by the learned counsel for the 1st – 6th Respondents.

It was argued in favour of the Appellants that, it is trite law that legislations cannot operate retrospectively but prospectively and the trial Court rightly founded in this regard. Therefore, the Edict can not apply retrospectively to events which had already taken place before it was enacted. In line with this legal principle, reference was made to the cases of:

(1)     Salami Afolabi & Ors. Vs. Gov. of Oyo State & Ors. (1985) 2 NWLR (pt. 92) p. 734 at p. 752;

(2)     Olaniyi Vs. Aroyehun (1991) 5 NWLR (Pt.194) p. 652 and

(3)     In Re Athlumney (1898) 2 Q.B. p, 547 at p. 551.

Proceeding further, the learned senior counsel for the Appellants argued that as at the time the Edict was enacted, the kingmakers had already set in motion the necessary machinery for the appointment of a new Ohinoyi by receiving applications from intending candidates who wished to ascend to the throne of Ohinoyi. The kingmakers had already performed the duties stipulated in Section 5(a) & (b) of the Edict including the announcement of the death of the late and immediate past Ohinoyi before the said Edict came into force. It is therefore clear that the Chiefs Law of 1992 is the applicable law governing the selection and appointment of Ohinoyi of Ebiraland.

The learned senior counsel for the Appellants contended that Edict No. 3 which was enacted about a year after the stool of Ohinoyi became vacant is not the applicable law for the purpose of filling that vacancy. That assuming without conceding that the Edict was applicable, the 1st – 6th Respondents still neither pleaded nor adduced evidence at trial that there was non-compliance with the procedure for filling the vacancy as required by the provisions of Section 5 of the Edict. For, it is settled law that each party in an action is free to formulate his individual case by pleadings and once the case is formulated, parties are not allowed to deviate therefrom. In this regard, reference was made to the cases of:

(1)     Overseas Construction Ltd Vs. Creek Ent. Ltd (1985) 3 NWLR (pt. 13) p. 407 at p. 409 and

(2)     Udengwu Vs. Uzuegbu (2003) 13 NWLR (pt. 863) p. 136 at pgs. 151- 152.

In the instant case, none of the parties pleaded at trial that there was noncompliance with the provisions of Section 5 of the Edict. Therefore the conclusion reached by the trial Court that there was non-compliance with the provisions of the said Section 5 was misconceived.

It was equally submitted in favour of the Appellants that the exclusion or otherwise of the Secretaries to the Local Government Traditional Councils from the Council’s meeting of 9/5/1997 was not an issue before the trial Court as neither party pleaded same. The law is settled that parties and the courts are bound by their pleadings in the determination of cases, and evidence led on facts which are not pleaded goes to no issue. The court is equally prohibited from entering into enquiry outside the pleadings and from adjudicating upon any matter not put in issue “vide” pleadings. This legal principle was founded upon in the cases of:

(1)     Overseas Construction Ltd Vs. Creek Ent. Ltd supra;

(2)     Odinigi Vs. Oyeleke (2001) 6 NWLR (Pt. 708) p. 12 at p.35;

(3)     Emeogkwue Vs. Okadigbo (1973) 4 SC p. 113;

(4)     Atanda Vs. Ajadi (1989) 3 NWLR (pt. 111) p. 511;

(5)     Agu Vs. Ikewibe (1991) 3 NWLR (Pt. 180) p. 385 and

(6)     Gbadamosi Vs. Dairo (2001) 6 NWLR (Pt. 708) p. 137 at p. 158.

Furthermore, the learned senior counsel for the Appellants argued that the fact of the non-inclusion of the Secretaries of the five Local Government Councils in Ebiraland in the meeting of the Ebira Area Traditional Council of 9/5/1997 was introduced by DW4 during his cross-examination. The trial Court ought to have expunged or disregarded this piece of evidence and should not have founded upon it since neither party pleaded it. This argument was based on the settled legal principle that although counsel is free to ask any question under cross-examination, facts not pleaded cannot be elicited and if erroneously elicited, the court cannot make use of them. Reliance on this legal position was placed on the cases of:

(1)     Buhari Vs. Ogasanjo (2005) 13 NWLR (Pt. 941) p. 1 at p. 239 and

(2)     Usenfowokan Vs. Idowu & Ors. (1969) 1 All NLR p. 125 at pgs. 131 – 132.

What is more, the effect of the non-inclusion of the Secretaries was not pleaded and no evidence was adduced in this regard by parties.

Responding under issues one, two and three, the learned counsel for the 1st – 6th Respondents submitted that, the Ebira Area Traditional Council was formally made a body of Kingmakers by and became vested with the performance of specific duties under the Edict; he referred to the testimonies of DW4 and DW1. It was conceded that although certain applications were submitted to the Council by some aspirants immediately after the demise of Alhaji M.S. Omolori; it was contended that the Council was not functioning as kingmakers as at that time. For instance, under the Edict, there is the provision for the appointment of the Council’s Acting-Chairman as the Regent to the throne of Ohinoyi. The Council members who had been designated Kingmakers will thereafter set in motion the necessary machinery for the appointment of a new Ohinoyi under the provisions of Section 5(a), (b) & (c) of the Edict. Therefore, the case of the 1st – 6th Respondents that there was non-compliance with those provisions was properly founded in their favour by the trial Court.

It was argued in favour of the 1st – 6th Respondents that the Council could not have set in motion necessary machinery for the appointment of a new Ohinoyi pursuant to the provisions of Section 5(a)-(c) of the Edict prior to its commencement on 6/5/1997. This is because there is no specific provision under the Edict that steps already taken before its commencement were part of its requirements. It is trite law that unless where specifically stated in a new law, the new law cannot be presumed to be retrospective. In this regard, reference was made to the cases of:

(1)     Salami Afolabi Vs. Gov. Oro State (1985) 9SCp. 177; (2) Swiss Air Transport Vs. A.C.B. Ltd (1971) NSCC p.33 at p. 38; (3) O.H.M.B. Vs. Garbo (2002)14 NWLR (Pt. 788) p 538; (4) West Vs. Gwynne (1911)2 Ch. P.1 and (5) Smith Vs. Callander (1901) AC. p. 297

The learned counsel for the 1st – 6th Respondents contended that the assertion of the Appellants that the cause of action in the matter of ascension to the throne of Ohinoyi arose on the death of Alhaji M.S. Omolori is a fallacy. He argued that the cause of action arose at the point in time the 3rd Appellant was appointed “vide” Exhibit P18 dated 2/6/1997 and /or at best, when the Ebira Area Traditional Council met to recommend the 3rd Appellant along with two others for appointment on 9/5/1997. In which case the applicable law is the 1997 Edict, except where references are made to the Chiefs Law, NO.7 of 1992, since the Edict did not repeal the Chiefs Law. Indeed, the defence of the Appellants “vide” the testimony of DW4 is in support of this posture. The Appellants’ stance in this appeal that the only applicable law is the Chiefs Law is not only a contradiction of their case at trial; it is merely a submission of their counsel which in law cannot take the place of evidence. This legal principle was adopted in the cases of: (1) Odubeko V Fowler (1993) 7 NWLR (Pt. 308) p. 637 at p. 655 and

(2)     Ishola V Ajiboye (1989) 1 NWLR (Pt. 532) p. 71 at p. 87

The case of the 1st – 6th Respondents which was supported by the Appellants is that, the Edict was enacted to constitute the Ebira Area Traditional Council into Kingmakers to deliberate on and fill the vacant stool of Ohinoyi. This is because there are other councils in Kogi State as provided under Section 19 of the Chiefs Law which are not mentioned in the Edict. This was the testimony of DW4.
The learned counsel for the 1st – 6th Respondents contended that the Secretaries of the four Local Governments in Ebiraland being part of the appointing authority, the trial Court properly took and considered evidence relating to them. He referred to their statutory role under Section 20 of the Chiefs Law. It is immaterial that they were not joined as parties to the suit before the trial Court; they are “dramatis personae” and have vested right in the appointment of Ohinoyi. On this position reliance was placed on the cases of:

(1)     Ebongo V Uwemedimo (1995) 8 NWLR (Pt. 411) p. 22 at p. 45

(2)     A.G., Federation V A.G., Abia State & 35 Ors, (2006) 2 NPMLR p. 236 and

(3)     Green V Green (1987) NSCC (Pt. 2) p. 1115 at p. 1122.

What is more, the law is settled that where those expected to be at meetings for the purpose of taking a decision were not as in the instant case, such decision taken is void. On this legal position reliance was placed on the cases of:  (1) Ware V A.G., Adamawa State (2000) 8 NWLR (Pt. 668) p. 229 at p.240 and
(2) Aliyu V Ibrahim (1997) 2 NWLR (Pt. 489) p. 571 at p. 586.

Indeed the case of the Appellants “vide” the testimony of DW4 supports the contention of the 1st – 6th Respondents that the Council was not properly constituted, hence the meeting held by it was incompetent and consequently the decision purportedly taken therein became invalid and fundamentally defective. The evidence adduced by the Appellants “vide”DW4 was adverse to their case but in support of the case of the 1st- 6th Respondents. The trial Court rightly pronounced on this issue. It was an admission against the interest of the Appellants. It is irrelevant that it was not pleaded. In law, the admission needs no further proof. This legal position was rested on the cases of:

(1)     A.C.B. Plc. V Nwodika (1996) 4NWLR (Pt. 443) p. 470 at p. 490; (2) Iga V Amakiri (1976) II SC p. 1;

(3)     A.C.B. Ltd V Gwagwalada (1994) 4 NWLR (pt. 342) p. 25 at p. 42;

(4)     Alli V Alesinloye (2000) FWLR (Pt. 15) p. 2610 and

(5)     Ejebu V Okolo (2000) FWLR (Pt. 79) p. 1356.

 

I have carefully perused the record of appeal and the submissions, backed up with very useful decided authorities, of the learned counsel for all the parties in this appeal. I highly commend the industry of all of them. Their labours have illuminated greatly this matter which could otherwise have been tricky. The issues involved in this triple-facetted appeal are very simple and straightforward.

The crux of this appeal is: whether the 3rd Appellant was duly selected and appointed the Ohinoyi, the paramount ruler of Ebiraland in Kogi State? Hence, this is a chieftaincy question, for it relates to the validity of the selection, appointment, approval of appointment, installation and recognition of the Ohinoyi of Ebiraland. There is no doubt that at the time the then paramount ruler of Ebiraland, Alhaji M. S. Omolori died in 1996, and the law relating to the appointment of chiefs in Kogi State was the Chiefs Law of 1992.

The procedure for the appointment of chiefs in Kogi State under the said Chiefs Law is in two categories viz: appointment of chiefs in accordance with native law and custom under Section 3(1) and (2) and appointment of chiefs in chieftaincies created by statutes under Section 4(1) and (2), both of the Chiefs Law.

In the main, the questions that call for consideration in the issues under review are, what is/are the relevant law(s) applicable and whether the relevant law(s) was/were complied with in the selection and appointment of the 3rd Appellant, Alhaji (Dr.) Ado Ibrahim to the stool of Ohinoyi of Ebiraland.

By virtue of Section 3 (1) & (2) of the Chiefs law, upon the death, resignation or deposition of any Chief, the Governor shall approve as the successor of such Chief any person appointed in that behalf by the Kingmakers under native law and custom. If no appointment is made before the expiration of such interval as is usual under native law and custom, the most senior traditional ruler in status in that domain shall carry out certain duties incidental to the Chieftaincy as it may be necessary to perform pending the appointment of the Chief by the Kingmakers. In case of any dispute, the Governor shall, after due inquiry and consultation with the Kingmakers be the sole judge as to whether the appointment has been properly made.

In respect of chieftaincies which are creations of statutes, the procedure for appointment under Section 4(1) & (2) of the Chiefs Law as earlier on alluded to is quite different. For ease of reference and clear understanding, I will reproduce hereunder as follows, the said provisions of Section 4(1) and (2) of the Chiefs Law:

“4. (1) The provisions of section 3 shall not apply to the office of a Chief which did not originate under Native Law and Custom but is a creation of Statute.

(2)     Upon the death, resignation or deposition of any Chief referred to in sub-section (1) of this section the Governor shall approved (sic) as the Successor of such Chief, any person appointed in that behalf by the Kingmakers in accordance with the provisions of the Statute creating the Chieftaincy, ” (The underlined are mine for emphasis).

As earlier on in this judgment noted by me, as at the demise of the late paramount ruler of Ebiraland, Alhaji M. S. Omolori in 1996, it was the Chiefs Law that was in existence. Ordinarily and naturally, the procedure for the appointment of the successor of the said late Alhaji M. S. Omolori should be as laid down in the provisions of Section 3(1) and (2) of the Chiefs Law, the Chieftaincy not being one that was a creation of statute. It would appear that this accounted for all the actions taken immediately after the demise of Alhaji M. S. Omolori. That is, some persons who were interested in ascending to the vacant stool of the paramount ruler of Ebiraland sent in applications to the Ebira Area Traditional Council.
The E. A. T. C. was established “vide” Section 19(2) (a) – (d) of the Chiefs Law. It is made up of four local government areas vis: Adavi, Ajaokuta, Okehi and Okene. The functions of Area Traditional Councils in Kogi State including E.A.T.C, are contained in Section 24 of the Chiefs Law. Amongst others, the duty of the Councils is to advise the State Government in their respective areas on any matter relating to customary law or cultural affairs, inter-communal relations and chieftaincy matters, that is, the appointments, depositions and discipline of graded Chiefs in their respective areas.

