Alhaji Lawan Bukar V. Kaka Ali & Ors (1997)
LawGlobal-Hub Lead Judgment Report
OGUNTADE, J.C.A.
The appellant was the plaintiff at the Monguno High Court of Borno State where he brought a suit against the respondents (as defendants) claiming the following reliefs:
“(a) A declaration that the purported appointment and installation of the first defendant as the Lawan of Yawa Kura on or about the 6th September, 1990 by the 2nd and 3rd defendant(s) was done in violation of the plaintiff’s right to fair hearing under Section 33(1) of the 1979 Constitution as amended and is therefore null and void and of no effect whatsoever.
ALTERNATIVELY
(b) A declaration that the purported appointment and installation of the first defendant as the Lawan of Yawa Kura on or about the 6th of September, 1990 by the second and third defendants (sic) irregular; contrary to both statute as well as the Native law and custom of the people of Yawa Kura and therefore null and void.
(c) An order setting aside the purported appointment of the first defendant as the Lawan of Yawa Kuru.
(d) An order directing the 2nd and 3rd defendants to organize an election between the plaintiff, the first defendant and Maina Abubakar to enable the eleven Bulamas of Yawa Kura amongst whom are:- Bulama Alhaji Kuliyu Kyari Kakari, Bulama Dala Kagu, Bulama Sherif, Bulama Kau, Bulama Aodam, Bulama Abba Kaka Bulagana Kura, Bulama Medi, Bulama Amardia, Bulama Audu Abadam elect between the contestants who should be the Lawan of Yawa Kura.”
The parties filed and exchanged pleadings after which the case was heard by Mshelia J. On 6/1/94, the trial Judge delivered his judgment wherein the plaintiff’s claims were dismissed. The plaintiff was aggrieved by the dismissal of his suit. He has brought this appeal on two grounds of appeal which read:
“1. The judgment is against the weight of evidence.
- The learned trial Judge erred in law in relying on the English case of Russel v. Norfork (1949) 1 All E.R. 109, 118 in coming to the decision that there had not been an infringement in effect of section 33(1) of the 1979 constitution as amended in the appointment and installation of the 1st respondent as the Lawan of Yawa Kura by the 2nd and 3rd respondents and this error occasioned miscarriage of justice
PARTICULARS OF ERROR
(a) The principle of Natural justice as enunciated by English law, particularly, in the case under reference, is not in pari materia with section 33(1) of the Nigerian Constitution of 1979 as amended.
(b) The learned trial Judge made no reference whatever to the constituents of section 33(1) of our 1979 Constitution in the judgment, let alone discuss and apply its import vis-vis the facts of the case before the court.”
In the appellant’s brief filed before this court in accordance with the Rules of this court, the appellant identified only one issue as arising for determination thus:
“Whether there was a violation of the appellant’s Constitutional rights as guaranteed by section 33(1) and 2(a) of the 1979 Constitution as amended.”
The 1st respondent in his brief formulated the issue for determination thus:
“Whether the appellant has the right to be:
- considered
- Appointed and
- Installed as the village head (Lawan of Yawa Kura)”
The 2nd and 3rd respondents filed a joint brief of argument wherein they adopted the issue for determination as formulated by the appellant.
Before a consideration of the issues for determination i shall briefly expose the facts leading to the dispute as put across by the parties in their respective pleadings.
The plaintiff pleaded that he has a right to be selected as the village head of Yawa Kura being himself a descendant of Shettima Kwale who was the founder of the stool and its first occupant. The last village head died on 19/3/90. Succession to the stool had to be in accordance with native law and custom. Under the said applicable native law and custom, when the stool is vacant, any person interested in being made the village head would signify his interest to the Bulamas and enlist their support. If there is no other contestant, the single candidate will be approved by the Bulamas. If however, there are more than one candidate, the Bulamas through an election will appoint the candidate with the highest vote by simple majority. The candidate approved under either method is then presented to the Borno Emirate Council and the Mobbar Local Government for ratification and installation.
At the death of the last village head, the plaintiff signified his interest in the office. The District head of Kaka Ali Yerima who acted on behalf of the 2nd and 3rd respondents was informed by the Bulamas of the interest of the plaintiff and two other persons of whom one was the 1st respondent in the succession. The plaintiff awaited the holding of an election in accordance with Native Law and Custom, but on 6/9/90, the 2nd and 3rd respondents on their own appointed and installed the 1st respondent. The Bulamas did not conduct any election as they should under Native Law and Custom. The plaintiff therefore brought his suit claiming as earlier stated.
The first defendant in his Amended Statement of Defence pleaded that appointment to the post of village head of Yawa Kura is governed by the provisions of the Local Government Edict, 1976 as amended and not by Native Law and Custom.
The second and third defendants pleaded that the appointment of the village head of Kura is governed by Section 75(m) of the Local Government Edict, 1976 (as amended) and that the procedure is that where there are more than one candidate, the names are forwarded to the 2nd defendant. The names are sent with information on the order of preference of the candidates. The 2nd defendant then appoints one of the recommended candidates.
