Alhaji Awwal Ibrahim V. Galadima Shuaibu Barde & Ors (1996)

LAWGLOBAL HUB Lead Judgment Report

UWAIS, C.J.N. 

The appellant in this case was the 7th defendant in the High Court. The 5th, 6th, 7th, 8th, 9th and 10th respondents were respectively the 1st, 2nd, 3rd, 4th, 5th and 6th defendants in the High Court. The plaintiffs were the 1st, 2nd, 3rd and 4th respondents herein. The plaintiffs’ claims against the defendants were as follows:-

“(1) A declaration that the purported rejection of the nomination and or appointment of Bashir Suleiman Barau as the new Emir of Suleja by the 1st defendant as being against the tradition and custom of the people of Suleja is illegal ultra vires the first defendant, unconstitutional and void.

(2) A declaration that the reconstitution of Suleja Emirate Council by the 1st defendant is illegal, void and of no effect their (sic) being a validly constituted Council of Kingmakers in accordance with the tradition and custom of the people of Suleja.

(3) A declaration that 4th, 5th, and 6th defendants are not traditional kingmakers and therefore not competent to perform the function of the Kingmakers for Suleja Emirate Council.

(4) A declaration that the 1st, 2nd, 3rd, 4th, 5th plaintiffs are the Kingmakers for Suleja and therefore the only persons allowed by law, the tradition and custom of the people of Suleja to carry out such functions.

(5) A declaration that Bashir Suleiman Barau is the validly nominated successor to the throne of Emir of Suleja.

(6) A declaration that the purported Order of the first defendant as reflected by the Appointment and Deposition of Chiefs (Appointment of Emir of Suleja) Order, 1993 which was given a retroactive effect is unconstitutional, illegal, null and void.

(7) A declaration that the purported nomination of the 7th defendant as the Emir of Suleja by the 4th, 5th, and 6th defendants and the subsequent approval by the 1st defendant is ultra vires, illegal, null and void and contrary to the established tradition.”

The plaintiffs called six witnesses while the 1st to 6th defendants called three witnesses (D.W.1, D.W.2 and D.W.3) and the 7th defendant called only D.W.4 as his witness.

The facts of the case which are not in dispute may be narrated as follows. Alhaji Ibrahim Dodo Musa was the Emir of Suleja in 1993. He died on the 5th day of July, 1993. The then Chairman of Suleja Local Government, Alhaji Shuaibu Mohammed Liman Iya (D.W.3) wrote a letter (Exhibit 3) to the then Governor of Niger State on the selection and appoinunent of a new Emir of Suleja. The letter reads:-

“Ref: No. SLG/SEC/71/Vol.1/301

Local Government Secretariat,

Suleja.

9th July, 1993.

His Excellency,

The Executive Governor,

Niger State.

Through:-

Your Excellency,

The Deputy Governor,

Niger State,

Minna.

Sir,

“RE: SELECTION AND APPOINTMENT OF A NEW EMIR OF ZAZZAU SULEJA

I am humbly and formally writing you in respect of the above subject. This became necessary as a result of the death of Alhaji Ibrahim Dodo Musa, the immediate past Emir, in the early hours of Monday, 5th July, 1993.

The death of Alhaji Ibrahim Dodo Musa, by the powers conferred on Your Excellency on the appointment of Chiefs as regulated by the Nigeria (Constitution) Orders in Council and by the Appointment and Deposition of Chiefs Ordinance, has made it necessary for you to assemble the traditional selectors to choose a successor.

It is the customary law and custom of the Traditional Institution of Suleja that a Chief be chosen from among the following ruling houses:

(a) Abu Jatau ruling house, and

(b) Abu Kwaka ruling house.

The late Alhaji Ibrahim Dodo Musa belonged to Abu Jatau’s ruling house. The new Emir should therefore come from Abu Kwaka’s house.

The selection of the new Emir is the responsibility of the traditional kingmakers whose composition is as follows:

(1) The Chief Imam

(2) The Salanke

(3) The Magajin Mallam

(4) The Galadima

The Administrator or Chairman of the Local Government is to serve as the Secretary.

However, the guidelines and criteria for the selection of such vacant position is determined though, by the existing laws and customs, Your Excellency shall highlight certain conditions that may be required of a successor with a view to sustaining the stability and peaceful co-existence of society.

Your Excellency, I am by this submission requesting you to formally give me the approval and official directive to summon the meeting of the Traditional Kingmakers in order to commence sitting for the selection of a successor to the throne.

I sincerely hope that Your Excellency would give an urgent attention to this subject-matter in view of its sensitive nature.

Yours obediently,

(Sgd.)

ALHAJI SHU’ AIBU MOHAMMED LIMAN IYA CHAIRMAN, SULEJA LOCAL GOVERNMENT.”

A reply (Exhibit 8) to the letter was written on 13th July, 1993 by a Director-General (Aliyu Wali) in the Office of the Deputy-Governor of Niger State. The letter which was copied to His Royal Highness the Etsu Nupe, Chairman Niger State Council of Traditional Rulers, the Chairmen of Suleja Local Government and Gurara Local Government among others, reads as follows:-

“NIGER STATE GOVERNMENT OF NIGERIA

Deputy Governor’s Office,

Government House,

Ref: DLG/EM/S.5/S.23/Vol.1/6

P.M.B. 43, Minna,

Niger State,

Nigeria.

13th July, 1993

OFFICE OF THE DEPUTY GOVERNOR

The Secretary,

Suleja Emirate Council,

Suleja.

RE: SELECTION AND APPOINTMENT OF A NEW EMIR OF ZAZZAU SULEJA

I wish to refer to the letter of the Chairman Suleja Local Government Ref No.: SLG/SEC/71/Vol.1/301 of 9th July, 1993 on the above subject matter of which copy was sent to you and to convey the approval of His Excellency the Executive Governor of Niger State Dr. Mohammed Inuwa for the selection Committee (Traditional Kingmakers) of Emir of Zazzau Suleja to set the machinery for the selection of a new Emir of Zazzau Suleja who is to succeed the late Alhaji Ibrahim Dodo Musa.

2. The work of the Committee will be in accordance with the existing Zagizagi tradition/custom and the existing law on Chiefs appointment and deposition is regulated by the Nigerian (Constitution) orders in Council. (sic)
3. In addition to this, the Committee should put into consideration the educational qualifications and exposure of the candidates to be selected as additional essential ingredients.
4. The Director Local Government Affairs Deputy Governor’s Office (Alhaji Aliyu Tahir Kontagora) will supervise the whole affairs (sic) while Hamidu Kadikutu Acting Director (Political) Governor’s Office will serve as the Secretary.

(b) The Chairmen of Suleja and Gurara Local Governments will serve as observers.

5. The selection Committee (Kingmakers) which has the following members:

(a) The Galadima

(b) The Liman Juma’a (Chief Imam)

(c) The Salanke

(d) The Magajin Mallam

has one week to forward three (3) names of candidates to the Office of Deputy Governor with effect from the date of this letter.

6. The State Government believes that the task ahead of you is not an easy one. I pray to the Almighty AIlah for his protection and good guidance to enable the committee succeed in its assignment (Amen).

(Sgd.)

(ALIYU WALI)

Director General.”

The kingmakers, as constituted, consisting of the Galadima of Suleja (1st respondent), the Chief Imam of Suleja, the Salanke of Suleja (2nd respondent) and the Magajin Malam of Suleja (3rd respondent) together with two observers (the Chairmen of Suleja Local Government and Gurara Local Government) and two representatives, namely Alhaji Tahir Kontagora (as Monitoring Officer) and Hamidu A. A. Kadi- Kuta, Director (Political Affairs, as Secretary) met on the 14th July, 1993.

They compiled a list of 42 candidates from Abu Kwaka Ruling House who were considered as eligible candidates. A short list of 7 candidates was further made from amongst the 42 and the appellant as well as the 4th respondent were in the short list. The meeting which was inconclusive on that day continued on 15th July, 1993. The 4th respondent was selected by the kingmakers as the only successful candidate. The Chairman of Suleja Local Government observed at the meeting that the kingmakers did not comply with Government directive to select three candidates. The kingmakers kept to their decision.

Another meeting of the kingmakers was held on 21st July, 1993 for the purpose of adopting the minutes of the earlier meeting. After adapting, the minutes the 1st respondent observed that the kingmakers did not fully comply with the Government directive that 3 candidates should be selected. The Kingmakers reluctantly agreed to select two, additional candidates from the short list, namely Alhaji Adamu Katsina and Alhaji Muhammadu Kabir.

All the three candidates are the sons of Alhaji Sulaiman Barau, late Emir of Suleja who was succeeded by the late Emir Alhaji Ibrahim Dodo Musa. A report on all the meetings held an 14th, 15th, 21st and 22nd of July, 1993 was submitted to the Governor of Niger State (5th respondent). The reaction of the 5th respondent was made known to the Secretary of Suleja Emirate Council in a letter dated the 17th September, 1993 (Exhibit 9). The letter reads thus:-

“GOVERNOR’S OFFICE, NIGER STATE

Secretary to the State Govt.,

P.M.B.109,

Minna, Niger State,

Nigeria.