However, in 1997, the Procedure for ascension to the throne of Ohinoyi of Ebiraland Edict, NO.3, of 1997 was enacted. It had its commencement as the 6th of May, 1997. By the Edict, the stool of Ohinoyi of Ebiraland, that is, the paramount ruler of Ebiraland, was established. The procedure for ascension to the throne of Ohinoyi is clearly spelt out under Sections 2, 5 and 7 of the Edict.
I consider it pertinent as this juncture to reiterate that, under and by virtue of the transitional provisions and savings, Part III of the Constitution of the Federal Republic of Nigeria, 1999, particularly Section 315(1) (b), all the Edicts enacted by the erstwhile military government of Kogi State are referred to as the Laws of Kogi State at the inauguration of the House of Assembly of Kogi State. However, for the purpose of this judgment, I wish to refer to the Law which established the stool of the Ohinoyi of Ebiraland in 1997 as, the Edict.

It is my strong view and I hold that since the vacant stool of the paramount ruler of Ebiraland had not been filled before the commencement of the 1997 Edict, it became apparent that, the chieftaincy, that is, the Ohinoyi, on the enactment of the Edict, became a creation of Statute. Therefore, in accordance with the provisions of Section 4(1) and (2) of the Chiefs Law, the vacant stool of the Ohinoyi, the paramount ruler of Ebiraland shall be filled in accordance with the provisions of the 1997 Edict, the statute which created the chieftaincy. Section 4(2) of the Chiefs Law provides that upon the death, resignation or deposition of any Chief created by a statute, a successor shall be appointed by the kingmakers in accordance with the provisions of the statute which created the chieftaincy. The person so appointed shall then be approved by the Governor.

Before proceeding to consider whether there was full compliance with the relevant provisions of the 1997 Edict in the selection, appointment and approval of the appointment of the 3rd Appellant as the Ohinoyi of Ebiraland, I will want to positively state here that: although there was no registered chieftaincy declaration in respect of the Ohinoyi of Ebiraland chieftaincy before the enactment of the Edict, the Edict which established the chieftaincy and set out the procedure for filling a vacant stool thereof in my humble opinion, is akin to a Chieftaincy Declaration. To this end, I wish to reproduce the said Edict, Exhibit 3, hereunder as follows, for ease of reference:

“KOGI STATE GOVERNMENT OF NIGERIA
PROCEDURE FOR ASCENSION TO THE THRONE OF OHINOYI OF EBIRALAND EDICT 1997
EDICT NO.3 OF 1997

The Military Administrator of Kogi State of Nigeria Col. BL Afakirya hereby makes the following Edict.

1. This Edict shall be known as procedure for ascension to the throne of Ohinoyi on the 6th day of May 1997. Title and commencement of Ebiraland Edict No.3 of 1997 and shall be deemed to have come into force
2. The stool of the paramount Ruler of Ebiraland who shall be known as Ohinoyi is hereby established.  Establishment of Ohinoyi of Ebiraland
3. Ascension to the throne of Ohinoyi of Ebiraland whenever it is vacant shall be by rotation among the Five (5) traditional districts in Ebiraland.       Procedure for ascension to the throne of Ohinoyi

(b)     For avoidance of doubt the five (5) traditional districts in Ebiraland are; Adavi, Okengwe, Ihima, Eika and Eganyi.

(c)     All eligible and interested sons of Ebiraland are free to contest for the stool of Ohinoyi of Ebiraland under this arrangement provided that, any District that has taken its turn in this rotational order shall not take part until it comes to its turn,

4. Ebira Area Traditional Council shall remain the Council of king makers.  Function of kingmakers.
5. The functions of the council of king makers shall be as follows.

(a)     To announce the passing away of an Incumbent after consultation with the family of that Ohinoyi and the Kogi State Government, such announcements must conform to the existing and recognized tradition of Ebira people.

(b)     To meet immediately upon the vacancy of the throne of Ohinoyi of Ebiraland and elect an acting Chairman of the Council as regent until the new Ohinoyi is appointed.

(c)     To set in motion machinery for appointment of a new Ohinoyi immediately the stool becomes vacant

(d)     To receive applications from eligible and interested sons of Ebiraland for consideration.

6. during the period of selection of a new Ohinoyi: Prohibitions and sanction

(a)     There shall be no masquerade outings or public procession/rallies;

(b)     There shall be no open campaign either for or against any interested candidate.

(e)     Any person who contravenes section 6a and 6b above is guilty of an offence and shall be liable to Imprisonment for five years without an option of fine.

7. No appointment of an Ohinoyi of Ebiraland shall be valid until the Chief Executive of the State has approved such appointment.     Validity of appointment of Ohinoyi of Ebiroland
8. No provisions of any law of the State that is in force shall invalidate the provisions of this Edict.

MADE at Lokoja this 6th day of May, 1997.
SGD
COL. B. L. AFAKIRYA
MILITARY ADMINISTRATOR OF KOGI STATE OF NIGERIA.”

In the case of: Prince Oyekunle Alabi Ogundare & Anor. Vs. Shittu Ladokun Ogunlowo (1997) 6 NWLR (Pt. 509) p. 360, Belgore JSC had the following (verbatimly reproduced), to say on the status of a registered chieftaincy declaration:

“It must be pointed out that declaration on chieftaincies were the results of investigations as to the native laws and custom of the localities as unanimously or overwhelmingly agreed by them. They are useful guides when those chieftaincies are derecognized as to the laws and customs of the people as to succession and order of succession. There can be law derecognizing a chieftaincy that is mainly for government purpose, it does not mean the chieftaincy does not exist because the community served by each chief does not necessarily cease to exist. The declarations are the statement in permanent form as to the mode of succession of chieftaincy in each community in regard to tradition, native law and custom. ”

The law is therefore trite that, it is the duty of the courts to apply existing registered declaration in a chieftaincy dispute. This legal principle was adhered to in several other cases subsequently, one of which is the case of: Olanrewaju V Oyeyemi (2001) 2 NWLR (Pt. 697) p. 229 at p. 263. paras. C – G, Adamu,J.C.A. stated as follows:

“… I wish to reiterate the trite principle of law that in a chieftaincy dispute as in the present case where a re9istered declaration is found to exist it is the duty of the court to apply and enforce it as it represents the customary law regulating the chieftaincy in question. The registered chieftaincy declaration is deemed to be the customary law regulating succession to the chieftaincy when a vacancy occurs and will remain in force until it is repealed, amended or set aside by a competent authority or court – See Adigun Vs. A. – G., Oyo State (1987) 1 NWLR (Pt. 53) p. 678; Adigun V Gov., Osun State (1995) 3 NWLR (Pt. 385) p. 513; Imonikhe V. A.-G., Bendel State (1992) 6 NWLR (Pt. 248) p. 396; Popoola V. Adeyemo (1992) 8 NWLR (Pt. 257) p. 1; Oyebisi V. Gov., Oyo State (1998) 1 NWLR (Pt. 574) p. 441 at p. 457 and Obanla of Otan Aiyegbaju V. Adesina (1999) 2 NWLR (Pt. 590) p. 163 at p. 181. Since it is not the duty or function of the court to make or declare the customary law of the community (which has been described as a mirror of accepted usages) the function or duty of the court is only to apply such customary law where it exists in form of a registered declaration, it is not also proper for the said court to look for another or other set of evidence on the said customary law where there is a registered declaration in existence which is more binding and authoritative until set aside. Thus a registered declaration is like legislation and once registered it has a statutory effect and supercedes any other evidence on the customary law or usages which are in conflict with it. See Edewor Vs. Uwegba (1987) 1 NWLR (Pt. 50) p. 313; Imonike V. A.-G., Bendel State (supra) and Dyelami Vs. Mil. Admin., Osun State (supra).” (The underlined are mine for emphasis.)

It is clear from the pleadings of and the evidence adduced by parties at trial that, there was no registered declaration in respect of the Ohinoyi chieftaincy before a vacancy occurred in the stool in 1996. However in 1997 the Kogi State Government set up a committee to work out the modality for ascension to the throne of the paramount ruler of Ebiraland. Based on the acceptance of some of the recommendations of the committee, the 1997 Edict was enacted. By the Edict, the stool of Ohinoyi was created and the procedure for ascension to the throne of Ohinoyi was set out. Five traditional districts of Ebiraland were established among which the stool should rotate. All the sons of Ebiraland who are eligible and interested are free to contest for the stool. The existing Ebira Area Traditional Council was formally constituted by the Edict into a body of Kingmakers and saddled with functions, majorly of receiving applications from interested and eligible aspirants for consideration for appointment. Any appointment made by the Kingmakers must be approved by the Governor/Chief Executive of the State. By the above features of the 1997 Edict, it is crystal clear that the Edict has become the valid declaration of law of a sort, customary in nature, in relation to the Ohinoyi of Ebiraland Chieftaincy which the trial Court had a duty to apply in preference to any other law, set of rules or recommendations or usages on the Ohinoyi of Ebiraland chieftaincy. It prevails over and supercedes all other laws or rules or recommendations or usages. Most especially, it prevails over and supercedes the Chiefs Law which had not been fully exhausted, that is, used in filling the vacancy which occurred in the stool of the Ohinoyi of Ebiraland. For, indeed when the Edict was enacted, the stool was still vacant and no person had been appointed to the chieftaincy.

The learned trial Judge soundly founded and I am at one with His Lordship that, the provisions of the Edict must be complied with on the procedure for ascension to the stool of Ohinoyi. The provisions of the Edict supercede all administrative views and decisions and become the historical source of information on the chieftaincy-see the judgment of the trial Court lines 5 to 13 at page 394, Vol. II of the record of appeal.

Having founded that it is the provisions of the Edict that must regulate the selection, appointment and approval of the appointment of an eligible aspirant to the stool of the Ohinoyi of Ebiraland, the next issue of consideration is whether the provisions of the said Edict were complied with in the purported selection, appointment and approval of the appointment of the 3rd Appellant, Alhaji (Dr.) Ado Ibrahim. I have earlier on in this judgment reproduced the entire letters of the Edict. I have also founded according to law that, it is the duty of the Kingmakers under that law to appoint a successor to the throne of Ohinoyi of Ebiraland, in line with the functions of the Kingmakers, that is, the Ebira Area Traditional Council which are set out clearly in Section 5(a) to (d) of the Edict.
I wish at this stage to reproduce thus, “in extenso” and verbatim, the findings of the learned trial Judge contained in line 3 at page 396 through to line 14 at page 400, Vol. II of the record of appeal, regarding the question of compliance with the provisions of the Edict in the matter of the appointment in dispute:

“- – – This leads me to the next issue as to consideration recommendation and the eventual appointment of the 13th defendant as Ohinoyi and whether those recommendations for appointment made of him accord with all the relevant laws.

It is no longer in doubt that the E.A.T.C. who was constituted into a Council of Kingmakers under the Edict received certain applications and worked on them on the 9/5/97. In doing so the council was exercising functions set out in Section 5(d) of the Edict. That function is by no means the only function the council was appointed to perform. The council had a duty under Section 5(0) (b) and (c) of Edict no. 3 of 1997 to:

“(a)    announce the passing away of an incumbent after consultation with the family of that Ohinoyi and the Kogi State Government; such announcement must conform to the existing and recognised tradition of Ebira people.

(b)     To meet immediately upon the vacancy of the throne of Ohinoyi of Ebiraland and elect an Acting Chairman of the Council as regent until the new Ohinoyi is appointed.

(c)     To set in motion machinery for appointment of a new Ohinoyi immediately the Stool becomes vacant.”

The Edict applies prospectively. Thus those functions referred to above can only be exercised by the Kingmakers after having been constituted as such. Evidence before the court has revealed that E.A.T.C were constituted into Kingmakers on the 6th May, 1997. Notwithstanding therefore that the death of the last Ohinoyi who passed away on the 10th July, 1996, had become Public knowledge, the council of Kingmakers having been constituted had a duty under the Edict to:

(a)     Announce the passing away of the last incumbent Ohinoyi

(b)     To meet immediately and appoint the acting Chairman as Regent

(e)     To set in motion necessary machinery for appointment of a new Ohinoyi among other functions.

There is no scintilla of evidence on record before me as to suggest that the Kingmakers explored those areas of their functions. The use of the word “immediately” in Section 5(b) of Edict NO.3 of 1997 has to be understood in the context of the Sections 1 and 4 of Edict No. 3 of 1997. See Oyeyemi Vs. Commissioner for Local Government (1992) 2 SCNJ 260 holding No. 10. What this boils down to is that the plaintiffs have succeeded in establishing non-compliance on the part of council of Kingmakers as regards Section 5(a) (b) and (c). See Salami Afolabi Vs. Governor of Oyo State (supra) at page 121. Needless to say, the act of announcing the passing away of the last Ohinoyi by the Council marks Official declaration of vacancy to the stool of Ohinoyi Little wonder then that the PW 4 Said in his evidence that he was still expecting a declaration of vacancy to be made.

The functions set out under S. 5 of Edict NO.3 of 1997are not such which can be exercised by the Council in one fell swoop as to suggest that by the Minutes of the meeting of EATC held on 9/5/97 covered by Exhibit P5, all those functions had been explored and exercised by the kingmakers. This is why I am in agreement with the plaintiffs and their counsel, that the procedure adopted by the kingmakers leading to the 13th defendant being appointed as Ohinoyi was hasty. While I’m also in agreement with defence counsel that the Edict did not set out time frame for the submission of application and that the Council was at liberty to set time for themselves, I’m still of the view that the exercise of discretion by a Body must accord with the law under which the Body exercises its powers. But that is not all.

There is evidence before me which indicate that the council who met to take a decision “vide” Exh. P5 was not properly composed and this fact was admitted by DW4.

It is provided in Section 20(1) of Law NO.7 of 1992 that:

“20 (1) membership of such Area Council shall compose;

(a)     All the Chairman of the Local Government Traditional Council within the Area Traditional Council

(b)     all graded chiefs, that is fall First, Second and Third class chiefs within the Area Traditional Council, and

(c)     All the Secretaries of the Local Government Traditional Councils within the Area Traditional Council…”

Edict No. 3 of 1997 did not establish the EA, T.C The council was established by Law NO.7 of 1992 to compose membership of persons listed at Section 20 who were constituted into kingmakers under Edict No.3 of 1997 There is no evidence either oral or documentary that the EA. T.C had before the 6th May 1997 when they were constituted into Kingmakers, had exercised any function of a kingmaker.

