Alhaji Musa Nagogo Ibrahim v. Alhaji Mohammed Sarki Aliyu

 This is a chieftaincy dispute in respect of the stool of the Oriye Rindre of Wamba in the Wamba Local Government Area of Nassarawa State. In February 1991, when the action was filed in the Plateau State High Court, Wamba was under Akwanga Local Government Area of Plateau State,

The last incumbent of the traditional office of Oriye Rindre Alhaji Sulaimanu Muhammadu Kore, who has since died, was installed as a 2nd class chief on the 23rd of April, 1983. After his death, the then Plateau State Government promulgated a law titled “The Appointment And

P.1

Deposition of Chiefs (Appointment of Oriye Rindre) Order 1990″ which laid down the procedure to be followed in the selection or election of a new Oriye Rindre in the event of any vacancy. In Pursuance of the said law, an election was conducted on the 12th of February 1991, to fill the vacancy created by the death of Alhaji Sulaimanu Muhammadu Kore. In that election, the only candidates were the appellant and the respondent. At the election, the appellant polled 7 votes and the respondent polled only 3 votes and so the former was declared the winner and the new Oriye Rindre. Following the election, the appointment of the appellant as the Oriye Rindre was approved by the Plateau State Council of Chiefs and the Military Governor of Plateau State, on the 18th of April. 1991. The respondent was dissatisfied with the said election and immediately commenced proceedings in the Plateau State High Court challenging the same. In the action, the Plateau State Council of Chiefs and the Military Governor of Plateau State were the 2nd and 3rd respondents respectively.
By paragraph 19 of the statement of claim the respondent, as plaintiff, sought for the following reliefs:
”(a)   A declaration that the 2nd and 3rd defendants by themselves, agents or servants violated orders 3,4 and 6 (1) of the (Appointment and the Deposition of Chiefs) the appointment of the Oriye Rindre Order 1990.
(b)     A declaration that the first defendant not being a member of any of the three ruling houses of Wamba listed in Order 3 aforementioned is not qualified to contest for the office of the Oriye Rindre.
(c)     A declaration that:

P.2

1990. i)   the votes of Ibrahim Umaru, Mohammed Lamu and Mallam Sambo Bichi and
      ii)  the votes of the other selectors who voted for first defendant are null and void for being in violation of orders 3, 4 and 6 of the Oriye Rindre order of 1990 respectively, and the native law and custom of the Rindre people.
      (d)     An order setting aside the selection and approval of the first defendant as Oriye Rindre.
      (e)     A declaration that the plaintiff being the only lawful candidate is the winner of the said selection in accordance with the Oriye Rindre order of 1990.
      (f)     A perpetual injunction restraining first defendant from parading or holding himself out as the Oriye Rindre and from performing any rites or duties attached to the office.

(g)     A perpetual injunction restraining the second and third defendants their agents, servants, or privies from installing, recognising or dealing with the first defendant as the Oriye Rindre of Wamba
In the amended statement of Defence, the appellant, as 1st defendant, filed a counter-claim in which he also sought for the following reliefs:
1.      Whereof the 1st Defendant hereby prays the court for the following reliefs in view of the averments in the Statement of Defence of the 1st Defendant.
a)     A DECLARATION that the Plaintiff’s participations as a candidate for selection to the traditional stool of the Oriye Rindre which took place on the 12/2/91 was null and void as he is a member of the Mawu Lube family

P.3

which is not one of the Ruling Houses of Wamba and which has no relationship with any of them whatsoever.
b)      PERPETUAL INJUNCTION restraining the plaintiff, his ascendants  how high soever and his descendants how low soever from parading themselves or their agents as members of Mawu Misa Ruling House and participating as candidates for selection to the office of the Oriye Rindre of Wamba.
c)      A DECLARATION that the 3 votes cast for the Plaintiff on 12/2/91 in the selection of the Oriye Rindre were null and void having been cast for an incompetent candidate by Rindre Native Law and Custom.
d)      A DECLARATION that the, 1st Defendant being the only candidate put forward by any of the three Ruling Houses and the only competent candidate that was nominated for the stool of the Oriye Rindre on 12/2/91, was selected as the Oriye Rindre with no opposition.
2.      A DECLARATION that the 1st Defendant being a candidate put forward by the Mawu Misa Ruling Houses of Wamba and the competent candidate that was validly nominated for the stool of the Oriye Rindre in the selection that took place on 12/2/91 was duly selected with no opposition, and that his selection was in conformity with Order 7 (4) of the Plateau State Legal Notice No. 2 of 1990 – Appointment and Deposition of Chiefs (Appointment of Oriye Rindre) order 1990″.
After filing and exchanging all the necessary pleadings and completing all the preliminaries, the actual trial commenced on the 25th of September 1991 before Azaki J. of blessed memory. The respondent called 5 witnesses

P.4

and gave evidence himself. The appellant did not give evidence in his defence but called 6 witnesses in support.