17th September, 1993

Our Ref: SSG/PRM/S/86/V.III/380

The Secretary,

Emirate Council,

Suleja Emirate Council,

Suleja.

RE: REPORT OF THE COMMITTEE ON THE NOMINATION OF A NEW EMIR OF ZAZZAU, SULEJA

In exercise of the powers conferred on Dr. Musa Mohammed Inuwa as the Governor of Niger State by virtue of Section 3, subsection 2 of Chiefs (Appointment and Deposition) Law, Cap. 20 of the “Laws of Northern Nigeria, 1963”, I write to inform you that the report of the Committee an the nomination of a new Emir of Zazzau, Suleja has been rejected by him an the following grounds:-

(i) The Kingmaking body was not constituted in accordance with the native law and custom;

(ii) It is observed that three, out of the seven kingmakers could not partake in the nomination exercise for “being members of the royal family”. Even then it is further discovered that only one member, i.e. the Galadima of Suleja had the voting power while the remaining three were supposed to be mere observers or at best, advisers.

2. Any further developments on the Chieftaincy issue will be communicated to you in due course.

(Sgd.)

NUHU GALADIMA

Secretary to the State Government.”

Earlier on 10th September, 1993, the 5th respondent wrote a letter (Exhibit 1) to His Royal Highness, the Etsu Nupe as Chairman of the Niger State Council of Chiefs. The letter reads as follows:-

“NIGER STATE GOVERNMENT OF NIGERIA

Re: GHNS/S/043

Office,

Government House,

P.M.B. 43, Minna,

Niger State,

Nigeria.

10th September, 1993

OFFICE OF THE GOVERNOR

Your Royal Highness,

Alhaji (Dr.) Umaru Sanda Ndayako,

The Etsu of Nupe and Chairman,

Niger State Council of Chiefs (Sic),

Wadata Palace,

Bida.

RE: REPORT OF THE COMMITTEE ON THE NOMINATION OF A NEW EMIR OF ZAZZAU. SULEJA

I wish to draw your attention to some neglected aspects of the report I received from the Committee on the Nomination of a new Emir of Zazzau, Suleja with a view that you will put your heads together to examine the matters critically in all their ramifications and make more comprehensive recommendations which will provide more permanent solutions to the distortions in the report for Government’s consideration and acceptance.

2. You may wish to agree with me that an established tradition which limits the consideration of eligible candidates to contest the vacant stool of Emir to only the “children of the last Emir whose ruling house it is to produce the next Emir (successor)” cannot be accepted in this our modern times since it seeks to illiminate (sic) many competent contestants in the royal lineage. You may also agree with me that a selection methodology which accepts that a particular prince in the next ruling house should succeed him is faulty since no due consideration is given to competency (sic) and other leadership qualities.
3. Your royal highness, apart from the fact that the kingmakers of Suleja leaned heavily on the above criteria, their report was so favourably biased towards certain candidates as could be judged from the numerous complaints received from those other eligible candidates.
4. It is also said to observe that three out of the seven kingmakers could not partake in the nomination exercise for being “members of the royal family.”
5. By law, I am the final arbiter in this matter but would require your wise counsel to arrive at a final decision in selecting an Emir whose sense of judgment and shrewd decisions could withstand the test of time in the Emirate. It is in this regard that I am compelled to refer this succession issue to your council for consideration and re-nomination of Three eligible candidates taking cognisance of the following facts about Suleja town and its environs which were ignored by the kingmakers:-

i. Suleja and its environs had in recent times experienced unprecedented influx of population into the area from other parts of the country as a result of its proximity to the Federal Capital Territory of Abuja. This means that some social amenities and other facilities provided by the State Government are over-stretched to a position of near hopelessness which makes the Emirate difficult to govern.

ii. The traditional nature of the inhabitants of the Emirate has been altered. There is now consideration (sic) social and religious mixing hence a potential area of disturbance. Thus a competent Emir would be required with a view to contain any likely social or economic upheavals.

iii. To a large extent also, the indigenous settlers have been displaced on their land by non-indigenes as a result of the influx. These non-indigenes are much better off (sic) in terms of economic activities.

6. For all these and in order for the Government to maintain its grip in the Emirate it is my sincere desire to install a traditional ruler who would be able to handle squarely the enormous tasks ahead.
7. I wish you God’s guidance in your nominations and hope to get your response on or before 18th September, 1993.

(Sgd.)

DR. MUSA MOHAMMED INUWA

Executive Governor,

Niger State.

The Niger State Council of Traditional Rulers met on 14th September, 1993. A copy of the minutes of the council was forwarded to 5th respondent by its Chairman on 17th September, 1993 under the cover of a letter (Exhibit 9) which states thus:-

“REF. NO. BEC/135/Vol.1/35

C/o Bida Emirate Council,

Etsu Nupe’s Palace,

Bida, Niger State (Nigeria)

17th September, 1993

NIGER STATE COUNCIL OF TRADITIONAL RULERS

Dr. Musa Mohammed Inuwa,

Executive Governor,

Niger State,

Minna.

Your Excellency,

“I refer to your letter Ref. No. GHNS/S/043 dated 10th September, 1993 by which you requested me to place the matter of the appointment of a new Emir of Suleja before Niger State Council of Chiefs for the council to deliberate and re-nominate suitable candidates for you to consider for appointment. I am pleased to inform you that the Council met on Tuesday, 14th September, 1993 at the Palace of His Royal Highness, the Emir of Minna in Minna and considered thoroughly the matter.

2. I attach herewith the minutes of that meeting which contains the views of the Council on the various aspects of the matter as well as the new Emir of Suleja.
3. It is my hope and fervent prayer that you will weigh carefully the views and pieces of advice of the Council before you take your final decision on the matter.

Thank you.

(Sgd.)

(Alhaji Umaru Sanda Ndayako, CFR)

Etsu Nupe/Chairman,

Niger State Council of Traditional

Rulers.”

Paragraph 9 of the minutes reads in part as follows:-

“……The various communities in the North had charged families of most of these kingmakers with this responsibility since the establishment of the dynasties of the Emirates. It has therefore, been their specialty and they have by and large not failed in holding this trust. In fact, it was the view of the Council that communities would not accept any ruler who had not been nominated by majority of their kingmakers. Members felt therefore, that though Mr. Governor was the final arbiter in the matter as had been all his predecessors-in-office who where heads of governments from pre-colonial days, it would be better and wiser if like them he did not make any appointment without ensuring that he carried with him the main body of kingmakers at the least Council agreed also that it was not its duty nor was it proper for it to make nominations of persons to be considered for appointment as Emirs of particular places. In fact, it had no competence or expertise to do so. The Council’s responsibility was to consider the nominations submitted to Government by kingmakers and advise Government accordingly.”

(Italics mine)

Paragraph 12, which is the concluding part of the minutes states:-

“12. In view of the foregoing, Council decided to recommend strongly to His Excellency, the Executive Governor of Niger State to approve the appointment of Mallam Muhammadu Bashir as the new Emir of Suleja, in the interest of justice, fairplay and democracy as well as to ensure the continued existence of peace and harmony, development and progress in Suleja Emirate.”

On 20th September, 1993, the 5th respondent made an Order title of the “Appointment and Deposition of Chiefs (Appointment of Emir of Suleja) Order, 1993 N.S.L.N. No.2 of 1993.” The commencement date of the Order was made retrospective with effect from 16th September, 1993. The Order created an electoral college which was empowered to nominate a new Emir in the event of death, resignation or deposition of the Emir of Suleja. The electoral college consisted of:-

(a) Galadima Zazzau Suleja (1st respondent)

(b) Sarkin Yaki Zazzau Suleja (9th respondent)

(c) Tafida Zazzau Suleja (10th respondent)

(d) Santali Zazzau Suleja (8th respondent)

(e) Salanke (2nd respondent)

(f) Liman Juma’a

(g) Magajin Mallam (3rd respondent)

Following the rejection in Exhibit 9 of the candidates earlier nominated, a meeting of the newly constituted electoral college was summoned for 22nd September, 1993 to nominate an acceptable candidate for the emirship of Suleja. The electoral college met on that day as scheduled. Present at the meeting were the 8th, 9th and 10th respondents. The 1st, 2nd, 3rd respondents and Liman Juma’a were absent. The Chairmen of Suleja Local Government and Gurara Local Government were present at the meeting as observers and so also Alhaji Aliyu Tahir Kontagora (Director Local Government Affairs) as Supervisor and Alhaji Usman Isah (Director CASS) as Secretary to the meeting. As a quorum had been formed according to the Secretary, the meeting was held. All the 8 candidates previously short listed by the meeting of 14th, 15th and 21st July, 1993 were considered by the new kingmakers. Four of the 8 candidates were further short listed as most suitable and were listed as follows in order of preference:-

(1) Alhaji Muhammad Awwal Ibrahim (appellant)

(2) Alhaji Muhammad Rabiu Ishaq

(3) Alhaji Muhammadu Bashir Suleiman Barau (4th respondent)

(4) Alhaji Muhammad Inuwa Ishaq

Consequent upon this decision the 5th respondent approved the selection of the appellant. He was appointed with effect from 23rd September, 1993 as the new Emir of Suleja and was traditionally installed by being turbanned by the 1st respondent who stated under cross-examination that he so acted under coercion.