Consequently, the interpretation given by defence as to so suggest is unacceptable.

It follows that the non-inclusion of Secretaries of the Local Government Councils in the deliberations covered by Exhibit P5 meant that they have been deprived of their rights to partake in the proceedings of 9/5/97 as persons having vested interest in the selection or appointment of Ohinoyi: See: Ndayako V. Jikantoro (2005) 1 FWLR (Pt. 25) 857, 887. The exclusion of Secretaries to the Local Government Traditional Council who are entitled to attend the meeting as Kingmakers renders the proceedings of 9/5/97 (Exh. P5) as BAD and to that extent the meeting/proceedings is invalid I rely on Oladokun V. Military Government, Oyo State. (1996) 8 NWLR (Pt. 467) 387- 412 – 413. ”

It is an aberration and indeed an appellate Court has no jurisdiction to interfer with the assessment and evaluation of evidence of a trial court in the absence of special circumstances warranting such interference. It is a basic principle of law that the evaluation of evidence and the ascription of probative value to such evidence are the primary function of a court of trial, which saw and heard and assessed the witnesses while they testified before it. The trial court has a near exclusive jurisdiction on matters of appraising evidence. Where therefore a court of trial has properly evaluated the evidence, the appellate court will generally not interfere with such findings. See the cases of:

(1)     Baridan V. The State (1994) 1SC (Pt.5) p. 12; (2) Bakare V.The State (1987) 1 NWLR (Pt. 52) p. 579;

(3)     Garba V. State (1999)11 NWLR (pt.627) p. 422 and (4) ISC Services Ltd. Vs. G.C Ltd. supra at p.519, paras. E-F

Therefore, ascription of probative value to the evidence before the court is pre-eminently that of the trial court that saw and heard the witnesses. An appellate court will not lightly interfere with same unless for compelling reasons. See the cases of:

(1)     Ebba V. Ogodo (1984) 1 SC p. 372; (2) Ogbechie V. Omochie (1988) 1 NWLR (Pt.70) pg 370;

(3)     Omoregbe V. Edo (1971) 1 All NLR p. 282 and (4) Ayua V. Adasu (1992) 3 NWLR (pt. 231) p. 598.

Such compelling reasons are as follows:

(a)     If the finding is perverse and cannot reasonably be supported having regard to the evidence or

(b)     If the finding is an interference from established facts so that an appellate court is in as vantage a position as the trial court to draw its own conclusions or

(c)     If the trial court has applied wrong principles of law or

(d)     When the decision of the trial Court has occasioned a miscarriage of justice.

 

A decision is perverse where it is persistent in error, different from what is reasonable or required. Where the Judge took into account matters which he ought not to have taken into account or where the judge shuts his eyes to the obvious. See the cases of:

(1)     Atolagbe V. Shorun (1985) 1 NWLR (pt. 2) p. 360; (2) Nwosu V. Board of Customs & Excise (1988) 5 NWLR (pt. 93) at p.225: (3) Egba V. Appah (2005) 10 NWLR (pt. 934) p. 464 and

(4)     Oju L.G. V. INEC (2007) 14 NWLR (pt. 1054) p. 242.

Where the evaluation was proper and findings of the trial Court as in the instant case were not perverse having been borne out of the evidence adduced before it, a miscarriage of justice cannot be occasioned.

I agree entirely with the findings of the learned trial Judge, reproduced above. The findings are sound and I have no reason whatsoever to deviate from any part thereof.

Consequent upon my line of reasoning and conclusions above and in answer to the three issues under consideration, I am of the strong conviction and I hold that: the law governing the selection and appointment of the Ohinoyi of Ebiraland is the Edict and not the Chiefs Law of 1992. The finding of the trial Court that the 1st – 6th Respondents as plaintiffs before it made out against the defendants a case of non-compliance with the provisions of Section 5 of the 1997 Edict in the selection and appointment of the 3rd Appellant, was proper and in accordance to law. The learned trial Judge also rightly declared invalid, the proceedings of the meeting of the Ebira Area Traditional Council held on the 9th of May, 1997, on the ground that the Secretaries of the Local Government Councils in Ebiraland who are members of the Ebira Area Traditional Council by virtue of Section 20(1) (c) of the 1992 Chiefs Law, did not take part in that crucial decision thereat; this was also in Contravention of Section 5 of the Edict. Based on all that I stated above, issues one, two and three formulated for determination in the Appellants’ Further Amended Brief, and their corresponding grounds of appeal in the Amended Notice and Grounds of Appeal must be and are hereby resolved against the Appellants and in favour of the 1st – 6th Respondents.

ISSUE FOUR

Whether the learned trial Judge was not wrong in his conclusion that the Kingmakers abdicated their responsibility and acted “ultra-vires” their powers by recommending names of three persons instead of appointing one person for approval by the Chief Executive of the State having regard to the materials and evidence before the trial Court?

It was argued in favour of the Appellants that none of the parties pleaded that the kingmakers abdicated their duties when they recommended three candidates instead of one candidate for appointment as the Ohinoyi. This fact not having been pleaded was improperly founded upon by the trial Court. The law is settled that a court has no competence to determine beyond the scope of what was put in issue by the parties in their pleadings. On this legal position, reference was made to the case of: Awojugbagbe Light Ind Ltd Vs. Chinukwe (1995) 4 NWLR (Pt. 390) p. 379 at p. 427.

Furthermore, the learned senior counsel for the Appellants canvassed that the law is settled that while interpreting the provisions of a portion of a statute, such provisions should not be read in isolation of but with the other parts of the statute. On this legal position, reference was made to the cases of:

(1)     Bronik Motors V. Wema Bank (1983) 1 SCNLR p. 296;

(2)     Ukaegbu V. A.G., Imo State (1983) 1 SCNLR p. 212 and

(3)     P.D.P V. INEC (1999)11 NWLR (Pt. 626) p. 200.

It was contended that although the trial Court founded that the Chiefs Law, regulates the appointment of Ohinoyi, it failed to consider the provisions of Section 13(d) of that law before coming to the conclusion that the kingmakers wrongly recommended three candidates instead of one candidate for appointment as Ohinoyi. Section 13(d) provides that it is the duty of the State Council of Chiefs to advise the Governor on the appointment, deposition and discipline of graded chiefs. The procedure for the appointment of the Ohinoyi was established by the Appellants at trial. Reference was made to the evidence of DW1 which was not controverted by the 1st- 6th Respondents. The procedure is that, it is the duty of the Ebira Area Traditional Council to recommend three candidates to the State Council of Chiefs. It is the duty of the latter to recommend one out of the three candidates to the Governor for appointment as the Ohinoyi.

Reacting under this issue, the learned counsel for the 1st – 6th Respondents contended that by the provisions of Sections 3(1) and 4(2) of the Chiefs Law, it is the responsibility of the kingmakers to appoint a successor to a vacant chieftaincy stool, which appointment shall be approved by the Governor. The words of those Sections being clear and unambiguous must be interpreted in their plain and ordinary meaning. He relied on this legal position on the cases of:

(1)     Olanrewaju Vs. Gov. of Oyo State (1992) 9 NWLR (Pt. 265) p. 335 at p. 362 and

(2)     Ifezue V. Mbadugha (1984) 1 SCNLR p. 427.

Reference was also made to the Black’s Law Dictionary, 6th Edition where the word ”approval” is defined as: “the act of confirming, ratifying, assenting, sanctioning or consenting to some act or thing done by another”. Reliance was further placed on the cases of:

(1)     Kure V. K.S.L.G. (2003) FWLR (Pt. 173) p. 11at p. 25 and

(2)     Akunseri Vs. Okenwa (2002) 15 NWLR (Pt. 619)p. 526 at pgs. 541 & 544.

It was further submitted by the 1st- 6th Respondents’ learned counsel that the court is empowered to interpret relevant laws and apply same to the facts of the case before it notwithstanding the evidence of the parties thereto. It was in the exercise of this power that the trial Court properly founded based on the provisions of Section 23(1) of the Chiefs Law, that the proceedings of the meeting of the kingmakers held on 9/5/1997 was vitiated by non-compliance with the said provisions.

As already founded by me under the preceding issues, it is the function of the Kingmakers to appoint a successor upon the death of the Ohinoyi, Alhaji M. S. Omolori in accordance with the provisions of the Edict. The provisions of the 1997 Edict are very simple, straight-forward and clear. There are no provisions therein that it is the duty of the Ebira Area Traditional Council to recommend three candidates to the State Council of Chiefs. The latter is not involved in the appointment of the Ohinoyi under the Edict.

The law is trite that it is the duty of the Court to interpret the law as it is and not as it ought to be. For, it is not the function of the court to make laws but to interpret the words used by the legislature whose primary function it is to make laws; while that of the court is to declare them. The Court cannot or permit anyone to write into a statute what its makers failed to insert either deliberately or inadvertently, as this would amount to a usurpation of the functions of the legislature under the thin disguise of interpretation of the statute. It is less justifiable when it is a guess work with what material the legislature would, if it had discovered the gap, have filed it in.

It is a generally accepted principle of law that, in construing the provisions of a statute where the words are clear and unambiguous, it is the words used that prevails and not what the court says the provisions mean. The courts are enjoined to employ the literal Interpretation of such clear and unambiguous words except where the literal Interpretation of the provisions of the statute will result in absurdity or injustice. No court is entitled to substitute its words or the words of another for the words of an Act. The Supreme Court held in the case of: Amaechi Vs. INEC. (2008) 5 NWLR (Pt. 1080) p. 227 per Aderemi; J.S.C. at p. 437 paras. F-G., as follows:

“The fundamental duty of the Judge is to expound the law and not to expand it. He must decide what the law is and not what it might be where the words used in couching the provisions are clear and unambiguous they must be given their ordinary and grammatical meanings, no more. Yes, it is true that it is said, that the “judex” must always have a resort to the intention of the legislator,’ that intention can only be found in the words used to frame the provisions and nowhere else. ”

See also the cases of:

(1)     Abubakar Vs. A. – G., Fed (2007) 3 NWLR (pt. 1022) p. 601;(2) Mobil Oil (Nig.) Ltd V. F.B.I.R. (1977) 3 SC p. 53;

(3)     Nabhan V. Nabhan (1967) All NLR p. 47 and (4) Goodrich V. Paisner (1957) A. C. p. 65 at p. 85.

In the case of: Mobil Oil (Nig.) Ltd V. F.B.I.R. (supra) at p. 74, the Supreme Court stated as follows:

“The general rule for construing a statute is where the words of a statute are clear the court shall give effect to their literal meaning. It is only when the literal meaning may result in ambiguity or injustice that the court may seek internal aid within the body of the statute itself or external and from statute “impari materia” in order to resolve the ambiguity or avoid doing injustice. ”

The law is equally trite that where a statute stipulates a particular method of performing a duty regulated by the statute, that method, and no other method must be followed in performing the duty. See the cases of:

(1)     Commerce Bank Nig. Ltd Vs. A.-G., Anambra State (1992) 8 NWLR (Pt. 261) p. 528:

(2)     Ibrahim V. I.N E C. (1999) 8 NWLR (Pt. 614) p. 334 and

(3)     Abubakar V. A.-G., Fed (supra) at pgs. 643 – 644, paras. G-C

In the instant case, by the combined reading and effect of Section4 (1) & (2) of the 1992 Chiefs Law and Sections 2 and 5 of the 1997 Edict, the procedure for the appointment/ascension to the throne of Ohinoyi has been stipulated. Accordingly, no other procedure of appointment/ascension could be followed or allowed under the Edict.

The learned senior counsel for the Appellants strenuously argued that the learned trial Judge went beyond the scope of the pleadings of the parties before him when he founded that the Kingmakers abdicated their duties to recommend three candidates for appointment instead of appointing one candidate to the Governor for approval. With due respect, I am of the view that, the argument that this point was not pleaded is misconceived. The 1st – 6th Respondents in their Amended Statement of Claim at pages 48 to 57, Vol. I of the record of appeal pleaded this fact in paragraphs 21, 34, 38, 39 and 40 thereof. The averments in the said paragraphs are a vehement challenge of the procedure employed by the Kingmakers in the consideration of the applications, selection and appointment of candidates to fill the vacant stool of the Ohinoyi. The said paragraphs 21, 34, 38, 39 and 40 state as follows:

“21.   Contrary to the provisions of Edict No.3 of 1997, the 3rd – 11th defendant who constitute the council of kingmakers did not set any machinery in motion for the appointment of a new Ohinoyi and neither did they allow all eligible and interested sons of Ebiral and particularly the plaintiffs herein opportunity to Vie for the stool or even submit their applications.

34. The 3rd – 11th defendants purportedly held a meeting on 9th May, 1997, to wit; 3 days after the promulgation of Edict No. 3 of 1997 to appoint a new Ohinoyi of Ebiraland. The minutes of the Said meeting are hereby pleaded
35. The plaintiffs shall contend that the purported meeting of the 3rd -11th defendants held on 9th May, 1997 was not held under the auspices and or by virtue of Edict No: 3 of 1997as the 3rd -11th defendants had not even seen the Edict as at then.
36. ALTERNATTVELY to paragraph 38 supra, the plaintiffs aver that the purported meeting of the 3rd – 11th defendants held on 9th of May, 1997 was in breach and violation of Edict No.3 of 1997
37. The plaintiffs contend that the 1st defendant is enjoined to follow the procedures laid down In Edict No. 3 of 1997 before appointing any person as Ohinoyi of Ebiraland “

What is more, the said averments were clearly, categorically and validly traversed in the respective statements of defence of the Appellants and the other plaintiffs, as amended, before the trial Court. I refer in this regard to paragraphs 11(e) (i) and 8 (d) at pages 22, 24 and 40 of the record of appeal, respectively. They state as follows, in respect of paragraph 11 (e) (i) of the statement of defence of the 1st, 2nd & 12th defendants:

“11.   That in further reply to the denials as contained in paragraph 3 above, the Defendants aver as follows:

(a)………………

(b)………………

(c)……………….

