Abenitus Vodawa Magomya & Ors. V. Attorney-general Of Adamawa State & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
NDUKWE-ANYANWU, J.C.A.
The 1st plaintiff/appellant is the Hama Dong. The 1st plaintiff/appellant and all the other plaintiffs/appellants sued the defendants/respondents for themselves and on behalf of the Dong Community. The plaintiffs/appellants claims are as follows: –
“(i) A declaration that the traditional method and/or procedure for the selection, appointment and/or election of a District Head for Dong District was not followed in the appointment of the 3rd defendant/respondent as the District Head of Dong District.
(ii) (In the alternative to 1 above) a declaration that there is no traditional method, procedure applicable in Dong District for the appointment, selection and/or election of the District Head of Dong District and therefore the Electoral College of the Village Heads of Dong District should have been set up to appoint the District Head of Dong District.
(iii) A declaration that the appointment of the 3rd defendant as the District Head of Dong District by the 2nd defendant through its officers, servants and/or agents is altogether unconstitutional, irregular, invalid, null and void and of no effect whatsoever for offending the provisions of The Adamawa State Creation of Districts Law, 1992 (as amended).
(iv) An injunction to restrain the 3rd defendant by himself and or his agents/servants or howsoever from parading himself or continuing to parade himself as the District Head of Dong District.”
Pleadings were exchanged and the suit proceeded to trial. The plaintiffs/appellants called a total of 5 prosecution witnesses and tendered 5 exhibits.
The facts of this case are as follows:
The Dong Community is in the Demsa Local Government Area of Adamawa State. The Dong Community was under Batta District which formed one of the five Districts under Numan Division.
The Dong Community was headed by a leader called Hama Dong. The Hama Dong was always selected by a body of king makers called Kabai Dong. A Hama Dong was selected and presented to the Hama Batta who then approved for coronation. This system of selection showed that the Hama Dong was subordinate to the Hama Batta.
This situation remained until the creation of more districts. The Dong District was one of those created in 1992. The created Dong District comprised of Dong Village Area Lawaru and Bolon village Areas. These three villages had their own heads and under the control of Hama Batta the former District Head. Dong Village Head is known as Hama Dong. Lawaru Village Head is known as Ha Lawaru. The Village Head of Bolon is known as Nabali.
These three villages make up the Dong District which were all subordinate to the Hama Batta.
It would be gleaned from the testimonies of the witnesses on both sides that the Hama Dong was appointed after selection of the Kabai Dong. On the contrary the heads of both Lawaru and Bolon were selected and appointed by the Hawa Batta. It is important to note the difference in the selection of the village head of Dong and the other two Bolon and Lawaru, village heads.
The Adamawa State Creation of Districts Law, 1992 prescribes two modes of selection for the appointment of District Head. See section 7 of the Adamawa State Creation of Districts Law, 1992 (as amended).
“7 (1) The procedure for the selection or election and appointment of District Heads shall be in the following manner: where traditional or customary methods of selecting District Heads exist –
(a) Selection shall be done in accordance with tradition or custom of the area constituting the District and under the supervision of a representative of the council and such security agents as the council may require.
(b) The representative of the council shall within one week make a report in writing to the Council of the result of selection and submit same indicating the first three names who have the required number of votes set down by the council.
(c) On receipt of the report, the council shall deliberate on the report and shall recommend one person to the Governor for approval as District Head of the District concerned.
(d) The council shall within one month of approval take necessary steps and perform turbaning ceremony.
(2) Where no traditional methods of selecting District Heads exist:
(a) Where a vacancy exists and applications are received by the council, the council shall arrange for the election at any appropriate date and time, and save for security reasons; the election shall be conducted at the Headquarters of the District.
(b) The Village Heads shall be the selectors.
(c) The election shall be under the supervision of a representative of the Council and such number of security agents as may be required by the council to keep the peace and issue a separate report on the election.
(d) The representative of the council shall within one week, make a report in writing to the council of election, and submit same indicating the first three persons who have scored the required number of votes as set down by the council.
(e) On receipt of the report and comments, the council shall deliberate on the report and comments and recommend only one person to the Governor for approval as District head of the District concerned.
(f) The council shall within one month of the Governor’s approval take necessary steps and perform the turbaning.”
Section 7 above envisages two methods of selection or appointment to the office of District Heads in Adamawa State viz.,
(1) Traditional or Customary methods of appointing district heads, where one exists.
(2) By an electoral college of village head as selectors, where no traditional method exists.