In the meanwhile a bill titled “Chiefs (Appointment and Deposition) Law (Amendment) Law”, was presented to the House of Assembly of Niger State. After going through the prescribed procedure the bill was passed into law and was assented to by the 5th respondent on 2200 October, 1993. (Exhibits SC 1 and SC2).

The 1st, 2nd, 3rd and 4th respondents felt aggrieved by the appointment of the appellant as Emir of Suleja. They, therefore, filed a writ of summons together with an ex-parte motion on 22nd September, 1993 in the High Court of Niger State holden at Suleja. The motion ex parte was for an injunction to restrain all the defendants, as respondents “jointly and severally from nominating, approving and or appointing any person to the vacant stool of the Emir of Suleja. Secondly to restrain the respondents either by themselves their agents or privies from doing any act calculated to jeopardise the function of the applicants as the traditional kingmakers of Suleja.” The defendants were put on notice. The motion was heard and it was dismissed on 7th October, 1993. With regard to the substantive action the learned trial Judge (Oyewo J.) entered judgment for the plaintiffs and made the following declarations and order:-

“On the whole, I am satisfied that the plaintiffs have proved their case on the balance of probability and I make the following declarations.

(1) That the reconstitution of Suleja Emirate Council by the 1st defendant is illegal, void and of no effect, there being a validly constituted council of kingmakers in accordance with the tradition and custom of the people of Suleja.

(2) That the 4th, 5th and 6th defendants are not traditional kingmakers and therefore, not competent to perform the function of the kingmakers for Suleja Emirate Council.

(3) That Bashir Suleiman Barau is the validly nominated successor to the throne of Emir of Suleja.

(4) That the purported Order of the first defendant as reflected by the Appointment and Deposition of Chiefs (Appointment of Emir of Suleja) Order, 1993 which was a retroactive effect (sic) is illegal, null and void.

(5) That the purported nomination of the 7th defendant and the subsequent approval by the 1st defendant is ultra vires, illegal, null and void and contrary to the established tradition.

I do not intend to make other declarations sought for in the plaintiffs statement of claim as the above declarations I make above have taken care of the remaining declarations prayed for in the above pleading.

At the close of evidence of the 1st plaintiff during examination-in-chief, he prayed the court to “make the government of Niger State to immediately appoint Muhammed Bashir Suleifuan as the Emir of Suleja.”

Since I have declared that Bashir Suleiman Barau is the validly nominated successor to the throne of Emir of Suleja, I hereby direct the Niger State Government to appoint him as the Emir of Suleja, immediately.”

The appellant herein together with the 5th to 10th respondents herein appealed to the court below. At the hearing of the appeal in that court, the “Chiefs (Appointment and Deposition) Law (Amendment) Law, 1993 N.S.L.N. No.3 of 1993 was produced and admitted. The Court of Appeal by majority of 2 to 1 (Mahmud Mohammed and Opene, JJ.C.A. with Abdullahi, J.C.A. dissenting) dismissed the appeal.

The appellant herein alone decided to appeal further before us against the decision of the Court of Appeal. Three issues for determination have been postulated in the appellants brief. They read:-

“1. Whether the majority of the court below were right when they upheld the trial court’s decision that the Chiefs (Appointment and Deposition) Law (Amendment) Law, 1993, NSLN 3 of 1993 was illegal, null and void.

2. Whether the court below is not in error when by a majority it held that the trial court was right in holding that the Appointment and Deposition of Chiefs (Appointment of Emir of Suleja) Order NSLN No.2 of 1993 was illegal, null and void.
3. Whether the court below was not in error in not ordering the dismissal in the entirety of all the claims made by the 1st to 4th respondents in the High Court in so far as they affect the rights of or relate to the appellant.”

The 1st to 4th respondents herein have filed their brief of argument in which they adopted the issues formulated by the appellant. The 5th to 10th respondents herein have also filed a so called brief in which they stated, ” we hereby adopt in its entirety the brief of argument of Chief A. T. Ajala, SAN, Counsel to 1st – 4th respondents. We urge the Supreme Court of Nigeria to dismiss in its entirety the appellants appeal for lack of merit and affirm the decision of the court below accordingly.”

Customary Law

Evidence of the customary law applicable to the Emirship of Suleja (formerly Abuja) was copiously adduced before the High Court. Briefly the evidence is as follows. There are two ruling houses in Suleja, namely Abu Jatau and Abu Kwaka. The emirship alternates between the ruling houses. The late Emir of Suleja, Alhaji Ibrahim Dodo Musa belonged to the Abu Jatau ruling house. Therefore his successor by the customary law was to come from Abu Kwaka ruling hollse. The appellant as well as the 4th respondent belong to the ruling house of Abu Kwaka. Whenever the stool of the emir becomes vacant it is the duty of kingmakers to select from amongst the princes of the next ruling house the person to become the new emir. Where the immediately preceding emir indicated, while alive, which prince was to succeed him, the kingmakers in selecting the new emir would respect the wish of his predecessor. Where, however, no such indication was given it would become open to the kingmakers to select the successor from among the eligible princes. The kingmakers consist of the following title holders, the Madawaki, the Galadima, the Wambai and the Dallatu. Conflicting pieces of evidence had been adduced which variously show that the Liman Juma, the Salanke, the Magajin Malam are kingmakers themselves or advisers to the kingmakers. Unfortunately this conflict was not resolved by the learned trial Judge, for he made no finding as to who are the kingmakers under normal circumstances. I shall return to this later in the course of this judgment.

The Princes of Suleja can be given the titles of Madawaki, Galadima, Wambai and Dallatu but are disqualified from playing the role of kingmakers in selecting a new Emir. In 1979 the late Emir of Suleja, Alhaji Ibrahim Dodo Musa was selected as Emir by Galadima, Chief Imam, Salanke and Magajin Malam as the title holders then of Madawaki, Wambai and Dallatu being princes were disqualified.

A book written by D.W.4 and late Alhaji Hassan titled “A Chronicle of Abuja” published by African Universities Press and translated from Hausa to English by Frank Heath was tendered in evidence as Exhibit 10. This book was referred to by the 1st respondent (as P.W.6), D.W.3 and D.W.4, in their testimonies as most authoritative on the custom of Suleja. 1st respondent, as P.W.6, stated under cross-examination as follows:

“It is true I refer to a diagram on (sic) Abuja Cronocle (sic) as testified to by P.W.3. I have a copy of the book and the authors of the book are Alhaji Shuaibu Naibi and Hassan Dallatu. The book deals with the history of Abuja (now Suleja) people. This is the book. Suleja people consider it as authoritative.” (Italics mine)

In his evidence-in-chief, D.W.3, Alhaji Shuaibu Liman, said:-

“I discover that my earlier communication to the State Government on the composition of kingmaking body which was earlier put at four was in error.

After going through the Abuja Chronicle, which is the historical documentation of the origin, custom, norms and values of the people of Abuja. now Suleja. it became clear that actually the membership was not properly constituted.

….. The composition I gave at paragraph 1 page 2 of Exhibit 3 is an error in (sic) my part.” (Italics mine)

Again under cross-examination, D.W.3 stated:

“Part of the series of the investigation (sic) I conducted was reference to Chronicle of Abuja and personal contact with prominent citizens and individuals who are concersent (sic) with the history of Suleja.”

D.W.4 said in his evidence-in-chief that he was a co-author of Exhibit 10, the Chronicle of Abuja. Under cross-examination he said:-

“Exhibit 10 represents an authentic custom and tradition (sic) of Zagi-Zagi custom of Suleja but not all.

Page 12 of Exhibit 10 is a true version of Zagi-Zagi custom of Suleja. Page 74 of Exhibit 10 is a true version of Zagi-Zagi custom.

…..

What is contained in page 77 of Exhibit 10 is correct.”

Section 59 of the Evidence Act, Cap. 112 of the Laws of the Federation of Nigeria, 1990 provides:-

“59. In deciding questions of native law and custom the opinions of native chiefs or other persons having special knowledge of native law and custom and any book or manuscript recognised by natives as a legal authority are relevant.”

Now on page 74 of Exhibit 10, referred to by D.W.4, the following appears:-

“1. THE CHIEF COUNCILLORS

The Madawaki. He was next in importance to the Emir and was, under him, Commander of the Army to protect the land from the enemies. He was in charge of one half of the town, the part built to the east of the Wuchichiri stream. He advised the Emir upon the appointment or dismissal of the title-holders; he replied to the Emir’s address on Feast Days; he summoned the Chief Councillors and the Turbanned Councillors to their meetings. With the other Chief Councillors he chose the new Emir, but later, if any of these were themselves members of the Ruling Houses then he called upon the Kuyambana and the Chief Malams to help him.

