ZIBIRI & ANOR v. AMUDAH (2018)

In The Court of Appeal of Nigeria

On Friday, the 22nd day of June, 2018

CA/B/68/2016

Before Their Lordships

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria


Between

1. ALHAJI SEIDU ZIBIRI
2. H.R.H. KADIRI IMONIKHE OMOGBAI IV
(The Ogieneni of Uzairue) –Appellants

AND

CHIEF SHAKA INUSA AMUDAH
(The village head of Elele) –Respondent

…………………….A…………………….

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The respondent was the claimant in Suit No. HAU/2/2008 instituted in the High Court of Edo State, Auchi Judicial Division, holden at Auchi. In his further amended statement of claim, the respondent claimed the following relief against the appellants, who were the defendants in the trial Court:
(i) A declaration that the plaintiff is the recognized village head of Elele and that he cannot be removed from office by 2nd defendant until his death except in accordance with the custom of Elele and the Traditional Rulers and Chiefs law 1979 as amended.
(ii) A declaration that any purported withdrawal of recognition accorded the plaintiff as village head of Elele by the 2nd defendant is contrary to the custom of Elele and/or the traditional Rulers and Chief Law 1979 and in breach of plaintiff’s right to fair hearing and therefore null, void and of no effect.
(iii) A declaration that any purported withdrawal of the plaintiff’s chieftaincy registration certificate by the 2nd defendant or the Ministry of Local 
Government and chieftaincy Affairs is in breach of plaintiff’s right to fair hearing and therefore null, void and of no effect.
(iv) A declaration that the 1st defendant cannot be validly nominated/selected or appointed and installed by any persons including 2nd defendant as the village head of Elele until the plaintiff is dead or has been validly removed from office in accordance with the provisions of the Traditional Rulers and Chiefs Law 1979.
(v) An order declaring null and void any decision by Edo North Traditional Rulers committee or any report emanating from the work of the Committee in so far as it relates to Elele village headship crisis for being in breach of plaintiff’s right to fair hearing.
(vi) An order of perpetual injunction restraining the 1st defendant from parading himself or allowing himself to be paraded or held out as village head of Elele or perform any functions or receive any perquisites pertaining to the office of village head of Elele during the life time of the plaintiff.

The appellants denied the respondent’s claim and the case was heard and determined by the trial Court. In its judgment, delivered on 18/12/2015, the trial Court granted all the reliefs sought by the respondent and awarded N30,000.00 costs against the appellants. This appeal is against the said judgment.
In the appellants brief filed on 09/02/2017 four issues were formulated for determination as follows:
1. Whether the trial Court was right to hold that the defence of non qualification of the plaintiff to the throne of the village head of Elele amounts to setting up a different case from that put forward by the plaintiff. (This issue covers grounds 1, 2, 4 and 7 of the grounds of appeal).
2. Whether on a true construction of Section 28(1) of the Traditional Rulers and Chiefs Law 1979, the 2nd defendant cannot in exercise of his power as the prescribed authority revoke the approval he had given to the respondent to be appointed the village head of Elele (This issue covers ground 5 of the grounds of appeal).
3. Whether the trial Court was right to hold that the issue of the ruling house settled in Exhibit A cannot be used as estoppel in this suit (This issue covers ground 3 of the ground of appeal).
4. Whether Section 22 of the Traditional Rulers and 
Chiefs law has no relevance to the case of the claimant as constituted, to deprive the Court of the jurisdiction to entertain the claim.
On behalf of the respondent four issues were also distilled by learned counsel in the respondent’s brief filed on 16/02/2017 but framed as follows:
Whether the learned trial judge was right when he held that the appellants cannot set up a case different from that put up by respondent in his pleading and call upon the Court to adjudicate on same where there is no counter-claim (Grounds 2, 2 and 7).
Whether the learned trial judge was right when he held that by Section 28 of the Traditional Rulers and Chief Law 1979 the power to remove the respondent in this case is vested in the Executive Council of Edo State and not the 2nd appellant. (Ground 5).
Whether the learned trial judge was right when he held that the conditions for the invocation of the doctrine of estoppel per rem judicatam are lacking in this suit? (Grounds 3 and 4).
Whether from all the circumstances of this case, the learned trial judge was right to have held that Section 22 of the Traditional Rulers and Chiefs Law 
1979 was not applicable to the facts of this case? (Ground 6).

…………………….B…………………….