(d)……………….

(i). That the Ebira Kingmakers screened all applications including that of the 13th Defendant to the vacant stool of the Ohinoyi of Ebiraland which is the official title of the paramount rulers of Ebituland, and that the 13th Defendant was one of the three (3) candidates recommended by the Ebira Area Council of Kingmakers in order of votes scored as follows:

(a). Alhaji (Dr) Ado Ibrahim.                        –           6 Votes.

(b). Alhaji Ibrahim Mohammed Sann            –            2 Votes.

(c). Alhaji Yakubu Abdulrahim Yusuf            –            1Vote.

The Defendants plead and shall rely on the Minutes of Meeting of the Ebira Area Council of Kingmakers on the issue.”

In respect of the Further Amended Statement of defence of the 3rd – 5th, 8th – 11th & 13th defendants, paragraph B (d) states as follows:

“8.     The Defendants deny paragraphs 21, 22, 23 and 24 of the statement of claim. In specific response, the Defendants shall show that:

(a) – – – – – – – – – – – –

(b) – – – – – – – – – – —

(c)- – – – – – – — – – —

(d) The Council of Kingmakers in its final meeting of 9/5/97 recommended three (3) application (sic) to wit; Alhaji (Dr.) Ado Ibrahim, Alhaji Ibrahim Mohammed Sani and Alhaji Yakubu Abdulrahim Yusuf, for the consideration of the Kogi State
Council of Chiefs for appointment as Ohinoyi of Ebiraland. The Kingmakers contends (sic) that the process adopted in carrying out the assignment was regular, fair, in accordance with Edict NO.3 of 1997 and infact (sic) commendable.”

From the above stated pleadings of the parties, it is very clear that the findings of the trial Court that the Kingmakers abdicated their responsibility and acted “ultra vires” their powers by recommending three persons for appointment instead of appointing one person for the approval of the Military Administrator of Kogi State was properly based on the pleadings and evidence adduced by the parties during trial. Consequent upon my above deductions, issue four fails and it is resolved against the Appellants and in favour of the 1st – 6th Respondents.

ISSUE FIVE

Whether the learned trial Judge was not wrong to have set aside the appointment and installation of the the Appellant as the Ohinoyi of Ebiraland on the ground that it was done at a time when the suit filed by the plaintiffs at the trial Court was pending having regard to the materials and evidence before the trial Court?

The learned senior counsel for the Appellants argued that from the pleadings, the oral evidence and indeed the findings of the trial Court, it is very clear that the 3rd Appellant, Alhaji (Dr.) Ado Ibrahim had been appointed the Ohinoyi of Ebiraland before the commencement of the suit being appealed. The 3rd Appellant’s letter of appointment, Exhibit P15 was dated 2/6/1997, while the suit of the 1st- 6th Respondents was commenced on 6/3/1998. Indeed, the suit was meant to set aside the appointment. Learned senior counsel argued further that although it was in the course of the presentation of the defence of the Appellants at trial that evidence was adduced that the 7th Respondent presented the staff of office of the Ohinoyi to the 3rd Appellant on 18/9/1999, that is, when the suit was still pending. This piece of evidence ought not to have been acted upon rather; it should have been expunged by the learned trial Judge. This is because the said piece of evidence was not pleaded by either party. The trial Court therefore erred when it held that the 3rd Appellant was appointed during the pendency of the suit before it. The law is trite that evidence not supported by the pleadings of parties goes to no issue and must be discountenanced. On this legal position, reference was made to the cases of:

(1)     Adepoju V. Awoduyilemi (1999) 5 NWLR (Pt. 603) p. 364:

(2)     Pascutto V. Adecentro (Nig.) Ltd (1997) 11 NWLR (Pt. 529) p. 467 and

(3)     Buhari V. Obasanjo supra at p. 223.

The learned counsel for the 1st – 6th Respondents replying under this issue argued that there was a subsisting order of the trial Court that parties should maintain ”status quo” pending the determination of the suit instituted by the 1st – 6th Respondents against the Appellants among others. The order was made on 19/7/1999. Although the order was later discharged by the trial Court on 2/8/1999, it was reinstated by this Court on 11/7/2000. The installation and presentation of the staff of office to the 3rd Appellant was a step meant to steal a match on the opponents and foist a ”fait accompli” on this Court. On this stance he relied on the cases of:

(1)     Hadkinson V. Hadkinson (1952) 2 All ER. p. 567 and

(2)     Babatunde V. Olatunji (2000) 2 NWLR (Pt. 648) p. 557

The learned counsel urged this Court to “suo motu” exercise its punitive and disciplinary jurisdiction against the Appellants for their unpardonable act of contempt of court and undo what was done by them in order to truncate and frustrate the proceedings of this Court. On this posture, he relied on the cases of:

(1)     Daniel V. FCTguson (1891) 2 Ch. P. 30:

(2)     Registered Trustees of Apostolic Church Vs. Olowoleni (1990) 6 NWLR (Pt. 158) p. 514;

(3)     Unipetrol (Nig.) Plc. Vs. Abubakar (1997) 6 NWLR (Pt. 507) p. 470 at pgs. 478 & 480 and

(4)     Ivory Merchant Bank Ltd Vs. Partnership Invest. Ltd & Anor. 0996) 5 NWLR (Pt. 448)p. 362.

The law is firmly settled that, it is the duty of a court to confine or limit itself, only to the issue raised and or canvassed by the parties before it. There are so many decided authorities in this respect. See the cases of: Onwunalu & Ors. Vs. Osademe (1971) 1 All NLR p. 15; Adeosun V. Babalola (1972) 5 S.C p. 292; University of Calabar V. Dr. Essien (1996) 10 NWLR (Pt. 477) p. 225 at p. 251; Madam Obulor & Anar. V. Obara (2001) 8 NWLR (Pt. 714) p. 25; Nigerian Bank for Commerce & Industry Vs. Integrated Gas (Nig.) Ltd & Anor. (2005) 4 NWLR (Pt. 916) p. 617 and very recently, A. G. Leventis (Nig.) Plc. Vs. Akpu (20.0.7)17 NWLR (Pt. 10.63) p. 416.

It is also well established that the expression of a Judge in a judgment must be taken with reference to the facts of the case which he is deciding, the issues calling for decisions and answers to those issues. There is a distinction between a ”ratio decidendi” and an ”obiter dictum”. The ”ratio decidendi” of a case represents the reasoning or principle or ground upon which a case is decided. An ”obiter” simply means, in passing or incidental or cursory. An “obiter dictum’ reflects, “inter alia’; the opinions of the Judge, which do not embody the resolutions of the court. See the cases of:

(1)     Osafile V. Odi (No.1) 0990 3 NWLR (pt. 137) p. 130;

 

(2)     A.I.C Ltd V. NNPC (2005) 11 NWLR (Pt. 937) P. 563 and

(3)     Awakunle V. NEPA (2007) 15 NWLR (Pt. 10.57) p. 340.

In the instant case, the entire findings of the trial Court are contained in pages 372 to 405, Vol. II of the record of appeal. None of those findings was based on the pronouncement the Appellants are complaining about. The learned trial Judge, did not set aside the installation of the 3rd Appellant as the Ohinoyi of Ebiraland on the ground that the installation was done at the time when the suit before the trial Court was still pending. The said pronouncement not being a decision cannot be said to be an integral part of the judgment. The decision of the trial Court was based majorly on non-compliance with the provisions of the applicable law, that is, the Edict in the selection, appointment and approval of the appointment of the 3rd Appellant as the Ohinoyi of Ebiraland. Obviously, the said pronouncement was a mere “obiter” which did not embody the resolutions of the trial Court.

Unhesitatingly, I resolve issue five against the Appellants and in favour of the 1st – 6th Respondents.

ISSUE SIX

Whether the learned trial Judge was not wrong to have held that: “the Plaintiffs were shut out or prevented from contesting for ascension to the stool of Ohinoyi of Ebiraland by the Defendants”, having regard to the materials and evidence before the trial Court?

The learned senior counsel for the Appellants submitted that from the evidence adduced by parties at trial, it was clearly shown that none of the candidates who showed interest and submitted applications timeously was shut out or prevented from contesting for the stool of Ohinoyi of Ebiraland. Rather, there was tardiness on the part of some of the Respondents in submitting applications for the vacant stool as shown in their evidence. The learned senior counsel for the Appellants opined that the trial Court erred in granting the 1st – 6th Respondents the declaratory relief that the shutting out or prevention of the 1st – 6th Respondents who are ”bona fide” indigenes of Ebiraland, primarily and eminently qualified to contest and ascend to the stool of Ohinoyi by the Appellants amongst others is unfair, undemocratic and constitutes a breach of the provisions of the Edict.

Reacting under this issue, the learned counsel for the 1st – 6th Respondents argued that the 1st – 6th Respondents established their case that after the enactment of the Edict, the applications of some of the interested candidates received by the kingmakers were not considered. The case of the Appellants also supported this stance. In this regard, DW4 gave evidence under cross-examination that Exhibits P9 and P11, the applications of some of the aspirants were not considered by the kingmakers. It was contended in favour of the 1st – 6th Respondents that the Ebira Area Traditional Council was designated a Council of Kingmakers under the Edict. Although some applications were received by the Council before the enactment of the said Edict, no evidence was adduced by the Appellants that the other steps enumerated in the new Edict were taken and complied with. Such steps include the formal announcement of the passing away of the late Ohinoyi and consultations among the Ohinoyi family, the State Government and the Council in conformity with the tradition of Ebira people.

The learned counsel for the 1st – 6th Respondents canvassed that although there is no time frame for taking the said steps under the Edict, viewed from any angle, it could not be said that three days were a reasonable time frame for the conclusion of the processes by the Council as done by it. The Appellants also failed to establish that the Council’s Acting Chairman was ever appointed as the Regent of Ohinoyi prior to the commencement of the said processes in compliance with the provisions of the Edict in that regard. In his opinion, the trial Court properly held that the exercise of the Council’s functions was neither commenced nor concluded in compliance with the provisions of the Edict as claimed by the Appellants, The proceedings of the meeting held by the Council on 9/5/1997 was a non-starter. Therefore the selection of the 3rd Appellant, Alhaji (Dr.) Ado Ibrahim and two others by it to the State Council of Chiefs and the subsequent recommendation of the 3rd Appellant, Alhaji (Dr.) Ado Ibrahim by the latter to the Kogi State Government cannot stand as they had no legal plank or foundation on which they could lean.

I have perused the Appellants’ Reply Brief of Argument. With due respect to the learned senior counsel for the Appellants, the said Reply brief amounts to a re-argument of the issues which have been extensively submitted upon in the main Further Amended Appellants’ Brief. The submissions in the said Reply brief are repetitive of those in the main brief, though precised. It is my opinion and I hold that, the said submissions in the Reply brief do not in any way advance the Appellants’ case. In the light of this, I do not consider it necessary to refer thereto in the resolution of this appeal.

This issue is in a way linked with the first, second and third issues. Under the said issues, I have already founded, upholding the findings of the trial Court that there was non-compliance with the provisions of Section 5 of the 1997 Edict in the procedure adopted by the Kingmakers in filling the vacant stool of the Ohinoyi of Ebiraland. I cannot agree more with the submissions of the learned counsel for the 1st – 6th Respondents that, although some applications were submitted by some aspirants to the Ebira Area Traditional Council before the enactment of the Edict, the procedure set out in the Edict should have been employed afresh and to the letters upon coming into force of the Edict. Failure to comply with the said procedure was not only fatal to the validity of the appointment of the 3m Appellant, Alhaji Dr. Ado Ibrahim, it shut the door of opportunity against the 1st – 6th Respondents and possibly other eligible aspirants to take part in the contest for the vacant stool of Ohinoyi. The learned trial Judge properly held in this regard and I ought no against that finding.
From the foregoing, it is unavoidable for this issue to fail. The issue IS resolved against the Appellants and in favour of the 1st – 6th Respondents.
Consequent upon the failure of all the six issues formulated by the Appellants for determination, this appeal suffers the fate of failure. This appeal lacks merit and is hereby dismissed. The judgment of the trial Court delivered on 3/4/2006 is hereby affirmed. The sum of thirty thousand Naira is hereby awarded in favour of each of the 1st – 6th Respondents against the Appellants as the costs of this appeal.

SECOND APPEAL

This second appeal was filed by the Military Administrator of Kogi State and the Attorney-General of Kogi State (hereinafter referred to as the Appellants), “vide” their notice and grounds of appeal dated 28/4/06. The notice and grounds of appeal containing ten grounds of appeal. The said grounds of appeal with their particulars are contained in pages 420 to 427, Volume II of the record of appeal. In the brief of argument filed on 8/2/07 by the Appellants which was deemed properly filed on 12/2/07, four issues were formulated for determination. The issues are as follows:

(1)     Whether having regard to the pleadings and the issues settled for determination, the learned trial Judge was not wrong to have held that the exclusion of the Secretaries to the Local Government Traditional Councils in Ebiraland from the meeting held on 9/5/97 by the Council of Kingmakers rendered invalid the proceedings of the said meeting?

(2)     Whether having regard to the pleadings and the issues settled for determination, the trial Court was not wrong to have held that the functions set out under Section 5 of Edict No.3 of 1997 are not such which can be exercised in one fell swoop as to suggest that by the minutes of the meeting held on 9/5/97 by the Ebira Area Traditional Council, Exhibit 5, all those functions were explored and exercised by the Council of kingmakers?

