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Jikantoro v. Dantoro

ALHAJI UMARU SANDA NDAYAKO

( Etsu Nupe) (Chairman, Niger State Council of Chiefs )

V

ISIYAKU MUSA JIKANTORO

ATTORNEY-GENERAL, NIGER STATE

THE EXECUTIVE GOVERNOR, NIGER STATE

COMMISSIONER FOR LOCAL GOVERNMENT AND CHIEFTAINCY AFFAIRS (ALHAJI SHASI)

WAZIRIN BORGU (ALIYU MOHAMMED) ( DECEASED )

GARKUWA BORGU (MALLAM IBRAHIM)

MADAKIN BORGU (MOHAMMED TANKO)

V

ALHAJI HALIRU DANTORO

ALHAJI MOHAMMED INUWA GUNU

ALHAJI ABDULLAHI BAWA MOHAMMED

ALHAJI MOHAMMED ISAH

ALHAJI MUSA RUFIA

BAKARA BANDE (MUSA M.)

CHIEF IMAM, NEW BUSSA, (MOHAMMED SHEHU)

SUPREME COURT OF NIGERIA

MUHAMMADU LAWAL UWAIS, CJN ( Presided )

ALOYSIUS IYORGYER KATSINA-ALU, JSC

SAMSON ODEMWINGIE UWAIFO, JSC

AKINTOLA OLUFEMI EJIWUNMI, JSC

DENNIS ONYEJIFE EDOZIE, JSC ( Read the Lead Judgment )

SC. 186/2002

FRIDAY, 14TH MAY, 2004

APPEAL - Brief of argument - Essence of

APPEAL - Concurrent findings of fact - Attitude of appellate court to -  When will interfere with

COURT - Appellate court - Attitude of to concurrent findings of two lower courts

COURT - Evaluation of evidence - Duty of trial court in respect of

COURT - Judgment of court - Bindingness of until set aside

EVIDENCE - Admissions - proof of - Needlessness of

EVIDENCE - Evaluation of evidence - Duty of trial court in respect of

EVIDENCE - Proof of service of process of court - Affidavit of service as the best evidence of

JUDGMENT AND ORDERS - Declaratory order - Discretionary power of trial Judge to make - Impropriety of court making in default of defence or on admissions

JURISDICTION - Jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law - Distinction between

-  Effect of in respect of waiver

PRACTICE AND PROCEDURE - Brief of argument - Essence of

PRACTICE AND PROCEDURE - Concurrent findings of facts by lower courts - Attitude of appellate court thereto

PRACTICE AND PROCEDURE - Service of process - Proof of - Affidavit of service as the best evidence of

WORDS AND PHRASES - ‘Vested interest’ and ‘vested right’ - Definitions of

Issues:

1.              Whether in all the circumstances of this case, it can be said that the 1st respondent’s purported selection was done strictly in line with exhibit NB/2 and if not, whether the court below

was right in affirming the decision of the High Court that he was properly appointed.

2.              Whether the plaintiffs proved their case that 1st plaintiff was appointed in accordance with the native law and custom of Borgu and whether the onus of proof placed on the plaintiffs was discharged on the basis of admission, if any of some of the defendants or even all the defendants.

3.              Whether the court below was right in holding that, 1st plaintiff must be approved as the Emir of Borgu when such directive negates clear provisions (of) the Chief(s) Law of Niger State and whether 1st plaintiff has any vested right in all the circumstances of this case to forbid the appellants from conducting a second exercise.

4.              Whether the complaint of a breach of court order is available to the plaintiffs and was any breach proved to entitle the court below to confirm the assumption of jurisdiction by the High Court to entertain such a complaint.

5.              Whether the ex parte order of 9th (sic) February 2000 is not a nullity having been made without jurisdiction and whether the appellants’ right to fair hearing was not breached when the original trial Judge who was quite aware of the facts of the case failed to disqualify himself from adjudicating on same until he had granted an order of injunction ex parte.

6.              Whether estoppel can be validly raised in this case against the appellants.

Facts:

This appeal arose from a chieftaincy tussle over the succession to the stool of the Emir of Borgu in Borgu Local Government Area of Niger State which became vacant following the death of the last incumbent on 3 rd February, 2000. The principal candidates contesting for the vacant stool are Alhaji Haliru Dantoro who is the 1st respondent and Isiyaku Musa Jikantoro - the 1st appellant in this suit.

Arrangement to fill the vacant stool was initiated by a letter dated

7 th February, 2000 (exhibit NB/2) written by the Commissioner for Local Government (4th appellant) at the instance of the Governor of Niger State (3 rd appellant) directing the Chairman of Borgu Local Government to set in motion within 48 hours from receipt of the letter the machinery for the selection of a successor to the late Emir. At the material time, there were three surviving kingmakers, to wit, the 5th appellant (deceased), 6th and 7 th respondents, out of a total of five kingmakers two of whom had died. In apparent compliance with the directive in the letter exhibit NB/2, a meeting of the aforesaid surviving kingmakers was convened on 9th February, 2000 at which meeting Alhaji Haliru Dantoro the 1st respondent herein was unanimously selected by the three kingmakers, in a ceremony that was witnessed by the Chairman, Borgu Local Government, Commissioner for Local Government and Chieftaincy Affairs (4th appellant) among others.

However, the Governor of Niger State did not give approval to the selection of the 1st respondent as the new Emir. Rather, the Governor pursuant to the Chiefs (Appointment and Deposition) Law Cap. 19, Laws of Niger State, 1989 made an order dated 10th of February, 2000 titled “The Appointment and Deposition of Chiefs (Appointment of the Emir of Borgu) Order, 2000” whereby he reconstituted the council of Borgu kingmakers by the addition of 6th and 7th appellants as kingmakers to replace the two deceased ones. The Commissioner for Local Government then directed that a second selection exercise be conducted with the three surviving and the two additional kingmakers participating in the exercise which was slated to take place on 12th February, 2000. In re-action to this the plaintiffs/respondents applied to the Niger State High Court and obtained for an ex parte injunction restraining the defendants/appellants from carrying out another selection exercise. In a flagrant disobedience of this the defendants/appellants proceeded to select the 1st defendant/appellant as the successor to the Emir of Borgu chieftaincy stool.

Aggrieved, the 1st to 5th respondents (as plaintiffs) in a suit against the 1st to 7th appellants, filed at the Niger State High Court, sought various declaratory and injunctive reliefs to the effect that the 1st plaintiff/respondent is the right candidate to the Emir of Borgu chieftaincy stool or a restraints on defendants from enthroning 1st defendant/appellant, or recognising him as the Emir of Borgu, and restraints on the 1st defendant/appellant from parading himself as the Emir of Borgu.

The trial court granted the reliefs sought by the appellant. The defendants’ appeal to the Court of Appeal was dismissed.

Dissatisfied with the decision of the Court of Appeal, the appellants appealed to the Supreme Court. The chairman of the Niger State Council of Chiefs, with leave of court, also appealed as an interested party against the decision of the Court of Appeal, his complaint being that the order of the court undermined the right of the council of chiefs to be consulted by the Governor of Niger State for its advice before the approval of the appointment of an Emir.