The issues formulated by the appellants and the respondent are basically the same. For the determination of this appeal, however, I adopt the issues as couched by the learned counsel for the appellants. Issues 4 and 2, which seem to border on jurisdiction, will be taken together first and, thereafter, Issues 3 and 1 will be determined separately.
ISSUES NO. 4 & 2
4. Whether Section 22 of the Traditional Rulers and Chiefs Law has no relevance to the case of the claimant as constituted, to deprive the Court of the jurisdiction to entertain the claim.
2. Whether on a true construction of Section 28(1) of the Traditional Rulers and Chiefs Law 1979, the 2nd defendant cannot in exercise of his power as the prescribed authority revoke the approval he had given to the respondent to be appointed the village head of Elele.

The learned counsel for the appellants stated that the trial Court was wrong to have held that Section 22 of the Traditional Rulers and Chiefs Law has no relevance to the facts of this case. He contended, accordingly, that:
Paragraphs 4, 5, 12 and 22 of the claimant’s statement of claim shows that there was a dispute as to whether the right person has been appointed and approved the village head of Elele in accordance with customary law of Elele which said dispute qualifies as a dispute to be resolved by the prescribed authority under Section 22(3) of the Traditional Ruler and Chiefs Law 1979.
Relying on the cases of Bodunde v. Staff Co-operative Investment & Credit Society Ltd. (2013) 12 NWLR (Pt.1367) 197; Akintemi v. Onwumechili (1985) 1 NSCC 46 and Eguamwense v. Amaghizemwen (1993) 9 NWLR (Pt.315) 1, D.A. Alegbe, Esq; learned counsel for the appellants, contended as follows:
It is submitted that it has been decided in a long line of judicial authorities that where a law stipulates the procedure to be followed by an aggrieved person, the provision without more does not oust the jurisdiction of the Court. In that case, until the remedies available in that law are exhausted any resort to Court action would be premature. ……………….
In this case the dispute of approving the 1st appellant the village head while the approval of the respondent subsist qualifies as a dispute that ought to be submitted to the 1st (sic) appellant for a determination under Section 22(3) before coming to Court. Section 28 did not remove the powers of the prescribed authority from resolving the dispute under Section 22 of the law.
Learned counsel for the appellants referred to Sections 22 (1) & (2), 23, 25(1) and 28(1) of the Traditional Rulers and Chiefs Law, 1979 on the conferment of a chieftaincy title, approval of the appointment, withdrawal of the appointment, suspension or deposition of a traditional ruler, regent, traditional chief or an honorary chief and submitted that:
A cursory look at Section 22(1) and (2) of the Traditional Ruler and Chief law 1979 will reveal that the power of approval is given to two bodies namely the Prescribed Authority and the Executive council. The power of approval given to the Executive Council is limited to Traditional Chiefs under Section 23 of the law dealing with Traditional chieftaincy in a federated clan.
It is respectfully submitted that Section 28 reproduced above did not expressly prohibit the withdrawal of an approval wrongly given by a Prescribed authority and without jurisdiction under Section 22(1) of the law.
It is also submitted that the powers of withdrawal of approval provided under Subsection (4) of Section 28 to the prescribed authority is limited to the approval given by the Executive Council under Section 23 of the law if it is so delegated in a Gazette to it by the Executive Council with respect to traditional chiefs or honorary chiefs whose chieftaincy titles are associated with the community in the area for which the prescribed authority or traditional council is appointed.

It was argued that there is no evidence on record that the withdrawn approval by the 2nd appellant was an approval given under Section 23 of the Law. Relying on Section 11 of the Interpretation Law of Bendel Stateand the case of Okomu Oil Palm Company v. Iserhienrhien (2001) 5 NSCQR 802 at 818 per Uwaifo, JSC, learned counsel submitted that the power to appoint carries with it the power to remove or suspend.

…………………….C…………………….

Counsel stated that it was wrong for the trial Court to have set aside exhibits D and F5 on the ground that they were made while litigation was pending. He then argued that:
Exhibit F5 was issued by the Honourable Commissioner who is part of functionary of the Executive Council and not a party to this suit. It is submitted that the Executive Council not being party to the issuing of the said Exhibits cannot constitute list pendence(sic) in a suit where they were not made a party.
In response, learned counsel for the respondent analyzed the respondent’s pleadings and evidence, including exhibits B and E tendered by the respondent, and contended that:
1. Section 22 of the Traditional Rulers and Chiefs Law 1979 is inapplicable to this case.
2. By Section 28(1) of the TRCL, since the respondent has been approved, installed and issued a certificate of registration, it is the Executive Council and not the 2nd appellant that can remove him from office or withdraw the recognition given to him.