The plaintiff/appellant challenged the legality of the appointment of the 3rd respondent under the law in question in the High Court of Adamawa State.
Four issues were articulated by the defendant/respondents for determination by the High Court namely;
(1) Whether the selection of Rev. Benson Atete Kushi as the District Head of Dong was done in accordance with the provisions of the Adamawa State Districts Creation Law, 1992.
(2) Whether the 1st plaintiff is entitled to be returned as the District Head of Dong.
(3) Whether the tradition of Dong village Area has a uniform application to other village areas that constitute Dong District.
(4) Whether the selection of a village head can be equated with that of a District Head.
The plaintiffs/appellants articulated 4 issues also for determination by the High Court. They are namely thus:
(1) Whether Dong District is an existing District or is a new creation?
(2) Is there any evidence in Dong District Traditional method or procedure for the appointment or selection of District head for Dong District.
(3) Ought not the traditional method of procedure applicable in the appointment of Hama Dong be applicable in the appointment of the District Head of Dong?
(4) If the answer is in the negative then whether the election of a village head that constitute Dong District ought not to have been the applicable procedure for the selection of the District Head of Dong District.
In summary for the plaintiffs/appellants to successfully challenge the legality of an appointment under the law in question the plaintiffs/appellants must prove that the appointment was not done in accordance with either of the 2 methods envisaged in section 7 of the Adamawa State Creation of Districts Law, 1992 (as amended).
In his considered judgment his Lordship held inter alia:
“That there was a traditional method of appointing a head. That the combination of consultation with members of the ruling houses of Dong and elders from Lawaru and Bolon, and receiving application from the members of the ruling houses and the consultation with Nzomoto by the Hama Batta before the appointment of the 3rd Defendant/Respondent as the District Head of Dong. Dong District must be seen as the adaptability of the existing customs in the area to suit the new circumstances.” “That traditional method of selecting the District Head of Dong District exists in Dong, Lawaru and Bolon where the traditional heads of these 3 village areas constitute the Dong District.”
I have no reason to interfere with his Lordship’s findings as to the facts of this case. His Lordship went ahead to hold that the plaintiffs/appellants’ suit failed in its entirety and was accordingly dismissed.
The plaintiffs/appellants being dissatisfied with the whole judgment filed this appeal in 1997.
The plaintiffs/appellants filed their brief of argument on 17/3/1997.
The 1st respondent’s brief was filed on 13/11/2002. The 2nd and 3rd respondents’ briefs were filed on 24/3/2003.
The appellants’ counsel adopted his brief and urged the court to allow this appeal. Likewise the respondents adopted their various brief and urged the court to dismiss this appeal.
The appellants in their brief formulated 4 issues for determination namely;
“(1) Whether having regard to the size and the stature of the Chieftaincy institution in Dong Town, the traditional method for appointing the Chief of Dong ought not to have been the applicable procedure or method in the selection of the District Head of Dong District.
(2) Whether the learned trial Judge was right in holding that the Chief of Batta acted correctly and in accordance with the evolving tradition of Dong District when he unilaterally selected the 3rd defendant as the District Head of Dong District.
(3) Whether the traditional method for the appointment of Dong had changed or evolved over the years from an institution with its separate and distinct kingmakers to one where the Chief was appointed at the pleasure of the paramount Chief
(4) Whether the learned trial Judge ought not to have held that there being no traditional method applicable for the appointment of the District Head of Dong District, the Electoral College of the Villages Heads that constitute Dong District should have convened in accordance with the provisions of section 7(2) of the Adamawa State (District Creation Law) to select the District Head of Dong District.”
The appellants argued that the traditional method in appointing Hama Dong should have applied in the appointment of a District Head for Dong District. The argument being that Dong Village Area is larger in size in comparison to Lawaru and Bolon Village Areas. Also that the Dong Community has a very elaborate king making institution unlike the other two villages.
The only reason the appellants had for insisting that the traditional method of appointing the Hama Dong should have been used is because in their own opinion, Dong Village Area was larger than the other 2 village areas. The appellants also argued that the appointment of the Hama Dong by the kingmaking Kabai was a more sophisticated institution which should have taken precedence over and above Labaru and Bolan village institutions.
It is in evidence that Dong District was carved out of Batta District with Hama Batta as District Head.
The Dong District is made up of 3 village areas. There is no evidence to show that Dong is superior in nomenclature to the other 2 village arears. It is on record that the Hama Batta appoints the Hama Dong after the Kabai selection. It is also on record that the Hama Batta appoints the Ha Lawaru of Lawaru Village and Ha Nabali of Bolon Village. The three Villages are all subordinate to Hama Batta and of co-ordinate jurisdiction.
