IN THE HIGH COURT OF JUSTICE OF PLATEAU STATE OF NIGERIA
HOLDEN AT JOS
BEFORE HIS LORDSHIP: JUSTICE M.I. SIRAJO ….JUDGE ON THURSDAY 14TH DAY OF JULY, 2005
PLD/S5/2001
BETWEEN: -
MICHAEL LAPANG ………………………………………………… PLAINTIFF.
AND
1. ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE PLATEAU STATE.
2. EXECUTIVE GOVERNOR OF PLATEAU STATE.
3. BUREAU FOR LOCAL GOVERNMENT DEFENDANTS.
& CHIEFTAINCY AFFAIRS.
4. STEPHEN DATOEGOEM, SECRETARY QUA’AN PAN LOCAL GOVERNMENT.
5. QUA’AN PAN LOCAL GOVERNMENT.
6. ALHAJI ISA NOEKER
JUDGMENT
(DELIVERED BY JUSTICE M. I. SIRAJO)
By his amended statement of claim dated 4th March, 2002 but filed on 12th December, 2002, the Plaintiff claimed against the Defendants jointly and severally vide paragraph 25 thereof, the following reliefs: -
(a) A declaration that the election conducted on 16/5/2001 by the agents of the Defendants is contrary to the Native Law and Custom regulating the stool of the District Head of Kwalla, Legal Notice No. 34 of 1982.
(b) A declaration that the non-invitation and participation of the Village Head of Yiltar is a contravention of Legal Native No. 34 of 1982.
(c) A declaration that the participation of Danladi Dayil in the selection of 16/5/2001 was a contravention of the Legal Notice No. 34 of 1982.
(d) An order of perpetual injunction restraining the 4th and 5th defendants, their agents, servants and privies from forwarding any report in respect of the selection of 16/5/2001 to the 1st, 2nd and 3rd Defendants from acting on any recommendation of the selection exercise of 16/5/2001 in respect of the District Head of Kwalla.
(e) An order of perpetual injunction restraining the 6th Defendant from parading or representing himself as the District Head of Kwalla.
(f) An order of perpetual injunction restraining the 1st - 5th defendants, their agents, servants and privies from recognizing or dealing with the 5th (sic) 6th Defendant as the District Head of Kwalla.
The plaintiff is the Village Head of Chim in Kwalla District of Qua’an-Pan Local Government by virtue of which position he is a Traditional Selector to the stool of the District Head of Kwalla. He is also eligible to contest the vacant stool of the District Head of Kwalla and did contest in the selection of 16th May, 2001.
Other important paragraphs of the Plaintiffs Statement of Claim reads as follow: -
3. The 3rd Defendant is a the Bueau responsible for Chieftaincy and Local Government matters within Plateau State. As part of the schedule of her duties, the 3rd Defendant is responsible for processing and or recommending the vacant stool of the District Head of Kwalla to be filled by the 2nd Defendant.
4. The 4th Defendant is Qu’an Pan Local Government and its Council has responsibility for Chieftaincy matters within the local Government.
5. The 6th Defendant is Alhaji Isa Noeker. He contested the stool of the District Head of Kwalla and white this shit (sic) suit was pending the 1st, 2nd, and 3rd Defendants processed and purportedly approved the recommendation of the selection exercise of the 6th Defendant
6. The 5th Defendant Is the Secretary of Qu'an Pan Local Government Government Council and is statutory responsibility for conducting elections into the vacant stool of the District Head of Kwalla, when same becomes necessary.
7. The plaintiff is eligible to contest the vacant stool of the District Head of Kwalla aid has indicated his Interest when calls for nominations were made by the 4th Defendant.
8. The stool of the District Head of Kwalla is one that is recognized by statute aid tee procedure for tee vacancy wherever one occurs is regulated by the Plateau Sate Government Gazette No. 6 Vol. 7 of 1982. The said Gazette contains Legal Notice No. 1 of 1982 - the Local Administration Law (CAP 77) - The Pan Local Government (Modification of Naive Law and Custom relating to the selection of the District Head of Kwaia District) order, 1982.
7. The Plaintiff avers that selection in to the sad stool of the District Head of Kwalla is from amongst the holders of the following traditional offices:
a. Long Tim (Chim)
b. Nuwang Shang Fu’up
c. Long Koffom (Kopfogom)
d. Dangdalang Kwoor
e. Long Yitiar
f. Long Mucia (Moeda)
11. The Plaintiff avers that the holders of the offices act as traditional selectors and are also eligible as contestants to the stool of the District Head of Kwalla.
16. On 16/5/2001, the 5th Defendant and the Councilor appointed to be in attendance were absent.
17. The representative of the Village of Kwoor, Mr. Danladi Dayil was also in attendance and was allowed to vote as a traditional selector, when he was only appointed and installed as the Village Head of Kwoor on 7/7/2001.
18. The Plaintiff avers that as at 16/5/2001 when the said selection took place, no election had been conducted to fill the vacant stool of the Village Head of Kwoor, as the office of the Pangtoer who plays a relevant role in filling the stool of the Village Head of Kwoor was only fined on 27/5/2001.
19. The Plaintiff avers that no imitation sent to the Yitiar Village to enable them to be dully represented and to participate in the election as traditional selector and or as contestant.
Paragraph 1, 2, 4, 6, 8, 9, 10, 11, 12 and 13 (8) of the joint Amended Statement of defence reads as follows:-
1. The defendants admits paragraphs 1,2,3,4,5,7,8,9,10 and 11 of the claim.
2. The defendants admits paragraph 6 of the claim but will further aver that the recommendation and approval was made even before the 1st – 3rd defendants became aware of the pendency of this case.
