Between
1. KENOR MADINA TAL
2. MALAM HARUNA WAKILI
3. PRINCE JAMES PASS?
and
1. ABDULLAHI SHUAIBU ANAMPARA
2. HRH. ABDU BUBA MAISHARU II
3. TANGALE TRADITIONAL COUNCIL
4. EXECUTIVE GOVERNOR OF GOMBE STATE
5. BILLIRI LOCAL GOVERNMENT COUNCIL
JUDGMENT
(DELIVERED BY BIOBELE ABRAHAM GEORGEWILL JCA):
This is an appeal against the judgment of the Gombe State High Court in Suit No: GM/43/2012: Kenor Madina Tal & Ors. V. Abdullahi Shuaibu Anampara & Ors delivered on 19/11/2014 by M. A. Pindiga J, in which the claims of the Appellants as Plaintiffs against the Respondents as Defendants were dismissed.
The Appellants were dissatisfied with the said judgment and had promptly appealed against the said judgment to this Court vide a Notice of appeal filed on 17/12/2014 on five grounds. However, subsequently, the Appellant sought and obtained the leave of the Court and filed its amended Noticed of Appeal on five grounds on 11/6/2015 but deemed properly filed on 27/10/2015. The Record of Appeal was transmitted on 5/5/2015 but deemed duly transmitted on 27/10/2015. The Appellants brief was filed on 20/1/2016 but deemed properly filed on 2/2/2016. The 1st 3rd Respondents brief was duly filed on 29/2/2016. The 4th 5th Respondents brief was filed on 3/5/2016 but deemed properly filed on 4/5/2016. The Appellants reply brief was filed on 4/4/2016 but deemed properly filed on 12/4/2016. The 1st 3rd Respondents filed on 29/2/2016 a notice of preliminary objection challenging the competence of the Appellants suit before the court below. See pages 245 264 of the Record of Appeal for the judgment and pages 265 269 for the original Notice of Appeal.
At the hearing of the Appeal on 4/5/2016 P. A. Aki Esq, learned senior counsel to the Appellants adopted the Appellants brief and Appellants reply brief as their argument in support of the appeal and in opposition to the preliminary objection of the 1st 3rd Respondents and urged the Court to dismiss the preliminary objection for lacking in merit and totally being misconceived and to allow the appeal and to set aside the judgment of the Court below and to grant the reliefs sought by the Appellants as Plaintiffs against the Respondents as Defendants as per their claims before the court below.
On his part, Michael Oforma Esq, learned counsel holding the brief of Chief Caleb Ubale, learned senior counsel to the 1st 3rd Respondents adopted their Respondents brief as their argument in support of their preliminary objection and in opposition to the appeal and urged the Court to strike out both the suit and appeal of the Appellants for being incompetent and or to dismiss the appeal as lacking in merit and to affirm the judgment of the Court below. On his part, Musa Saidu Esq, learned Director of Civil Litigation, Ministry of Justice, Gombe State for the 4th 5th Respondents adopted their Respondents brief as their argument in opposition to the appeal and urged the court to dismiss the appeal as lacking in merit and to affirm the judgment of the court below.
By way of oral reply on points of law to the 4th 5th Respondents brief, learned senior counsel to the Appellants submitted that the 4th 5th Respondents brief was incompetent in that the only issue distilled therein for determination was not tied to any of the five grounds of appeal and should therefore be discountenanced and struck out. In further oral reply, learned Director of Civil Litigation for the 4th 5th Respondents conceded that the sole issue in the 4th 5th Respondents brief was not tied to any of the grounds of appeal but contended that it was still valid and properly before the court in this appeal and should be considered by the court in the determination of the appeal in the interest of justice.
By a writ of summons filed on 26/3/2012 and by a Statement of Claim filed on 27/3/2012, the Appellants as Plaintiffs before the Court below instituted an action against the Respondents as Defendants claiming several reliefs including a declaration that the purported appointment of the 1st Respondent as District Head of Tal made contrary to the custom and tradition of Tal people by the 2nd and 3rd Respondents is unlawful, null, void and of no effect.