(3)     Whether the learned trial Judge was not wrong in his conclusion that the Council of Kingmakers abdicated their responsibility and acted ”ultra vires” their powers by recommending the names of three persons instead of appointing one person for the approval of the Chief Executive of the State having regard to the pleadings, issues settled for determination and the evidence before the trial Court?

(4)     Whether the learned trial Judge was not wrong in his conclusion that the installation of the yd Appellant as the Ohinoyi of Ebira land was done at the time the suit challenging the said appointment had already been initiated and was still pending?

Reacting to the second appeal, the 1st – 6th Respondents in the first appeal, (hereinafter referred to as the Respondents) filed a notice of preliminary objection against the second appeal. The 1st – 6th Respondents’ brief of argument in respect of the second appeal was filed on 3/4/07. Incorporated in the said 1st – 6th Respondents’ brief are the submissions on the preliminary objection. In the said brief, two issues were formulated for determination. These are as follows:

(1)     Whether or not the learned trial Judge was right in holding that the kingmakers did not follow and observe all the steps required of them in the appointment exercise of 9th May, 1997?

(2)     Whether or not the learned trial Judge properly considered the evidence before him to have set aside the appointment and subsequent installation of Alhaji (Dr.) Ado Ibrahim?

After the adoption of all the briefs filed for the Respondents at the hearing of the appeal, the learned counsel for the Respondents applied to withdraw the notice of preliminary objection and the submissions in respect thereof from the Respondents’ brief. It is therefore hereby ordered that: the preliminary objection filed by the Respondents against this appeal and the submissions in respect thereof as contained in the Respondents’ brief having been withdrawn by the learned counsel for the Respondents without the objection of the learned counsel for the other parties are hereby struck out accordingly.
I find it convenient to use the four issues formulated by the Appellants in their brief in resolving this appeal. I will adopt the four issues and consider them with the relevant parts of the issues formulated by the learned counsel for the Respondents. However, I will take issues one, two and three together because they are interdependent.

ISSUES ONE, TWO & THREE

Whether having regard to the pleadings and the issues settled for determination, the learned trial Judge was not wrong to have held that the exclusion of the Secretaries to the Local Government Traditional Councils in Ebiraland from the meeting held on 9/5/97 by the Council of Kingmakers rendered invalid the proceedings of the said meeting?

Whether having regard to the pleadings and the issues settled for determination, the trial Court was not wrong to have held that the functions set out under Section 5 of Edict No, 3 of 1997 are not such which can be exercised in one fell swoop as to suggest that by the minutes of the meeting held on 9/5/97 by the Ebira Area Traditional Council, Exhibit 5- all those functions were explored and exercised by the Council of kingmakers?

Whether the learned trial Judge was not wrong in his conclusion that the Council of Kingmakers abdicated their responsibility and acted “ultra vires” their powers by recommending the names of three persons instead of appointing one person for the approval of the Chief Executive of the State having regard to the pleadings, issues settled for determination and the evidence before the trial Court?

The learned counsel for the Appellants submitted that the law is trite that parties and of course the courts are bound by the pleadings subscribed to by the parties. Therefore evidence led on the facts which were not pleaded goes to no issue. The court is not a Father Christmas; it is barred from entering to enquire outside the pleadings. Where evidence led is outside the pleadings, it is the responsibility of the trial court to expunge same from the record. It is a basic principle of law that when an issue is not placed before a court of law, the court has no business whatsoever dealing with such an issue. On this legal position, reliance was placed on the cases of:

(1)     Yekini A. Abbas & Ors. Vs. Olatunji Solomon & Ors. (2001) 7 SCNJ p. 546 at p. 564;

(2)     Florence Olusanya Vs. Olufemi Olusanya (1983) 3 SC p. 41 at pgs. 56 – 57:

(3)     Ochona Vs. Umosi (1965)1 NWLR p. 321;

 

(4)     Buhari Vs. Obasanjo (2005) 7 SCNJ p. 1 at p. 97 and

(5)     Olukale Vs. Alade (1976)2 SC p. 183.

In the instant case, the issue of the exclusion of the secretaries of the Local Government Councils of Ebiraland from the kingmakers’ meeting of 9/5/97 where the selection of candidates was made in the matter of ascension to the vacant stool of Ohinoyi of Ebiraland was not pleaded by parties in the suit before the trial Court. Therefore, the learned trial Judge made a wrong finding when it held that there was evidence before him which indicated that the said Council not having been properly composed for the meeting; the decision taken thereat as contained in Exhibit P5 was invalid.

The learned counsel for the Appellants also submitted that the Respondents did not plead that, under Section 5 of the Edict, the Kingmakers have certain functions to perform in the appointment exercise. It was also not pleaded that those functions could not have been completely performed all at a go at the said meeting of the Council. Hence, the finding of the trial Court in this regard was wrong.

It was further submitted for the Appellants that the issue that the Kingmakers abdicated their responsibility thereby acting “ultra vires” when they recommended three persons instead of one person for appointment was also not pleaded and no evidence was led in the establishment of this fact. In the opinion of the learned counsel for the Appellants, the trial Court’s finding in this regard was not borne out of the evidence adduced before it.

Replying, the learned counsel for the Respondents submitted that there is no gainsaying the fact that the Secretaries of the Local Government Traditional Councils in Ebiraland have a vested right in the appointment of a new Ohinoyi of Ebiraland, being one of the sets of the “dramatis personae” under Section 20 of the Chiefs Law. Their role is paramount and they are bound by whatever decision is made notwithstanding that they were not made parties in the suit filed before the trial Court against the wrongful appointment of the 3rd Appellant that is, Alhaji (Dr.) Ado Ibrahim In the first appeal. On this position, reliance was placed on the cases of:

(1)     Ebongo Vs. Uwemedimo (1995) 8 NWLR (Pt. 411) p. 22 at p. 45:

(2)     A.G., Federation Vs. A.G., Abia State & 35 Ors. (2006) 2 NPMLR p. 236:

(3)     Green Vs. Green (1987) NSCC (Pt.2) p. 1115 at p. 1122 and

(4)     Ndayako Vs. Jikantoro (2005)1 FWLR (Pt.257) p. 857 at p.887

It was argued in favour of the Respondents that the exclusion of the said Secretaries was pleaded by the Appellants. Reference was made to the issues settled by the parties at the trial Court. Also, the Appellants’ issue 14 states thus:

 

”Can the proceedings of the council of kingmakers (3rd – 11th defendants) vide the minutes of meeting dated 9th May, 1997 be faulted and set aside on ground other than misconduct of member or violation of a known law?”

What is more, the evidence adduced by the set of Appellants in the first appeal in establishing their defence at trial, supported this issue. The Secretary of the Council of Kingmakers, DW4 testified that the Secretaries of the four Local Government Areas in Ebiraland did not take part in the said meeting contrary to the provisions of the Chiefs Law and as such the Council of Kingmakers was not properly constituted. The point in dispute is not at all a matter of quorum but about the fact that those who were legally expected to be present to give the meeting competence were not. It is an established legal principle that, where those expected to attend a meeting for taking a decision did not, such decision taken is void. On this position reliance was placed on the cases of:

(1)     Ware Vs. A.G., Adamawa State (2000) 8 NWLR (Pt. 668) p. 229 at p. 240 and

(2)     Aliyu Vs. Ibrahim (1997) 2 NWLR (Pt. 489) p. 571 at p. 586.

Furthermore, it was contended in favour of the Respondents that the purported letter of appointment of Alhaji (Dr.) Ado Ibrahim as the Ohinoyi of Ebiraland, Exhibit P15, which was issued by the then Kogi State Military Administrator stated that the authority to appoint in this regard derived from the provisions of sections 3(1) & 4(2) of the Chiefs Law. Contrariwise, an examination of the said provisions reveals clearly that the authority to appoint is vested in the kingmakers. The kingmakers are in this regard empowered to appoint one person and not three persons. Obviously, the kingmakers are to present the person appointed by them to the Governor for approval. The law is settled that, the courts when interpreting clear and unambiguous provisions of statutes must ascribe to them their ordinary and plain meanings. The provisions of Sections 3(1) & 4(2) of the Chiefs Law are clear and unambiguous. The kingmakers were expected to appoint, while the Governor was to approve the person appointed. Reference was also made to the provisions of section 7 of the Edict in support of this position. However, the Governor can only approve a validly appointed person. It is a settled principle of law that only a valid and not a void act can be saved, for anything based on a void act is bad and incurably bad. Reliance on this legal principle was placed on the cases of:

(1)     Oduntan Vs. Akibu (2000) FWLR (Pt. 12) p. 1982 at p. 2012;

(2)     Olanrewaju Vs. Governor of Oyo State (1992) 9 NWLR (Pt. 265) p. 335 at p. 362 and

(3)     Ifezue Vs. Mbadugha (1984)1 SCNLR p. 427,

In furtherance of the assertion of the Respondents, their learned counsel submitted that the law is trite that the courts are empowered to interpret, declare laws according to laid down canons of interpretation and apply same to the facts of cases brought before them notwithstanding the evidence of parties. For the evidence of parties can not vary the contents of a law. The conclusion of the trial Court in the instant case is in line with the undoubted powers vested in the courts to make indifferences based on the evidence adduced before them. In this regard reference was made to the cases of:

(1)     Edokpolor Vs. Ohenhen (1994) 7 NWLR (Pt. 358) p. 511 and

(2)     Ejiofor Vs. The State (2001) FWLR (pt. 49) p.1457 at p.1475.

The learned counsel for the Respondents also submitted that, there must be justification for the exercise of a challenged statutory power. On this legal principle, reference was made to the case of: P.H.M.B. Vs. Ejitagiha (2000) 1 NWLR (Pt. 677) p. 154.

In the instant case, the exercise of the functions of the kingmakers in the appointment of the Ohinoyi of Ebiraland was contested. Failure to establish compliance with the provisions of the relevant law in this regard was fatal to the case of the Appellants.

It was restated in favour of the Respondents that where a trial Court unquestionably evaluated evidence and appraised the facts of a case before it, an appellate court cannot easily disturb the findings of facts of the trial Court. For it is the trial court that has the singular opportunity of listening to witnesses and watching their demeanour. The appellate court cannot therefore substitute its own views for those of the trial court, where the trial court’s indifferences were properly drawn from the findings. On this legal position reference was made to cases of:

(1)     Auta Vs Olaniyi (2004) 4 NWLR (Pt. 863) p. 394 and (2) Awoagbo Vs. Eze (1995)1 NWLR (Pt. 372) p. 393.

I have carefully examined issues one, two and three herein. I find that, they are the same as issues three, two and four in the first appeal respectively, although they are slightly differently worded. I do not want to be tautological, hence in resolving issues one, two and three herein, I shall be adopting the same line of reasoning and conclusions employed and reached by me under the said issues in the first appeal.

It is my view and I hold that, under and by virtue of Sections 19(2) and 20(1) (c) of the Chiefs law, the Secretaries of the four Local Government Areas in Ebiraland being statutory members of the Ebira Area Traditional Council mandatorily should have taken part in the purported meeting of the Council held on 9/5/97. Their exclusion from the said meeting definitely rendered invalid the proceedings of the meeting, Exhibit P5. The learned trial Judge rightly founded along this line.

I have also founded, upholding the views of the trial Court that, on the part of the Respondents, there was non-compliance with the provisions of Sections 3 and 5 of the Edict under which the stool of Ohinoyi of Ebiraland was established and the procedure for filling a vacancy in the said stool was laid down. The Council of Kingmakers did not even commence, not to talk of performing fully its functions pursuant to the provisions of Section 5 of the Edict in the matter of the selection, and appointment of Dr. Ado Ibrahim.

The procedure prescribed by the Edict being a requirement of law, must be strictly adhered to. The Ohinoyi Chieftaincy is a creation of the said statute. The procedure for ascension to the stool is similar to a chieftaincy declaration which cannot be deviated from. See the cases of:

(1)     Sosanya Vs. Onadeko (2000)11 NWLR (Pt. 677) p. 34;

(2)     Mil Admin. of Ekiti State Vs. Aladeyelu (2007) 14 NWLR (Pt. 1055) p.619 and

(3)     Akuneziri vs. Okenwa (2000) 16 NWLR (Pt.691) p. 526.

The main grouse of the learned honourable counsel for the Appellants herein is that, the issues of the exclusion of the Secretaries of the four Local Government Areas in Ebiraland from the supposed meeting held on 9/5/97 by the Ebira Area Traditional Council was not pleaded. The learned honourable counsel contended that equally not pleaded are the fact that the functions of the Council of Kingmakers were not fully explored by it and that the Council of Kingmakers wrongly exercised its power by recommending three persons for appointment instead of appointing one person to be approved by the Governor of Kogi State. Humbly, I do not share those views. As already adverted to by me in my consideration of these issues in the first appeal, apart from the fact that these issues were impliedly pleaded under major heads, they were also in most cases specifically pleaded. Indeed some of these issues were agreed upon and settled by the parties. I refer on this point to paragraphs 21, 34, 38, 39 and 40 of the Amended Statement of Claim, paragraphs 11 and 8 of the respective statements of defence contained in pages 50, 52, 22, 24 and 40, Vol. 1 of the record of appeal respectively.