The plaintiff filed a reply to the 2nd and 3rd defendants’ statement of defence. In the reply, the plaintiff contended that even if it was true that the succession was governed by the Local Government Edict 1976, the 2nd and 3rd defendants had not followed the procedure specified in the Edict in that no meeting of the 2nd defendant was convened for the purpose of filling the vacant stool. The plaintiff similarly filed a reply to the statement of Defence by the 1st defendant. It is not however necessary that I discuss the issues raised therein. It suffices to say that the plaintiff pleaded that the proper procedure laid down by the Edict was not followed and that the 2nd and 3rd defendants did not afford him the opportunity of a hearing before the appointment was made.
I shall now discuss the solitary issue for determination. Was there a violation of the plaintiff’s right to fair hearing as enshrined in Section 33(1) and (2) (a) of the 1979 Constitution as amended. The provision reads:
“33(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunals established by law and constituted in such manner as to secure its independence and impartiality.
(2) Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions in the administration ofa law that affects or may affect the civil rights and obligations of any person if such law –
(a) provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person.”
The case which the plaintiff made on his pleadings was that there was no election for the village headship by the Bulamas. According to the plaintiff, this was contrary to the native law and custom which governed the appointment. In accordance with the case which he made on the pleadings, the plaintiff testified thus:
“After the death of a village head, whoever has the right to the post would submit his name. The District Head would invite the Bulamas (Ward heads) of the village. The Bulamas or ward heads would conduct an election to choose candidate among the contestants. Whoever gets the highest votes cast his name would be submitted to the 2nd and 3rd defendants for ratification. If the contestant is one, there would be no election. The person who gets the highest votes would be given letter by Mobbar Local Government and Borno Emirate Council.
We were three in number that contested for the post. Myself, one Bukar Kellumi and Kaka Ali contested for the post of village head. Our names were submitted to the District head of Damasak one Kaka Ali Yerima. Our names were taken to Yawa Kura. District, head came by himself. District Head invited the ward heads. We submitted our names to District head in presence of Ward heads. The District head went away with our names, that he would arrange as to how the ward heads would conduct the election. We waited for him but he did not come back. All we heard later was that 1st defendant was appointed village head. That happened on 6th September. On the date of appointment Kaka Ali 1st defendant and his group slaughtered an animal. It is our custom for a Lawan who is appointed to slaughter an animal. They fired gun and were celebrating. No election was conducted. I then rushed to my counsel. My counsel sent letters to 2nd and 3rd defendants to take action. I gave one of the letters to the Chairman Mobbar Local Government and on to Borno Emirate Council.”
Clearly, the plaintiff did not testify that there was any hearing at which he was unfairly treated. The circumstances as given in evidence certainly did not call into play the provisions of Section 33 of the 1979 Constitution of the Federal Republic of Nigeria.
The case of the defendant was that the appointment was made in accordance with the Local Government Edict, 1976 and not Native Law and Custom. The lower Court in its judgment found at page 45 thus:
“It is therefore clear from the evidence adduced that 1st defendant was not appointed according to the native law and custom of Yawa Kura. Instead his appointment was made in accordance with the new procedure provided under the Local Government Edict 1976 as amended by Edict No.2 of 1987 the power to appoint village Head is vested in the Emirate/Traditional Council. Section 5 of the Local Government (Amendment) Edict, 1987 provides:
“5. Section 75 of the principal law is hereby amended in the following respects:
(a) by deleting paragraph (m) thereof and the substitution therefore of the following (m) “appointments of village heads.”
“I have observed that the above quoted provision did not prescribe any procedure or method for appointing village heads. I am therefore of the view that since the said Local Government Edict has given the Borno emirate Council absolute power to appoint a village head in Yawa Kura, the traditional procedure of appointing such village head has now given way to such statutory power vested in the Borno Emirate Council, to hold otherwise will mean that the statutory power with conflict with the tradition and custom of the people of Yawa Kura.
The case of Kimdey v. Military Governor Gongola State (1988) 2 NWLR (Pt. 77) page 445 at 461 cited by 1st defendant’s counsel is relevant on this issue, It was held by the Supreme Court among other things that it is elementary and fundamental principle of our law that an existing native law and custom may be altered or entirely abrogated by a valid legislation in conflict with it. It is apparent that under the new dispensation, village heads are appointed and not elected.”
The case of KIMDEY V MILITARY GOVERNOR, GONGOLA STATE (supra) referred to by the lower court in the passage from the lower court’s judgment reproduced above is indeed apposite. It was not the argument of the appellant that the Borno State Government had no power to have made the 1976 Edict: or that the Edict is inconsistent with the 1979 Constitution of Nigeria. The appellant has also not contended that the Edict directs a hearing and that he was not heard. Neither has he argued that the other contestants were given a hearing whilst he was not heard. It was therefore difficult to see how the Constitutional right of the plaintiff to fair hearing could have been infringed in the circumstances.
It seems to me that the lower court was correct in its conclusion. The relevant Edict of Borno state vests the Emirate Council with power to appoint village heads. The Edict did not direct that any hearing should be granted to persons under consideration for appointment as a village Head. The plaintiff clearly did not have any right to insist on any hearing.
This appeal is without merit. It is dismissed with N1,500.00 costs to the respondents.
Other Citations: (1997)LCN/0343(CA)