4. The Defendants admits paragraph 13 of the claim but will further aver that all the Village heads under Kwalla district were invited but not only those mention (ed) (sic) in paragraph 13 of the claim.
6. The defendants deny paragraph 15 of the claim and further aver that all the village heads were invited except that of Yitiar which has no village head as at then.
8. The defendants deny paragraph 16 of the claim and further aver that no issue of village head was raised by any of the traditional selectors as all of them were aware that Yitiar had no village head at hat material time.
9. The defendants deny paragraph 17 and 18 of the claim.
10. Further to paragraph 6 above the Defendants aver that Danladi Dayil was selected as village head of Kwoor and the selection report was forwarded to the Bureau for Political and Local Government Administration in January, 2001 and a letter approving his appointment as the village head of Kwoor dated 11-04-2001 was forwarded through the chairman of Qu'an Pan LGC. Copies of the letter are hereby pleaded.
11. Further to paragraph 18 of the claim deny (sic) above the defendants deny that there has been any problem with the office of the Pangtoer before the selection of the village head of Kwoor, Mr. Dandadi Dayil. The plaintiff is therefore put to the strictest proof thereof.
12. The defendants admits paragraph 19 of the claim but will further aver that no invitation was sent to Yiltiar village as a whole because the invitation would have been to the village head Yiltiar village had non (sic) and there was nobody acting as such as at then.
13. (a) The defendants hereby aver that the Plaintiff was present and fully participated in the contest and selection exercise and is therefore estopped from complaining.
The Plaintiff averments in paragraphs 20, 21 and 22 of the Amended Statement of claim that the candidates for die stool of the District Head of Kwalla nominated themselves and that die representative the 5th defendant refused to announce die result of the selection was denied by the Defendants in paragraph 13 of their Joint Amended Statement of defence.
It is common ground between the parties that the stool of the District Head of Kwaila was before the selection of 16/5/2001 vacant and that both the Plaintiff and the 6th Defendant who were village heads under Kwalla District of Qu’an - Pan Local Government contested for the stool of the District head in the selection that took place on 16/05/2001. It is also common ground that the traditional selectors and contestants for the stool of the District head of Kwaila are the following village heads: - Long Tim (Chim), Nuwang Shangfu’up, Long Kopfogom. Long Kwoor, Long Yitia and Lang Moeda. It is eerily agreed by both parties that the procedure for filling the vacant stool of the District Head of Kwalla is regulated by Legal Notice No. 1 of 1982 contained in Plateau State Government Gazette No. 6. Vol. 7 of 1982.
The Plaintiff gave evidence in support of his claim, he testified as PWl. He said in his evidence that he is the village head of Tim, Kwalla. He knows the 6th Defendant. Those eligible to contest the stool of the District Head of Kwalla are the Six village heads of Tim, Kopfogom, Yiltlar, Shaugfu’up, Moeda and Kwoor. The village heads were summoned, to the palace of the Long Pan, the Chairman of Qu'an Pan Local Government Traditional Council for a meeting on 8th May, 2001 - with regards to filling the stool of the District Head of Kwalla. According to PWl, during the meeting they complained to the Long Pan that they did not form quorum as one of the selectors, the Long Yiltiar, was deceased. The Long Pan asked them to proceed with the selection without the Long Yiltiar and a date, 16/05/2001, was fixed for the selection. According to PWl, five of the six selectors were present at the Long Pan’s palace on 8th May, 2001, during the meeting. That a new person by name Danladi Dayil was introduced to them by the Long Pan as the new Long Kwoor i.e. the village head of Kwoor. On 16/05/2001 when they assembled the Kwalla District office the Director of Personal Management (DPM) of Qu'an Pan Local Government along with other persons not known to the Plaintiff officiated at the selection. PWl testified that the 6th defendant and himself indicated interest to contest for the stool of the District Head of Kwalla whereupon all the selectors present including the plaintiff and the 6th defendant were given papers which they used in voting for the candidate of their choice. The Director of Personnel Management (DPM) did not announce the result as according to him the announcement of the winner will come from Jos. Five of the six selectors with the exception of the deceased Long Yiltiar participated in the selection. This witness did not know when Danladi Dayil was selected and installed as the village head of Kwoor. Under cross examination however, he told the court that Tim Village has no business with the selection of its village head without the participation of other villages.
According to PWl, the custom of selection of the District Head Of Kwalla is that whenever a vacancy existed among the selectors that vacancy must be filed before the selection of the District Head. He cited an example of the late Dajang Nkwap who was both the village head of Moeda aid District Head of Kwalla. Upon his death the stool of the village head Moeda was filled before the selection of the District Head of Kwalla. PWl admitted upon question put to him by the defence counsel that he did not write any complaint before the selection. He urged the court to nullify the selection of the 6th Defendant on the following grounds: - Absence of the Secretary to the Local Government, lack of quorum, lack of nomination of candidates and the non declaration of the result after selection. PWl said he neither signed nor thumbprint any paper after the selection exercise.
