Akaayar Gemanam V. Tarkaa Nyoughur & Ors (1997)
LawGlobal-Hub Lead Judgment Report
EDOZIE, J.C.A.
This appeal arose from the rival claims of the appellant and the 1st respondent to the office of the head of Mbaawa District which was newly created from the Mbagwa District in Ushongo Local Government Area of Benue State. The new Mbaawa District aforesaid has two constituent kindred of Mbakombol and Mbangwa. The former Mbakombol is composed of two sub-kindred units of Mbaikyongo and Mbaikyo. The appellant hails from Mbaikyongo while the 1st respondent belongs to Mbaikyo.
In an election exercise conducted on 31/10/91 (though disputed) to select the District head of Mbaawa, the contestants were the appellant and Ibonyama Kortyo (now deceased) both from the same sub-kindred of Mbaikyongo. At that election, majority of the king makers voted for Iboyema Kortyo. Then followed a spate of petitions from members of the community against the selection of Iboyema Kortyo on the ground that he was ex-convict and had still pending criminal charges against him. A legal advice from the office of Attorney-General (6th respondent) on the issue was to the effect that Iboyema Kortyo was not a fit and proper person to hold the office of District head in question. On the basis of this legal advice, the Special Adviser on Chieftaincy matters in the Governor’s office advised the 3rd and 4th respondents to consider the appellant for appointment to the office in question. But the 3rd and 4th respondent instead of doing so constituted, a higher panel also known as Chief Malu panel. The panel communicated the disqualification of Iboyema Kortyo to the people of Mbaawa. On 11/11/92 another election took place with the appellant and 1st respondent as the contestants. The votes cast by the eight kingmakers were 6 to the 1st respondent and 2 to the appellant. The appellant was aggrieved by the election on the ground that by virtue of Tiv custom of Ya na Angbian literally meaning “Eat and give brother” or principle of rotation, the people of the 1st respondent’s sub-kindred unit being junior in rank to the appellant’s sub-kindred were not competent to contest in that election. The appellant as plaintiff therefore initiated an action against the respondent as defendant seeking the reliefs set out in paragraph 26 of the amended statement of claim which read as follows:-
“26. Whereof the plaintiff claims the following declarations:
(a) Since Iboyema Konyo was rightly declared to be an ex-convict the plaintiff remained the sole candidate in the contest for the District Head of Mbaawa and would have been declared as such his name having been forwarded to the 3rd and 4th defendants by the 6th defendant.
(b) That the Chief Lanvu Malu panel exceeded its powers by unilaterally introducing an “Alien” candidate who is the 1st defendant into the contest for the District Headship of Mbaawa and this was a usurpation of the powers of the kingmakers to select a District Head of their choice.
(c) That the 1st defendant was not eligible to contest for the District Headship of Mbaawa since the District Headship was the prerogative of Mbaikyongo – Mbekombol where the plain the contested and emerged a sole candidate with disqualification of Iboyema Kortyo and this was an affront to Tiv Native Law and Custom.
(d) That the selection and or election of 11/11/92 was illegal, uncustomary, null and void and should be declared as such.
(e) That the plaintiff is the popular choice and therefore the District Head of Mbaawa District of Ushongo Local Government Area of Benue State”.
The case was tried on pleadings filed by the parties viz, the amended statement of claim, the 1st defendant’s statement of defence and the 2nd and 6th defendant’s joint statement of defence. Parties called witnesses in support of their pleadings.
At the conclusion of the trial, the learned trial Judge Onum J, in a well written judgment delivered on 7/10/94 dismissed the plaintiff’s case in toto. Against that judgment the plaintiff now appellant lodged an appeal to this court relying on 5 grounds of appeal subjoined to the notice of appeal. Pursuant to the Rules of this Court, the parties through their counsel filed and exchanged briefs of argument. The appellant’s brief has four issues for determination viz.:-
“1. Whether or not the selection of the first District Head of Mbaawa District was supposed to come from Mbaikyongo.
- Whether the appointment to the office of a District Head is not guided by native law and custom and therefore unenforceable.
- Whether the 3rd and 4th respondents were right by not complying with the directives for the Special Adviser of Chieftaincy matter.
- Whether having regard to the pleadings and evidence the appellant has proved his case.