The Galadima. He was always a eunuch, and was left in charge of the town when the Emir and the other chiefs went out to war. He arranged the marriages and naming of the Children of the Ruling Houses.

The Wambai. He was always a eunuch and in addition to his duties as adviser, he took part in the naming of the children. He was also responsible for seeing that the private latrines and urinals of the Emir and his Wives were kept clean.

The Dallatu. When the Emir goes to war, he was responsible for building his quarters in the war camp where, too, he performed all those duties which Galadima performed in the town.” (Italics mine)

These are the kingmakers according to the A Chronicle of Abuja. The Kuyambana and the Chief Malams whose assistance the Madawaki may call upon when the other kingmakers are disqualified have been described on pp. 74 and pp. 76-77 of the A Chronicle of Abuja as testified by D.W.4, as follows:-

“2. THE TURBANED COUNCILLORS

…..

The Kuyambana. He was the Madawaki’s chief adviser in all matters.

7. THE IMAMS

The Liman Juma. He is the Chief Imam. He goes to the house of every ordinary family in the town where a death has occurred in order to say the prayers. He officiates at the service in the Mosque on Fridays. He was sometimes consulted in the choice of a new Emir.

The Salanke. He officiates at the prayer-ground of Idi, and prays at the death bed of all chiefs and title-holders; he was sometimes consulted about the choice of a successor to the Emir.

The Magajin Malam. The representative of the Shehu of Borno. It is he who actually installs the new Emir.

The Magatakarda. The Chief Scribe and private Imam of the Emir’s Household. He opens the Book at the Feast of the Month of Full Bellies.”

In his judgment the learned trial Judge found as follows:-

“Witnesses for both parties agree that Abuja Chronicle, Exhibit 10, is authoritative book on the history of Abuja.

…..

It is glaring from above that the only kingmaker who is not a prince at the time of death of last Emir was the 1st plaintiff. It is also glaring from page 74 lines 17 and 18 and page 76 line 52 and page 77 lines 1 to 8 that Kuyambana and the Chief Mallams are advisers.

In view of the circumstance, I am of the opinion that the only remaining kingmaker, that is P.W.6 can sit with one or more of the Chief Maliams and Kuyambana and select an Emir.” (Italics mine)

With respect, this finding is palpably wrong in view of the statement in the sections of the A Chronicle of Abuja which the learned trial Judge quoted earlier.

It is the Madawaki and not the Galadima that is empowered under the customary law to invite Kuyambana and the Chief Mallams to help him in choosing a new Emir if the three other kingmakers – Galadima, Wambai and Dallatu are disqualified.

The learned trial Judge went on to state further thus:-

“I am reinforced in this opinion of mine by what happened during the selection of late Emir, Alhaji Ibrahim Dodo Musa. According to P.W.4 (sic) who is the only witness called by 7th defendant, those who took part in the selection exercise of the late Emir Alhaji Dodo Musa are:-

(1) Galadima;

(2) Salanke;

(3) Imam; and

(4) Magajin Mallam.

Even though D.W.4 testified that the participation of the Mallams was not regular, I do not believe him in that after late Alhaji Dodo Musa had been duly selected by Galadima and the three mallams in 1979, he was duly installed as the Emir of Suleja and there was no complaint by any body that the exercise was not in accord with the native law and custom of the people.

In view of the foregoing, I hold that the body comprising of Galadima and the three Mallams are (sic) properly constituted for the exercise of selecting a new Emir of Suleja after the death of Alhaji Ibrahim Dodo Musa.”

Again with respect, this finding of the learned trial Judge is erroneous. The custom as stated in the Chronicle of Abuja is clear. It is the Madawaki that has the authority to co-opt the Kuyambana and the Chief Mallams as advisers but not the Galadima. The fact that the Galadima and the Chief Mallams, with Kuyambana excluded, selected the later Emir is a derogation from the custom stated in the A Chronicle of Abuja. There was no credible evidence which established that the Galadima enjoyed or can exercise the same authority as the Madawaki under the customary law of the people of Suleja when the latter is unable to perform his function as a kingmaker. Furthermore, custom, according to the definition in section 2 subsection (1) of the Evidence Act, Cap. 112 of the Law of the Federation of Nigeria, 1990, must be such a rule, which in a particular district or place has, from long usage, obtained the force of a law. It follows that the fact that in 1979 the Galadima together with Salanke, ChiefImam and Magajin Mallam selected the late Alhaji Ibrahim Dodo Musa as the Emir of Suleja is not sufficient to prove that they were qualified under the customary law to select the 4th respondent. Again, before a court can take judicial notice of a custom, as the learned trial Judge did, the circumstances mentioned under section 14 subsection (2) of the Evidence Act. Cap. 112 of the Laws of the Federation of Nigeria 1990 must exist. The subsection provides:-

“(2) A custom may be judicially noticed by the court if it has been acted upon by a court of superior or co-ordinate jurisdiction in the same area to an extent which justifies the court asked to apply it in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration.”

It follows from all the foregoing that the reasons given by the Governor, in his letter Exhibit 9 quoted above, for rejecting the selection of the 4th respondent were legally correct and unassailable.

The Court of Appeal did not avert to this important aspect of the case in upholding the decision of the learned trial Judge to grant all the declarations sought by the plaintiffs.

Statutory Legislation

Section 3 subsection (1) of Chiefs (Appointment and Deposition) Law, Cap. 19 of the Laws of Niger State of Nigeria, 1989 provides:-

“3(1) “3(1) Upon the death, resignation or deposition of any chief or of any head chief other than a chief of a kind referred to in section 4, the Governor may appoint as the successor of such chief or head chief, any person appointed in that behalf by those entitled by customary (sic) so to appoint in accordance with customary law; and if no appointment is made before the expiration of such interval as is usual under customary law, the Governor may himself appoint such person as he may deem fit and proper to carry out such duties incidental to the chieftaincy as it may be necessary to perform.”

Similarly section 4 subsections (1) and (2) of the same Law, Cap. 19 provides:

“4(1) The provisions of section 3 shall not apply to the office of a chief or head chief which –

(a) has not originated from customary law but has been created by legislation or administrative act of a competent authority;

(b) is recognised as such by the Governor;

but the provisions of subsections (2) and (3) of this section shall apply thereto.

(2) Upon the death, resignation or deposition of any chief or head chief of a kind described in subsection (1) the Governor may approve as the successor of such Chief or head chief, as the case may be, any persons appointed in that behalf by those entitled to appoint in accordance with the provisions of any order made by the Governor prescribing the method of appointment of such a chief or head chief; and if no appointment is made before the expiration of any such order the Governor may himself appoint such person as he may deem fit and proper to carry out such duties incidental to the chieftaincy as it may be necessary to perform.”

The preamble to the Appointment and Deposition of Chiefs (Appointment of Emir of Suleja) Order, 1993, NSLN No.2 of 1993 reads:-

“In exercise of the powers conferred by section 4 (2) of the Chiefs (Appointment and Deposition) Law of Niger State and all other powers enabling me in that behalf, I, Dr. Musa Muhammad Inuwa, the Executive Governor of Niger State of Nigeria, make the following order.”

Section 3 thereof provides:-

“3.(1) Upon the death, resignation or deposition of Emir of Suleja the successor of the Emir shall be selected by an Electoral College consisting of the following:-

(a) Galadima Zazzau Suleja

(b) Sarkin Yaki Zazzau Suleja

(c) Tafida Zazzau Suleja

(d) Santali Zazzau Suleja

(e) Salanke

(f) Liman Juma’a and

(g) Magajin Mallam.

(2) The holders of the title of Salanke, Liman Juma’a and Magajin Mallam who are members of the Electoral College shall not be entitled to vote but shall maintain and discharge their traditional functions.”

And Sections 5,6, 7, 8,9, 10 and 11 of the Order read:-

“5. Where any title holder mentioned in Section 3(1) is also a prince or indicates his interest to contest for Emirship of Suleja, such title holder shall cease to be a member of the Electoral College.

6. The Chairman of the Electoral College shall be elected by the members of the Electoral College from among themselves.

7(1) On the death, resignation or deposition of the Emir of Suleja, the Chairman of Suleja Local Government Council shall after one calendar month summon a meeting of the Electoral College.

(2) All members of the Electoral College shall be notified in writing and be given not more than two days notice of the meeting summoned in accordance with subsection (1).

(3) Three members of the Electoral College with voting powers, shall constitute a quorum for any meeting of the Electoral College.

8. A person who is entitled under native law and custom and who is an adult son of royal origin from the Ruling House of Suleja, other than the ruling house of which the last Emir of Suleja is a member, shall be eligible to contest for the Emirship of Suleja.
9. (1) Where there is a meeting of the Electoral College, the members shall nominate not more than five (5) persons from the list of the contestants before them.

(2) If five persons are nominated in accordance within subsection (1), the Chairman of the Electoral College shall conduct an election at which the members of the Electoral College shall vote and three (3) of the candidates for whom the most votes have been cast shall be the person elected by the Electoral College.