Thereafter counsel for the parties addressed the trial court at length and the case was adjourned for judgment. On the 23rd of June, 1993, the learned trial judge, in a considered judgment, made the following findings and conclusions.
“The totality of the evidence before me is such that the plaintiff did not prove his case against the defendants. He is not entitled to any of the above reliefs. I hereby dismiss the action;
The 1st defendant filed a counterclaimed (sic) against the plaintiff. It was not seriously pursued by way of evidence, In the course of submission it was abandoned. It is hereby struck out”.
This means that the respondent’s action was totally dismissed and the appellant’s counter- claim was struck out. The respondent was not happy with this and he appealed to the Court of Appeal which allowed his appeal and ordered as follows:
“1.     It is declared that the election conducted on 12th February, 1991 to fill the vacant stool of Oriye Rindre is null and void.
2.       The purported election and approval of the 1st defendant/respondent as the Oriye Rindre is null and void and of no effect.
3.       Parties are to bear their costs”.
The appellant was dissatisfied with this and he appealed to this court. In this court, parties filed and exchanged their respective briefs.

P.5

The appellant in his brief, identified 3 issues for the determination of this court and they are:
“1.     Whether the Court of Appeal was right to have refrained from substituting their own views on a material set of facts after having rejected the findings of the trial judge on same.
2.       Whether the Court of Appeal was right in refusing to consider some issues raised by the parties before them.
3.       Whether on a preponderance of evidence, the Court of Appeal was right to have set aside the judgment of the trial court”.
The respondent in his brief formulated only 2 issues for determination thus:-
“a.     Having considered and determined the respondent’s (Appellant at the lower court) appeal based only on one issue, was the Court of Appeal right in refusing to embark on the resolution of the other issues for determination.
b.       Having held that “the finding by the learned trial judge that the Respondent has not proved that the disputed three king-makers were not the recognised king-makers cannot stand”, was the Court of Appeal right in setting aside the judgment of the learned trial judge on that ground”.

I have considered the grounds of appeal contained in the amended notice of appeal filed by the appellant and come to the conclusion that the 3 issues raised by him for the determination of this court in the appeal are apt and proper in the circumstances. I shall therefore adopt them for the purpose of this appeal.

P.6

Before I go into the issues, I wish to state clearly that the question of fair hearing or the eligibility of either of the parties to the appeal to contest the stool of Oriye Rindre has not been raised in this appeal. I therefore say nothing about these in the determination of this appeal.
It appears to me that this appeal will substantially be determined on facts. Accordingly I will take issues 1 and 3 together. These issues would appear to have stemmed from grounds of appeal (b) and (c) in the amended notice of appeal, which read:-
b) The court of appeal erred in law when it failed to substitute its own findings of fact by way of re-evaluation of evidence after rejecting the findings of the learned trial judge on a set of material facts and the said failure  led to a miscarriage of justice.
PARTICULARS
i)        Their Lordships of the Court of Appeal came to a conclusion (at pages 244-246 of the records) that the learned trial judge made wrong evaluation of the testimony of P.W. 4. on the disputed participation of three king makers and consequently rejected the said evaluation.
ii)       Their Lordships failed to substitute therefor what are their own views of the probative value of the said testimony.
c)       The decision of the Court of Appeal in its totality is against the weight of evidence”.
The whole scenario on these grounds revolved around the evidence of P.W.4, and DW.s l, 3 and 4 and how the learned trial judge treated them as viewed by the Court of

P.7

Appeal. The Court of Appeal found that the learned trial judge accepted the evidence of P.W.4 to the effect that DW3 (Ibrahim Umaru) and DW4 (Muhammadu Lamu) whose photographs appeared in Exhibit 4 were not the recognised king-makers for their respective families. It also found that the learned trial judge had earlier accepted the evidence of DW1, DW3 and DW4 that they were the recognised king-makers. This, the Court of Appeal said, was irreconciliable and, on the authority of Omolohon v. O.P (1961) ALL NLR (pt.4) 594, must be disregarded.
I will now consider whether the Court of Appeal was right in coming to this conclusion.
P.W.4 Alhaji Muhammadu Ibrahim is the senior brother of the late immediate past Oriye Rindre, Chief of Wamba Alhaji Muhammadu Sulaiman Kore.