What is more, it is a settled principle of law that only facts in issue and not evidence are pleaded. See the case of: G.N.I.C. Ltd Vs. Ladgroups Ltd (1986) 4 NWLR (Pt. 33) P. 72 at p. 77paras. G – H., Nnaemeka- Agu JCA (As he then was) stated as follows:

“The trend of the argument in this appeal dictates that I should re-examine certain elementary rules of pleadings. In Philips Vs Philips (1878) 4 QBD 133 these basic rules were stated to be that the pleader must plead:

(i) Material facts, not law;

(ii) Material facts, not evidence:

(iii) Material facts only:

(iv) All material facts; and

(v) All facts in a summary form.
– – – — – – — – – — – – —
— —– – – — – – — – – —

These basic rules have found their way into most of our rules of court. “Also in the case of: Ezemba Vs. Ibeneme (2004) 14 NWLR (Pt. 894) p. 617 at p. 649 para. H, Edozie JSC (Rtd.) had the following to say:

“I consider it appropriate to advert to one of the cardinal rules of pleadings which are that, a party is only required to plead facts and not the evidence by which those facts are to be proved.”

Further on this principle of law in the case of: Bamigboye Vs. Uni of Ilorin (1991) 8 NWLR (Pt. 207) p. 1 at p. 24 para. A., therein Ogundere JCA (of blessed memory) stated thus:

”A party is to state the facts constituting the wrong of which he complained, not the evidence by which they are to be proved Thanni Vs. Saibu (1977) 2 SC p. 89 at p. 177.” I am at one with the submissions of the learned counsel for the 1st – 6th Respondents that the instant case in the main is challenging the legality of the appointment of the Dr. Ado Ibrahim. The trial Court being a court of record is statutorily empowered in the circumstance to consider not only the evidence adduced before it by the parties, but also all the laws that are relevant to and materials that will enable it arrive at a just resolution of the case. The courts have intrinsic ability to make inferences based on the materials at their disposal. It is absolutely unnecessary for every minute detail of in a case to be pleaded. I agree with the learned counsel for the 1st – 6th Respondents that failure to establish full compliance with any of the provisions of the Edict, the relevant law in this matter, is fatal to the case of the Appellants as defendants at the trial Court. The learned trial Judge properly made the same pronouncement in His Lordship’s judgment being appealed.

From the foregoing deductions and conclusions, issues one, two and three herein are ill-fated. They fail and are hereby resolved against the Appellants and in favour of the Respondents herein.

ISSUE FOUR

Whether the learned trial Judge was not wrong in his conclusion that the installation of the 3rd Appellant as the Ohinoyi of Ebira land was done at the time the suit challenging the said appointment had already been initiated and was still pending?

The learned counsel for the Appellants reiterated that the appointment and installation of Alhaji (Dr.) Ado Ibrahim as the Ohinoyi of Ebiraland by the Governor of Kogi State during the pendency of the suit challenging the same at the trial Court was not pleaded by the Respondents. Hence, evidence adduced thereon ought to have been expunged rather than finding in respect thereof by the learned trial Judge. What is more, the evidence of parties was contrary to the said findings because parties were in agreement that while the appointment was made “vide” Exhibit P18 on 2/6/1997, the suit challenging same was actually filed at the trial Court on 6/3/1998.

It was submitted in favour of the .Appellants that the order of the trial Court setting aside the appointment and installation on this ground was wrong and perverse. For, one of the basic principles of law is that the court cannot grant a relief not claimed by a party. On this position of the law, reference was made to the case of: The Nigerian Air Force Vs. Wing Commander Shete (2002) 12 SCNJ P. 35.

The learned counsel for the Respondents faulted the argument proffered in favour of the Appellants and submitted that, the judgment of the trial Court could not be set aside because there are other grounds apart from the one being erroneously peddled by the Appellants upon which the trial Court’s order was based. Among such grounds are that the procedure adopted by the kingmakers did not allow for an egalitarian access; only a pre-determined and pre-selected candidate was favoured; those who have vested rights in the selection by law were deliberately left out, and the kingmakers who are statutorily empowered to appoint one out of all the candidates who aspired to occupy the stool of Ohinoyi abdicated that duty and merely recommended three candidates to the Governor for appointment of one of them, when all that is statutorily required of the Government was to approve the appointment of one candidate and appointed by the kingmakers.

It was contended for the Respondents that there was a valid order of this Court given on 11/7/2000 that parties should maintain “status quo ante”. The said ruling wherein the order was made was reported in the case of: Ohida & Ors. Vs. MILAD Kogi State (2000) FWLR (Pt. 12) p. 2107 at p. 2130. The Appellants were under an obligation to obey the injunctive order unless and until it is set aside on appeal. The installation of Alhaji (Dr.) Ado Ibrahim was a contemptuous disobedience and an act geared at stealing a match on the opponents and foisting a ”fait accompli” in the matter. This stance was supported with the following cases:

(1)     Hadkinson Vs. Hadkinson (1952)2 All ER p. 567 and

(2)     Babatunde Vs. Olatunji (2000) 2 NWLR (Pt. 648) p. 557.

This Court under its punitive disciplinary jurisdiction can and should ”suo motu” undo what the Appellants had done by truncating and frustrating its proceedings.

The learned counsel for the Respondents argued further that, the order of the trial Court setting aside the appointment and installation of Alhaji (Dr.) Ado Ibrahim as the Ohinoyi of Ebiraland was a consequential one which flowed from the Court’s findings that the appointment was void ”ab initio”. The stand of the Appellants that a consequential order made by a court must necessarily be based on the reliefs sought was misconceived. The correct position of the law is that the basis of a court’s order must be the evidence before the court. For a consequential order is not one merely incidental to a decision but necessarily flowing directly and naturally from and inevitably consequential upon it. A proper consequential order need not be claimed but a substantive order must be claimed and sustained by the facts before the court. On this legal position, reference was made to the following cases:

(1)     Akinbola Vs. Plisson Fisko Nig. Ltd & 2 Ors. (1991) 1 NWLR (Pt. 167) p.270;

(2)     Registered Trustees of Apostolic Church Vs. Olowoleni supra at p. 531 and

(3)     Ekpuk Vs. Okon (2002) 5 NWLR (Pt. 760) p. 445 at p. 477.

Issue four herein is the exact replica of issue five in the first appeal, my earlier posture on the crux of this issue remains unchanged. I will also not repeat here the totality of my said line of reasoning and conclusions so as not be tautological. Suffice it for me to state very briefly that, the pronouncement in question did not amount to a decision. It was an “Obiter”, a cursory passing comment of the learned trial Judge. On a very close scrutiny of the entire length and breadth of the findings of the learned trial Judge visibly displayed in his judgment it can be seen that, this point in question did not form an integral part of the said decisions and findings. The pronouncement is inconsequential because the judgment of the trial Court was not predicated on it. It did not relate to the real issues joined by the parties in the dispute.
See further on this point the case of: Mohammed Vs. Lawal (2006) 9 NWLR (Pt. 985 (p. 400 per Sanusi, JCA at p. 417 paras. C-D,that:

“The phrase “obiter dicta” means statement constituting the opinion of the Judge which do not embody the resolution of the court. Although if may have considerable weight, it is not binding on courts as it is mere statement made in passing.”

See orders 1, 2, 3, 4, 5 and 6. (a) – (d) contained in pages 403 to 405, vol. II of the record of appeal. It is crystal clear from the six final orders made by the trial Court that the judgment was not predicated on the pronouncement in question. None of the said orders was predicated on the fact that the appointment and installation of Dr. Ado Ibrahim were made during the pendency of the suit before the trial Court. I hold that the pronouncement in question is in fact a non-issue; it did not negatively impact on the judgment being appealed. As already stated, the selection, appointment and approval of the appointment were invalidated on the ground of non-compliance with the provisions of the Edict, particularly Sections 3, 5, and 7 of the Edict.

Based on all that I have said above, issue four herein equally fails. It is resolved against the Appellants and in favour of the Respondents herein.

The entirety of the four issues formulated by the Appellants in this second appeal having been resolved against them, this second appeal is unsuccessful. It is hereby dismissed accordingly.

The sum of thirty thousand Naira is hereby awarded in favour of each of the 1st – 6th Respondents as the costs of the second appeal against the Appellants herein.

CROSS APPEAL

The 1st – 6th Respondents (hereinafter referred to as the Cross-Appellants) were equally displeased with some of the findings of the trial Court in this matter. They therefore filed their notice and grounds of cross-appeal on 30/5/06. There are eight grounds of appeal in the said notice and grounds of cross-appeal; these are contained in pages 428 to 437, Volume II of the record of appeal.
The Appellants (hereinafter referred to as the Appellants/Cross-Respondents) filed a notice of preliminary objection against the cross-appeal on 14/3/07. In it, this Court was urged to strike out the cross-appeal for incompetence and absence of this Court’s jurisdiction to adjudicate thereupon. The application was predicated on the ground that: the judgment of the trial Court being in favour of the Cross-Appellants, the Cross-Appellants cannot legally be heard to complain against the said judgment.

When this appeal came up for hearing on 13/10/08, the learned counsel for the Cross-Appellants identified the Cross-Appellants’ brief of argument which was filed on 6/2/0S, deemed properly filed on 26/5/08; the Reply to the Appellants/Cross-Respondents’ brief of argument and the Reply to the submissions of the Appellants/Cross-Respondents’ submissions on the preliminary objection, both Replies were filed on 3/4/07 and the Reply to the brief of argument of the 7th & 8th Respondents (hereinafter referred to as the 7th & 8th Respondents/Cross-Respondents) in the cross- appeal, which was filed on 16/4/07. All these briefs were adopted by the learned counsel for the Cross-Appellants and this Court was urged by him to dismiss the preliminary objection against the cross-appeal, allow the cross-appeal and dismiss the two appeals.
In the Cross-Appellants’ brief, three issues were distilled for determination from the eight grounds of the cross-appeal. These are as follows:

(1)     Whether the trial Court was right to have held that Exhibits P7 and D9 were properly considered by the Council of Kingmakers constituted under Edict NO.3 of 1997?

(2)     Whether the trial Court was right in holding that Exhibits P7 and D9 were made sequel to and as contemplated under Edict NO.3 of 1997?

(3)     Whether the trial Court properly declared Alhaji (Dr.) Ado Ibrahim as qualified to vie for the stool of Ohinoyi of Ebiraland despite uncontradicted evidence of his unbecoming antecedents and unsuitability for the said stool?

In reacting to the cross-appeal, the Appellants/Cross-Respondents’ learned senior counsel identified the brief of argument filed for his clients on 14/3/07. Incorporated therein are his submissions in respect of the preliminary objection filed against the cross-appeal. The learned senior counsel for the Appellants/Cross-Respondents formulated two issues for the determination of the cross-appeal. The issues are as follows:

(1)     Whether the conclusion of the learned trial Judge that the application of Alhaji (Dr.) Ado Ibrahim for the vacant stool of the paramount ruler of Ebiraland was regular and competent can be faulted having regard to the materials and evidence before the trial Court?

(2)     Whether the finding of the learned trial Judge that Alhaji (Dr.) Ado Ibrahim was qualified to contest for the vacant stool of the paramount ruler of Ebiraland can be faulted having regard to the material and evidence before the trial Court?

The brief was adopted by the learned senior counsel who urged that the preliminary objection should be upheld, and the cross-appeal struck out for incompetence. In the alternative, he urged that the cross-appeal be dismissed.

The learned counsel for the 7th & 8th Respondents/Cross-Respondents also identified and adopted the 7th & 8th, Respondents/Cross-Respondents’ brief of argument filed on 8/3/07 in response to the cross-appeal. The three issues formulated for determination In the said brief though slightly worded, are on all fours with the three issues formulated in the Cross-Appellants’ brief of argument. He urged that the cross-appeal be dismissed.

It behoves me in law and practice before delving into the main cross-appeal to consider first, the preliminary objection filed by the Appellants/Cross-Respondents against the cross-appeal. I shall proceed in that regard.

PRELIMINARY OBJECTION TO THE CROSS-APPEAL

The learned senior counsel for the Appellants/Cross-Respondents argued that for as much as all the reliefs sought by the Cross-Appellants were granted by the trial Court, they could not competently seek to have the judgment upturned by way of a cross-appeal. Rather, under the law, they could only come before this Court competently by filing a Respondent’s notice. It was contended in favour of the Cross-Respondents that a litigant is forbidden from appealing against a judgment decided in his favour. Reference was made to the following cases in line with this position:

(1)     Prof Awojobi Vs. Dr. Ogbemudia (1983)8 SC p. 32;

(2)     Padawa Vs. Jafau (2003) 5 NWLR (Pt. 813) p. 247 at p. 269 and

(3)     Akinsipe Vs. Adetoroye (1999) 9 NWLR (Pt. 617) p. 162 at p. 172 para. D.

It was further contended in favour of the Appellants/Cross-Respondents that the reliefs the Cross Appellants are seeking in the cross-appeal contained in pages 428 to 437, Vol. II of the record of appeal are new, quite distinct and different from the reliefs sought by them in their statement of claim at the trial Court. The learned senior counsel restated the legal principle that an appeal is a continuation of a case that began in the lower Court. In this regard, reliance was placed on the case of: N.S. Eng. Co. Ltd Vs. Ezenduka (2002) 1 NWLR (Pt. 748) p. 496

The learned senior counsel urged that the cross-appeal should be struck out accordingly for incompetence.

Replying to the preliminary objection, the learned counsel for the Cross-Appellants submitted that, the adverse findings of the trial Court being challenged qualify to be referred to as decisions. In the circumstance, the only option opened to the Cross-Appellants to have the findings reversed and set aside is by way of either a Notice of Appeal or Cross-Appeal. He referred on this position to the cases of:

(1)     Oloriegbe Vs. Omotesho (1993) 1 NWLR (Pt. 270) p. 386;

(2)     Oguma Asso Vs. I.B.WA. Ltd (1998) 1 NSCC p. 395;

(3)     Princess Odu Vs. Fawehinmi (2005)15 NWLR (Pt. 949) p. 578 and

(4)     L.C.C V.s. Ajayi (1970) All NLR p. 293.