The parties duly field and exchanged pleadings together with the written statements on oath of their respective witnesses and documents they each intend to rely on at the trial of the suit. At the trial, the
Appellants as Plaintiffs called six witnesses and tendered some documents admitted in evidence as exhibits A, B, C, D, D1, E and F before the court below and closed their case on 29/10/2013. In their defence, the 1st 3rd Respondents as 1st 3rd Defendants called four witnesses and tendered some documents admitted in evidence as exhibits K and L and closed their case on 20/1/2014. On their part, the 4th 5th Respondents as 4th 5th Defendants did not call any witness but closed their case on 20/1/2014. Upon adoption of the final written addresses of the parties, the court below delivered its judgment on 19/11/2014 in which it dismissed the claims of the Appellants as Plaintiffs.
At the hearing before the Court below, the Appellants as Plaintiffs called PW1, Andiriya Madina, PW2, Samaila Wazan, PW3, Molta Babadidi, PW4, Haruna Wakili (2nd Appellant), PW5, Prince James Pass (3rd Appellant), and PW6, Aliyu Y. Yusuf. The 1st 3rd Respondents as 1st 3rd Defendants called DW1, Joshua Usman, DW2, Yila Baba Takora, DW3, Yusuf Musa and DW4, Abdullahi Shuaibu Anampara (1st Respondent) See pages 201 208, 215 - 238 of the record for their evidence.
Having calmly appraised myself with the facts and circumstances of this appeal and bearing in mind that there is a notice of preliminary objection filed on 29/2/2016 by the 1st 3rd Respondents and thus touching on the issue of jurisdiction which must be first determined one way or the other before if need be considering the merit of the substantive appeal, let me at this stage proceed to consider the preliminary objection of the 1st 3rd Respondents as required of me, firstly in law, so to do.
RULING ON PRELIMINARY OBJECTION
By a Notice of Preliminary Objection filed on 29/2/2016, the 1st 3rd Respondents are challenging the competence of the Appellants suit as it was filed before the court below on the ground that the Appellants suit as initiated against the 2nd and 3rd Respondents was statute barred by virtue of the operation of Section 2 of the Public Officers (Protection) Act 2004.
On the preliminary objection, learned senior counsel to the 1st 3rd Respondents had submitted that the Court below avoided the issue of Public Officers (Protection) Act 2004 raised by the 1st 3rd Respondents and thus failed to pronounce on its jurisdiction by refusing to allow the preliminary objection of the 1st 3rd Respondents to the effect that the Appellants suit was statute barred and urged the court to hold that by Section 2(a) of the Public Officers (Protection) Act 2004, the Appellants suit was statute barred having been commenced after 3 months of the appointment of the 1st Respondent by the 4th Respondent and to dismiss the suit for being incompetent. Counsel relied on Yusuf V. Egbe (1987) 2 NWLR (Pt. 65) 341; Egbe V. Adefarasin (1985) 1 NWLR (Pt. 3) 549; Ajayi V. Ababiyi (2012) All FWLR (Pt. 634) 1; Nwora V. Nwabueze of Oedu (2013) 221 LRCN (Pt. 1) 32 @ p. 41; Madukolu & Ors V. Nkemdilim & Ors (1982) ACNLR 341; Sken Consult V. Ukey (1981) 1 SC 6; Tkowa Motors (Nig) Ltd V. U.B.A. Plc (2008) 2 NWLR (Pt. 1011) 347 @ p. 367 (2008) 156 LRCN; Afolabi V. Adekunle & Ors (1983) 14 NSCC 389 @ p. 405; NNPC & Anor V. Sele & Ors (2013) 219 LRCN (Pt. 1) 1 @ p. 6; Timi Timi V. Amabebe 14 WACA 347.
In the Appellants reply brief, learned senior counsel to the Appellants had submitted that the preliminary objection is not only foreign and incompetent but also an abuse of judicial process in that a preliminary objection is not an appeal against the judgment of the Court below but a challenge to an appeal based on law and contended that in law the purport of a preliminary objection is not to attack the judgment of the Court below but is targeted at attacking an appeal before the appellate court from being heard on the merit based on the fact that the process initiating the appeal is fundamentally defective and urged the court to discountenance the preliminary objection. Counsel referred to Order 10 Rule 1 of the Court of Appeal Rules 2011 and relied on Akwasim V. Ojichie (2004) 10 NWLR (Pt. 882) 488; Ahaji Yisau V. WEMA Bank Ltd (2001) 11 WRN 91; Ojo & Ors V. A. G. Oyo State &N Ors (2008) 164 LRCN 130 @ pp. 144 145.
