J. Omerigwe Attah v. The Elders of Osiroko and Efofu clans in Agila District (1976)

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BELLO, J.S.C. 

The facts of the case, as found by the trial judge, were not in dispute. The Appellant was appointed as the District Head of Agila in the Oturkpo Division of the Benue-Plateau State by the Oturkpo Local Authority. The appointment was opposed by his people on the ground that he was not selected for the appointment by the traditional “Kingmakers” of the Disctrict. They had not selected him because he has some deformity in his leg which disqualified him under native law and custom for being suitable as a candidate.

The Respondents, who claim to be the elders of the ruling houses in the District, instituted this suit against the Appellant in the High Court, Makurdi, seeking an order of declaration that the appointment was contrary to native law and custom and an injunction restraining the Appellant from acting or otherwise holding himself out as the District Head of Agila and from performing the sacred duties and rites of the office.

The Appellant’s defence in the trial court was that the office to which he was appointed is an office of a chief within the meeting of the Chiefs (Appointment and Deposition) Law, 1963 Northern Nigeria Laws, Cap 20; and that by virtue of section 11 of the Law the court has no jurisdiction to entertain the suit. Adewuyi J. ruled against the contention of the Appellant and held that he has jurisdiction to entertain the suit. Upon the facts he found that the office of the District Head of Agila is not a mere dignity as by virtue of the office the holder is a tax collector; that the Appellant was not appointed in accordance with the native law and custom of Agila and granted the relief sought by the Respondents, which are:

“(a) A declaration that the appointment of the defendant as the District Head of Agila is contrary to the Native Law and Custom of Agila and null and void.

(b) An injunction from acting as or otherwise holding himself out as the District Head of Agila.

(c) An injunction restraining the defendant and /or his agents from performing the sacred duties and rites of the sacred office of the District Head of Agila.”

The only ground of appeal of any substance argued at the hearing of the appeal relates to the issue of jurisdiction. The counsel for the Appellant reiterated his contention in the court below that, as the District Heal of Agila, the Appellant is a chief within the meaning of the Chiefs (Appointment and Deposition) Law of the state and the court below has no jurisdiction to entertain the suit by virtue of section 11 of the Law.

Now the ouster of jurisdiction of a court under the provisions of section 11 of the Law relates, inter alia, to any dispute over the selection or appointment of a chief. Section 2(2) of the Law defines a Chief thus:

“2(2) For the purpose of sections 3 and 5 of this Law the words “chief” and “Head Chief” mean a chief or a head chief who has been appointed to the office of native authority under the provisions of the Native Authority Law or which office is deemed to be constituted thereunder or who is a member of a native authority constituted or deemed to be constituted under the provisions of the Ordinance or Law, or, where the office of native authority so appointed or deemed to be constituted, is a chief associated with a council, any chief or head chief who is a member of that council and any chief or head chief who is a member of an advisory council. (5 of Cap. 12 (1948))”

There is no evidence that Agila District has been constituted as the office of Local Authority under section 3 of the Local Authority Law of the State and there is no evidence that the Military Governor of the State has appointed the Appellant to any office of local authority within the provisions of section 6 of the Law. We agree with the view of the learned trial judge that the Appellant is not a chief within the ambit of the Chiefs (Appointment and Deposition) Law and his jurisdiction to entertain the suit was not ousted by section 11 of the Law.

It appears the learned trial judge did not appreciate the source of his jurisdiction to entertain the suit. He did not also avert his mind to the relevant Law which confers power on the Oturkpo Local Authority to make the appointment and the relevant Laws which prescribe the duties of a district head. We have full sympathy for the learned judge. The case was conducted before him in an atmosphere of confusion as to the Laws applicable and the learned counsel did not assist him at all in this regard. They assumed that a district head is an office constituted under native law and custom. The learned counsel did not improve their performance at the hearing of the appeal before us.

