Akaayar Gemanam V. Tarkaa Nyoughur & Ors (1997)

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EDOZIE, J.C.A. 

This appeal arose from the rival claims of the appellant and the 1st respondent to the office of the head of Mbaawa District which was newly created from the Mbagwa District in Ushongo Local Government Area of Benue State. The new Mbaawa District aforesaid has two constituent kindred of Mbakombol and Mbangwa. The former Mbakombol is composed of two sub-kindred units of Mbaikyongo and Mbaikyo. The appellant hails from Mbaikyongo while the 1st respondent belongs to Mbaikyo.

In an election exercise conducted on 31/10/91 (though disputed) to select the District head of Mbaawa, the contestants were the appellant and Ibonyama Kortyo (now deceased) both from the same sub-kindred of Mbaikyongo. At that election, majority of the king makers voted for Iboyema Kortyo. Then followed a spate of petitions from members of the community against the selection of Iboyema Kortyo on the ground that he was ex-convict and had still pending criminal charges against him. A legal advice from the office of Attorney-General (6th respondent) on the issue was to the effect that Iboyema Kortyo was not a fit and proper person to hold the office of District head in question. On the basis of this legal advice, the Special Adviser on Chieftaincy matters in the Governor’s office advised the 3rd and 4th respondents to consider the appellant for appointment to the office in question. But the 3rd and 4th respondent instead of doing so constituted, a higher panel also known as Chief Malu panel. The panel communicated the disqualification of Iboyema Kortyo to the people of Mbaawa. On 11/11/92 another election took place with the appellant and 1st respondent as the contestants. The votes cast by the eight kingmakers were 6 to the 1st respondent and 2 to the appellant. The appellant was aggrieved by the election on the ground that by virtue of Tiv custom of Ya na Angbian literally meaning “Eat and give brother” or principle of rotation, the people of the 1st respondent’s sub-kindred unit being junior in rank to the appellant’s sub-kindred were not competent to contest in that election. The appellant as plaintiff therefore initiated an action against the respondent as defendant seeking the reliefs set out in paragraph 26 of the amended statement of claim which read as follows:-

“26. Whereof the plaintiff claims the following declarations:

(a) Since Iboyema Konyo was rightly declared to be an ex-convict the plaintiff remained the sole candidate in the contest for the District Head of Mbaawa and would have been declared as such his name having been forwarded to the 3rd and 4th defendants by the 6th defendant.

(b) That the Chief Lanvu Malu panel exceeded its powers by unilaterally introducing an “Alien” candidate who is the 1st defendant into the contest for the District Headship of Mbaawa and this was a usurpation of the powers of the kingmakers to select a District Head of their choice.

(c) That the 1st defendant was not eligible to contest for the District Headship of Mbaawa since the District Headship was the prerogative of Mbaikyongo – Mbekombol where the plain the contested and emerged a sole candidate with disqualification of Iboyema Kortyo and this was an affront to Tiv Native Law and Custom.

(d) That the selection and or election of 11/11/92 was illegal, uncustomary, null and void and should be declared as such.

(e) That the plaintiff is the popular choice and therefore the District Head of Mbaawa District of Ushongo Local Government Area of Benue State”.

The case was tried on pleadings filed by the parties viz, the amended statement of claim, the 1st defendant’s statement of defence and the 2nd and 6th defendant’s joint statement of defence. Parties called witnesses in support of their pleadings.

At the conclusion of the trial, the learned trial Judge Onum J, in a well written judgment delivered on 7/10/94 dismissed the plaintiff’s case in toto. Against that judgment the plaintiff now appellant lodged an appeal to this court relying on 5 grounds of appeal subjoined to the notice of appeal. Pursuant to the Rules of this Court, the parties through their counsel filed and exchanged briefs of argument. The appellant’s brief has four issues for determination viz.:-

“1. Whether or not the selection of the first District Head of Mbaawa District was supposed to come from Mbaikyongo.

2. Whether the appointment to the office of a District Head is not guided by native law and custom and therefore unenforceable.
3. Whether the 3rd and 4th respondents were right by not complying with the directives for the Special Adviser of Chieftaincy matter.
4. Whether having regard to the pleadings and evidence the appellant has proved his case.

For his part, the 1st defendant now 1st respondent identified the following three issues:-

“1. Whether the kingmakers of Mbaawa District could rightly be said to have agreed to restrict the selection of the District Head of Mbaawa from only one of the two components of Mbekombol.