3. By Section 28(3) of TRCL, the 1st appellant cannot be installed as village head of Elele when the respondent has not been removed from office in accordance with Section 28(1) of TRCL.
Learned counsel for the respondent submitted that:
….by the extant and unambiguous provision of Section 28(1) of the Traditional Rulers and Chief Law 1979 of Edo State (TRCL) the power to withdraw the approval of the appointment of, or suspension of or deposition of any traditional ruler, regent, traditional chief or an honorary chief is vested in the Executive council. However, with respect to traditional chiefs or honorary chiefs whose chieftaincy titles are associated with a community in the area the Executive council may by notice in the state Gazette delegate the powers in Section 28(1) to a prescribed authority or a traditional council.
Learned counsel contended that while the power under Section 28(4) is limited in scope, the power under Section 28(1) is wider and can only be exercised by the Executive Council.
Counsel argued that exhibit F5 did not advance the appellants case because it was not pleaded as a product of the Executive Council and it confirmed that it was the 2nd appellant who revoked the approval given to the respondent as the village head of Elele.
Issues 4 and 2 border on the interpretation of Sections 22 and 28 of the Traditional Rulers and Chiefs Edict No. 16 of 1979 of Bendel State applicable in Edo State and in this case. The two sections of the said Law are hereunder reproduced:-
22. Approval of appointment of traditional chiefs
(1) The conferment of a traditional chieftaincy title shall be in accordance with the customary law and shall be subject to the approval of the prescribed authority or where the provisions of Section 23 have been applied, to the approval of the Executive Council.
(2) Where a traditional chieftaincy title is conferred on a person by those entitled by customary law so to do and in accordance with customary law the prescribed authority or the Executive Council as the case may be, shall approve the appointment.
(3) Where there is a dispute as to whether a traditional chieftaincy title has been conferred on a person in accordance with customary law or as to whether a traditional chieftaincy title has been 
conferred on the right person, the prescribed authority or the Executive Council as the case may be, may first determine the dispute.
(4) The decision of the prescribed authority or the Executive Council as the case may be-
(a) to approve or not to approve the conferment of a traditional chieftaincy title on a person; or
(b) determining a dispute in accordance with Sub-section (3) of this section
shall not be questioned in any Court.
(5) The prescribed authority shall not withhold approval of the conferment of a traditional chieftaincy title on a person if such conferment is made in accordance with the customary law regulating the conferment the chieftaincy title.
(6) The Executive Council may on the application of an aggrieved party-
(a) review the decision of a prescribed authority made under Sub-section (3) of this section and substitute its own decision therefore or
(b) approve the conferment of a traditional chieftaincy title on a person if such approval was withheld by the prescribed authority contrary to Sub-section (5) of this section.
(7) Before exercising the power vested in it by sub-
section (6) of this section, the Executive Council may cause such enquiries as appear to be necessary or desirable to be held in accordance with Section 27 of this Edict.
28. Withdrawal of approval of appointment, suspension and deposition of traditional rulers, regents and chiefs
(1) The Executive Council may withdraw the approval of the appointment of, or suspend or depose, any traditional ruler, regent, traditional chief or an honorary chief whether appointed before or after the commencement of this Edict, if it is satisfied that such withdrawal, suspension or deposition is required according to customary law or is necessary in the interest of peace or order or good government.
(2) Where a traditional ruler, regent, traditional chief or an honorary chief is suspended under Sub-section (1) of this section, the Executive Council shall specify the powers and duties under customary law or under any written Law that shall not be exercised or discharged by such a traditional ruler, regent or traditional chief and may make such provisions for the temporary exercise and discharge of such powers and duties by any other person or number of persons 
as it may think fit.
(3) Where the approval of the appointment of a traditional ruler or of a traditional chief is withdrawn or where a traditional ruler, or a traditional chief is depose under Sub-section (1) of this section, the traditional ruler title or chieftaincy title, as the case may be, shall be deemed to be vacant from the date of the withdrawal or deposition, as the case may be, and shall be filled in accordance with the provisions of this Edict.
(4) The Executive Council may by notice in the State Gazette delegate to a prescribed authority or a traditional council the powers conferred by Sub-sections (1) and (2) of this section with respect to traditional chiefs or honorary chiefs whose chieftaincy titles are associated with a community in the area for which the prescribed authority or traditional council is appointed.
(5) Any delegation made under Sub-section (4) of this section shall be revocable by the Executive Council and no delegation shall prevent the exercise by the Executive Council of any power under this Edict.
(6) Any person who, having been suspended in accordance with the provisions of Sub-section (1) of 
this section, exercises or discharges any of the powers or duties specified by the Executive Council or the prescribed authority as the case may be as not to be exercised or discharged by the person so suspended shall be guilty of an offence and liable on conviction to imprisonment for six months without the option of a fine.
(7) Any person who, having been deposed from a traditional ruler title or a chieftaincy title in accordance with the provision of Sub-section (1) of this section
(a) holds himself out as being the holder of that title; or
(b) purports to exercise or discharge any of the powers or duties attaching to the holder of that title,
shall be guilty of an offence and liable to conviction to imprisonment for six months without the option of a fine.
(8) Any person who, after the withdrawal of the approval of his appointment as a traditional ruler or as a chief in accordance with the provisions of Sub-section (1) of this section-
(a) holds himself out as being the holder of that traditional ruler title or chieftaincy title as the case may be; or
(b) purports to exercise or discharge any of the 
powers or duties attaching to the holder of that traditional ruler title or chieftaincy title.
Shall be guilty of an offence and liable on conviction to a term of imprisonment for six months without the option of a fine.
(9) Nothing in the preceding sub-sections of this section shall be construed so as to extinguish or otherwise prejudice the right of a heir-apparent to succeed to a vacant title where, under customary law, succession to that title is hereditary by primogeniture.