Now the jurisdiction of the court under the common law to inquire by what authority a person, who claims or usurps an office under the Crown, has right to hold the office is invoked by information in the nature of a writ of Quo Warranto. However, the jurisdiction of the court below

on this matter is now statutory. Section 25 of the High Court Law of the Benue-Plateau State provides:-

“25.(1) Information in the nature of quo warranto are hereby abolished.

(2) In any case where any person acts in an office in which he is not entitled to act and an information in the nature of quo warranto would immediately before the commencement of this Law have laid against him, the High Court may grant an injunction restraining him from so acting and may (if the case so requires) declare the office to be vacant.

(3) No proceedings for an injunction under this section shall be taken by a person who would not immediately before the commencement of this Law have been entitled to apply for an information in the nature of quo warranto to the former Supreme Court.

(4) Proceedings under this section shall be deemed to be civil proceedings whether for purposes of appeal or otherwise.”

It is clear from the provisions of sub-section (2) the court may only grant an injunction where an information in the nature of quo warranto would have laid. It follows therefore that section 25 only abolished the forms of the writ of quo warranto but the principles of law governing the granting or refusing the writ are incorporated in the section and are applicable to granting or refusing an injunction thereunder. In exercising its jurisdiction under section 25, the court has to acquaint itself with the principles of substantive law regulating information in the nature of quo warranto.

We now turn to the Native Authority Law, Cap 77, Laws of Northern Nigeria, 1963 as amended by the Native Authority Law (Amendment) Edict, 1969 by the Benue-Plateau State which is the relevant law conferring power on the Oturkpo Local Authority to appoint a district head, Sections 35(1) and 55 of the Law provide:

“S/35(1)Subject to the provisions of subsection (2) a local authority shall appoint a secretary to (sic) a clerk to its council and may appoint such other officers and employ such other persons as it shall consider necessary for the efficient discharge of the functions of the local authority, and may, subject as aforesaid, dismiss any person so appointed or employed.”

S.55(1)For the purposes of this Law a local authority may –

(a) with the approval of the Minister, divided the area under its jurisdiction or any part of that area into districts, village areas, wards, or such other administrative sub-areas as it may consider expedient; and

(b) subject to the provisions of subsection (2) of section 35, appoint a person to be head of any district, village area, ward or the administrative sub-area.

(2) Any such division or appointment which is in force on the date upon which this Laws comes into operation shall be deemed to have been made under the provisions of this Law.”

To summarise the provisions of the two sections, a person appointed as a district head by a Local Authority is a servant of the Local Authority whose office is held at the pleasure of his employer.

The main duties of a district head are also statutory. As a “sub-area head” within the definition of section 1 of the Criminal Procedure Code of the State, he is responsible for the maintenance of law and order within his district by virtue of sections 115 and 116 of the Code. He is also responsible for tax collection under the Personal Income Tax Law of the State and such other duties as may be assigned to him by the appointing Local Authority. If he has any traditional duties such as performing rites under native law and custom, they are subsidiary to his statutory duties.

We now proceed to consider whether an information in the nature of quo warranto would have lain against a servant of a Local Authority whose office is only held at the pleasure of Local Authority. It has long been held in numerous cases that the writ would not lie against such servants:

See Short and Mellor, the Practice of the Crown Office, 2nd Edition page 174. In Okupa v. Iperu (1937) 3 W.A.C.A. 131 the West African Court of Appeal held that the writ of quo warranto would not lie against the holder of a mere office of dignity under native law and custom and the holder was not appointed by a native authority under the repealed Native Authority Ordinance, 1933.

We think the trial judge erred in granting the relief sought. Having found that the Appellant was appointed by the Oturkpo Local Authority as a District Head, he had no alternative but to refuse all the reliefs sought upon the correct application of the proper law governing the case. An injunction should not be granted against a district head employed by a Local Authority under the Local Authority Law of the Benue-Plateau State restraining him from performing the duties of his office.

We accordingly allow the appeal and set aside the decision and orders made by the court below granting declaration and injunctions. We also set aside the order as to costs granted against the Appellant. The Appellant is entitled to the cost in the court below, which we assess at N125.70 and the cost in this Court assessed at N100.

SC.157/75