10.(1) The Electoral College shall through its Chairman, notify the Governor of the result of the election within three (3) days of the conclusion of the election.

(2) The Governor shall appoint one person as the Emir of Suleja from the list of the candidates submitted to him under subsection (1).

11. A person appointed by the Governor shall be the person chosen as the Emir of Suleja.”

Although the Order was made on 20th September, 1993, Section 1 thereof provides that it “shall come into operation on 16th September, 1993.” In other words the Order had retrospective effect.

During the proceedings in the High Court, reference to Chiefs (Appointment and Deposition) Law (Amendment) Law, 1993 N.S.L.N. No.3 of 1993 was made by learned counsel for the appellant in his address. The learned trial Judge adverted to the address, for he stated thus in his judgment:-

“Mr. Sodangi – counsel to 7th defendant also referred to amended Chief (Appointment and Deposition Law 1993) (sic) but has not produced the law.”

but made no use whatsoever of the law. The point was raised in the Court of Appeal and the law was produced before it by learned counsel for the 2nd to 7th appellants thereat. The law which was contained in Niger State Gazette No.8 Volume 18 of 25th November, 1993 was admitted by the Court of Appeal. In his judgment Mahmud Mohammed, J.C.A. with whom Opene, J.C.A. agreed, remarked as follows:-

“It is quite clear from the 1st, 2nd and 3rd schedules to the said law as published in the Gazette that the date the law was assented to by the Governor is not stated. The name of the Governor who assented to the said law is not there either. More serious perhaps is the absence of the name of the Clerk to the then Niger State House of Assembly in the column provided in the said law certifying that the same had been duly passed by the House of Assembly in accordance with the Constitution.

Therefore on the face of the said law, having regard to the absence of the name of Governor signifying his assent to the Bill to become law and the date of such signification, coupled with the absence of the name of the Clerk to the Niger State House of Assembly certifying that the law was duly passed by the Niger State House of Assembly, the said law published as Legal Notice No.3 of 1993 cannot be regarded as law enacted by the House of Assembly within the meaning of S. 277 (1) OF THE CONSTITUTION. Thus, not being law, the publication cannot confer power on the 2nd appellant to issue the Order Exhibit 7 under which the 1st appellant was appointed.”

In arguing the appeal before us learned counsel for the appellant Mr. Sofola, Senior Advocate of Nigeria, sought leave to adduce additional documentary evidence, to show that the 1993 Law was duly passed by the Niger State House of Assembly and assented to by the then Governor of Niger State. As the documents in his possession were photocopies of the original copies, Chief Ajala, learned Senior Advocate of Nigeria, for the 1st to 4th respondents, raised objection to their being produced by Mr. Sofola. We, therefore, asked the parties concerned including the learned Director of Public Prosecutions for Niger State, Mallam A. Bello, if they had any objection to our issuing summons in the interest of justice to the persons having proper custody of the original documents to produce them. All the counsel for the parties gave their consent. We therefore, issued summons to the Chief Judge and Grand Kadi of Niger State, who by virtue of the provisions of section 10 of the Legislation (Administrative Procedure) Law, Cap. 68 of the Laws of Niger State of Nigeria, 1989, should have in their custody the original copies of the Chiefs (Appointment and Deposition) Law (Amendment) Law, 1993. Section 10 of Cap. 68 provides:

“10. The Clerk to the Legislature shall transmit to the Chief Judge, the Grand Khadi and the Attorney-General of the State to be enrolled in the High Court of Justice, the Sharia Court of Appeal and the Ministry of Justice, respectively, a transcript each, authenticated under the Public Seal of Niger State and by the signature of the Governor of every such Law assented to by the Governor.”

The enrolled copies of the Chiefs (Appointment and Deposition) Law (Amendment) Law, 1993 in the custody of the Chief Judge and Grand Kadi were produced by the Chief Registrars of the High Court and the Sharia Courtof Appeal of Niger State on 3rd October, 1996 and were admitted as Exhibits SC. 1 and SC. 2 respectively. Similarly, the Clerk to the defunct Niger State House of Assembly, Alhaji Ndagi Musa Ladan, produced the original copies of the following documents:-

(1) A Letter by the Attorney-General of Niger State to the Speaker of the House of Assembly of Niger State dated 18th October 1993 submitting 45 copies of a bill proposing an amendment of the Chiefs (Appointment and Deposition) Law.

(2) Order Paper of the Niger State House of Assembly for Friday 22nd October, 1993 which shows that the Bill entitled the Niger State Chiefs (Appointment and Deposition) Law had been listed for Second Reading.

(3) Minutes of Meeting of Committee of the Niger State House of Assembly on Local Government and Chieftaincy Matters held on 21st October, 1993 to consider the Bill for a law to amend the Chiefs (Appointment and Deposition) Law, 1993.

(4) Official Report of the House of Assembly of Niger State of Thursday, 21st October, 1993 whose contents include the Presentation of a Bill Chiefs (Appointment and Deposition) Law (Amendment) Law for First Reading.

(5) Niger State House of Assembly Members Attendance Register of 21st October, 1993 which shows that 25 out of the 38 Members of the House of Assembly of Niger State attended the Meeting of the House on that day.

(6) Official Report of the House of Assembly of Niger State of 22nd October, 1993 whose contents include the presentation of a Bill for a Law to amend the Chiefs (Appointment and Deposition) Law to be considered in Committee of the whole House of Assembly for Second Reading.

(7) Niger State House of Assembly Members Attendance Register of 22nd October, 1993 which shows that 25 out of the 38 members of the House of Assembly of Niger State attended the Meeting of the House on that day.

(8) A letter dated 3rd November, 1993 from the Clerk to House of Assembly of Niger State to the Grand Kadi of Niger State forwarding to the latter a copy of the Chiefs (Appointment and Deposition) Law (Amendment) Law 1993 duly assented to by the Governor of Niger State.

(9) A letter dated 3rd November, 1993 from the Clerk to the House of Assembly of Niger State to the Chief Judge of Niger State forwarding to the latter a copy of the Chiefs (Appointment and Deposition) Law (Amendment) Law, 1993 duly assented to by the Governor of Niger State .

All the documents were admitted as Exhibits SC3, SC4, SC5, SC6, SC7, SC8, SC9, SC10 and SC11 respectively.

Now Sections 2 and 3 of the Chiefs (Appointment and Deposition) Law (Amendment) Law, 1993, (Exhibits SC. 1 and SC. 2) whose commencement date was 22nd October, 1993 provide as follows:-

“2. The Chiefs (Appointment and Deposition) Law (hereinafter referred to as “the principal Law”) is amended by the insertion of the following subsections:

“3(1)(A) Notwithstanding any law or custom to the contrary, where in the opinion of the Governor, a person who is entitled under native law and custom to appoint a Chief or head Chief suffers a disability of a kind that disentitles him under native law and custom to appoint a Chief or Head Chief the Governor may by order

(i) appoint another person to act in place of that person; or

(ii) prescribe the method of appointment of such Chief or head Chief

3. Every act or thing done by the Governor before the commencement of this bill that would have been lawful if section 2 of this bill had been in force at the time when it was done and all acts which are the consequence of that act are hereby validated and declared to have been lawfully done.”

In his judgment Mahmud Mohammed, J.C.A. observed as follows:-

“I wish to observe at this stage that even if the said law had been duly passed in accordance with the Constitution the purported amendment to the then existing provision of the 1963 Chiefs (Appointment and Deposition) Law would still not have been achieved. This is because the wordings of S.2 of the said Amendment Law which is the enacting clause which reads –

“2. The Chiefs (Appointment and Deposition) Law (hereinafter referred to as “The Principal Law”) is amended by the insertion of the following subsections:-

has not in fact amended any section of the 1993 Chiefs (Appointment and Deposition) Law of Niger State. The mere insertions of subsections without specifying the sections under which the subsections were to be inserted had rendered the proposed amendment incomprehensible particularly when it was only one subsection (1) (A) that was inserted while the other two were mere paragraphs and not subsections. Furthermore S.3 of the said Amendment Law has no status in the law as the enacting clause had not introduced it as a new section of the law to be amended. The result of course is obvious. The 1963 Chiefs (Appointment and Deposition) Law of Niger State remained intact and I so declare. In effect what was published as Legal Notice No.3 of 1993 by the Niger State Government Printer in the state Gazette No.3 Volume 18 of 25th November 1993 is not law but a mere piece of document bearing the title of law and the Government Printer himself was fully aware of this fact by refusing to give the document the status of law it does not deserve. The result of this conclusion is of course plain. The purported Chiefs (Appointment and Deposition) (Amendment) Law 1993 not being a Law passed by the Niger State House of Assembly within the meaning of S.277(1) OF THE 1979 CONSTITUTION, could not have conferred any valid power on the 2nd appellant as the executive Governor of Niger State to promulgate the Order Exhibit 7.