The provisions of Sections 22 and 28 of the Traditional Rulers and Chiefs Law, 1979 are clear, plain, straightforward and unambiguous and in interpreting these provisions the Court has to give the words used by the Legislature their ordinary grammatical meaning. See Nafiu Rabiu v. The State (No.2) (1981) 2 CNCLR 293 at 326; Fred Egbe v. M.D. Yusuf (1992) 6 NWLR (Pt. 245) 1; Wahab Olanrewaju v. The Governor of Oyo State (1992) 9 NWLR (Pt. 265) 335 at 362, per Karibi-Whyte, JSC; Victor Ndoma-Egba v. Nnameke Chukwuogor (2004) 6 NWLR (Pt. 869) 382 at 409 per Uwaifo, JCA (as he then was); Attorney-General of the Federation v. Attorney-General of Lagos State (2013) 16 NWLR (Pt. 1380) 249 at 379 per Alagoa, JSC; Barbedos Ventures Ltd. v. First Bank of Nigeria PLC (2018) 4 NWLR (Pt. 1609) 241; Sunday Ehindero v. Federal Republic of Nigeria & Anor. (2018) 5 NWLR (Pt. 1612) 301; Mr. Ozegbe Lawrence v. Peoples Democratic Party & Ors. (2018) 5 NWLR (Pt. 1613) 464 and Hon. Adeyemi Ikuforiji v. Federal Republic of Nigeria (2018) 6 NWLR (Pt. 1614) 142 at 161 per Eko, JSC.

…………………….D…………………….

The law is also settled and it is that in the interpretation of statutory provisions, the provisions of the statute should be construed as a whole. See Barbedos Ventures Ltd v. First Bank of Nigeria PLC (2018) 4 NWLR (Pt. 1609) 241 at 294 per Peter-Odili, JSC.
In this case, a community reading of the Traditional Rulers and Chiefs Law, 1979 will reveal, as rightly submitted by the learned counsel for the appellants, that both the relevant Prescribed Authority and the Executive Council have power to approve the appointment of a person as a traditional ruler, traditional Chief, regent or an honorary chief. See Sections 21 and 22(1) of the Law. By the clear provisions of Section 22(1) of the Traditional Rulers and Chiefs Law the power of approval granted to the Executive Council is limited to Traditional Chiefs under Section 23 of the Law, which Sub-section (1) provides thus:
23(1) Where a traditional chieftaincy title in a federated clan is, under customary law, not conferred by the prescribed authority, or where the holder of a traditional chieftaincy title in a federated clan is not subject to the jurisdiction of the prescribed authority under customary law, the Executive Council shall by order apply the provisions of this section to such traditional chieftaincy title.
I wish to state, however, that by virtue of Section 22 sub-sections (5) and (6) of the Law, the Executive Council can also approve the conferment of a traditional chieftaincy title on any person, if approval by the Prescribed Authority was wrongly withheld.
The respondent’s claim is that he was made the village head of Elele in September, 2003 in strict accordance with Elele custom after one Chief Raphael Momoh Oshobugie was removed as the village head; the Ogieneni of Uzairue – HRH Alhaji Kadiri Imonikhe Omogbai IV issued him a certificate to confirm his appointment as village head of Elele on the 1st day of October, 2003; that he was, in compliance with the Traditional Rulers and Chiefs Edict 1979 issued a certificate of registration of a Traditional Chief with registration number TC/ETW/2007/187; that he performed his duties and received his stipends until April 4, 2008 when he received a letter with reference No: POl. 94/87 dated 10th January, 2008 from Etsako West Local Government Council informing him that the 2nd appellant  the Ogieneni of Uzairue had withdrawn the recognition accorded him as village head. See paragraphs 3 to 9 of the respondent’s further amended statement of claim.
I wish to state, immediately, that having regard to the facts of this case, there is nothing in Section 22 of the Traditional Rulers and Chiefs Law, 1979 which deprived the trial Court of its jurisdiction to entertain the respondent’s claim.
Learned counsel to the respondent argued, in this Court, that by Section 28(1) of the Traditional Rulers and Chiefs Law, 1979 the power to withdraw the appointment of, or suspension or deposition of any traditional rulers or traditional chiefs, such as the respondent, is vested in the Executive Council and can only be exercised by the Executive Council, since Section 28(4) of the Lawis limited in scope. To appreciate the matter properly, the provisions of Section 28, including Sub-sections (1) to (4), of the Law have earlier been reproduced in this judgment.
From the provisions of Section 28 sub-sections (1) to (4) of the Law, the power to remove, depose or suspend a traditional ruler, regent, traditional chief or an honorary chief can be delegated to a Prescribed Authority or a Traditional Council by the Executive Council through a notice in the State Gazette.
I have taken the pains to carefully read the appellants 2nd amended statement of defence several times and it is clear to me that no where in the entire pleadings of the appellants did they state that the respondent’s suspension and/or removal, as the traditional ruler or village head of Elele, was by the Executive Council or by the Prescribed Authority or Traditional Council acting as a delegate of the Executive Council pursuant a notice in the Edo State Gazette granting the Prescribed Authority or Traditional Council the power to suspend and/or remove the respondent.
It is certain, therefore, that the purported suspension and/or removal of the respondent was done by the 2nd appellant without any authorisation by the Edo State Executive Council as required by Section 28(1) & (4) of the Traditional Rulers and Chiefs Law, 1979.
Section 28 of the Traditional Rulers and Chiefs Law, 1979 has specified how the appointment of any recognized and registered traditional ruler, such as the respondent, can be withdrawn, or how he can be suspended or deposed and it is only by complying with the specific provisions of the Law that the respondent could be said to have been properly or validly removed as the village head of Elele. The law, for the sake of emphasis, is settled that where a statute lays down the procedure for doing a thing, there should be no other method of doing it. See Dr. Arthur Agwuncha Nwankwo & 2 Ors. v. Alhaji Umaru Yar’adua & 40 Ors. (2010)12 NWLR (Pt. 1209) 518 at 559 per Onnoghen, JSC (as he was then).
Without further ado, these two issues, that is Issues 4 and 2, are hereby resolved in favour of the respondent and against the appellants.

