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:-