For his part, the 1st defendant now 1st respondent identified the following three issues:-
“1. Whether the kingmakers of Mbaawa District could rightly be said to have agreed to restrict the selection of the District Head of Mbaawa from only one of the two components of Mbekombol.
- Whether or not effect was given to the directive (advice) from the Special Adviser to the Governor on Chieftaincy matters in the selection of the District Head of Mbaawa?
- Whether upon the materials placed before the trial court, the appellant made out his case to be entitled to judgment per his claim.
Issues similar to the above were set out in the 2nd to 6th respondents’ brief as follows:-
“1. Whether or not the appellant proved his case as required by law.
- Whether or not the appointment to the office of District head is guided by the Native Law and Custom and in particular the Tiv custom of Eat and give your brother (Ya na Angbian).
And or in the alternative Whether or not customary law of Eat and give your brother in Tiv custom has been established in favour or the appellant in this case at hand.
- Whether or not the Special Adviser on the Chieftaincy Affairs in the office of the Governor has any power in law to select what (sic) is a district head, and if not what is the effect of Exhibit “E” on the selection of the District head of Mbaawa.
- Whether or not the 1st respondent was eligible to contest the election into the District head of Mbaawa District and/or the effect of election conducted on 11/11/92″.
The issues raised in the parties’ briefs as set out above are similar in content. I prefer to adopt the issues as postulated in the appellant’s brief while at the same time relating them to the issues as formulated in the respondents’ briefs.
The 1st issue in the appellant’s brief is whether there was any agreement among the kingmakers of Mbaawa to limit the selection of the 1st District head of Mbaawa to Mbaikyongo sub-kindred of the appellant to the exclusion of Mbaikyo sub-kindred of the 1st respondent. This issue is in agreement with the 1st respondent’s first issue for determination as well as the 4th issue in the 2nd-6th respondents brief. Counsel to the appellant referred to paragraph 10 of the amended statement of claim and the evidence of the PW3 and DW3 who are kingmakers and to the fact that in the selection exercise of 21/10/91 the contestants were narrowed down to the appellant and his cousin Ibogeme who are from the Mbaikyongo sub-kindred. He then submitted that there was such agreement among the kingmakers that selection of the first District head was to come from Mbaikyongo. That agreement it was further contended was in line with the Tiv custom of “Ya na Angbian” and that the inclusion of the 1st respondent who was an ‘Alien’ in the contest of 11/11/92 was a rape on the tradition of the people. It was submitted on behalf of the 1st respondent that the kingmakers of Mbaawa numbering 8 never agreed to confine the selection of the District Head of Mbaawa based on any custom, usage or even convention to only one of the two component units of Mbaekombol to the exclusion of the other. It was contended that the entire Mbakombol was eligible to produce the District head. The turn to produce the District head of Mbaawa fell on Mbakombol and it did not matter whether the ultimate winning candidate comes from either Mbaikyongo or Mbaikyo or whether Mbaikyongo was the senior or junior or vice versa. It was pointed out that apart from PW3; no kingmaker from the appellant sub-kindred or other kingmakers out of 8 kingmakers of Mbaawa was called by the appellant to substantiate the appellant’s assertion that there was a unanimous agreement by the kingmakers to limit the contest of the office of the District head to the appellant’s sub-kindred unit.
It was further argued that even if the custom of “Ya na Angbian” is invoked, the scale of balance will still tilt in favour of the 1st respondent because Kortyo Iboyema a relation of the appellant had previously been the kindred head of Mbaawa. The appellant, it is said, conceded this fact but argued that had the dispute been over one of the kindred headships, the custom would have applied and the turn would have been that of Mbaikyo and not Mbaikyongo. The appellant however did not explain why the custom applies to kindred headship and not to District headship when he had earlier conceded that the custom applies to chieftaincy matters.