…………………….E…………………….

ISSUE NO. 3
Whether the trial Court was right to hold that the issue of the ruling house settled in Exhibit A cannot be used as estoppel in this suit. 

Learned counsel for the appellants submitted that exhibit  A a judgment of the High Court of Edo State sitting at Auchi, laid to rest that there is only one Ruling House in Elele Village, from where a village head can be selected, and that the Ruling House is known and called Umosor Ruling House. Learned counsel referred to the case of Aladegbemi v. Fasanmade (1988) 3 NWLR (Pt. 81) 129 and submitted that a judgment of a competent Court remains valid and binding unless and until it is set aside by an appellate Court or by the trial Court itself, if it acted without jurisdiction.
Learned counsel for the appellants said that exhibit A was pleaded as an issue estoppel and not as res judicata and that it ought to have been considered by the trial Court; especially as the respondent admitted under cross-examination that he was not from the Ruling House of Elele.
Learned counsel for the respondent responded as follows:
It is true that it was counsel for appellants who raised estoppel per rem judicatam as an issue for determination by the trial Court in his address and made copious submissions on it. I refer to page 62 of the record. Respondent’s counsel in his address responded to the issue. I refer to respondent’s counsel address at page 68 of the record. In the circumstance the learned trial judge was bound to rule on its applicability to the case because a trial Court has a duty to pronounce on all issues properly raised before it and confine itself to such issues.
To support the contention that all issues properly raised before a Court should be pronounced upon by the Court, counsel referred to the cases of Afribank (Nig.) PLC v. Yelwa (2011) All FWLR (Pt. 585) 296 and Ikpekhia v.  Federal Republic of Nigeria (2015) All FWLR (Pt. 771) 1597.
I agree with the submission of learned counsel for the respondent that a trial Court has a duty to resolve all the issues properly raised by the parties before it. However, failure to consider and pronounce on all the issues submitted to the Court may not necessarily amount to a denial of fair hearing or miscarriage of justice.See Union Bank of Nigeria & Anor. v. Benjamin Nwaokolo (1995) 6 NWLR (Pt. 400) 127 and Ogundare Osasona v. Oba Adetoyinbo Ajayi & 3 Ors. (2004) 14 NWLR (Pt.894) 527.
In this case, the appellants pleaded in paragraph 4 of their 2nd amended joint statement of defence as follows:
4. The defendants in further answer to the said paragraphs aver that there is only one Ruling House in Elele Village, called the Umosor Ruling House. The defendants will before or at the trial of this suit found and rely on the judgment in Suit No. HAU/15/85: MR. VINCENT S. AISEKHAUNO & ORS VS. H.R.H. ALHAJI F.A. OMOGBAI III & ANOR to this effect.
The judgment pleaded by the appellant in paragraph 4 of their 2nd amended joint statement of defence was admitted by the trial Court as exhibit A on 20/09/2013.
In paragraph 6 of the 1st appellant’s written statement on oath, which he adopted in the trial Court on 20/09/2013, the 1st appellant deposed as follows:
That there is only one ruling house in Elele village. The only ruling house in Elele is known and called Umosor ruling house. The issue of Umosor being the
only ruling house in Elele was adjudicated upon by this Honourable Court in Suit No. HAU/15/85: MR. VINCENT S. AISEKHAUNO & ORS VS. H.R.H. ALHAJI F.A. OMOGBAI III & ANOR I will rely on the certified true copy of the judgment in Suit No. HAU/15/85: MR. VINCENT S. AISEKHAUNO & ORS VS. H.R.H. ALHAJI F.A. OMOGBAI III & ANOR.
It is clear from the averment and deposition, respectively, in paragraph 4 of the 2nd amended joint statement of defence and deposition in paragraph 6 of the 1st appellant’s written statement on oath, both reproduced above, that exhibit A was pleaded and tendered to show that there was only one Ruling House in Elele Village, called the Umosor Ruling House, as decided by the High Court of Edo State in Suit No. HAU/15/85, and not as estoppel per rem judicatam. However, in their written address, spanning pages 58 to 62 of the record of appeal, learned counsel for the appellants framed two issues for determination by the trial Court as follows:
From oral and documentary evidence before the Honourable Court, the following issues call for determination:
(i) Whether this action is not caught by the doctrine of estoppel per rem judicatam; and
(ii) Whether the claimant have been able to prove his case on the preponderance of evidence.