He assisted in performing the functions of the late Oriye Rindre when he was sick up to the time he died. P.W.4 testified that in February 1983, when the post of the Chief of Wamba was upgraded to 2nd Class Chief, he was asked to collect the photographs of all king-makers of that Chieftaincy for use in the installation ceremony. He said he collected the photographs and wrote their respective names on the photographs but, he added, not all the persons he collected their photographs are king-makers by tradition. In respect of D.W 3 and D.W 4, he said (page 75 of the record):-
“Ibrahim Umaru belong to the family of Mai-ungo. He is not the head of that family. Muhamadu Lamu is from Man saje family. He is not the head of the family. The heads of

P.8

the families at the material time were Mai -ungo, the village head of Ungo and Ayuba. Both of the heads were already dead. May be they had representatives but at the material time their positions were vacant. I did not consult with their families while collecting the pictures for the programme”.
From the above quoted excerpt of this witness’s evidence, especially the area underlined, it is very clear that at the time P.W.4 collected the photographs of DW 3 and DW 4, the actual king-makers from their respective families were dead. This, according to him was in February 1983, and according to Exhibit 4, the installation took place on 23rd of April, 1983. P.W.4 testified that at that material time, DW 3 and DW 4 were not king-makers as the actual king-makers were then dead and they were not appointed to replace them by the members of their respective families. The evidence of DW1 was to the effect that he was the head of Mawu Mesa family, held the position of adviser to the Oriye Rindre and is the senior brother of the appellant. This evidence stood unchallenged and uncontradicted. DW3 testified that he had succeeded his uncle Ayuba Magaji as the Mawu Sagaye for 28 years and since then had been the head of their family. He did not say categorically that he is a king-maker but said that by virtue of his position as Mawu Sagye he was allowed to participate in the present election exercise. His evidence was not challenged. DW 4, also testified that he was a mere ward head of Angwan Sabo, in Wamba and that he was not the head of Mawu Ngo family, who is king-maker. But, as the holder of the title of Moyi which he inherited

P.9

from his father, and the father was a king-maker, he automatically is a king-maker. That was why he was allowed to participate in the present exercise. The evidence was also not contradicted.

The learned trial judge reviewed the evidence of both DWs 1, 3 and 4, as can be seen on page 152 of the record, and accepted their evidence. There is in my view no apparent contradiction between the evidence of PW 4 and that of DWs 1, 3 and 4. What the P.W. 4 was saying as in the above quoted passage of his evidence was that as at the material time of the installation arrangements when he collected the pictures of DWs 3 and 4, they were not king-makers. And DWs 1, 3 and 4 did not categorically say that they were king-makers but that they were allowed to participate in the election exercise because of the traditional positions they held at that time. That was why the learned trial judge in reviewing the evidence of P.W. 4 on page 152 of the record said:-
“Although PW 4 testified that he erroneously provided captions for the photographs of DW 3 and DW 4 as king-makers at page 14 and 16 of Exhibit 4 he did not testify that at the time of this selection exercise they had not been so appointed.” (Underlining mine)
What the learned judge was saying here was that although P.W. 4 testified that he wrongly caused the photographs of DW 3 and DW 4 to be put in Exhibit 4 as king-makers at the material time of the installation (in February 1983) he did not testify that as at the time of the present exercise (12th February 1991) DWs 3 and 4 had not been appointed king-makers. It is significant to

P.10

observe that 7 years have elapsed between the time Exhibit 4 was made, and the time of the present election, when anything could have happened. The learned trial judge therefore accepted the evidence of P.W. 4 that he was wrong in taking the photographs of DW 3 and DW 4 as king-makers as at February 1983 for the installation of Oriye Rindre as 2nd class Chief. P.W. 4 made no mention of the position of DWs 3 and 4 at the time of present election between the parties in February 1991. Therefore having accepted the evidence of DWs 1, 3 and 4 that they were allowed to participate in the present election as king-makers having regard to their traditional status, there was no evidence to prove that they were not such king-makers. That was why the learned trial judge concluded on page 154 of the record that:-
“In my view the plaintiff failed to prove that they were not the proper king makers for the exercise”.
This is supported by the evidence as explained earlier and I am clearly of the view that the Court of Appeal, with respect, did not fully appreciate the meaning of the evidence and the findings of the learned trial judge in respect of the testimony of P.W.4 as against those of DWs 1, 3 and 4, when it held on page 270 of the record thus:-
“It is evidence (sic) that the evidence of P.W.4 to the effect that Ibrahim Umaru (DW.4) and Mohammadu Lamu (D.W.3) were not the recognised king-makers which the learned trial judge accepted is irreconcilable in conflict with the evidence of DW 1, DW 3, and DW 4 in support that they were recognised kingmakers which the learned trial judge similarly accepted”.