PW2 was one Tobias K. Shalong, a former and the village head of Moeda in Kwalla District of Qu’an Pan Local Government. He spent 22 years as the village head. On 8/5/2001 this witness together with other village heads of Kwalla District except the Long Yiltiar attended a meeting at the Local Government where they were informed that the 16th day of May, 2001 has been fixed for the selection of the District Head of Kwalla. On 16/05/2001 he participated in the selection at the Kwalla District office conducted by the Director of Personnel Management of the Local Government and other officials. The Plaintiff and the 6th Defendant contested the election without nomination. At the end of the exercise the result was announced by the Director of Personnel Management (DPM) as follows: Plaintiff scored two votes while the 6th Defendant scored three votes. They were however not to tell anybody. The Plaintiff headed for the court the following day. That the village head of Kwoor was not installed at the time and therefore ought not to have participated in the selection. PW2 told the court that a village head must be given a letter by the state or local government before he can commence functioning as village head. He testified further that since the Long Kopfogom has a case before this court he was not supposed to participate in the selection. I will out rightly expunge this evidence as it was wrongly admitted in the first place because it is evidence of fact that is not pleaded by the plaintiff. The participation of the Long Kopfogom in the selection of the District Head of Kwalla is not an issue in this case, consequently the evidence of PW2 challenging his participation in the selection is immaterial and wrongly admitted. That evidence is accordingly expunged from the records.
PW2 testified under cross-examination that after the election and announcement of result they all signed the result for fear of losing their tides.
One Benedict Loepar Goewam, a staff of Plateau Investment and Property Development Company, the Chairman of Tim (Chim) Development Association and a member of the enlarged Kwalla Development t Association gave evidence as PVV3. He told the court that there are six selectors to the stool of the District Head of Kwalla and all the selectors are eligible to contest for the stool. According to this witness, to form a quorum all the six selectors must be present and that as the time of the selection of the 6th Defendant only five selectors were present as the Long Yitiar was deceased. PW3 testify further that the practice has been to m the stool of a deceased village head before the selection the District head. He cited an example the selection of Dajang Nkup sometimes in 1980 as the District heed of Kwalla. Another example given by the witness was the selection of Mr. Daloek Dateng as the then District Head of Kwalla. In all these two instances, existing vacancies of village heads were filed before the selection of the District head. Under cross-examination the witness said he is neither a member of the traditional council nor a traditional selector and that he was told of the selection of 16/05/2001 by the plaintiff on the 17/05/2001 here in Jos.
Two documents, a letter from Qu’an Pan Local Government to all village heads of Kwalla district dated 4th May, 2001 and Plateau State Government Gazette No. 6 vol. 7 of 1982 were tendered from the Bar by Mr. Obende, Learned Counsel for the plaintiff and same were admitted in evidence and marked respectively as exhibits “A” and “B”. With the admission of these exhibit, Mr. Obende dosed the case for the plaintiff.
The defendant jointly called four witnesses and tendered six Exhibits.
The minutes of meeting of Qu’an Pan Traditional Council dated 14/4/2001, 8/5/2001 and 24/5/2001 were tendered from the Bar by learned Principal State Counsel for all the Defendants and was admitted by consent and marked Exhibits C, D and E while the letter approving the appointment of the 6th Defendant as the District head of Kwalla was admitted as Exhibit “F”.
Testifying as DW2, Mr. Danladi Dayil the village head of Kwoor in Kwalla District of Qu’an Pan Local government told the Court that he became the village head of Kwoor since 20th December, 2000 when he was selected by the kingmakers. The letter from Bureau for Political and Local Government Administration forwarding the approval of appointment of Mr. Dayil as the village Head of Kwoor and the actual Approval of his appointment respectively dated 11th and 10th April 2001 were admitted in evidence as exhibit “G” & “H”. He told the Court that while the 6th Defendant was nominated by John Datong the plaintiff was nominated by Tobias Shalong during the selection of the District head of Kwalla on 16th May, 2001. After that the four other selectors together with DW2 as a traditional selector were given papers to use in secretly casting their votes. DW2 testified that after the voting the votes were counted and the result announced as follows:- plaintiff had two votes while the 6th Defendant had three votes. Under cross-examination Dw2 said he was living at Kurgwi before he became a village head, that Yitiar village was not represented at the selection. He attended a meeting once at the Long Pan’s palace where the selection of the District head of Kwalla was discussed. He said that the absence of the village head of Yitiar was not discussed in that meeting. The witness knows the title of Pangtoer in Kwoor and that nobody occupies the title now since the death of the previous occupant. The stool of Pangtoer was also vacant at the time of this selection as the village head of Kwoor. The witness was given exhibits G and H on the date of tee meeting the village heads with the Long Pan preceding the selection of the District head of Kwalla.
Earlier on, the former Secretary of the Quan Local Government Traditional Council Mr. A. B. Dandam Malo, a Higher Executive Officer with Qu'an Pan Local Government Council gave evidence as DWl. He knows the plaintiff and the 6th Defendant as both of them were village heads in Qu’an Pan Local Government before the 6th Defendant became the District head of Kwalla. DWl, identified exhibit C, D and E and said that those minutes of meetings of the Qu'an Pan Local Government Traditional Council where taken by him. That on 16/05/2001 when the 6th Defendant was selected as the District head of Kwalla, he it was who took the minutes of the deliberations of that day at the end of which the 6th defendant scored 3 votes while the plaintiff scored 2 votes. The result was released on the spot after the counting of votes. After the voting all the selectors signed the Attestation form which was identified by the witness the court He testified that before and during the selection no complaint made by anybody, however the plaintiff complained in writing after the selection. Under cross-examination DWl told the court that he ceased to be the Secretary of the Traditional Council in the year 2002. He admitted under cross-examination that the village head of Kwoor (DW2) was not in attendance at the meeting the minutes of exhibit “C” before the court but the “C” was not the only meeting of the Traditional Council held in April, 2001. He admitted further that at page 4 of exhibit “C” the issue of the village head of Yitiar was discussed. DWl further admitted that on the 16/5/2001 the Secretary of Qu’an Pan Local Government Council was not present at the selection but was represented by the Director of Personnel Management (DPM). He admitted also that the Council representing Kwalla District was not present at the selection. That the Plaintiff and 6th Defendant were respectively verbally nominated by Tobias Shallong and John Datong, village heads of Moeda and Kopfogom. The selection was by secret ballot and his report of the selection exercise is contained in exhibit “E” even thought the minutes itself is not before the court.