My lords, the issue of jurisdiction has long been settled in several decided cases, is a fundamental one and thus can be raised at any stage of the proceedings, even on appeal for the first time. However, in the instant appeal it has been raised before the court below and whether rightly or wrongly either discountenanced or avoided or dismissed. Indeed, the law is that once the issue is that of jurisdiction it can be raised for the first time on appeal even without the leave of Court since jurisdiction is the life blood of every cause or action and thus where the requisite jurisdiction is found to be lacking, that is indeed the end of the matter. See Madukolu V. Nkemdilim (1962) 2 All NLR 581. See also P. E. Ltd. Leventis Trading Co. Ltd. (2002) 5 NWLR (Pt. 244) 693; Petro Jessica Ent. Ltd V. Leventis Trading Co. Ltd. (1992) 5 NWLR (Pt. 244) 132; Okereke V. YarAdua (2008) All FWLR (Pt. 430) 25; Essien V. Esssien (2010) All FWLR (Pt. 523) 1992.
In AG. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552, the Supreme Court per Kayode Eso JSC., had put it so poetically thus:
Without jurisdiction, the labourers that is the litigant and counsel on the one hand and the court on the hand labour in vain
At the trial, the 1st 3rd Respondents had challenged the competence of the Appellants suit on the ground that it was statute barred having been filed outside the three months period as prescribed by Section 2 of the Public Officers (Protection) Act 2004 in that the 2nd and 4th Respondents were public officers and any suit challenging their act carried out in their official capacity must be filed within three months. In a ruling delivered on 11/9/2012, the court below held inter alia thus:
This court is of the view that by virtue of Order 23 Rule 1 of this court, a party shall plead specifically any matter for example performance, release and relevant statute of limitation, fraud or any fact showing illegality, which if not specifically pleaded might take the opposite party by surprise. In the interest of justice, I shall call on the Respondent and pleading the defence in their statement of defence as a stepping stone for ventilation of the preliminary objection. I see it as premature and unsupportable when the plea is yet to be raised in the statement of defence. .............Therefore, the preliminary objection raised by the defence is hereby discountenanced. The submission of learned counsel to the Plaintiffs is upheld. Pleadings ordered to be filed See page 198 of the record.
There was no appeal against this decision of the court below by the 1st 3rd Respondents as 1st 3rd Defendants and the case had thus proceeded to the filing and exchange of pleadings and hearing before the court below. The 1st 3rd Respondents, in line with the order of the court below, duly pleaded the issue of the Public Officers (Protection) Act 2004 and raised it in their final written address. In its judgment, the court below held inter alia thus:
In his submission counsel to the 1st 3rd Defendants formulated two issues for determination; 1: whether this suit is not statute barred and ought (sic) by statute of limitation law? ........... This court is going to deal with issue No. 2, Issue No. 1 being ruled over in the previous sitting of this court.........................This court therefore holds that the issue of statute of limitation was one dealt with, it cannot arise again except on appeal See pages 259 260 and 263 of the record.
Yet again there is neither any appeal nor cross appeal against the above decision of the court below by the 1st 3rd Respondents, which decision seems to be the sole basis for the preliminary objection filed in this appeal by the 1st 3rd Respondents.
By Order 10 Rule 1 of the Court of Appeal Rules 2011, a Respondent who intends to challenge the competence of an appeal shall file a preliminary objection to that effect within three clear days to the date of hearing of the appeal. The primary objective of a preliminary objection is to attack the competence of an appeal on the basis of it being incompetent. A preliminary objection properly so called is therefore an attack not on the suit as was filed before the court below but against the appeal showing why it should not be entertained on the merit by the court as a result of the incompetence alleged. See Alhaja Sanmi V. Alhaji Olateju & Ors (2013) LPELR 21377 (CA). See also Okereke & Anor. V. Nze Adiele (2014) LPELR 24103 (CA).
The intention primarily to attack the competence of the appeal must clearly form the basis of the preliminary objection and not as in the instant preliminary objection challenging directly the competence of the Appellants suit over which the court below had made findings twice and against which findings there are neither any appeal nor cross appeal and thus binding on all the parties.