P.11

It is my respectful view, that the evidence is reconcilable as discussed above and there is no conflict or contradiction which will bring into play the application of the case of Omolohon v C.O.P (supra) relied upon by the Court of Appeal.
There was evidence that 2 allegedly qualified kingmakers (Umaru Bici and Adamu Lanze) were refused entry to the election hall during the election exercise. The third person in this category was one Ibrahim Isa who was only mentioned in the pleadings but not mentioned at all in the evidence. And what is more, none of these 3 persons gave evidence at the trial.
But despite this anomaly, the Court of Appeal in its judgment on page 272 of the record held that:-
“If the three persons the appellant claimed to be the rightful king-makers had voted in place of the 3 king-makers whose participation in the election was questioned the fortunes of the parties, that is the appellant and the 1st respondent would have been adversely or favourably affected depending on the side to which their votes were cast”.
I agree that this observation may be correct in the circumstances. But the Court of Appeal went on to say:
“As the pattern of their votes cannot be determined if they had been allowed to vote, I agree with Mr. James that the election is null and void. On this score alone this appeal succeeds “.
The Court of Appeal did not quote any legal authority for making this point or finding, nor did it refer to any provision of the relevant law or regulation concerning the election itself. Since the failure of the 3 king-makers to

P.12

vote could not determine the pattern of voting at the election, what made the election exercise null and void ? I disagree with the Court of Appeal on this and I think that court was wrong in so holding.
The learned counsel for the appellant submitted in his brief that having regard to the findings of fact made by the learned trial judge on the evidence before him which were not erroneous or perverse, indicating that there was substantial compliance with Exhibit 6, the Court of Appeal was wrong to have set aside the decision of the trial court.
Exhibit 6 is the Appointment and Deposition of Chief (Appointment of Oriye Rindre) Order, 1990, published in the Plateau State of Nigeria Gazette No. 9. Vol. 15 of 21st June, 1990. The Order sets out in detail, the procedure to be followed in the election or selection and appointment of the Oriye Rindre of Wamba.

Paragraph 3 sets out the 3 ruling houses from which the candidates must come and paragraph 4 sets out the offices of the traditional selectors constituting the electoral college for the selection or election. There are 11 selectors. The order also provides in paragraphs 5, 6, and 7 respectively for the appointment of a presiding officer for the election, the meeting of the selectors as electoral college for the election exercise and the nomination of candidates thereof. Paragraph 8 provides for the manner in which the election is to be conducted and the announcement of the result.
From the evidence presented at the trial, and accepted by the learned trial judge all went well at the election except that 3 kingmakers DWs 1, 3, and 4 who actually voted at

P.13

the election were challenged as not being king-makers, or qualified to vote. The learned trial judge found that the 3 king-makers were not successfully challenged and I agreed with him as explained earlier in this judgment. I also do not agree with the Court of Appeal that the mere participation of these 3 disputed king-makers simpliciter would invalidate the whole election. See Na-Gambo v. N.E.C. (1993) 1 NWLR (pt. 267)94. And the failure of the 3 qualified king-makers to vote, for any reason, could also not invalidate the election because the stipulated quorum at the election was sustained.
There was evidence that out of the 11 king-makers stipulated in Paragraph 3 of Exhibit 6, 10 king-makers including the disputed ones were present at the elections. There was undisputed and unchallenged evidence that at the end of the voting, the result was that 7 persons voted for the appellant and 3 for the respondent. According to paragraph 6 (3) of Exhibit 6, the stipulated quorum at the election was 7. This in effect means that even if the 3 disputed king-makers were ignored or disregarded there was the required quorum of 7 selectors at the election. Again even if the votes of the 3 king-makers were disregarded out of the 7 votes cast for the appellant, he would still end up with 4 valid votes as Against only 3 of the respondent. And paragraph 8 (1) of Exhibit 6, provides inter alia that:-
“…..all traditional selectors present at the meeting shall be entitled to vote and the candidate who receives the largest number of votes shall be deemed to be selected the Oriye Rindre ………” (underlining mine)

P.14

The words “selectors present” in this paragraph emphasise the requirement of the quorum which in this case is 7 and the “largest number of votes” means valid majority votes.

In this case, the appellant with 4 valid votes has majority over the respondent with only 3 valid votes. Therefore the appellant was in my judgment, properly and validly selected the Oriye Rindre of Wamba and I so find. I also find that the election was conducted in substantial compliance with the provisions of Exhibit 6. See Kaugama v. N.E.C (1993) 3 NWLR (pt. 284) 681. 
It is my respectful view that in an election such as in this case where the applicable law provides for a quorum of an electoral college, and the quorum was obtained when the votes were cast, such election cannot be invalidated merely because the absent members of the electoral college did not vote at the election.
I have said earlier in this judgment that this appeal will be determined on issues of fact only and having done so already, it appears to have disposed of all the substantial issues in the appeal. I do not think that any useful purpose will be served in considering issue 2 in the circumstances.
Accordingly, this appeal succeeds and it is allowed. The decision and orders of the Court of Appeal in this case are hereby set aside and the decision of the trial court restored. I award N10,000.00 costs to the appellant.