DW3 is one John Datong, the village head of Kopfogom and a Traditional selector to the stool of the District Head of Kwalla. He testified that five of the Traditional Selectors participated in the selection of 16/05/2001 which was by way of secret ballot. The votes were counted in presence with the plaintiff scoring two votes as against the Defendant's three. DW3 told the court that the 6th Defendant was nominated by him while the Plaintiff was nominated by Tobias Shallong, the Long Moeda. Under cross-examination the witness insisted that it was the Local Government and not the Long Pan that fixed the date for the selection of the District Head. That there was no complaint by Yiltar people in one of their meetings. Since he became the Village head of Kopfogom in 1992 there was no selection of the District head of Kwalla except that of 16/05/2001.
The 6th Defendant, Alhaji Isa Noekoer tested as DW4. He a farmer and the District head of Kwalla, he became the District head on 16/5/2001. He said he was selected in an election in which five village heads including himself participated. He was nominated by DW3 while the plaintiff was nominated by Tobias Shallong. The election was by secret ballot after which the votes were counted in the presence of the selectors. DW4 scored 3 votes the Plaintiff scored 2 votes. Yitiar village has been without a village head for four years there that village was not represented at the selection exercise. Under cross-examination DW4 said that in Kwalla there is no law, rule or any agreement that all the six selectors must be present before a District head is selected. He said that he became the village head of Shangfu'up on 19th April, 1982. He admitted that the vacant stool of the village heads of Moeda and Shangfu’up were filled before the selection of the last District head of Kwalla.
The defence closed its case with the testimony of DW4. Learned counsel for both parties addressed me on the entire case.
The Learned Principal State Counsel for the defendants formulated four Issues for determination as follows:-
1. Whether the absence of the village head of Yitiar has in anyway affected the selection of 16/5/2001.
2. Whether the absence of an observer and the Director of Personnel Management presiding over the selection has occasioned any injustice to the plaintiff.
3. Whether or not the Plaintiff is not caught by the doctrine of estoppel by conduct.
4. Whether the plaintiff has discharged the burden of proof on him having regard to the evidence before the court.
On issue one, Learned Principal State Council submitted that the absence of the village head of Yitiar has not affected toe selection conducted on 16/5/2001 because it is in evidence that the village head of Yitiar was deceased four years before the selection. That there is no evidence to show that the people of Yitiar are complaining about the selection of the District Head of Kwalla as none of them was called to testify. He argued that since five selectors, including the plaintiff participated in the selection the quorum required by the law on the selection of the District Head of Kwalla was property formed, as the law requires only selectors to form a quorum. He urged the Court to hold that the absence of the village head of Yitiar did not in anyway affect the selection of the sixth defendant.
On issue two, Mr. Shase-dt, Principal State Counsel maintained that section 3(1) of toe Plateau State Legal Notice No 1 of 1982 which requires the appointment of a councilor to serve as an observer was not infringed as the plaintiff has failed to show what adverse effect he suffered by the absence of an observer. He also submitted that the plaintiff did not tell the Court what injustice he suffered as a result of the presiding over of the selection exercise by toe Director of Personnel Management, a representative of the Secretary to Qu’an Pan Local Government.
Learned counsel submitted on issue three that toe plaintiff is caught up by the doctrine of estoppel by conduct. Having participated fully in the meeting preceding the selection as well the selection exercise itself where he contested and lost, the plaintiff is estopped from complaining, submits the Learned Counsel. In support of this submission the court is referred to
UDE V. OSUJI(1998) 10 SCNJ 75 at 82.
On the fourth and final issue formulated by him for determination, Mr. Shase-et submitted that the plaintiff did not prove his can against the Defendants which will entitled him to the relief claimed. He contended that the Plaintiff is not a witness of truth. That the plaintiff’s pleadings and evidence denied the fact that the result of the selection was declared there and then, however, PW2 testified that the courting of the votes was done in their presence and the result of three votes for the sixth Defendant and two votes for the plaintiff announced on the spot. That PW2 maintained this position even under cross-examination. Learned counsel posited that this is an admission against interest. He cited the following cases
Odi V. Iyala(2004) 4 SCNJ 35 at 51-53
Oyenge V. Ebere(2004) 6 SCNJ 126 at 141
Fagunwa V. Adigi(2004) 7 SCNJ 322 at 338
He urged the court to dismiss the suite of the plaintiff and to hold that the selection was perfectly done in line with the Native Law and Custom of Kwalla people.
On his part, S.S. Obende Esq., Learned Counsel for the plaintiff formulated two issues for determination, thus:
1. Whether the election of 16/5/2001 was in compliance with exhibit “B”
2. If the answer to one is that there is no compliance, whether the non-compliance did not render the election of 16/05/2001 a nullity.