In his contribution, counsel for the 2nd to 6th respondents submitted in his brief that the 1st respondent was eligible to contest for the office of the District head of Mbaawa District. The issue now under discussion was specifically dealt with by the learned trial Judge in an admirable manner: see pp.107-110 of the record of proceedings where he reasoned thus:
“In regard to the first of the ancillary question, the plaintiff while testifying as the PW4 told the court that the District in question was made up of two principal units of Mbakombol and Mbangor. That the unit of Mbakombol as composed of Mbaikyongo and Mbaikyo sub-units and in that orders of seniority. He hailed from Mbaikyongo while the 1st defendant hailed from Mbaikyo. According to him when it became due to select a district head for the District, the 3rd defendant sent the secretary of the Ushongo Local Government to conduct the selection exercise at the gathering of elders and kingmakers of the district of Kortyo market square. That at this gathering the elders and kingmakers resolved that the turn be given to people from Mbaikyongo who were then to present candidate to the exclusion of all other sub-units of the district. That in consequence only one Iboyema Kortyo and himself declared their candidatures for the district headship. This was on 30/10/91. That before the voting one Iorndul Kume wrote protesting against the eligibility of Iboyema Kortyo on the ground that he was an ex-convict. Further but contrary to his pleadings in paragraph 12 of his statement of claim, that inspite of this the kingmakers went into voting during which he lost to the said Iboyema Kortyo by 3 votes to 5. That after the next meeting of the kingmakers held at Lessel he was informed by his kingmakers that Iboyema Konyo had been disqualified and that the 1st defendant had been declared the District Head. It is the selection of the 1st defendant he wants the court to set aside on the ground that the 1st defendant is not from Mbaikyongo sub-unit destined by custom to provide the district head this time around.
In answer under cross-examination the plaintiff named the custom as the custom of “eat-and -give- brother” said to prevail in Tiv land whereby a senior could enjoy privileges before the junior. He agreed that all the king-makers numbering 8 for the district participated in the selection exercise during which the 1st defendant was selected at Lessel on 11/11/92. Of the other of his witnesses only the PW3, Kour Nduul, who said that he was one of the kingmakers told the court that they had resolved that those from Mbaikyongo should enjoy the stool before those from Mbaikyo, the sub-unit of the 1st defendant.
On their own part the defence denied that there was ever a resolution to select the district head from Mbaikyongo, willy-nilly. According to the 1st defendant such a resolution could not have been passed because one Kortyo Iboyema, a close relation of the plaintiff had been a kindred head from Mbaikyongo sub-unit previously. It may be observed here that the plaintiff also admitted the relationship while answering questions undercross-examination.
According to the 1st defendant such resolution would be contrary to the celebrated Tiv custom of “eat-and-give-brother”. Further that he was also one of the 4 candidates on 30/11/91; that one had declared for him while the other Iboyema Kortyo was disqualified. And further that in the exercise that followed the disqualification of Iboyema Kortyo, he scored 6 votes as against the plaintiff’s 2. Under cross-examination he said that there were no protests when his name was presented to the kingmakers as a candidate. Further that there was no selection exercise conducted on 30/10/91 agreeing with the plaintiffs pleadings in paragraph 12 that the exercise had been pot off when ‘the situation became rowdy’.
The PW2 the secretary to the 4th defendant tendered the minutes of the exercise during which the 1st defendant was selected is evidence as Exhibit “9” to prove the details of what took place during the exercise. The PW3 was one of the kingmakers who participated in the exercise leading to the selection of the 1st defendant. He told the court that there were no protests during the exercise and that the 1st defendant scored 6 votes as against the plaintiff’s 2. He stood his ground under cross-examination. One thing that is obvious from the testimonies is that the same kingmakers who met on the issue of the selection of the district head on 30/10/91 were the ones who again met and voted at Lessel on 11/11/92. (If) it was true that they made up their minds to select the district head from only Mbaikyongo sub-unit and no other on the basis of any custom as urged upon this court by the plaintiff then they could not have again voted for a candidate from another sub-unit and against the plaintiff who was the only candidate from Mbaikyongo. None of these who voted for the 1st defendant on 11/11/92 was called to say he voted because he was “threatened” or “cajoled” as claimed by the plaintiff. Exhibit “9” tendered without objection and unchallenged supports the peaceful conduct of the selection exercise as well as the overwhelming acceptance of the 1st defendant as against the plaintiff. The natural drift of the evidence before me therefore answers the 1st of the ancillary questions in the negative, that is to say, that the kingmakers never at any time agreed to select a district head for Mbaawa district only from the sub-unit of Mbaikyongo willy-nilly…”
I cannot agree more with the above finding. It is a question of fact whether the kingmakers had resolved to exclude the 1st respondent’s sub-kindred from contesting for the position of the District head of Mbaawa. The determination of that fact turns on the credibility of the witnesses who testified before the court below. It is not the function of the court to disturb findings of fact of the trial court where those findings of fact are based on the credibility of witnesses who had testified before the trial court unless the decision of the trial court is shown to be perverse. I have myself perused the record of proceedings and I am of the view that the finding of fact made by the trial court is amply supported by the evidence. Nothing canvassed before this court has changed the position. The answer to the issue under consideration is in the negative.