At any rate, it is well settled law that a decision of the court not appealed against remains valid and subsisting and thus binding on the parties. It cannot merely be wished away by the party against whom it was given. To set it aside he must appeal or cross appeal against it. In the absence of any ground of appeal touching on and challenging the decisions of the court below refusing the prayer of the 1st 3rd Respondents to strike out the Appellants suit for being statute barred, the 1st 3rd Respondents cannot raise same in this appeal even under the guise of a preliminary objection as they are bound by the decisions of the court below against them on this issue. See the following plethora of cases on this issue; SPDC Nig. Ltd. V. X.M. Federal Ltd. & Anor. (2006) 16 NWLR (Pt. 1004) 189; Iyoho V. Effiong & 2 Ors. (2007) 11 NWLR (Pt. 1044) 31 @ p. 55; Hon Friday & Ors. V. Governor of Ondo State & Anor (2012) LPELR 7886 (CA); APGA V. Sen, Chris Anyanwu & Ors (2014) LPELR 22182 (CA); Ogunyade V. Osunkeye (2007) All FWLR (Pt. 389) 1175 @ pp. 1206 1207; Onibodu & Ors V. Akibu & Ors (1982) 13 NSCC 199; Anyaduba & Anor V. N.R.T.C. Ltd (1992) 5 NWLR (Pt. 243) 535 @ p. 553; Unity Bnak Nig. Plc V. Bouari (2008) 7 NWLR (Pt. 1086) 372 @ p. 400; Oputa Horsfall V. Chukwunwike Amaizu & Ors (2013) LPELR 22874 (CA0; LSPC V. Purification Technique Ltd (2012) 52 NSCQR 274 @ P. 309; Williams V. Sanusi (1961) 11 All NLR 334; Nwokedi V. Ekwenugo Okugo (2002) 16 NWLR (Pt. 794) 441 @ p. 449; Onafowokan V. Wema Bank Plc (2011) 46 NSCQR 181.
I thought I should also at this stage consider albeit briefly the challenge to the competence of the 4th 5th Respondents brief by the learned senior counsel to the Appellant. It is true that in law an issue for determination not distilled from a competent ground of appeal or not arising from any of the grounds of appeal or distilled from an incompetent ground of appeal is utterly incompetent and thus liable to be struck out or discountenanced. See Roba Investment Ltd. V. Arewa Metal Container Ltd. (2010) LPELR 4990 (CA). See also Peter V. Okoye (2002) FWLR (Pt. 110) 1864; Lambert V. Nigerian Navy (2006) 7 NWLR (Pt. 950) 54; Oniah V. Onyia (1989) i NWLR (Pt. 99) 514; Osafile V. Odi (1994) 2 SCNJ 1; Borishade V. NBA Ltd. (2007) i NWLR (Pt. 1051) 217.
On the other hand where the issue raised is that an issue for determination was not tied to any of the valid grounds of appeal, it gives rise to different considerations from those where an issue for determination does not arise from any valid ground of appeal or is distilled from an incompetent ground of appeal. In the latter case, it renders the issue for determination incompetent but not so in the former case, in which the issue if it arises from the grounds of appeal, though not so tied may still be considered in the interest of doing substantial justice to the parties. In the instant appeal, the objection is within the former category challenging the failure to tie the sole issue in the 4th -5th Respondents brief to any of the Appellants ground of appeal.
At the hearing of this appeal when this issue was raised one would have thought that the learned Director of Civil Litigation for the 4th 5th Respondents would have simply applied orally for leave to tie the sole issue as distilled by him to all or any of the grounds of appeal but he regrettably did not do so. Be that as it may, it is my view that the issue of failure to tie the issue for determination to any of the grounds of appeal, though desirable, is not substantial to warrant the striking out of the 4th 5th Respondents brief.
It leans more on technicality than on substantial justice, which is the present trend in our courts. The objection of the Appellants counsel to the competence of the 4th 5th Respondents brief being merely technical and intended to defeat the substantial justice of the case does not and cannot find any favour with me in my consideration of this appeal. See Alim Akanbi Dada V. Chief Jonathan Dosunmu (2006) 50 WRN 1.