Although it was argued by the learned senior counsel for the 1st appellant that having regard to the significance of the phrase “and all other powers enabling so in that behalf”, and the provisions of S.5(2) of the 1979 CONSTITUTION which conferred executive powers on State Governors, the 2nd appellant had executive powers to issue the order Exhibit 7, that view of the learned senior counsel has no support in the Constitution itself. This is because the same S.5(2) of the 1979 CONSTITUTION which vested executive powers in the State Governors with regard to the running of the affairs of their respective States also enjoined them to exercise that power not only in accordance with the Constitution, but also in accordance with the laws duly passed or deemed to have been duly passed by the State House of Assembly.

……

However in the present case, the 2nd appellant in promulgating the Order Exhibit 7 was not dealing with a matter in respect of which the Niger State House of Assembly was yet to make law upon to warrant the exercise of such executive powers to issue executive orders. The Niger State Chiefs (Appointment and Deposition) Law 1963 is by virtue of 5.274 of the 1979 Constitution an existing law deemed to have been passed by the Niger State House of Assembly. While S.4(2) of that law had empowered the Governor to issue the order as the type in Exhibit 7 to determine the method of appointment of Chiefs under the section, S.3(1) of the same law had denied him that power and in that respect it is the provision of the same S.5(2) OF THE 1979 CONSTITUTION that enjoined the Governor to comply with the provision of S.3(1) of the Chiefs (Appointment and Deposition) Law 1963 regarding the appointment of Chiefs under that section until the section is amended. Certainly by issuing the order Exhibit 7 in exercising his executive powers under clear provisions of S.3( 1) of the law which does not empower the issuing of such order, the fact that the order was said to have been issued in exercise of all other powers enabling the 2nd appellant in that behalf would not confer any validity on the order, nor validate any action taken by the 2nd appellant under the order. I would thus resolve the first issue for determination in this appeal in the negative. That is, the learned trial Judge was not in error when he held that the nomination and subsequent approval of the appointment of the 1st appellant as the Emir of Suleja were ultra vires, illegal, null and void, because they were done by virtue of the Appointment and Deposition of Chiefs (Appointment of Emir of Suleja) Order NSLN No.2 of 1993 which itself was illegal, null and void.”

Issue No.1

The question here is whether the Chiefs (Appointment and Deposition) Law (Amendment) Law, 1993, NSLN No.3 of 1993 is illegal, null and void. The Court of Appeal based its decision on the fact that the 1993 Law was not assented to by the Governor of Niger State; the date it was assented to was not clear, the name of the Governor was not stated in the Law nor was the name of the Clerk to the House of Assembly also clear in the certification to the Law. With the admission of Exhibits SCI to SCII as additional evidence all the doubts entertained by the Court of Appeal have been removed. It is very clear from the Exhibits that the proper procedure for passing bills in the House of Assembly of Niger State had been followed and that the Law was assented to by the then Governor of Niger State on 22nd October, 1993. All the learned counsels in the case have conceded that the 1993 Law was properly passed and assented to by the Governor and, therefore, it is a valid Law. Consequently, I will set aside the decision of the Court of Appeal in this respect which upheld the decision of the trial Court that the Law was illegal, null and void.

Issue No.2

This issue is similar to the first issue. It is: Whether the Appointment and Deposition of Chiefs (Appointment of Emir of Suleja) Order, 1993 NSLN No.2 of 1993 was illegal, null and void. In his judgment Mahmud Mohammed, J .C.A. considered the validity of the Order on the hypothesis that the Chiefs (Appointment and Deposition) Law (Amendment) Law, 1993 was valid. He held, as quoted above, that neither the provisions of section 4 (2) nor those of section 3(1) of the Chiefs (Appointment and Deposition) Law, 1963, Cap. 20 of the Laws of Northern Nigeria, 1963 which are the same as sections 4(2) and 3(1) of the Chiefs (Appointment and Deposition) Law, Cap. 19 of the Laws of Niger State, 1989, empowered the Governor of Niger State to make the Order. He observed that although the 1993 Law purported to amend the principal Law it in fact did not do so. To quote his words again:-

“The mere insertions of subsections without specifying the sections under which the subsections were to be inserted had rendered the proposed amendment incomprehensible particularly when it was only one subsection (1) (A) that was inserted while the other two were mere paragraphs and not subsections. Furthermore S.3 of the said Amendment Law has no status in the law as the enacting clause had not introduced it as a new section of the law to be amended. The result of course is obvious. The 1963 Chiefs (Appointment and Deposition) Law remain intact and I so DECLARE …

The purported Chiefs (Appointment and Deposition) Law (Amendment) Law, 1993 not being a Law passed by the Niger State House of Assembly within the meaning of S.277(1) OF THE 1979 CONSTITUTION, could not have conferred any valid power on the 2nd appellant as the Executive Governor of Niger State to promulgate the Order, Exhibit 7 ……. the fact that the Order was said to have been issued in exercise of all other powers enabling the 2nd appellant in that behalf would not confer any validity on the Order, nor validate any action taken by the 2nd appellant under the Order,”

The learned Justice concluded by upholding the decision of the trial court that the Chiefs (Appointment and Deposition) (Appointment of Emir of Suleja) Order, 1993, N.S.L.N. No.2 of 1993 was illegal, null and void.

Mr. Sofola, learned counsel for the appellant contends that the Court of Appeal (per Mahmud Mohammed, J.C.A.) appeared not to appreciate that it was its duty to make sure that the clear intentions of the Legislature, regardless of defect in form, are given effect by Courts. Learned Senior Advocate argued that the provisions of the Order were not ambiguous and the learned Justice did not base his conclusion on ambiguity. He canvassed that the 1993 Law introduced a new subsection 3(1) (A) to the Chiefs (Appointment and Deposition) Law, and in the normal order of things the new subsection follows next to subsection 3(1) of the principal law. Learned Senior Advocate, submitted that he could not see how the addition of a subsection or of a new section to a Law cannot be regarded as an amendment to the law. To hold otherwise would require the straining of language and extraordinary reasoning. He cited in support the provisions of section 53 of the Interpretation Law, Cap. 52 of the Laws of Northern Nigeria, 1963 which are the same as those of section 11 of the Interpretation Law, Cap. 61 of the Laws of Niger Estate, 1989. The section states in part:

“When any law amends or adds to any law, the amending law shall, so far as is consistent with the tenor thereof, and unless the contrary intention appears, be construed as one with the amended law ……..”

He argued further that the intention of the Legislature is very clear and it is to insert a new subsection to the existing law, and to make legal any action taken before the amending law was passed by the Legislature and which otherwise might have been unlawful. He cited, in support of his submission that technicalities should not be allowed to stand in the path of justice, the decisions of this Court in the cases of The State v. Gwonto (1983) SCNLR 142; (1983) 3 SC. 62 at p. 76 per Eso, J.S.C. and Philip Obiora v. Paul Osele, (1989) 1 NWLR (Pt. 97) 279 at p. 302 per Oputa, J.S.C.

Arguing further, learned counsel stated that there was nothing wrong in making a retroactive legislation such as the 1993 Law, in order to validate the Order. He cited the case of Ebiriukwu v. Ohanyereuwa (1959) SCNLR 540; (1959) 4 FSC 212; Carson v. Carson (1964) 1 All E.R. 681 at p. 686 G – H and Dennis Osadebay v. A-G. of Bendel State. (1991) 1 NWLR (Pt. 169) 525 at p. 568 in support of the argument. Mr. Sofola also urged that due regard should be given to the phrase ”all other powers enabling him in that behalf” which is contained in the preamble to the 1993 Order. He submitted that it will not be proper to consider the rightness or otherwise of the exercise by the Governor to make the Order being challenged without due regard to the power contained in the phrase. He referred to the Latin maxim: Omnia praesumuntur ligitime facta donec probetur in contrarium, which means all things are presumed to have been legitimately done, until the contrary is proved; and argued that before the Governor could be held to have acted outside his power, it must be shown that he could not have derived his powers from any other source than the Chiefs (Appointment and Deposition) Law. He equated the position in this case with those in the cases of Re Baker’s Estate (1879) 1 Ch. D 165 and Oguchi Onea & Ors. v. Nweke Agbuchi & Ors. (1970-71) ECSLR 80 where a motion was filed under a wrong Court Rule but was not struck out as it could have been brought under another Rule and so it was heard on its merit; Mr. Sofola referred to the provisions of Section 5 subsection (2) of the 1979 Constitution and submitted that the Governor had the power to make the 1993 Order.