The appellant’s second issue which covers the second issue in the 2nd to 6th respondents issue is whether there is any established principle of customary law governing the selection of district heads in Mbaawa district. On this issue the appellant submitted in his brief that in the absence of any legislation on the mode of appointing any District Head in Tiv land the only mode of selection is governed by the native law and custom of the people. The prevailing customary law on the issue is the custom of “Ya na Angbian” or any other custom which is not repugnant to natural justice equity and good conscience. It was submitted that under Section 34(1) and (2) of the High Court Law of Northern Nigeria as applicable to Benue State the High Court is enjoined to observe every native law and custom which is not repugment to natural justice equity and good conscience nor incompatible either directly or by implication with any law for the time being in force. In reply to the above submission, it was contended on behalf of the 2nd to 6th respondents that the districts in the community are administrative units created under relevant statute e.g. Sections 55(1) of Native Authority Law Cap 77 Laws of Northern Nigeria 1963 and the Local Government Edict No. 14 of 1976. It is further sub-milled that nowhere in those laws was it provided that the office of District head is subjected to native law and custom.
The appellant’s case was anchored on the prior resolution by the kingmakers that the district head would be selected from Mbaikyongo, Paragraph 10 of the amended statement of claim is relevant. It reads:-
“10. Within Mbakombo Mbaikyongo is the elder to Mbaikyo as to progeniture and in accordance to Tiv native law and custom the kingmakers unanimously agreed that an indigene of Mbaikyongo should occupy the position of the District head of Mbaawa and all other intending contestants from other kindred zoned out. (italics supplied)
As is evident from the proceeding issue just discussed, the learned trial Judge made a specific finding to the effect that there was no previous agreement or resolution by the kingmakers that selection of the District head of Mbaawa is limited to the appellant’s sub-kindred unit. The court did not express opinion on the existence of the customary law in question. A ground of appeal and afortiori, the issues for determination distilled therefrom must relate to the decision appealed from and must be a challenge to the validity of the ratio of the decision. As there was no decision on existence vel non of the customary law in question, the issue under consideration did not arise. Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546 at p. 590.
There being no indication that the appellant obtained the leave of this court to argue the issue in question, it is incompetent and is accordingly struck out.
The appellant’s 3rd issue for determination encompasses the 1st respondent’s 2nd issue and the 2nd to 6th respondents’ 3rd issue for determination. The issue as formulated in the appellant’s brief is whether the 3rd and 4th respondents were right by not complying with the direction of the Special Adviser on Chieftaincy matters. On this issue, it was contended on behalf of the appellant that the 3rd and 4th, respondents were bound to comply with, Exhibit “E” which was the teller from the Special Adviser (Chieftaincy) Benue State advising that since Iboyema Kortyo was disqualified from holding the position of District Head as per Exhibit ‘E’ from the 6th respondent, the appellant should be considered for the position. It was argued that having regard to the said Exhibit ‘E’ the 3rd and 4th respondent ought not to have constituted the Chief Lanve Malu panel to arrange for another selection. The Special Adviser (Chieftaincy) it was contended has supervisory role over the 3rd and 4th respondents and as such, in the event of a stalemate they had no alternative that to comply with the advice from the Special Adviser. Learned counsel to the 1st respondent referred to Exhibit ‘E’ in which the Special Adviser advised that the appellant be considered for appointment to the office of District Head of Mbaawa since his opponent had been disqualified. He then argued that if the advice meant that the appellant be considered along with any other contestant, the advice had been complied with when the appellant was allowed to take part in the selection exercise of 11/11/92, if, on the other hand the advice was that the appellant should be automatically appointed the District Head, it was submitted that the kingmakers are not bound by the directive or advice of the Special Adviser on Chieftaincy matters. The duty of deciding who should be the District Head of what district lies with the kingmakers of the District and they cannot be directed as to how to exercise their voting rights. On their own part, counsel to 2nd to 6th respondents made submission in line with that of counsel to the 1st respondent stressing that Exhibit ‘E’ is a mere advice and not a direction for the appointment of the appellant to the District headship in dispute. The issue under consideration was dealt with by the court below. At p.110 line 35, p.111 line 1 to 31, of the record the court reasoned as follows:-
“The next question relates to the effect of Exhibit ‘E’ from the Governor’s Special Adviser on Chieftaincy matters. After affirming the disqualification of Iboyema Konyo the letter (i.e. Exhibit ‘E’) further stated in its paragraph 5:-
“From available information distilled from the petition, there were two contestants for the district head of Mbaawa of Ushongo Local Government, Iboyema Kortyo and Akaaya Gemanen. Apparently, the former (i.e.) Iboyema Kortyo is not eligible due to the advice from the Ministry of Justice. Accordingly, therefore, the name of the second contestant Akaayar Gemanem is hereby forwarded to the Area T.C. for consideration for an appointment as District of Mbaawa in Ushongo Local Government.”