On the first issue formulated by him, Mr. Obende submitted that the parties are agreed that exhibit “B” is the law that regulates the election of the District head of Kwalla. He submitted that from the evidence the parties are agreed the the secretary of the Local Government was not present during the election of 16/5/2001, there was no councilor in attendance as observer, the meeting of 16/5/2001 was not summoned by the selectors but by the Traditional Council and that the Long Yitiar was not invited to participate in the selection. That these failures contravenes the provision of exhibit “b”. That the word "We shall in exhibit “B” is a mandatory provision. He submitted that the present of the secretary as the presiding officer and a councilor as an observer are mandatory requirements and therefore there is no compliance with the provision o! exhibit “B” in the election of 16/5/2001. Learned counsel submitted that the duty of a court is to interpret statutes and not to make law. He cited and relied on
NDIC V.Ifediegwu(2003) 1 NWLR (Part 800) 56 at 79.
Kallamu V. Gurin(2003) 16 NWLR (Pt. 847) 493.
He submitted that even though the Long Yitiar was deceased there was evidence from DW4 under cross-examination that one Madaki Shilong occupied the stool of the Long Yitiar. Mr. Obende argued that Madaki Shilong is entitled to be invited for the selection. The court is referred to the case of
Oladokun V. Military Governor(1996) 9-10 SCNJ 107.
That the composition of the selectors did not comply with exhibit “B”, the Long Yitiar having been deprived the opportunity to attend the meeting of 16/05/2001. For this submission learned Council cited
Haruna V. University of Agriculture, Makurdi.(2005) 3 NWLR (Pt. 912) 233 at 274-275.
It is further submitted for the plaintiff that no selection of the District head of Kwalla has ever taken place when any of the traditional selectors is not occupying the office of a selector. That the evidence on this point was not challenged.
He submitted further that there was no evidence of delegation before the Court as parties did not joint issues on delegation. I am referred to the case of
Adake V. Akun(2003) 14 NWLR (Pt. 840) 418 at 426,428-429
The court is urged to hold that there is no compliance with exhibit “B” and to set aside the meeting 16/5/2001.
On the second but last issue formulated on behalf of the plaintiff, Mr. Obende submitted that non-compliance with exhibit “B” renders the selection of the 6th defendant a nullity and that it is immaterial whether the plaintiff participated in the selection or not. Learned Counsel submitted that acquiescence or estoppel cannot arise to defeat the non - compliance with exhibit “B”. He urged the Court to hold that the non-compliance vitiated the selection.
Replying to the address by the Learned Counsel for the defendants, Mr. Obende submitted that the issue of the people of Yitlar not contesting the conduct of the selection was not in the pleadings. On issue No. 2, he submitted that there was no proof of delegation. On the 3rd issue, Learned Counsel submitted that the evidence of DWl that the Plaintiff signed the result is inadmissible. That the document allegedly signed by the plaintiff having not been tendered in evidence, the Defendant is caught by the presumption under section 149(d) of the Evidence Act. On issue number four he submitted that the plaintiff has, on the basis of evidence before the court proved his case on the balance of probability to entitled him to Judgment. He urged the court to enter judgment for the plaintiff as per the reliefs.
In a further reply, Mr. Shase-et submitted that it is not stated in exhibit “B” that it is the Traditional selectors that will summon the meeting and not the Traditional Council. That the case of Adake V. Akun (supra) is distinguishable from the instant case
From the evidence before me, the following facts are not in dispute between the parties.
(a) Prior to the meeting of selection on 16/5/2001 the stool of the District Head of Kwalla was vacant.
(b) Both the plaintiff and the 6th Defendant were eligible to contest for the stool and to vote in the selection as traditional selectors and both of them did contest in the selection of 16/5/2001.
(c) The Long Yitiar did not participate in the selection as he was deceased.
(d) The Director of Personnel Management of Qu’an Pan Local Government Council presided over the meeting of selection of the District head.
(e) No Councilor was in attendance to serve as an observer.
(f) Exhibit “B” is the law governing the selection of the District head of Kwalla. For the avoidance of any doubt exhibit “B” is Plateau State of Nigeria Gazette No. 6 Vol. 7 of 11th March, 1982. The Gazette contains Plateau State Legal Notice No. 1 1982 which is the Pan Local Government (Modification of Native Law and Custom relating to the selection of the District Head of Kwalla District Order, 1982.
The areas of disagreements between the parties are isues relating to nominations, votes scored by the two contestants, quorum vis-a-vis the absence of the Long Yitiar or his representative, delegation of powers by the Secretary to the Local Government, acquiescence or estoppel by conduct as well as the effect of the absent of the secretary and the councilor in the meeting of selection of the District head on 16/5/2001. I will take the issues formulated by the parties as they relate to the areas of disagreement between them. In so doing I will deal with issues 1 and 2 formulated by Learned counsel for the Defendants together with issue 1 formulated by Learned Counsel for the Plaintiff as the latter encompassed the former. On the other hand Issue No. 3 formulated on behalf of the Defendants and issue No. 2 formulated by the Plaintiff shall be taken separately as they deal with distinct matters.
DEFENDANTS ISSUE NUMBERS 1 AND 2 AND PLAINTIFF’S ISSUE NUMBER
These three issues jointly concerns the effect of the absence of the Long Yitiar in the selection of 16/05/2001 as well as the effect of the absence an observer and the Secretary to the Local Government who was represented by the Director, Personnel Management of the local Government. Learned Counsel for the plaintiff submitted that the non-invitation of the Long Yitiar together with the absence of a councilor as an observer as well as the absence of the Secretary to the Local Government as presiding officer during the selection renders the selection invalid as same was done in contravention of Exhibit “B”.