The learned counsel for the appellants argued the issue of estoppel per rem judicatam extensively on about six pages and concluded thus:
It is our humble submission that the defendants successfully pleaded, raised and proved the issue of res judicatam against the claimant and we urge this Honourable to so hold. We also urge this Honourable Court to resolve this issue in favour of defendants and dismissed the entire case of the claimant on the ground that parties and privies are the same in the earlier suit and the present suit, the cause of action is also the same, the issues are the same and the decision in HAU/15/85 was delivered by a competent Court. The decision in HAU/15/85 ought to act as a bar against this present suit and therefore the claimant lack the locus to institute this action.
The counsel for the respondent joined issues on the matter of estoppel per rem judicatam and it was, therefore, incumbent upon the trial Court to determine and pronounce on it.
The trial Court ably and eloquently discharged the burden on it by holding as follows:
But, I wish to make some comments on some issues raised by the learned counsel for the defendants. He submitted on issue 1 that this suit is caught by the doctrine of estoppel per rem judicatam. Let me say and quickly too, that the conditions for the invocation of the doctrine of estoppel per rem judicatam are completely lacking in this suit. Learned counsel and the defendants relied heavily on the judgment in suit HAU/15/85, Exhibit A. It is patently clearly that the parties in Exhibit A are different in this suit. The cause of action and issues in HAU/15/85, and in the instant suit are completely different.
The law is settled that a party must be consistent in the presentation of his case in Court, as litigation is not a hide and seek game. See Intercontinental Bank Ltd. v. Brifina Ltd. (2012) 3 NWLR (Pt.1316) 1 at 22, per Mukhtar, JSC (as he then was) and Hon. Muyiwa Inakoju & 17 Ors. v. Hon. Abraham Adeolu Adeleke & 3 Ors.(2007) 4 NWLR (Pt. 1025) 423 at 627 per Niki Tobi, JSC.

…………………….F…………………….