The adviser held a port-folio in the Governor’s office and not in the Local government relevant to the district in question. In Peter Kere Mese v. Bu Mku & Sons (supra) I reasoned to the effect that the prerogative of appointing a district head for any of the districts in this state lay with the relevant Local Government and no other I have not yet had cause to charge my mind on that reasoning. Until there is a bye-law providing for how the district head may be appointed, the appointment will continue to beat the total discretion of the Local Government notwithstanding the existence of any guidelines and/or administrative directive which ordinarily do not have any force of law. I say therefore that the present action cannot be founded on the directive of the Special Adviser contained in Exhibit ‘E’.
The above finding is unassailable. From the general tenor of the contents of Exhibit ‘E’, it cannot be inferred that it is imperative that the addressee, that is, the Tiv Traditional Council is bound to appoint the appellant as the district head of Mbaawa. The traditional council was merely asked to exercise its discretion on the matter. Exhibit ‘E’ is merely an advice and not an order that must be complied with. Even if by any stretch of the imagination it could be construed as an order to the traditional council which is not conceded, it has no force of Law such as can be legally enforced by the party in whose favour the order is made. I agree with the learned trial Judge that the appellant’s action cannot be founded on Exhibit ‘E’. I find no merit on the issue under consideration.
The 4th and last issue for consideration in the appellant’s brief is whether having regard to the pleadings and evidence the appellant had proved his case. This covers issue 3 in the 1st respondent’s brief and issue 1 in the 2nd to 6th respondent’s brief of argument. Appellant’s counsel submitted in his brief that the appellant adequately proved his case on balance of probabilities before the court below. He argued that all through there was a discrepancy between the appellant’s testimony and paragraph 12 of the amended statement of claim with respect to whether any selection exercise took place on 30/10/92, the discrepancy was minor and did not affect the credibility of the appellant. Learned counsel to the 1st respondent contends that the appellant failed woefully to prove his case and was not therefore entitled to judgment. The appellant hinged his case on the erroneous belief that he was the sole candidate for the district headship of Mbaawa after the disqualification of Iboyema Konyo. The appellant failed to prove that he was the sole candidate, that the 1st respondent was not eligible to contest for the disputed headship, that the election of 11/11/92 was a nullity and that he was the popular choice of the kingmakers. For the 2nd to 6th respondents, their counsel made submissions in line with the submissions of counsel to the 1st respondent contending that the appellant’s claim was rightly dismissed by the trial court.
The appellant was the plaintiff in the court below. The burden was on him to prove his case on balance of probabilities. The linch pin of his case is the alleged resolution by the kingmakers that it was the turn of his sub-kindred Mbaikyongo to produce a candidate and that with the disqualification of Iboyema Kortyo he ought to be automatically proclaimed the District head of Mbaawa. He also relied heavily on Exhibit ‘E’ in which the Special Adviser on Chieftaincy matters advised the Tor Tiv and his council to consider the appellant for the appointment to the headship of the Mbaawa District on the ground that his rival candidate had passed on. As already been demonstrated, the appellant failed in these two vital prongs of his case. He has therefore failed to discharge the burden placed on him to be entitled to judgment.
In conclusion this appeal lacks merit. It is dismissed. I affirm the judgment of Onum J. delivered on 7/10/94 in suit No. GHC/35/93. I award to the respondents against the appellant costs assessed at N1, 000.00.
Other Citations: (1997)LCN/0263(CA)