It was further stated in favour of the Cross-Appellants that, not all the findings of the trial Court are in their favour. What is more, courts are enjoined to consider all relevant documents in their files and take judicial notice of same when adjudicating upon applications before them even though such documents were not made part of the affidavit evidence. On this point reliance was placed on the cases of:

(1)     Agbasi V. Ebikofere 0997) 4 NWLR (Pt. 502) p. 603 at p. 648 and

(2)     In Re Mbamalu (2001)18 NWLR (Pt. 744) p. 143 at p. 163.

Reference was also made to the provisions of Section 74(1) (m) of the Evidence Act in this regard.

The learned counsel for the Cross-Appellants submitted that all the cases cited in favour of the preliminary objection against the competence of the cross-appeal are inapplicable. He urged that the preliminary objection should be dismissed and the cross-appeal allowed in the given circumstances.
Generally, under and by virtue of the provisions of Section 240 of the 1999 Constitution, this Court is vested with exclusive jurisdiction to hear and determine appeals from final decisions in civil or criminal proceedings of the Federal High Court, the High Court of the FCT, Abuja, the High Court of a State, Sharia Court of Appeal of the FCT, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of the FCT, Abuja, Customary Court of Appeal of a State and a Court Martial or other Tribunals.

“Decision” is defined in Black’s law Dictionary, 7th Edition as, a judicial determination after the consideration of facts and the law; especially, a ruling, order, or judgment pronounced by a court when considering or disposing of a case. In the case of: Falola Vs. U.B.N Plc. (2005) 7 NWLR (pt. 924) p. 417, paras. E – G., it was held that, by virtue of the provisions of Section 318(1) of the 1999 Constitution, “decision” means, in relation to a court, any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation. From this definition, it is clear that “decision” includes “judgment” and 50 a “final decision” is and includes a “final judgment”. Further in the case of: Umar Vs. Onwudine (2002) 10 NWLR (Pt. 774) p. 129, a “decision of a court” was held to be a determination of that court in proceedings before the court and it is said to include or cover the determination of an application before it but does not include an observation or expression of opinion by the court not related to issues joined by the parties in dispute. See also the case of: Bello Vs. Gov., Kogi State (1997) 9 NWLR (Pt. 521) p. 496.

The grouse of the Appellants/Cross-Respondents about the cross-appeal is that, the Cross-Appellants had the entirety of the judgment being appealed in their favour. According to the learned senior counsel for the Appellants/Cross-Respondents, the Cross-Appellants are disqualified from appealing against a judgment which favoured them completely by filing a notice of appeal as they did. That the only way the Cross-Appellants could have the said judgment upturned is by filing a Respondent’s notice.

A Respondent’s Notice applies only where the respondent intends to retain the judgment appealed against but at the same time wants it varied. The Respondent’s Notice will apply only where a particular point in the appeal is stretched by the respondent who contends for its maintenance but proposes a variation of it, if it is the only means by which he would be enabled to retain it or if on the fact and the law, the decision of the court appealed against will in any event be affirmed.
A Respondent’s Notice is the notice you give when as a respondent you do not wish to appeal properly but to contend that the judgment of the lower court be varied under Order 9 Rules 1 and 2 of the Court of Appeal Rules, 2007. See the cases of: (1) Ibe Vs. Onuorah (1999)14 NWLR (Pt. 638) p. 430; (2) Ntuks Vs. N.E.P.A. (2000) 4 NWLR (Pt. 654) p. 639 and (3) Ogbeide Vs. Osula (2003) 15 NWLR (Pt. 843) P. 266

In defining the distinction between a cross-appeal and a Respondent’s Notice, I must specify that they are opposed to each other. There are different reasons for filing a Notice of Appeal or a Respondent’s Notice. Order 9 Rules 1 and 2 of the Court of Appeal Rules, 2007, provide that a Respondent’s Notice is to be invoked in lieu of filing a Notice of Appeal or vice versa. A respondent has an option of invoking whichever one will be more beneficial in the circumstances of his case. A Respondent’s Notice has been used in cases with simple and straight forward uncomplicated judgments. See the cases of: (1) Pacers Multi- Dynamic M Vs. Dancing Sister (2000) 3 NWLR (Pt. 648) p. 241; (2) Ibe Vs. Onuorah supra; (3) Anyaduba Vs. N.R. T.C. L.td (1990) 1 NWLR (Pt. 127) p. 379 and (4) Ntuks Vs. N.E.P.A. supra.

The Cross-Appellants have not filed a Respondent’s notice. They reserve the overriding constitutional right to file a notice of appeal, which they have duly and properly filed.

In effect, the preliminary objection lacks merit. It is hereby dismissed accordingly.

CROSS-APPEAL

I am of the view that the issues formulated for determination by the Cross-Appellants’ counsel will adequately resolve the grouse about the cross-appeal. I am therefore adopting the three issues and I shall consider them along with the issues formulated by the two sets of Cross-Respondents. I shall however take issues one and two together because they are intertwined.

ISSUES ONE & TWO

Whether the trial Court was right to have held that Exhibits P7 and D9 were properly considered by the Council of Kingmakers constituted under Edict No. 3 of 1997?

Whether the trial Court was right in holding that Exhibits P7 and D9 were made sequel to and as contemplated under Edict No.3 of 1997?

The learned counsel for the Cross-Appellants submitted that Exhibits P7/D9 were written on 19/7/96, that is, prior to the enactment of the Edict of 1997.The title of the paramount ruler of Ebiraland had been Ohinoyi since 1963. It is clear that the application of Dr. Ado Ibrahim, Exhibits P7/D9, which was written on his behalf by his clan, was for the stool of Attah and not Ohinoyi. The law is settled that extrinsic evidence is not admissible to add to, vary, subtract from or contradict the content of a written document. Both the contents and headings of Exhibits P7/D9 point to the title, Attah and not Ohinoyi. It was further argued that the courts are forbidden from imagining or speculating about the intent of the maker of a document which is not clearly spelt out in the contents of the document itself. On this legal principle, reference was made to the provisions of Section 132(1) of the Evidence Act and the cases of:

(1)     UBN Ltd Vs. Ozigi (1994)3 NWLR (Pt. 333) p. 385;

(2)     Macaulay Vs. NAL Merchant Bank (1990) 4 NWLR (Pt. 144) p. 283;

(3)     Ogbonna Vs. A, – G., Imo State (1992) 2 SCNJ p. 26 and

(4)     Coker Vs Adetayo (1992) 6 NWLR (Pt. 249) p. 612

The said application as a matter of fact was directed to the Ebira Area Traditional Council which had not been properly constituted as a body of kingmakers at the time the said application was received by the Council. The Council only became the body of kingmakers on 6/5/97, the commencement date of the Edict, The Council therefore could not be said to have acted or functioned as kingmakers before 6/5/97. Hence, whatever the Council did prior to 6/5/97 cannot be said to be in the exercise of the functions of kingmakers, but can only be likened to a void act, The finding of the trial Court that Exhibits P7/D9 were rightly considered by the kingmakers was improper. The trial Court ought to have discountenanced the documents and held that they were not in respect of the stool of the paramount ruler of Ebiraland which has been officially recognised to be that of Ohinoyi by virtue of the Edict.

The learned counsel for the Cross-Appellants canvassed that before the enactment of the Edict, there was no agitation regarding the proper designation or title of the paramount ruler of Ebiraland, the Edict was enacted to take care of the mode of succession to the stool.

Replying under these issues, the learned senior counsel for the Appellants/Cross-Respondents contended that before the enactment of the Edict on 6/5/97, there was no official designation or title of the paramount ruler of Ebiraland. Reference was made on this position to Exhibits D10 and D11 and Section 2 of the Edict. The application, Exhibits P7/D9 was competent as rightly founded by the trial Court. It was further argued that there is no provision of any law specifying the form an application should be made in this matter. Therefore, there was nothing wrong with the mode by which Dr. Ado Ibrahim was endorsed by his family/clan. The fact that the application was submitted before the enactment of the Edict did not render the application invalid. The Chiefs Law which was in place at the time the application was written and the Edict which was enacted thereafter were both applicable to the stool of the paramount ruler of Ebiraland, they are complimentary of each other.

The learned senior counsel for the Appellants/Cross-Respondents submitted that the finding of the trial Court that the application of Alhaji (Dr.) Ado Ibrahim was not properly commenced and treated in line with the relevant provisions of the Edict was not appealed and remains conclusive. The provisions of Section 4 of the Edict that the Ebira Area Traditional Council shall remain the Council of Kingmakers indicate that it was competent to receive applications immediately after the demise of the then Ohinoyi, Alhaji M. S. Omolori and before the enactment of the Edict.

 

I have perused Exhibits P7 and 09. The contents of both are the samei however; Exhibit D9 has attached to it the “Curriculum Vitae” of Prince Dr. Ado Ibrahim. Exhibits P7/D9 originated from the family of EdeAttah of Oziogu Clan in Ebiraland. It was a letter of endorsement of Dr. Ado Ibrahim as an aspirant to the stool of Atta of Ebiraland. It was dated 19/7/1996, addressed to the Ebira Area Traditional Council and signed by some representatives of that family.
I have previously in this judgment considered most exhaustively the issue of the applicable law in the matter of ascension to the vacant stool of Ohinoyi of Ebiraland under the first appeal. I hereby adopt all my pronouncements and findings in the said first appeal for the purpose of the resolution of this cross-appeal especially, those under issues one, two and three in the first appeal. The Edict established the stool of the paramount ruler, known as Ohinoyi of Ebiraland. It also specifies the functions to be performed by the Council of Kingmakers, that is, the Ebira Area Traditional Council. Furthermore, the Edict clearly stipulates the procedure for ascension to the throne of Ohinoyi of Ebiraland.

The learned trial Judge did not only found that there was non-compliance with the provisions of the Edict in the matter of ascension of Alhaji (Dr.) Ado Ibrahim to the throne of Ohinoyi of Ebiraland, His Lordship also declared as invalid the meeting of the E.A.T.C. held on 9/5/97 whereat the letter of endorsement of Dr. Ado Ibrahim, Exhibits P7/D9 were supposedly favourably considered as an application. The proceedings of the said meeting, Exhibit P5 was consequently declared bad and invalid on the grounds that, firstly the Council was not properly constituted by reason of the non-attendance of the Secretaries of the four Local Government Areas making up the Ebira Area Traditional Council who are integral members of the Council-see Sections 19 (2) and 20(2) of the Chiefs Law. The second ground is that the kingmakers failed to exercise their power of appointment when they merely recommended to the Chief Executive of Kogi State three persons for appointment instead of appointing one person for approval by the Chief Executive.

I wish to refer to the findings of the trial Court in line 27 at page 402 and lines 1 to 4 at page 403 of the record of appeal. Therein, it was stated thus:
“You cannot put something on nothing and expect it to stand It will collapse like a pack of Cards. See the decision in Macfoy Vs. U.A.C Ltd (1961) 3 WLR 1405, 1409 and Skenconsult (Nig) Ltd Vs. Sekondy Ukey (1981)1 SC6.”
In my opinion, this puts paid to the issue in dispute. What is more, the trial Court properly founded that the E.A.T.C. was formally constituted into a body of Kingmakers at the commencement of the Edict on 6/5/97. I agree with the submissions of the learned counsel for the Cross-Appellants that whatever action taken by the Council prior to the commencement of the Edict cannot be in proper exercise of its functions under the Edict in the circumstances of the instant matter.

Consequent upon the foregoing deductions and without going into the propriety of the contents of Exhibits P7/D9, it can neither be said that, the application, Exhibits P7/D9 was properly made as contemplated under the Edict nor validly considered by the Council. I hold so. Therefore, the finding of the trial Court that the said exhibits were properly commenced and considered by the Council for whatever reason was wrong. Indeed, it amounted to an act of approbating and reprobating in the same breath by the learned trial Judge.
In the light of all that I have said above, issues one and two succeed and are hereby resolved in favour of the Cross-Appellants and against the two sets of Respondents.

ISSUE THREE

Whether the trial Court properly declared Alhaji (Dr.) Ado Ibrahim as qualified to vie for the stool of Ohinoyi of Ebiraland despite uncontradicted evidence of his unbecoming antecedents and unsuitability for the said stool?

The learned counsel for the Cross-Appellants submitted that there were allegations which bordered on crime against Alhaji (Dr.) Ado Ibrahim showing that he was not suitable and qualified to vie for and be appointed to the exalted stool of the paramount ruler of Ebiraland. In fact, some of his blood brothers and relatives were not in support of his candidature. There was also uncontroverted evidence that being of questionable character, he was not a fit and proper person and not qualified to occupy the exalted throne of Ohinoyi. The finding of the trial Court that he was qualified was wrongly made. It was further stated in favour of the Cross-Appellants that, the word “Ebira” means character. Therefore, anyone who aspires to the stool of Ohinoyi is expected to be reliable, trustworthy, of high integrity, well brought up, courteous and well behaved. The fact that these attributes are not codified in a law is not limiting and does not make them less excellent and proper to be given cognizance of by the courts. On this proposition reference was made to the cases of:

(1)     Fawehinmi Vs. Akilu (1988)4 NWLR (Pt. 88) p. 367;

(2)     Globemoters Holdings Ltd Vs. Honda Motors Co. Ltd (1998) 5 NWLR (Pt. 550) 2 373 and

(3)     A.G., Kwara State Vs. Olawanle supra at p. 666.

On the contrary, the learned senior counsel for the Appellants/Cross-Respondents argued that, the qualifications for appointment to the stool of Ohinoyi are specified in Section 6(3) (b) of the Chiefs Law. The qualifications are that, an aspirant must be educated up to at least primary school certificate level or can speak and write English Language. Evidence was adduced that Alhaji (Dr.) Ado Ibrahim is an indigene of Ebiraland who is educated up to University level and can speak and write English Language. Evidence adduced at the trial Court regarding his character, attributes and attitude is that he is honest, virtuous, sympathetic and a philanthropist. Learned senior counsel contended that none of the allegations bordering on crime leveled against him by his opponents was substantiated.