A court of law, it must be remembered always, does not concern itself so much with trifles when there are weightier matters of substantial justice before it to decide between the parties. See also Nneji V. Chukwu (1998) 1 NWLR (Pt. 81) 84; Jeric Nigeria Ltd. V. Union Bank of Nig. Plc (2007) 5 NWLR (Pt. 691) 477; Adegbuyi V. APC & Ors (2013) LPELR 22799 (CA0; Nofia Surakatu V. N.H.D.S Ltd (1981) 4 SC 26; Ojora V. Odunsi (1964) NMLR 12; Onyeama Oke V. Amos Eke & Ors (1982) 12 SC 218.
In the instant appeal, I do not see any miscarriage of justice occasioned on the Appellants by the failure of the 4th 5th Respondents counsel to tie his sole issue to any of the grounds of appeal as would warrant this court discountenancing the said 4th 5th Respondents brief in this judgment. I would at all times and in all cases cast my lot or my vote, when the chips are down, with the doing of substantial justice than allowing mere technicality riding roughshod over and above substantial justice to the parties. I therefore, discountenance the objection to the competence of the 4th 5th Respondents brief as raised by the Appellants counsel and hold that it is competent before the court in this appeal. See Alim Akanbi Dada V. Chief Jonathan Dosunmu (supra) @ p. 1, where the Supreme Court had emphatically pronounced thus:
Though it is very necessary and desirable for the learned counsel for the Appellant to always relate or tie the issues formulated for determination in the Appellants brief to the grounds of appeal, from which the said issues are distilled, failure to do so may not necessarily result in the issues being struck out for being incompetent, particularly where in the opinion of the court the issues can validly be distilled from the grounds of appeal and in such a situation the court can on its own take a close look at the grounds of appeal and the issues formulated and in order to do substantial justice between the parties, which is the preoccupation of the court, consider the said issues in its judgment
On the whole therefore, I hold that the Notice of Preliminary Objection is not only totally misconceived but also completely lacking in merit and consequently, it is hereby overruled and dismissed in its entirety. I shall therefore, proceed to consider and determine the substantive appeal anon.
JUDGMENT
In the Appellants brief, P. A. Aki Esq., learned senior counsel to the Appellant had distilled four issues for determination from the five grounds of appeal, namely:
1. Whether the Gombe State High Court was right in holding that the Gombe State Creation of Emirate, District, Villages ward and appointment and deposition of Emirs and Chiefs (Amendment) Law 2004 has abolished the custom and traditions of Tal people in appointing the Mai Tal (District Head of Tal)?
2. Whether the lower Court was right in the way it applied the decision in the case of Akuneziri V. Okenwa & Ors (2000) 4 NSCQR 278 when the decision was irrelevant to the facts and the law in the present case thereby leading to miscarriage of justice against the Appellants?
3. Whether the Gombe State High Court was right to hold that the appointment of 1st Respondent as the District Head of Tal was made in full compliance with the provisions of the Gombe State Creation of Emirate, District, Villages, ward and appointment and deposition of Emirs and Chiefs (Amendment) Law 2004 to warrant such appointment to be confirmed by this Court?
4. Whether the judgment of the Gombe State High Court which relied heavily on the testimonies of DW1 DW4 and the Exhibits tendered is not a decision against the weight of evidence? Settled from grounds four and five.
On his part, in the 1st 3rd Respondents brief, Chief Caleb Ubale had adopted the four issues for determination as distilled by the learned senior counsel for the Appellants. In the 4th 5th Respondents brief, Musa Saidu Esq., had distilled a lone issue for determination, namely:
Whether from the available and facts and evidence led by both parties before the trial Court, the appointment of the 1st Respondent by the 4th Respondent as the 2nd District Head of Tal has violated the provisions of the Gombe State Creation of Emirates, District, Villages, wards and Appointment and deposition of Emirs and Chiefs (Amendment) Law 2004 to warrant such appointment being set aside by this Court
I have taken time to peruse the record of appeal. I have also taken time to calmly review the submissions of counsel in their respective briefs and the judgment of the court below as touching on the issues as joined by the parties in their pleadings. It does appear to me that the four issues for determination as distilled from the five grounds of appeal as contained in the amended Notice of Appeal by the Appellants, and as adopted by the 1st 3rd Respondents counsel, are the apt issues arising for the due determination of this appeal and they are hereby adopted as the four issues for determination in this appeal. I shall consider issues one and three together to resolve them in one fell swoop since they are clearly interwoven.