Whereas a party is supposed to be consistent in the presentation of its case, the Court itself has a corresponding duty to confine itself to the evidence on only matters which have been included in the pleadings of the parties. See National Investment and Properties Co. Ltd. v. Thompson Organization Ltd. (1969) 1 NWLR 99; George v. U.B.A Ltd. (1972) 8-9 SC 264; African Continental Seaways Ltd. v. Nigerian Dredging Roads and General Works Ltd. (1977) 5 SC 235; Chief Victor Woluchem & Ors. v. Chief Simon Gudi & Ors. (1981) 1-5 SC 291 and Prince Adebajo Sosanya v. Engineer Adebayo Idowu Onadeko & 5 Ors. (2005) 8 NWLR (Pt.926) 185.
In this case, the judgment relied upon was not pleaded as estoppel per rem judicatam and notwithstanding that learned counsel in his address made it an issue of estoppel per rem judicatam, the trial Court ought to have ignored it, because it was not borne out of the appellants??? pleadings. Secondly, the address of counsel is no substitute for pleadings and/or evidence. The law is settled that an address of counsel cannot take the place of evidence. See Niger Construction Ltd. v. Chief A. O. Okugbeni (1987)12 SC 108; (1987) 4 NWLR (Pt.67) 787; Bernard Ugorji & Ors. v. Nathaniel Onwuka & Anor. (1994) 4 NWLR (Pt.337) 226 at 238 per Katsina-Alu, JCA (as he then was); Mallam Yusuf Olagunju v. Chief E.O. Adesoye (2009) 9 NWLR (Pt.1146) 225; Sikiru Olaide Okuleye v. Alhaji Rasheed Adeoye Adesanya (2014) 12 NWLR (Pt.1422) 521 and Karimu Sunday v. The State (2018) 1 NWLR (Pt. 1600) 251.
With particular reference to the facts of this case, may I refer to the case of Joe Odey Agi, SAN v. Peoples Democratic Party & 2 Ors. (2017) 17 NWLR (Pt. 1595) 386 at 433 per Ogunbiyi, JSC; where the Supreme Court stated that:
……submission of counsel can neither take the place of pleadings nor evidence, this is trite.
In this case, the appellants pleaded the judgment in Suit No. HAU/15/85 between MR. VINCENT S. AISEKHAUNO & ORS. v. H.R.H. ALHAJI F. A. OMOGBAI III & ANOR. to show that there is only one Ruling House in Elele Village, called the Umosor Ruling House. The law is settled that a party is entitled to plead and rely on a previous judgment in his favour, not necessarily as estoppel per rem judicatam but simply as an estoppel, in the sense that it constitutes a relevant fact to the issue in the action or suit. SeeCentral Bank of Nigeria & Anor. v. Olayato Aribo (2018) 4 NWLR (Pt. 1608) 130 at 159  160 per Kekere-Ekun, JSC and Yanaty Petrochemical Limited v. Economic and Financial Crimes Commission (2018) 5 NWLR (Pt. 1611) 97 at 137 per Ariwoola, JSC.
The trial Court fell into an error by holding that the issue of the Ruling House in Elele Village, settled in exhibit A could not be used as an estoppel.
Without more, I resolve Issue 3 in favour of the appellants against the respondents.
ISSUE NO. 1
Whether the trial Court was right to hold that the defence of non qualification of the plaintiff to the throne of the village head of Elele amounts to setting up a different case from that put forward by the plaintiff. (This issue covers grounds 1, 2, 4 and 7 of the grounds of appeal).

Learned counsel referred to the pleadings of the parties in the trial Court and submitted as follows:
The issue of qualification was very clear and prominent in the pleadings and evidence of the parties. Whereas the claimant’s pleading is that once he was recognized as the village head of Elele the 1st defendant could not be recognized in his life time to the same position he occupied as village head, the pleading of the defendants on the other hand is that the recognition given to the claimant was wrong both in law and custom as he is not from the ruling house entitled to produce the village head. The judgment of the High Court of Edo State was tendered in evidence as Exhibit A in prove of this fact as to the appropriate ruling house to produce the village head for Elele. The parties were therefore at issue as to the qualification and the eligibility of the respondent to the position of the village head.
The learned counsel for the appellants submitted that the respondent admitted unequivocally that he is not from the ruling house. Counsel contended that:
It is further submitted that the import of that admission not to be from the Ruling House is that any approval or registration of the approval given by the 2nd appellant who is the Prescribed Authority in exercise of his powers under Section 22(1) of the Traditional Ruler and Chief’s Law was done without jurisdiction.
It is also submitted that the issue of the appropriate Ruling House to produce the village Head for Elele cannot by the clear provision of the Traditional Ruler and Chiefs Law 1979 amount to setting up a different case from that put forward by the claimant. The issue eligibility of a person to be from a Ruling House is statutory and of custom. It is provided for under the Traditional Rulers and Chiefs Law 1979 and therefore sacrosanct that it cannot be circumvented by the Prescribed Authority in giving his approval. Once there is clear and uncontroverted evidence that a person is not from a ruling House where one exist the said appointment and approval of such a person is done without jurisdiction.