It was submitted for the 7th & 8th – Respondents/Cross-Respondents, that Section 3(c) of the Edict does not provide for the form and manner by which an application for appointment to the Ohinoyi stool can be made. The Edict is a law enacted to regulate the procedure for ascension to the stool of Ohinoyi of Ebiraland, The body of kingmakers was also constituted under it to entertain applications including those that were submitted earlier to the Ebira Area Traditional Council, like the application, Exhibits P7/D9. The effect of this is that, applications submitted either by individuals or by groups on behalf of certain individuals who are sons of Ebiraland from any of the five traditional districts are acceptable under the said law. For, it is trite law that, in the construction of statutes, the courts have always resorted to the literal method of construction by giving effect to the ordinary and plain meaning of words used in statutes where those words are not ambiguous. In other words, since sponsorship of candidate is not specifically prohibited under the Edict, the application in dispute was properly made. On this stance, reliance was placed on the cases of:

(1)     Swiss Air Transport Co. Ltd. Vs. The A.C.B. Ltd. (1971) 1All NLR p. 37:

(2)     Adesanoye Vs. Adewole (2000) FWLR (Pt. 14) p. 2387 at p. 2427;

(3)     Okotie-Eboh Vs. Manager (2004) 12 SCNJ p. 139 and

(4)     Okumagba Vs. Egbe (1965) 1 All NLR p. 158 at p. 192

It was further argued in favour of the 7th & 8th Respondents/Cross-Respondents that all the parties adduced evidence that there is only one paramount ruler or stool in Ebiraland. That the stool had been occupied by different people, at different times, under different titles and circumstances. There was no doubt that the application submitted on behalf of Alhaji (Dr.) Ado Ibrahim was in respect of the vacant stool of Ohinoyi by the reason of the demise of Alhaji M. S. Omolori. Hence, all the facts established by the Cross-Respondents at the trial Court left no one in doubt that the stool of Ohinoyi was in the mind of the sponsoring family of Alhaji (Dr.) Ado Ibrahim when it made the applications, Exhibits P7/D9. The said application dated 19/7/96 is very explicit in this regard. This isin line with the legal principle that in the construction of documents, regard should be had not only to the headings of the documents but to their contents in order to discover and ascertain the purport of the documents. On this legal principle reliance was placed on the cases of: (1) Ogbona Vs. A.G., Imo State 0992) 2 SCNJ p. 26 and
(2) Altra Ind Nig. Ltd Vs. Bank of Commerce and Industries Ltd (1998) 3 SCNJ P. 97.

The learned counsel for the 7th & 8th Respondents/Cross-Respondents reiterated that the stool of Ohinoyi of 6biraland is a creation of statute “vide” the Edict. Under Section 6(3) (b) of the Chiefs Law, the qualifications of an aspirant to the stool are, education up to at least primary school certificate level, and ability to speak and write English Language. It was established by evidence at the trial Court that Alhaji (Dr.) Ado Ibrahim met these requirements. Reference was made to page 327, Vol. II of the record of appeal in this regard. What is more, Alhaji (Dr.) Ado Ibrahim is an Ebira man who hails from Adayi, one of the five Traditional Districts in Ebira land and on whose behalf an application was submitted to Ebira Area Traditional Council for appointment to the stool of the paramount ruler of Ebira Land.

With due respect, I am of the view that, the submissions in the Reply on points of law of the learned counsel for the Cross-Appellants to the submissions of the learned senior counsel for the Appellants/Cross-Respondents against the cross-appeal are virtually a re-argument of the main cross-appeal. However, the learned counsel for the Cross-Appellants submitted that the word “Established” as used in Section 2 of the Edict, Section 20(2) (b), II Schedule, Item 2 and VI Schedule, Item 14 of the Chiefs Law could only be interpreted to mean “Confirmed”. Continuing with his argument, he reiterated that under Section 5(d) of the Edict, applications shall be received from eligible and interested sons of Ebira Land for consideration. This provision in his opinion means that individuals who are interested should apply personally and not by proxy.

The learned counsel for the Cross-Appellants further submitted that the finding of the trial Court that the composition of the Council of Kingmakers which met on 9/5/97 was contrary to the provisions of the Edict was a decision in favour of the Cross-Appellants. The decision could not be and was not appealed by them. For, it was clear that the exercise of the functions of the Council of Kingmakers could only commence after the Council’s composition on 6/5/1997.
I have also considered the reply brief of the learned counsel for the Cross-Appellants to the 7th & 8th Respondents/Cross-Respondents’ brief of argument in the cross-appeal. It is my humble belief that the submissions are a precised version, a repetition of the submissions in the Cross-Appellants’ main brief in support of the cross-appeal. The submissions in the said Reply do not in any way enhance those in the Cross-Appellants’ main brief. I therefore find it needless to reiterate same herein.

The submissions of the learned counsel for all the parties under this issue have been properly appraised by me. I wish to restate here that the Edict is the blue print to be strictly adhered to in the matter of the selection and appointment of the candidate to occupy the stool of the Ohinoyi of Ebiraiand. There must be strict compliance with the provisions of that law. It is an established principle of law that no words can be added to or subtracted from the words of the law makers expressly stated in a statute. I have dealt adequately with this legal position under the first appeal and second appeal I adopt my pronouncements therein in this cross-appeal. On a close look at the Edict there are no other qualifications for appointment into the stool of Ohinoyi apart from those stated under Section 3(a) (c) of the Edict.

At this point, I wish to refer to the provisions of section 8 of the Edict. Section 8 states thus:

“8.     No provisions of any law of the State that is in force shall invalidate the provisions of this Edict.”

By reason of the foregoing provisions of Section 8, the submissions of the learned senior and honourable counsel for the Appellants /Cross-Respondents and 7th & 8th Respondents/Cross Respondents respectively, importing into the matter of the appointment of the Ohinoyi of Ebiraland the qualifications for appointment of a Chief under Section 6(3) (b) of the Chiefs Law an existing law in Kogi State cannot stand.

Therefore, without prejudice to the merits or demerits of the criminal allegations levelled against Alhaji Dr. Ado Ibrahim, the issue of the particular qualification of a candidate who could aspire and be appointed to the stool of the Ohinoyi of Ebiraland being canvassed by the parties is not an express requirement under the provisions of the Edict. What is more, the entire process leading to the selection, appointment and approval of the appointment of Alhaji (Dr.) Ado Ibrahim having been declared invalid, the pronouncement of the learned trial Judge on the issue of his qualification for the stool is of no consequence.
Consequent upon my foregoing line of reasoning and conclusions, this issue succeeds; it is forthwith resolved in favour of the Cross-Appellants and against all the Respondents in this cross-appeal.

With the success of the three issues formulated for determination by the Cross-Appellants, this cross-appeal is patently fated for success. I hereby declare the success of this cross-appeal.

I make no order as to cost of this cross-appeal

MARY U. PETER-ODILI, J.C.A.:

I had perused the draft of the judgment of my learned brother, Oyebisi F. Omoleye, JCA which I agree in totality with and I would make a few comments in line with her reasoning which also I have no difficulty with.

In the main what is in contest is with the propriety or otherwise in the selection and appointment of the 3rd Appellant, Alhaji Ado Ibrahim as the Ohinoyi, the paramount ruler of Ebiraland in Kogi State. The stool of the Ohinoyi had become vacant in 1996 when the incumbent ruler of Ebiraland, Alhaji M. S. Omolori died. At the time the operating law was the Chiefs Law of 1992 which created two categories of Chiefs and their respective appointment thereunto which are:

1. Appointment of Chiefs in accordance with native law and custom pursuant to Section 3 (1) and(2),
2. Appointment of Chiefs in Chieftaincies created by statutes under section 4 (1) and (2).

In Section 3 (1) & (2) of that Chiefs Law of 1992 upon the death, resignation or deposition of any Chief, the Governor shall approve such Chief as successor who had been appointed in that regard by the Kingmakers under native law and custom. In the event that no such appointment is made, after the expiration of the necessary period allowable by native law and custom, the most senior traditional ruler in status within the domain shall carry out the duties incidental to the Chieftaincy as the necessity arises pending the appointment of the proper Chief by the Kingmakers. It there is a dispute the Governor shall after due inquiry and consultation with the Kingmakers is the sole arbiter as to whether or not the appointment was properly made.

As in the case of chieftaincies created by statutes, the procedure under Section 4 (1) & (2) of the Chiefs Law as earlier on alluded to is different.

However in the case in hand the predecessor of the 3rd Appellant, Alhaji M. S. Omolori died in 1996 and so the successor would have been appointed under the provisions of Section 3 (1) and (2) of the Chiefs Law but no successor was produced as no effort was made to produce same and by 1997 an Edict, No.3 was promulgated setting out the procedure for ascension to the throne of Ohinoyi of Ebiraland with commencement date as 6th May, 1997. The same Edict established the stool of Ohinoyi of Ebiraland and the procedure for ascension, all these stated with specificity in Sections 2, 5 and 7 of the Edict. This Edict for a fuller explanation became a Law of the Kogi State House of Assembly. I shall set out the salient provisions for ease of reference:

“EDICT NO.3 OF 1997”

The Military Administrator of Kogi state of Nigeria Col. B. L. Afakirya hereby make the following Edict.

1. This Edict shall be known as procedure for ascension to the throne of Ohinoyi of Ebiraland Edict NO.3 of 1997 and shall be deemed to have come into force on the 6th day of May, 1997.
2. The stool of the paramount Ruler of Ebiraland who shall be known as Ohinoyi is hereby established.
3. (a) Ascension to the throne of Ohinoyi of Ebiraland whenever it is vacant shall be by rotation among the five (5) traditional districts in Ebiraland.

(b)     For evidence of doubt the five (5) traditional districts in Ebiraland are; Adavi, Okengwe, Ihima, Elks and Eganyi.

(c)     All eligible and interested sons of Ebiraland are free to contest for the stool of Ohinoyi of Ebiraland under this arrangement provided that, any District that has taken its turn in this rotational order shall not take part until it comes to its turn in this rotational order shall not take part until it comes to its turn.

4. Ebira Area Traditional Council shall remain the Council of Kingmakers.
5. The functions of the Council of Kingmakers shall be as follows:-

(a)     To announce the passing away of an incumbent after consultation with the family of that Ohinoyi and the Kogi State Government, such announcements must conform to the existing and recognized tradition of Ebira people.

(b)     To meet immediately upon the vacancy of the throne of Ohinoyi of Ebiraland and elect an acting Chairman of the Council as regent until the new Ohinoyi is appointed.

(c)     To set in motion machinery for appointment of a new Ohinoyi immediately the stool becomes vacant.

(d)     To receive applications from eligible and interested slons of Ebiraland for consideration.

6. during the period of selection of a new Ohinoyi:

(a)     There shall be no masquerade outings or public procession rallies;

(b)     There shall be no open campaign either for or against any interested candidate.

(c)     Any person who contravenes Section 6 (a) and 6 (b) above is guilty of an offence and shall be liable to imprisonment for five years without an option of fine.

7. No appointment of an Ohinoyi of Ebiraland shall be valid until the Chief Executive of the state has approved such appointment.
8. No provisions of any law of the State that is in force shall invalidate the provisions of this Edict.

Made at Lokoja this 6th day of May, 1997″

The Edict came into operation on 6th May, 1997, the Ebira Area Traditional Council had a meeting with the Military Administrator of Kogi State sometime in that May whereby he enjoined the Council members to commence immediately the process of the appointment of the new paramount Ruler of Ebiraland. That Traditional council met on 9/6/1997 to consider the applications that they had received and the 3rd Appellant who scored the highest number of votes was one of the three candidates recommended by the Ebira Area Council of Kingmakers for appointment which recommendation of the three names was submitted to the Military Administrator who on 2/6/97 appointed the 3rd Appellant. That appointment was the main reason for the dissatisfaction of the 1st – 6th Respondents who took out a suit in the High Court, Anyigba contesting the mode of selection. That contest the trial High Court resolved in favour of the 1st – 6th Respondents on account of non compliance of the enabling Edict of 1997. It is that decision that the Appellants have appealed to this court against.

Having stated the background above there is no gainsaying that the operative law regulating the selection or appointment of the Ohinoyi or paramount Ruler of Ebiraland is the Edict No.3 of 1999 and that law stated clearly and without equivocation the processes that ought to lead to the selection, appointment and approval lastly by the Governor. No where was it shown that three names should be submitted to the Governor for approval. The relevant section had provided for the consideration of the applications, selection and appointment by the Kingmakers after which the appointed person’s name is to be submitted to the Governor. In this case the Kingmakers sent in three names and so when the approval by the Governor came up with the name of the 3rd Appellant it was no longer the Kingmakers who made either the selection or appointment but the Governor who did. This was a gross misnomer and not only the abdication of the role meant for the Kingmakers as the native law and custom custodians at the material, the appointment was done not in compliance with the law. This is so because since that Law (Edict) had specified the mode of performing the selection and appointment no other method can suffice as was done in the case in hand. I rely on Ibrahim v. INEC (1999) 8 NWLR (pt. 614) 334; Abubakar v. Attorney-General Federation (2007) 3 NWLR (pt. 1022) 601.

I agree completely with the submission of learned counsel for 1st – 6th Respondents that the words of the Edict were clear and Unambiguous and so there was no option than to have them interpreted in their plain and ordinary meaning. See Olanrewaju v. Governor of Oyo State (1992) 9 NWLR (pt. 265) 335 at 362; Ifezue v. Mbadugha (1984) 1 SCNLR 427.

From the foregoing and the fuller reasons of my learned brother, I too dismiss this appeal. I agree in toto with all the other decisions of my learned brother including the cross-appeal.

HON. JUSTICE ABDU ABOKI, J.C.A.: I agree.