ISSUES ONE AND THREE TAKEN TOGETHER.
1. Whether the Gombe State High Court was right in holding that the Gombe State Creation of Emirate, District, Villages ward and appointment and deposition of Emirs and Chiefs (Amendment) Law 2004 has abolished the custom and traditions of Tal people in appointing the Mai Tal (District Head of Tal)?
3. Whether the Gombe State High Court was right to hold that the appointment of 1st Respondent as the District Head of Tal was made in full compliance with the provisions of the Gombe State Creation of Emirate, District, Villages, ward and appointment and deposition of Emirs and Chiefs (Amendment) Law 2004 to warrant such appointment to be confirmed by this Court?
On issue one learned senior counsel to the Appellants had submitted that customary law is the organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It therefore mirrors the culture and traditions of the people in a given area and contended that is an elementary principle of law that he who asserts must prove his assertion. Counsel referred to Sections16 and 131 of the Evidence Act and relied on Sokwo V. Kpongbo & Ors (2008) 159 LRCN 1 @ p. 22; Ogolo V. Ogolo (2004) 115 LRCN 3099 @ p. 3109; Olobobund V. Lawal (2008) 161 LRCN 76 @ p. 97
Learned senior counsel to the 1st 3rd Respondents had submitted that from the provisions of the enabling law, The Emirs and Chiefs (Amendment) Law 2004, it fully recognises the custom, tradition, culture and nature law of the people especially in the making of appointments of Traditional Rulers and contended that Section 9(1) of the law deals with the appointment of the District Heads, as is the subject matter of this appeal. Counsel relied on Military Governor Lagos State V. Adeyiga (2012) 205 LRCN 1 @ p. 8
On his sole issue, learned senior counsel to the 4th - 5th Respondents had submitted that the burden of proof rest squarely on he who asserts and it is not exceptional to this appeal and contended that were a statute mentioned specifc things those things not mentioned are not intended to be included and urged the court to hold that the court below was right in its interpretation of the extant law on appointment of Emirs and Chiefs, including the District Head of Tal, Mai Tal under the laws of Gombe State. Counsel refrred to Section 131 (1) (2) of the Evidence Act 2001; Section 30 of the Interpretation Act (Cap 74) Laws of Bauchi State; Section 11(1) of the Interpretation Act LFN 2004 and relied on Anube V. Odili (2004) 8 NWLR (Pt. 358) 494; Berliet Nig Ltd V. Kachalla (1995) 9 NWLR (Pt. 420) 478; Cappa D Alberto Ltd. V. Akintola (2003) 4 SC (Pt. 11) 2 @ p. 9; Aromolaran V. Agoro (2013) 239 LRCN 79 @ p. 104; Essien V. Etukun (2009) All FWLR (Pt. 490) P. 1889; Augustus Kimden & Ors V. The Military Governor of Gongola State & 7 Ors (1988) 5 SC 28 @ p. 47.
On issue three, learned senior counsel to the Appellants had submitted that the law in issue was badly draped but that notwithstanding it is the duty of the court not to rewrite the law but to try and make a meaning out of it and in so doing the Court has to read the law as it is but not what the parties or their witnesses thought it to be. Counsel relied on Araka V. Egbue (2003) 111LRCN 1844 @ pp. 1862 1863; Adebayo & Ors V. PDP & Ors (2013) 221 LRCN (Pt. 1) 69 @ p. 156; Abioye V. Yakubu (1991) 3 LRCN 1037 @ p. 1121.
Learned senior counsel to the 1st 3rd Respondents had submitted that issue three is the same as issue one and is merely an attempt to rigmarole the court into confusion and urged the court to refuse the temptation, but he agrees with the Appellants counsel submissions on the correct position of the law as decided in Aromolaran V. Agro (2015) 239 LRCN 79 @ p. 104; Araka V. Egbue (2003) 111 LRCN 1844 @ pp. 1862 1863; Adebayo & Ors V. PDP & ors (2013) 221 LRCN (Pt. 1) 69 @ p. 156, but maintained that it does not in any way adversely affect the correct decision of the court below as it was not applicable to the instant case.