Therefore it cannot be said that Dong is superior to the other two villages and as such its traditional method of selection should supercede that of the other 2 villages.
The appellants argued that the traditional method of choosing the Hama Dong should be superimposed as that for selecting the District Head of Dong. Or in the alternative an electoral college for selecting the District Head of Dong as envisaged by section 7(2) of the Adamawa State Creation of Districts Law, 1992 (as amended).
The appellants failed to show or prove by evidence the traditional method of selecting the District Head of Dong existing as of the time the 3rd respondent was chosen.
It is pertinent to note at this stage that the District of Dong was carved out whole and entire from the District of Batta headed by the Hama Batta. Since it was created wholly out of the District of Batta it would not be out of place to state that there was an existing traditional method of selection. The Hama Batta being the District Head of Batta District is in a position to uphold the traditional method of selection in that District.
The Hama Batta has always been instrumental to the headship of the three villages comprising the Dong District. The tradition from the various testimonies of the witnesses is effectively that of selection and appointment with Hama Batta as the District Head.
The Hama Batta as can be elicited from evidence of the witnesses called for nominations from interested parties from the three villages comprising the Dong District. He also consulted widely with the members of the ruling houses in Dong and the elders of Lawaru and Bolon villages. See the evidence of DW1 – DW7.
In the words of the Chief Judge in his judgment:
“the combination of consultation with members of the ruling houses of Dong and elders from Lawaru and Bolon and receiving application from the members of the ruling houses and the consultation with Nzomoto by the Hama Batta before the appointment of the 3rd defendant as the District Head of Dong District must be seen as the adaptability of the existing customs in the area to suit the new circumstances.”
Following the selection of the 3rd respondent, his name was forwarded to the Numan Traditional Council which deliberated on it and forwarded the name to the State Government. See the testimonies of DW7 the Ag. Secretary Numan Traditional Council.
All these procedures were followed which satisfied the intendment of section 7(1) of the Adamawa State Creation of Districts Law.
The crux of this appeal is whether the appointment of the 3rd respondent was done in accordance with the provision of section 7 of the Adamawa State Creation of Districts Law.
See section 7(1)(a)-
“Selection shall be done in accordance with tradition or custom of the area constituting the District and under the supervision of a representative of the council and such security agents as the council may require.”
The appellants were to prove that the selection was not done in accordance with the tradition and custom of the area constituting Dong District.
The area constituting Dong District is Dong, Lawaru and Bolan villages. The Hama Batta who is a representative of the council took steps to consult widely with the kingmakers of Dong and the elders of Lawaru and Bolan villages.
The appellants agree that the villages have their tradition or custom but insist that the custom to be adopted is that of Dong. Is it democratic for the custom of Dong to dominate that of the other two villages? I think not.
Has the appellants been able to prove non-compliance with the provisions of section 7(1) of the Adamawa State Creation of Districts Law? The appellants were not able to prove non-compliance with section 7(1) however they proved that the Dong village has a tradition of selection which should be adopted for Dong District.
He who asserts must prove. See the case of Lipede v. Sonekan (1995) 1 NWLR (Pt. 374) pg 668 where the Supreme Court held inter alia that –
“under the Evidence Act a Customary Law is a matter of fact to be pleaded and proved by evidence unless it has been judicially noticed. It is also good law that it is desirable that a person other than the person asserting it should also testify in support thereof as it is unsafe to accept the statement of the only person asserting it.”
It went further to state –
“it is not the business of the court to make declarations of customary law relating to the selection or appointment of Chiefs. But it is the business of the court to make a finding of what the customary law is and apply the Law for declaration.”
The appellants have accepted that there is a traditional and customary method of selection in the new Dong District. It follows therefore that if there is a tradition of selection then the exercise of selection must fall under section 7(1) of the Adamawa State Creation of Districts Law, 1992 (as amended).
It follows logically that since the exercise falls squarely under section 7(1) of the Adamawa State Creation of District Law, 1992, there is no need of the alternative mode of selection of District Head as envisaged by section 7(2) of the said law i.e. Electoral College, as argued by the appellants.
The appellants failed to prove that there was non-compliance of section 7(1) in the selection and appointment of the 3rd respondent.
The appeal for the above reasons fails in all its entirety.
I therefore affirm the judgment of the court below and dismiss the appeal in all its entirety.
Other Citations: (2006)LCN/2125(CA)