He submitted that the word “shall” in exhibit “B” is a mandatory provision which must be compiled with. On his part Learned Counsel for the defendants submitted that the absence of the village head of Yitiar (Long Yitiar) did not in any way affect the selection as the said village head was deceased as at the time of the selection. Further that the quorum tor the selection was properly formed as the law requires only four selectors to form a quorum. Learned principal state council submitted that the absence of an observer and the presiding over the selection by the Director of Personnel Management did not constitute an infringement of section 3 of Plateau Sate Legal Notice No. 1 of 1982 as the Plaintiff failed to show what adverse effect he suffered by the absence of the observer or the injustice suffered by him as a result of the presiding over the selection exercise by the Director of Personnel Management.
There is uncontroverted evidence before die court that the Long Yitiar died before the selection 16/5/2001. There is also evidence before the court which was neither challenged nor controverted that the stool of the Long Yitiar was vacant as at 16/5/2001 when the selection of the District head of Kwalla was Conducted. As a matter of fact the non filling of the stool of the Long Yitiar is one of the grouse of the Plaintiff in this case. So if the stool of the Long Yitiar is vacant, how can a non-existent village head be invited to attend the meeting of selection? Mr. Obende submitted that Madaki Shilong who is acting for the village head of Yitiar ought to have been invited to attend the meeting of 16/5/2001 for the selection of the District Head of Kwalla.
The Plateau State Legal Notice No. 1 of 1982 titled “The Pan Local Government (Modification of Native Law and Custom relating to the selection of the District head of Kwalla District) order, 1982 (hereinafter referred to as the Legal Notice No. 1 of 1982) provides in section 3 thereof as follows: -
“The Kwalla District Native Law and Custom set out in the modification thereof recorded in the schedule to this order shall be the Native Law and Custom relating to the selection of a person to be the District head of Kwalla District and shall be in force in the area of authority of Pan Local Government”.
The schedule referred to in the above section provides that the Traditional selectors and contestants for the stool of the District Head of Kwalla shall be the persons holding the following offices: - Long Tim, Nuwang Shanfu'up, Long Koffom, Dangdalang kwoor, Long Yitiar and Long Muda. As at 16/05/2001 when the selection of the 6th Defendant took place nobody was holding the office of Long Yitiar. This fact is agreed to by both parties to this suit. The fact that one Madaki Shilong was acting does not make him the holder of the office of Long Yitiar. There has been no election to fill the vacant stool of the Long Yitiar, consequently the only qualified contestants and selectors to the stool of the District Head of Kwalla were the remaining five heads named above. What is more, section 3(2) of the schedule to Legal Notice No. 1 of 1982 provides that four Traditional selectors shall constitute a quorum for the purposes of selecting the District Head of Kwalla. Therefore the evidence of the Plaintiff and his witnesses together submission of Leaned Counsel for the Plaintiff contending lack of quorum at the selection of the 6th Defendant on 16/15/2001 appears to me to be misplaced and at variance with the law governing the selection of the District Head of Kwalla. The evidence and the submission of counsel on this point are hereby discountenanced as being contrary to the law which provides that four traditional selectors shall constitute a quorum. It is not in dispute between the parties that five traditional selectors participated in the selection 16/5/2001, one selector over and above the required quorum of four. I am not unmindful of the averments in paragraphs 17 and 18 of the Plaintiffs statement of claim, wherein he faulted the participation of Mr. Danladi Dayil, the village head of Kwoor in the selection on the ground that as at 16/05/2001 the said Mr. Danladi Dayil was not installed as the village head of Kwoor. Plaintiff as PWl testified on these averments, so also PW2 who told the court that having not been installed, the village head of Kwoor ought not to have participated in the selection. In response to this allegation the Defendants tendered exhibits “G” and “H”. These two exhibits are the approval of the appointment of Mr. Danladi Dayil as the village head of Kwoor as well as the letter forwarding the approval dated 10th April, 2001 and 11th April 2001 respectively. By the contort of exhibit “H” which is the approval of appointment of Mr. Danladi Dayil takes effect from 20th December 2000. Those pieces of documentary evidence have not been faulted in anyway. I therefore take them as the truth of the matters to which they relate. I find from exhibits “G” & “H” that the appointment of Mr. Danladi Dayil as the village Head of Kwoor predates the selection of the 6th Defendant which took place on 16th May, 2001. Following the finding I hold that the participation of the village head of Kwoor, Mr. Danladi Dayil in the selection of the District head of Kwalla on 16/5/2001 was perfectly in order as he was a qualified and competent Traditional selector at the time. On the other hand the five traditional selectors having formed a quorum as required by the Law, the non - participation of the Long Yitiar, who was deceased, did not in anyway affect the validity of the selection of the 6th Defendant Issue No. 1 formulated by the Defendants is thus resolved in favour of the Defendants.
On the absence of an observer, section 3(1) of the schedule to the Legal Notice No.1 of 1982 (Exhibit “B”) provides as follows: -
“A councilor appointed by the Pan Local Government shall be in attendance as an observer at a meeting of the traditional selectors convened by it for the selection of the District Head of Kwalla District.”
On who should preside at the meeting of the traditional selectors for the purpose of selecting a District Head, section 3(3) of the schedule to the said Legal Notice No. 1 of 1982 provides: -
The Secretary in charge of the Pan Local Government shall be the presiding officer at such a meeting”.