In the light of the pleadings and evidence of the parties and the judgment of the court below, could it be said that the court below was wrong when it held that Ascendancy to the District Head of Tal is by appointment as averred and contended by the Respondents and not by election as averred and contended by the Appellants?
By the Statement of Claim, it was averred by parargrah 4 that the 4th Defendant is the Executive Governor of Gombe State who has the power to appoint or recognise any Emir, Chief, District Head or Ward Head whie the 5th Defendant is the administrative authority responsible for paying the salaries of District Heads, Village Heads and Ward Heads under its control. It was further averred that by Custom and tradition of Tal people in Tal District all their rulers in the District, whether at Ward, Village or Disrtict level, are elected and the election is by ruling families in Tal District and the candidate with the highest number of people becomes the elected ruler. The two ruling families in Tal were stated to be Bekeri Termana and Bekeri Kuthkuthe. By paragraphs 8, 9, 10 and 11 it was averred that under the custom and tradition of Tal people when there is a vacancy in the Mai Tal stool a list of candidates is presented to the Mai Tangale for a date to be fixed for the election of the Tal ruler and on the date of election all taxable adults line up behind their choice of candidates and the one with the greater number on people linning up behind him becomes the elected ruler and the Mai Tangale and the Tangele Traditional Council present the elected ruler to the Governor for recognition and oath of office, without which he ceases to hold office.
By paragraph 12, it was averred that both the Appellants and the 1st Respodent are from the two ruling families in Tal, while by paragphs 13, 14, 15, 16, 17, 18, 19, 20 and 21, the 1st Defendants father, Shuaibu Anampara was in the early 1970s elected the village head of Tal in line with the csutom and tradition of Tal people and ruled until he died in 2011. The two ruling families then presented five candidates to the 2nd and 3rd Respondents for election under the custom and tradition but the election was not conducted and the 1st Respondent was unilaterally hand picked as the District Head of Tal by the 2nd Respondent contrary to the custom and tradition of the Tal people amidst petitions and complaints against the said imposition. Finally, by paragraphs 22 and 23, the position of District Head, Mai Tal is neither hereditary nor by appointment but by election under the Tal custom and tradition and the Appellants are qualified and interested candidates still waiting for the required election to produce the next District Head for Tal people. See pages 3 7 of the record of appeal.
On the other hand, by the Amended statement of defence, pragraphs 1, 2, 3, 4, 12 and 14 of the statement of claim were admitted, while paragraphs 15, 16, 17, 18, 19, 20, 21 and 22 of the statement of claim were denied. By paragraph 3, it was averred that the Gombe State Creation of Emirates, Districts, Villages, Wards and Appointment and Deposition of Emirs and Chiefs (Amendment) Law 2004 is the extant law governing the creation and appointments of Distric Heads in Gombe including the District Head of Tal since 2001. By paragraph 5, it was stated that the Tal custom and tradition of election of rulers was in respect of their Village Heads as it existed before 2001 and that by the creation of Districts, the Heads were appointed by the Governemnt upon application to the 2nd Respondent, the Mai Tangale and the 3rd Respoindent, the Tangale Traditional Council.
By paragraphs 6 and 7, it was averred that the 2nd Appellant himself was appointed as the District Head of Ayaba and later as Village Head of Pandinkude on 30/5/2005 by the Governemnt of Gombe State in line with the Emirs and Chiefs (Amendement) Law 2004 without any election, while the 1st Respondent was appointed the District Head of Tal on 26/5/2011 by the Government of Gombe State under the said Emirs and Chiefs (Amendment) Law 2004. By paragraph 19, 20 and 21 the 1st Respondents late father was never elected as the District Head of Tal but as Village Head of Tal in the 1970s and was in 2001 elevated by the Governemnt of Gombe State to District Head of Tal upon the creation of Tal District under the Emirs and Chiefs Law subsequently amended in 2004 and the 2nd Appellant himself was also appointed District Head of Ayaba in 2001 by the Government of Gombe State withouit any election and was later appointed as Village Head of Pandinkude still without any election. By paragraph 23, it was averred that all the village Heads in Tal District, namely Village Head of Bekeri, Village Head of Pandinkude and Village Head of Ayaba were each and all appointed by the Government of Gombe State without any elections. See Pages 98 101 of the record.
On the state of the pleadings, it would appear that the crucial questions of facts that