In replying, Chief Ajala, learned Senior Advocate, for the 1st to 4th respondents, submitted that the Court of Appeal was not in error in affirming the decision of the learned trial Judge, that the nomination and subsequent approval of the appointment of the appellant as the Emir of Suleja were ultra vires, illegal, null and void. He argued that the 1993 Order not only violated the native law and custom of the people of Suleja but also violated the express provisions of Section 3(1) of the Chiefs (Appointment and Deposition) Law, Cap. 20 of the Laws of Northern Nigeria 1963. He said that Section 4(1) and (2) of the 1963 Law under which the 1993 Order was made does not apply to the Chieftaincy of Suleja which had been shown to have been based on a specific native law and custom. He cited the case of Kimdey & Ors. v. Military Governor of Gongola State (1988) 2 NWLR (Pt.77) 445; (1988) 1 NSCC 827 to illustrate the point. On the Constitutional power of the Governor, under Section 5(2) of the 1979 Constitution, Chief Ajala submitted that the Governor could not exercise that power in respect of appointment of chiefs since section 3(1) of the Chiefs (Appointment and Deposition) Law had been enacted to take care of the situation. He argued that the 1993 law took effect from the date of its enactment and that since section 1 thereof provides that it came into operation on 22nd October, 1993, the 1993 Order which came into force earlier on 16th September, 1993 cannot be saved or validated by the 1993 Law. He referred to section 4 of the Interpretation Law, Cap. 52 of the Laws of Northern Nigeria, 1963 and the cases of Sharp v. Wakefield (1888) 22 Q.B.D. 239 and Kotoye v. Mrs. Saraki & Anor, (1994) 7 NWLR (Pt. 357) 414 at pp. 458 G – H; 459 A – B and 460 A – B as well as Maxwell on Interpretation of Statutes. 12th Edition, Pp. 251 – 252 in support of his argument. Section 4 of Cap. 52 provides:-

“4. Where any law, or any part of a Law, or any notice, order, regulation, rule of Court, Warrant, Scheme, or letters patent made, granted or issued under a power conferred by any law, or by any competent authority, is expressed to come into operation on a particular day, the same shall be construed as coming into operation immediately on the expiration of the next day preceding such day.”

Section 4 of the Interpretation Law, Cap. 61 of the Laws of Niger State of Nigeria, 1989 contains the same provisions as these.

Arguing further, Chief Ajala, stated that the 1993 Law did not alter the effect of Section 3 subsection (1) of the Chiefs (Appointment and Deposition) Law, Cap. 20 because it merely provided for section 3(1) A to be added to cap. 20. He contended that since Section 3(1) A is in conflict with Section 3(1) of Cap. 20, the former section becomes absurd and therefore both sections 2 and 3 of the 1993 Law are ultra vires and invalid. Learned Senior Advocate contested that as the cause of action in this case arose before the enactment of the 1993 Law, its, provisions are not applicable to the case. He cited in support the case of Adigun v. Ayinde & Ors. (1993) 8 NWLR (Pt.313) 516; (1993) 11 SCNJ 1 at pp. 16, 19,23, and 24.

Finally, Chief Ajala submitted that when the 1993 Order is read together with Section 4 subsection (2) of the Chiefs (Appointment and Deposition) Law, Cap. 20 it would be seen that provision had already been made to meet what section 3 of the 1993 Law had intended. Furthermore section 3 of the 1993 Law has not specifically made reference to the 1993 Order and therefore could not be said to apply to the Order. He cited the cases Iffie & Ors. v. A.G. Bendel State. (1987) 4 NWLR (pt. 67) 972 at p. 990 D-G and Finnih v. Imade. (1992) 1 NWLR (pt. 219) 511 at pp. 537H and 538A.

Now, it is no more in dispute that the Chiefs (Appointment and Deposition) Law (Amendment) Law, 1993, N.S.L.N. No.3 of 1993 was passed by the House of Assembly of Niger State and was given assent by the Governor of Niger State and that the Law came into operation on the 22nd day of October, 1993. The question now is whether the Chiefs Appointment and Deposition (Appointment of Emir of Suleja) Order, 1993, N.S.L.R. No.2 of 1993 is valid.

There is no doubt whatsoever that the 1993 Order was made by the Governor of Niger State on the 20th day of September 1993 and it was intended to have retrospective operation, with effect from 16th September, 1993. These facts are contained in Niger State of Nigeria Gazette No.1 Volume 18 of 20th September, 1993.

By Section 113 of the Evidence Act, Cap. 112 of the Laws of the Federation of Nigeria 1990, the Laws of a State may be proved by the production of the State Gazettes in which the Laws are published. Such Gazettes are prima facie proof of any fact of a public nature which the laws are intended to notify.

What needs to be ascertained is whether the Governor of Niger State had in fact the power to make the Order. If he had the power, the Order would be valid. On the other hand if he did not have the power the Order would be invalid unless of course theres is another legislation which validates the action of the Governor in making the Order.

The preamble to the 1993 Order, which is quoted above, states that the governor was exercising the powers conferred upon him by section 4(2) of the Chiefs (Appointment and Deposition) Law of Niger State, and any other powers enabling him in that behalf, to make the 1993 Order. Section 4 subsection (2) of the Chiefs (Appointment and Deposition) Law, Cap. 19 has been quoted above. It is common ground between the parties that the provisions of section 4 sub-section (2) of Cap. 19 have no application to the Order because the Chieftaincy contemplated under the section is different from the Emirship ofS uleja. It is, therefore, clear from that angle that the Governor had no power under section 4 subsection (2) of Cap. 19 to make the order. It then becomes necessary to examine whether he had the power under any enabling legislation.

It had been argued by Mr. Sofola, for the appellant, that Section 3 subsection (1) of Cap 19 gave the necessary power to the Governor. Chief Ajala, for the 1st to 4th respondents, had argued otherwise. He contended that the Kingmakers of Suleja had met under the Chairmanship of the Galadima and had selected the 4th respondent as the new Emir of Suleja, and therefore the provisions of section 3 (1) are not applicable.

A close examination of section 3(1) will reveal that it does not give any power to the Governor to make any Order. rather it empowers the Governor to appoint as Emir of Suleja, any person appointed by the kingmakers of Suleja if those kingmakers are “entitled by customary (sic) so to appoint in accordance with customary law.” And where no appointment had been made by the kingmakers within a period prescribed by the customary law, the Governor might himself appoint such person as he might deem fit.

Mr. Sofola had fallen back on the provisions of Section 5 sub-section (2) (b) of the Constitution of the Federal Republic of Nigeria, Cap. 62 of the Laws of Nigeria, 1990 which provides:

“(2) Subject to the provisions of this Constitution, the execution powers of a State –

(b) shall extend to the execution and maintenance of this Constitution, all laws made by the House of Assembly of the State and all other matters with respect to which the House of Assembly has for the time being power to make laws.”

With respect, the whole of section 5 of Cap. 62 was suspended in 1984 by the Constitution (Suspension and Modification) Decree, No.1 of 1984 and so the Governor of Niger State could not have exercised any power under the Section. However, a similar provision is contained in section 48 subsection (1) (b) of the State Government (Basic Constitutional and Transitional Provisions) Decree No. 50 of 1991, which was applicable and it provides:-

“48-(1) Subject to the provisions of this Decree, the executive powers of a state

(b) shall extend to the execution and maintenance of this Decree, all laws made by the House of Assembly of that State and to all matters with respect to which the House of Assembly has for the time being power to make laws; but such executive powers shall be exercised as not to impede or prejudice the exercise of the executive powers of the Federation or endanger the continuance of a Federal system of government in Nigeria.”

Although the provisions empowered the Governor to execute and maintain “all matters with respect to which the House of Assembly has for the time being power to make laws,” those provisions, if read together with those of Section 31 subsections (1) and (2) of the State (Basic Constitutional and Transitional Provisions) Decree No. 50 of 1991, cannot be construed to have given the Governor of Niger State the enabling power to make the 1993 Order. Section 31 sub-sections (1) and (2) provided:

“31(1) The Legislative powers of a State of the Federation shall be vested in the House of Assembly of the State.

(2) The House of Assembly of a State shall have power to make laws for the peace Order and good government of the State or any part thereof with respect to the following matters, that is –

(a) any matter not included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1979, as amended;

(b) any matter included in the Concurrent Legislative List set out in Schedule 1 to this Decree to the extent prescribed therein; and

(c) any matter with respect to which it is empowered to make laws in accordance with the provisions of this Decree.”

The question that follows is: what other law conferred on the Governor the power to make the 1993 Order It remains to examine the provisions of Chiefs (Appoinunent and Deposition) Law (Amendment) Law, 1993 NSLN No.3 of 1993; but before doing so it is necessary to advert to the relevant principles of interpretation.

It is a cardinal rule of the construction of statutes that statutes should be construed according to the intention expressed in the statutes themselves. If the words of the statutes are themselves precise and unambiguous, then, no more is necessary than to expound the words in their natural and ordinary sense. The words of the statutes do alone, in such a case, best declare the intention of the lawmaker – See Ahmad v. Kassim (1958) SCNLR 58; (1958) 1 NSCC II; Capper v. Baldwin (1965) 2Q.B. 53 at p. 61; Cargo ex Argos, (1873) L.R. 5 P.C.134 at p. 153. In the case of Barnes v. Jarvis. (1953) 1 W.L.R. 649. Lord Goddard CJ. stated that a certain amount of common sense must be applied in construing statutes and the object of the statute has to be considered.