The word “shall” appears in each of the two subsections quoted above. The two parties before me are in serious disagreement with regard to the construction sand interpretation vis-a-vis the effect of these provisions. One of my main functions in this case is the interpretation of the Law governing the selection of the District Head of Kwalla. The provides, among other things that a councilor shall be in attendance as an observer and that the Secretary to the Local Government shall be the presiding officer at the meeting of the traditional selectors. What is the important of the word “shall” in the two subsections of section three of the schedule to the Legal Notice? The golden rule in the interpretation of statutes is that the words of a statute must prima facie be given their ordinary meaning so long as the provisions are clear and unambiguous.
The main object of statutory interpretation is to discover the intention of the lawmaker, which is deducible from the Language used. Once the language is clear and unambiguous, the Court will give an ordinary or literal interpretation to it. With respect to the word “shall” the principle governing its use in a Legislative sentence is that it is generally imperative or mandatory and in its ordinary meaning “shall” is a word of command, which is normally given a compulsory meaning because it is intended to denote obligation and compulsion. Therefore where a statutory provision provides that a thing shall be done, the natural meaning is that a peremptory mandate is enjoined. See
Bamaiyi V. A - G. Federation and others (2001)FWLR (pt. 64) 344 at 368
The word “shall” as used in exhibit “B”, particularly sections 3 of the schedule thereto cannot mandatoriness. It implies an obligation that must be compiled with. A careful scrutiny of the entire Legal Notice No. 1 of 1982 shows that no inconsistency or absurdity would be occasioned by giving the words used their natural and ordinary meaning. The mandatory presence of the secretary as the presiding officer as well as the mandatory presence of a councilor as an observer is to ensure that the meeting of the traditional selectors is smoothly conducted by such highly placed personalities of the Local Government in order to ensure justice and fairplay in the selection process. Their presence can not under whatever guise be dispensed with. This is my understanding of the intention of the makers of the Law governing the selection of the District Head of Kwalla as gathered from the clear, pain and the unambiguous words used in the Law. In the absence of any ambiguity in the law, the golden rule of interpretation shall be the guiding light in the interpretation of the word “shall”. In the case of
Buhari V. Yusuf (2003)14 NWLR (Pt 841) 446 at 535-536.
Tobi, JSC in his concurring judgment had this to say on interpretation of statute.
“The underlying principle of statutory interpretation is that the meaning of a legislation must be collected from the plain and unambiguous expressions used therein rather than from my notions which may be entertained as to what is just and expedient. The literal construction must be followed unless this would lead to absurdity and inconsistency with the provisions of the statute as a whole ……………… A court o law in the exercise of its interpretative jurisdiction, must stop where the statute stops. A court of law has no jurisdiction to go beyond a clear and unambiguous statutory provision by adding what the status does not provide or intend to provide.”
I must and did subscribe to the wise counsel of Leaned erudite Justice of the Supreme Court. The wordings of the statute that falls for interpretation is very clear and unambiguous, consequently I warned myself not to add or read any meaning. I will in the final analysis on this issue of interpretation reiterate my earlier finding that the presence of the councilor as an observer and that of the secretary to the Local Government as the presiding officer at the meaning of the traditional selectors for the purpose of selecting the District Head of Kwalla is, by virtue of exhibit “B”, mandatory. Their absence during the selection meeting of 16/5/2001 is a contravention of exhibit which both parties to this suit agree is the statue governing the procedure for the selection of the District Head of Kwalla.
There is evidence before the court to the effect that the Director of Personnel Management of Qu'an Pan Local Government who presided over the selections of 16/5/2001 did that on behalf of the secretary to the Local Government and as his representative. Even though the absence of the secretary to the LG. at the selection was copiously averred to by the Plaintiff in his Amended Statement of claim at paragraph 16 thereof, the Defendants never pleaded the fact of representation or delegation of powers in their Joint Amended Statement of defence. Instead, they merely deny that the Legal Notice governing the selection of the District Head of Kwalla was not contravened. It is an elementary principle of Law and Civil procedure that parties we bound by their pleadings and therefore evidence of fact not pleaded goes to no issue and shall be disregarded. The fact of representation or delegation of powers by the secretary to the Local Government having not been pleaded by the Defendants, the evidence led on that fact goes to no issue as the foundation for such evidence is non-existent. I am therefore bound in law to disregards the evidence of delegation of powers or representation for want of pleading. In the result, issue No. 1 formulated on behalf of the Plaintiff is hereby resolved in favour of the plaintiff. That is to say the election or election of 16/05/2001 was not done in strict compliance with exhibit “B”.
Before proceeding to the next issue, let me make brief remarks on nomination of candidates and the the announcement of result of the selection. I wish to state emphatically that exhibit “B” did not make the nomination of candidates vying for the stool of the District head of Kwalla by traditional selectors a mandatory step. The word “may” in contract to “shall” appeared in sections 4(1) of the schedule to the legal notice. The section provides that a candidate may nominated by two traditional selectors and may not nominate himself. The section did not connote an obligation. Therefore whether a candidate was nominated by a traditional selector or he nominates himself will not by itself have any adverse effect on the selection provided the mandatory provisions of exhibit “B” are strictly followed. That settles the issue of nomination of candidates upon which learned Counsel for the Plaintiff’s made a heavy weather. Now, on the announcement of result, it is the plaintiff case as per his pleadings that the result of the selection was not announced by the Director Personnel Management (DPM) who presided over the meeting of 16/5/2001. The Plaintiff as PWl testified to that effect. The defendant’s through the four witnesses testified for them maintained consistently that the votes were counted immediately after the voting and the result announced there on the spot. The result according to the evident is as follows: The Plaintiff scored 2 votes against the 6th defendants 3 votes. PW2 who participated in the election as a traditional selector confirmed the counting and announcement of the result on the spot by the Director of Personnel Management (DPM), the representative of the secretary to the Local Government. In the face of this overwhelming evidence of the on-the spot declaration of the result, the Plaintiff cannot be telling the truth when he stated on oath that the results were not declared after the counting of votes by the Director of Personnel Management (DPM). I prefer the evidence of the Defence witnesses on the issue of instant declaration of result of the election same having been corroborated by a witness called by the Plaintiff who is also a bonafide participant in that selection exercise. I find and I hold that the Plaintiff is not a witness truth.