In support of his argument that an action done outside the ambit of the law is a nullity, learned counsel for the appellants referred the Court to the case of Oduntan & Ors. v. Akibu & ors. (2000) 3 NSCQR 276 at 289.
The appellants urged the Court to resolve this issue in their favour because the issue of qualification of a candidate from a ruling house for approval by the Prescribed Authority bothers on the legal powers donated by law and how to exercise the power in giving approval and any approval given outside the law is done without jurisdiction and any party aggrieved about such approval can raise the issue provided he has the locus standi to do so. They submitted that the trial Court was patently wrong to consider the issue of the eligibility of the respondent as amounting to setting up a different case from that put forward by the claimant.
While disagreeing with the appellants, learned counsel for the respondent submitted, inter alia, as follows:
…it is settled law that it is what a party presents that binds him. It is that which the claimant puts forward that the defendant reacts to and then issues are joined on it. A new case arise (sic) from facts not pleaded and reliefs claimed.
In support of the above submission, learned counsel cited and referred to the cases of Union Bank of Nigeria v. Ariba (2015) ALL FWLR (Pt.763) 1868 at 1891 and Osho & Anor. v. Foreign Finance Corporation & Anor. (1991) 4 NWLR (Pt. 184) 157.

…………………….G…………………….

Learned counsel further argued thus:
From the pleadings before the Court particularly paragraphs 1, 3, 4, 5, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18 and 20 of the respondent’s statement of claim the case of the respondent is that having been selected/appointed and presented to the 2nd appellant who approved his selection and having been issued a certificate of recognition by the appropriate Government department he could no longer be removed from office except in accordance with the Elele customary law and the Traditional Rulers and Chief’s Law 1979 of Edo State (TRCL), which vests the power to remove or derecognize or depose a chief on the Executive council of Edo State. In other words the 2nd appellant lacks the vires to suo motu remove respondent from office after he has been issued certificate of Registration as a chief. This is the case the appellants were expected to respond to.
In view of my earlier decision, that is resolving Issues 4 and 2 in favour of the respondent, this issue has become only of academic relevance. Whether the defence of non-qualification of the respondent to be a village head of Elele amounts or does not amount to the appellants setting up a case different from that of the respondent will have no effect on my view that the respondent was not validly suspended and/or removed as the village head of Elele, under the applicable Traditional Rulers and Chiefs Law, 1979. The law is that a Court should not indulge itself in an academic exercise, which is a deliberation in futility. See Sunil Kishinchand Bhojwani v. Nitu Sunil Bhojwani (1996) 6 NWLR (Pt.457) 661; Chukwuka Ogudo v. The State (2011) 18 NWLR (Pt.1278) 1; Senator Umaru Dahiru v. All Progressive Congress (2017) 4 NWLR (Pt. 1555) 248; Hon. Adeyemi Sabit Ikuforiji v. Federal Republic of Nigeria (2018) 6 NWLR (Pt.1614) 142 and AR Security Solution Ltd. v. Economic and Financial Crimes Commission (2018) 6 NWLR (Pt. 1616) 552. I will discountenance this issue because it has become academic.
In any case, if the appellants knew that the respondent was not qualified to be the village Head of Elele, they (the appellants) ought to have taken appropriate steps to set aside his appointment and recognition since 2003.
CONCLUSION
Although Issue 3 has been resolved in favour of the appellants, its effect on the outcome of the appeal is inconsequential. Having resolved the bedrock issues  that is Issues 2 and 4 against the appellants, there is no merit in this appeal.
This appeal is hereby dismissed for being unmeritorious. Accordingly, the judgment of the High Court of Edo State, Auchi Judical Division, holden at Auchi, in Suit No. HAU/2/2008 between CHIEF SHAKA INUSA AMUDAH V. ALHAJI SEIDU ZIBIRI & ANOR. delivered on 18/12/2015 by Hon. Justice E.O. Ahamioje is hereby affirmed.
The sum of N50,000.00 (Fifty thousand naira only) is hereby awarded as costs in favour of the respondent and against the appellants.
PHILOMENA MBUA EKPE, J.C.A.: I had a preview of the lead judgment just delivered by my learned brother M.A.A. ADUMEIN, J.C.A and I am in complete agreement with My Lord’s reasoning and conclusion reached in this appeal.
Having resolved issue one in favour of the Appellant against the Respondent and the bedrock issues that is issues two and four in favour of the Respondent against the Appellant, I am also of the ardent view that this appeal is unmeritorious and it is accordingly dismissed, the judgment of the High Court of Edo State, Auchi Judicial Division holden at Auchi in Suit No. HAU/2/2008 Between: CHIEF SHAKA WUSA AMUDAH V. ALHAJI SEIDU ZIBIRI & ANOR delivered on 18th day of December, 2015 is hereby affirmed. I abide by consequential order as to cost in the lead judgment.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother M.A.A. ADUMEIN, J.C.A. I agree with the reasoning and conclusion that the appeal lacks merit and should be dismissed. I also dismiss the appeal.
I abide by the consequential orders made in the lead judgment including order as to costs.

Appearances

D. A. Alegbe, Esq.-For Appellant

AND

Mrs. J. Ayodele-Ejemai –For Respondent


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