Achegbulu Aku V. Inalegwu Anyebe & Ors (1994)

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RABIU DANLAMI MUHAMMAD, J.C.A. 

The respondents herein were the plaintiffs at the court below. The appellant was one of the four defendants sued by the respondents in the High Court of Benue State holden at Ankpa. The respondents for themselves and on behalf of the members of the Adoga Ruling House were claiming for the following:-

“(i) A declaration by the court that by Icheke Custom only the Adoga Ruling family of Icheke Clan can, to the exclusion of any other ruling family, present the candidate to fill the vacant stool of Gago (village head) in succession to Yusufu Akuh and in particular that the Itodo Ruling family are not yet eligible by the strict order of rotation, to present, select or offer a candidate (including 1st defendant) to fill the vacant stool of Icheke Clan Head in succession to Yusufu Akuh.

(ia) A declaration that the 1st plaintiff is the only person appointed and or selected for the vacant stool of Gago (Icheke Village Head) and qualified to be so recognised as successor to Yusufu Akuh.

(ii) A declaration that the Government of Benue State, its agencies, parastatals or functionaries are not legally or constitutionally competent to participate in the selection, approval and/or recognition of the Gago (village head) the Gago being an office in the traditional religion of Icheke Clan.

(iii) An order restraining the 1st defendant from parading himself about as candidate for Icheke or pretending in any manner to be Gago (Icheke village head) or entitle to be one.

(iv) An order restraining the 2nd, 3rd and 4th defendants from recognising, regarding or holding out the 1st defendant as a candidate or person selected for the vacant stool of Icheke Village Head (Gago).

(v) An order restraining the defendants from interfering or attempting to interfere in any manner whatsoever customary process.”

Pleadings were ordered filed and exchanged. At the hearing of the matter, the respondents, who were the plaintiffs at the lower court, called five witnesses. The defendants at the lower court, the appellant inclusive, called 7 witnesses. According to the respondents, there are three ruling houses in Acheke Village namely, Itodo, Adoga and Oganaji Ruling houses. However only the Itodo and Adoga Ruling Houses are eligible to produce candidates to fill the vacant stool of Icheke village known as Gago. It was contended that production of a Gago was on strict rotation between the Itodo and Adoga Ruling Houses. Yusufu Aku was the last Gago and he came from the Itodo Ruling House. It is the contention of the respondents that since the ascension to the stool of Gago is strictly rotational, it was the time of the Adoga family to produce a candidate to fill the vacant stool of Gago. They maintained that the appellant who is a member of Itodo family is not qualified to become the Gago because he comes from the same family as the last Gago.

On the other hand, the appellant contended that there were four ruling houses that produced the Gago of Icheke. These were Itodo, Adoga, Oganaji and Odoma Ruling Houses. After the death of the last Gago, it became the turn of the Odoma Ruling House to produce the next Gago. The appellant stated that he belonged to the Odoma Ruling House and as such his appointment as the Gago of Icheke was right.

In his judgment, the learned trial Judge, Ejembi Eko J., after reviewing the evidence adduced by both parties and the submissions of the counsel identified the issue before him as “whether the Gago is a Chief so called”. He then proceeded and considered Ss. 67 and 68 of the Local Government Law, 1976 and made some specific findings. He then continued:-

“I have held that the Gago did not originate from native law and custom of Icheke but rather an office in the Local Government and therefore statutory. I have also held that the Gago of Icheke existed before 1976. The plaintiffs gave evidence that it existed by 1964, under the defunct Igala Native Authority. If that was the case then in my judgment the Icheke Gago Area or village area was in administrative sub-area created or deemed to have been created by or under Cap. 77 particularly section 55 thereof. And the Gago village head was a sub-area head within the definition of sub-area head under section 2 of Cap.77.”

The trial Judge then considered S.55 of Cap. 77, of the Local Government Law, 1976 and concluded:-

“A subordinate area authority by section 2 of the Local Government Law, 1976 means and includes any town, district, village or other area authority. The cumulative effect of section 2; 191 and 192 of the Local Government Law, 1976 is that all subordinate area authorities constituted by or under Cap. 77 (particularly S.55 thereof) including district, village, town or Gago areas are now extinct. The offices of the district head, village head (Gago) etc constituted by or render the repealed Cap. 77 have been abrogated. They are therefore neither available to be contested into nor disputed unless revived by law. I know of no law reviving these extinct offices.”