With regard to the retrospective nature of statutes, the Legislature is competent to make retrospective legislation – See Smith v. Callander, (1901) A.C. 297 at p. 305. The retrospective nature of a statute may concern the whole provisions of the Statute, as where the commencement date so indicates; or may concern only a section of the statute – see Lauri v. Renad. (1892) 3 Ch. 402 at p. 421; Pardo v. Bingham, (1868 -69) 4 L.R.Ch. App. 735 at p. 739 and West v. Gwynne (1911) 2 Ch. 1. Where a statute is passed for the purpose of supplying an obvious omission in a former statute, the subsequent statute has relation back to the time when the prior Act was passed – see p. 395 of Craies on Statute Law. 7th Edition. Where a statute is in its nature declaratory, the presumption against construing it retrospectively is inapplicable – See A – G v. Theobald. (1890) 24 Q.B.D. 557. If by necessary implication from the language employed that the legislature intended a particular section to have a retrospective operation, the courts will give it such an operation- Lane v. Lane (1896) P. 133.

Now, the heading to N.S.L.N. No.3 of 1993 reads: “LAW TO PROVIDE FOR THE AMENDMENT OF THE CHIEFS (APPOINTMENT AND DEPOSITION) LAW CAP. 20 LAWS OF NIGER STATE. Immediately after section 3 of the 1993 Law, the objectives and reasons for enacting the 1993 law are stated: They are as follows:

“The purpose of this law is to amend the Chiefs (Appointment and Deposition) Law, Cap. 20 Laws of Niger State in Order to vest power on the Executive Governor of Niger State to prescribe the method by which a Chief or head chief may be appointed where those entitled under native law and custom or having regard to the principles of Natural Justice, Equity and good conscience, they are unable to discharge their functions.”

It is clear from the foregoing that the object of passing the 1993 Law was to enable the Governor or Niger State to have powers which he did not previously have with regard to the method of appointing chiefs. It is settled that where the main object and intention of a statute are clear it must not be reduced to a nullity by the draftsman’s unskillfulness. Beside, it has always been accepted that a statute should be so construed as to achieve the object it was intended to serve- See Cramas Properties Ltd. v. Connaught Fur Trimmings Ltd. (1965) 1 WLR 892; Nokes v. Doncaster Amalgamated Collieries Ltd . (1940) A.C. 1014; Nafiu Rabiu v. Kano State, (1980) 8 – 11 SC. 130; (1982) 2 NCLR 117 and F.C.S.C v. Laoye (1989) 2 NWLR (Pt. 106) 652 at p. 686 C – F.

The opening provisions of Section 2 of the 1993 Law states:

“The Chiefs (Appointment and Deposition) Law, (herein after referred to as “the principal Law”) is amended by the insertion of the following subsection.”

Although the section does not state the year of enactment of Chiefs (Appointment and Deposition) Law, there can be no doubt from both the heading of the Law and the objectives and the reasons for the 1993 Law that the Law concerned is Cap. 20 of the Laws of Northern Nigeria 1963 applicable to Niger State which is the same as Cap. 19 of the Laws of Niger State, 1989.

There is no doubt that the opening provisions are inelegantly drafted. If Section 3(1) (A) is to be inserted, it is not stated under which section of the principal law. But since there is Section 3(1) in the principal law, I think it is a matter of common sense that the new section 3(1)(A) is meant to come under Section 3 of the principal law by following Section 3(1) of the principal law. In other words section 3(1)(A) is meant to be subsection (1)A of Section 3 of the principal law. By virtue of Section 3 subsection (1)A (ii) of the principal law, as amended, the Governor was empowered to prescribe a method of appointment of the Emir of Suleja. Does the word “prescribe” “In section 3 subsection (1)A of the Chiefs (Appointment and Deposition) Law, Cap. 19, as amended, give the Governor the power to enact any subsidiary legislation concerning such method of appointment The word bears in its ordinary natural meaning contained in the Concise Oxford English Dictionary, 7th Edition as being: “To lay down or impose authoritatively” and in the Shorter Oxford English Dictionary, as being: “To lay down as a rule or direction to be followed,” Webster New Twentieth Century Dictionary, 2nd Edition describes the word as: “To set down or give rules, directions etc.” Blacks Law Dictionary, 5th Edition defines the word as follows: “To lay down authoritatively as a guide, direction or rule, to impose as peremptory order; to dictate, to point, to direct, to give direction or rule of action, to give law.”

Section 31 of the Interpretation Law, Cap. 61 of the Laws of Niger State, 1989 provides:-

“31. Where in any law power is given to any person to do or enforce the doing of any act or thing all such powers shall be understood to be also given as are reasonably necessary to enable the person to do or enforce the doing of the act or thing.”

It seems to me both from the meaning of the word “prescribe” and the intendment of Section 31 of the Interpretation Law, that the Governor of Niger State had the power to make the 1993 Order and I so hold.

Section 3 of the 1993 Law provides:-

“3. Every Act or thing done by the Governor before the commencement of this law that would have been lawful if Section 2 of this law had been in force at the time when it was done and all acts which are the consequence of that are hereby validated and declared to have been lawfully done.”

Now what this section intended to validate is anything that the Governor did before the 22nd October, 1993 which would have been lawful if Section 3 subsection (1) A (ii) of the principal law, as amended, had been in force. The new subsection as already held, did give the Governor the power to make subsidiary legislation with regard to the method of appointing any Chief including the Emir of Suleja.

I am also aware of Section 27 of the Interpretation Law, Cap. 61 of the Laws of Niger State, 1989 which provides:

“27. The production of a copy of the Gazette containing any order, regulation, rule of court, proclamation, Government or public notice, or State notice or State public notice or of any copy of any order, regulation, rule of court, proclamation, Government or public notice or State notice or State public notice purporting to be printed by the Government Printer shall be prima facie evidence, in all courts and for all purposes whatsoever, of due making and tenor of such order, regulation, rule of court, proclamation, Government or public notice, or State notice or State public notice.”

The fact that the 1993 Order had been produced and had been printed by the Government Printer of Niger State since it is contained in Niger State Gazette No. 2 Volume 18 of 20th September, 1993 is by virtue of Section 27 of the Interpretation Law, Cap. 61, prima facie evidence that it was duly made. The word “duly” according to the Concise Oxford English Dictionary means “rightly, properly made.”

The evidence being prima facie is, therefore, rebuttable. The question then is: has the 1993 Order been shown to have been unduly or improperly made The answer is in the negative. I, therefore, hold that the 1993 Order was properly made

Issue No.3

The question here is whether the Court of Appeal was in error for not dismissing the claims brought by the 1st to 4th respondents in the High Court against the appellant. This issue was formulated on the premise that Mahmud Mohammed, J.C.A., with whom Opene. J.C.A. agreed, held as follows:-

“…..the appeal as it affects the judgment and findings of the learned trial Judge that the nomination and subsequent approval of the appointment of the 1st appellant, Alhaji Awwal Ibrahim as the Emir of Suleja were ultra vires, illegal, null and void, because they were done by virtue of the Appointment and Deposition of Chiefs (Appointment of Emir of Suleja) Order N.S.L.N. No.2 of 1993 which in itself was illegal, null and void, shall be and is hereby dismissed.”

Learned Senior Advocate, for the appellant, based his argument on the proposition that if this Court holds that the 1993 law, was a valid and subsisting law and that the 1993 Order was validly made; then, all the claims by the 1st to 4th respondents before the trial Court against the appellant had failed and should have been dismissed. It is obvious that the submission has force. I have already held, while considering issue No.2 above, that the 1993 Order was validly made by the Governor who had the authority to make subsidiary legislation under the Chiefs (Appointment and Deposition) Law, Cap. 19 as amended by the 1993 Law. The Court of Appeal was, therefore, in error when it failed to dismiss the appellant’s appeal and it also refused to set aside the decision of the learned trial Judge.

Conclusion

In the light of the foregoing, the appeal before us succeeds. I hold that the selection of the 4th respondent by the purported kingmakers for appointment as Emir of Suleja was wrongfully done since the kingmakers were not properly constituted in accordance with the native law and custom of the people of Suleja as contained in the Chronicle of Abuja (Exhibit 10). I hold that the Chiefs (Appointment and Deposition) Law (Amendment) Law, 1993, N.S.L.N. No.3 of 1993 was properly enacted, having been passed by the House of Assembly of Niger State and assented to by the Governor of Niger State. I also hold that the lower courts were wrong in declaring the Appointment and Deposition of Chiefs (Appointment of the Emir of Suleja) Order, 1993, N.S.L.N. No.2 of 1993 illegal, null and void.

In the case of Egbunike v. Muonweokwu (1962) 1 All NLR 46 Taylor, FJ. held as follows on p. 51.

“A declaratory judgment is discretionary. It is a form of judgment which should be granted only in circumstances in which the Court is of opinion that the party seeking it is, when all the facts are taken into account, fully entitled to the exercise of the Court’s discretion in his favour.”

In the circumstances of this case no declaration can be granted. I hereby allow the appeal and set aside the decisions of the High Court and the Court of Appeal. I disallow, in their entirety, the declarations sought by the 1st to 4th respondents. The appellant is hereby awarded N1,000.00 costs against the 1st, 2nd, 3rd and 4th respondents, jointly and severally.

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SC.74/1995