DEFENDANT’S ISSUE NO. 3
Learned Principal State Counsel is of the view that the plaintiff is caught up by the doctoring of estoppel by conduct. That since he participated fully in the selection exercise, he cannot now complain after contesting and losing the election. The case cited by Learned Principal State Counsel aptly described the import of estoppel by conduct in the following words: -
"The principle of estoppel by conduct is that where one party has, by his words or conduct made to the other a premise or assurance which was intended to affect the legal relations between them and to be acted upon accordingly, then, once the other party had taking him at his word and acted on it, then the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him. He must accept thier legal relations as modified by himself even though it is not supported by any consideration, but only by his word or conduct.” PerOgwuegbu, J.S.C in
Ude V. Osuji (1998)10 SCNJ 75 at 82.
What promise or assurance has the Plaintiff made or given to either the 6th Defendant or all the Defendants in this case if I may ask. How has the promise or assurance if ever made or given affected the legal relations between them so as to preclude the plaintiff from reverting to the previous legal relations? The Legal relations between the parties in this case did not arise out of a contractual or social relationship as to give rise to the invocation of the doctrine of Estoppel by conduct. The legal relations between the parties to this case is created and regulated by statute and the parties cannot by their conduct, nay by their consensus alter the legal relation. Indeed, they have no choice in the matter. They either submit to the regulation of their legal relations by the Law creating it or pull out. Estoppel by conduct cannot be resorted to as a defence to a breach of statutory provision where the legal relationship between the party complaining and the party in breach is regulated by the statute. The doctrine of estoppel by conduct which is founded on promise or assurance cannot avail the defendants in this case because they failed to show any promise or assurance made by the plaintiff which altered their legal relationship. Even if such a promise or assurance was made by the Plaintiff he can still not be caught by the doctrine as he has no right to after their legal relationship which is regulated by law by his mere promise or assurance. In the result issue No. 3 formulated by the Defendants is resolved against the Defendants.
PLAINTIFF’S ISSUE NO. 2
This issue deals with the effect of non-compliance with exhibit “B”. The Learned Principal Sate Counsel admitted that the plaintiff did not show that he suffered any injustice as a result of the non-participation of the secretary to the Load Government and the absence of a councilor as an observer. Mr. Obende on the other hand submitted that the non-compliance with exhibit “B” renders the selection of the sixth defendant a nullity. Having held in this judgment that the selection the 6th defendant as the District Head of Kwalla on 16/5/2001 was not done in accordance with the provisions of the statute governing the selection i.e. exhibit “B”, the question that arises is, what is the legal effect the non-compliance?
It is trite that where a statute provides for the doing of an act, the said act can only be carried out in the manner provided or prescribed by the statute. That is to say, when a matter is clearly spelt out in statute and the procedure for carrying out such a duty or responsibility is laid down, a party or a person affected has no choice but to comply fully with the provisions of the statute. See
Okafor V. Uchebor (2003) FWLR (Pt. 136) 876.Federal Government of Niger
Vs
Zebra Energy Limited(2003) FWLR (Pt. 142) 155
Furthermore, where specific or special powers are conferred by a statute on any person or authority for the performance of certain acts or duties, it is only that person or authority and no other person else that is contemplated in the performance of such acts or duties. Where any person other than the person named or contemplated by the statute performs the duties or acts, the acts done would be regarded as ultra-vires the statute and therefore invalid. In the instant case the statute regulating the conduct of the selection of the District Head of Kwalla was not compiled with by the Defendants in the selection of 16/05/2001 which returned the 6th Defendant as duly selected. The effect of the non-compliance in my considered view rendered the selection a nullity, and I so hold. It is my judgment that non-compliance with exhibits “B” in the election of the 6th Defendant as the District Head of Kwalla on 16/05/2001 renders the whole selection exercise a nullity. Consequently the plaintiff’s reliefs number (a) (e) and (f) contained in paragraph 25 of the Amended Amended Statement of claim dated 4th March, 2002 are hereby granted. Conversely reliefs (b) (c) and (d) are hereby refused for the reasons enumerated and findings earlier made in this judgment. For the avoidance of doubt I accordingly make the following orders: -
I further declare that the non-invitation of the Village Head of Yitiar and the participation of Mr. Danladi Dayil in the now nullified selection of 16/5/2001 are not in contravention of exhibit “B”. Relief (d) is also refused because it is overtaken by extents, the approval of the appointment (though now nullified) having been given long before the commencement of trial in this suit.
Justice M. I. Sirajo
Judge
14/07/05.
Mr. Ogunleye - We ask for N20,000.00 cost.
Mr. Shase-et - I leave the issue of cost to the court.
Court - I asses cost in this suit in the sum of
N5,000 and same is awarded to the Plaintiff.
Justice M. I. Sirajo
Judge
14/07/05.
