Andong Adake & Anor. V. Adamu Akun (2003)
LAWGLOBAL HUB Lead Judgment Report
E. OGUNDARE, J.S.C.
This appeal relates to the dispute over the filling of the vacant office of Saf Manguna (District Head) of the Mangu Local Government of Plateau State which fell vacant in April, 1989. The plaintiff Adamu Akun (who is now respondent before us and Andong Adake 2nd defendant who is 1st appellant in the appeal before us) vied for the vacant office. There was a meeting of the Kingmakers to elect one of the two contestants to the office pursuant to the provisions of the Mangu Emirate/Traditional Council (Modification of Native Law and Customs relating to the selection of the District Head of Mangu District) Order 1978, PLSG No. 11 of 1978. The electors elected the 2nd defendant (that is, 1st appellant) to the office but the plaintiff was dissatisfied with the election exercise and sued the Mangu Local Government and his co-contestant Andong Adake claiming as per paragraph 22 of the statement of claim as hereunder:
“(a) A declaration that the purported election into the office of Saf Manguna held on 1st day of June, 1989 was fraught with irregularities which render it null and void and of no effect whatsoever.
(b) A declaration that David Mahanan who voted on the 1st day of June, 1989 is not a traditional elector, and consequently his participation rendered the result null and void and of no effect whatsoever.
(c) A declaration that the office of the Saf Maguna is still vacant and a fresh election be conducted immediately.”
At the conclusion of the pleadings the matter went to trial. The learned trial Judge found in favour of the defendants and dismissed plaintiff’s claims. Dissatisfied with this judgment, plaintiff appealed to the Court of Appeal which latter court allowed the appeal, set aside the judgment of the trial High Court and declared the election conducted on the 1st day of June, 1989 null and void.
It is against that judgment that the defendants have appealed to this court seeking to set aside the judgment of the Court of Appeal and restoring that of the trial High Court. Pursuant to the rules of this court the parties filed and exchanged their respective briefs for argument. The main issue that has arisen in this appeal is as to whether the election that was held on the 1st of June, 1989 was properly conducted.
It is not in dispute that that election was presided over by the secretary to the Mangu Local Government. The contention of the plaintiff both in the courts below and in this court was that by the PLSG 11 of 1978 the election should have been presided over by the secretary to the traditional council and not the secretary to the Local Government. The defendants for their part argued that as the secretary to the Local Government had been appointed secretary to the traditional council, he properly presided over the election.
I think the issue for determination is a very narrow one. It is not in dispute that the man who presided over that election that chose the 1st appellant was the secretary to the Mangu Local Government. The Local Government Edict of Plateau State of 1976 provided in its section 75(1) for the appointment of a secretary to the emirate/traditional council and specified the duties of the office. The appointment is to be made by the Local Government Service Commission. Sub-section (3) however provided;
“(3). Notwithstanding the foregoing provisions of this section, the council instead of employing its own staff may, and where the Military Governor so directs, shall designate the Secretary to the Local Government or any other employee of any Local Government in its area to carry out the duties specified in or to be discharged pursuant to the said provisions or of any other provisions of this part.”
By this provision the emirate/traditional council could designate the secretary to the local government or any other employee of the local government in its area to carry out the duties specified in or to be discharged by the secretary under the edict. In a similar way, the edict provided for the appointment of the secretary to the local government. The Mangu Traditional Council Standing Orders, 1984 made pursuant to powers under the edict defined in paragraph 2 the word ‘Secretary’ to mean “a person appointed to be the secretary to the Mangu Traditional Council and includes the person duly acting for the secretary”.
The narrow issue in this appeal is – was the Secretary to the Mangu Local Government who presided over the election of the 1st appellant duly designated under section 75(3) by the traditional council to carry out the duties of the secretary to the council In his statement of claim, the plaintiff averred as follows:
“11. The purported election did not comply with the provisions of the MANGU EMIRTE/TRADITIONAL COUNCIL (MODIFICATION OF NATIVE LAW AND CUSTOM RELATING TO SELECTION OF THE DISTRICT HEAD OF MANGUNA DISTRICT) ORDER 1978 PLSG. No. 11 of 1978 (hereinafter referred to as the Edict) as it was the Secretary of the first defendant and not the Traditional Council Secretary that was the presiding officer as envisaged by S. 3(3) of the Edict.”
In their statement of defence the defendants denied the above averment and pleaded as hereunder:
“7. The defendants further aver that the Secretary of the Mangu Local Government is also the Secretary of the Traditional Council dated 30th May, 1989 will be relied upon by the defendants at the hearing of this suit.”
The onus of course, was on the defendants to prove that the secretary of the local government was also the secretary of the traditional council by proving the appointment pleaded in paragraph 7. This they failed to do. DW2 Michael Kasham Uirse in his evidence testified thus:
“I recalled that on 2/5/89 during the Traditional Council meeting, the council was informed by the Secretary that approval for the selection of the District Head of Manguna was been received. The former Saf Manguna was then dead. After deliberation by the council the Secretary of the Local Government was mandated to conduct the selection of the new District Head of Manguna, in keeping with the provision of the gazette. The council selected me as an order (sic) at the selection.”
It must be observed that the meeting of the traditional council dated 2nd May, 1989 at which the secretary to the local government was mandated to act as secretary to the traditional council for the purpose of the election of the District Head of Manguna was never pleaded. The above evidence, therefore, would go to no issue. In a similar manner DW3 Pyempute James also testified under cross-examination that “the traditional council instructed the Secretary to the Local Government to conduct the selection based on the Gazette on the traditional selection of Manguna district.” This evidence too was not in accord with the pleadings and, therefore, went to no issue. In the light of all these, it cannot be said that the defendants discharged the onus on them to prove that the Secretary to the Mangu local Government was at any time designated by the traditional council as secretary to the council as required by law, that being so, it is difficult for me to fault the conclusion of the Court of Appeal that the conduct of the election made on 1st of June, 1989 was null and void.
Appellants have raised yet another issue, which went to the competence of the appeal before the Court of Appeal. They attacked two grounds of appeal before that court as being incompetent and, therefore, urged the court to hold that the decision of the court below was incompetent being based on those incompetent grounds of appeal. It was submitted that the two grounds were incompetent in that they each alleged misdirection or error in law and facts at that same time. Mr. Gopep for the plaintiff urges us to discountenance this complaint in that it was a matter that should have been raised at the Court of Appeal but was not so raised and that in raising it before this court, leave was not sought nor obtained. I agree with Mr. Gopep that this point should have been raised in the Court of Appeal. The defendants who were respondents in that court did not raise the point and in taking it up in this court did not seek nor obtain the leave of this court to raise the issue. I strike out the grounds of appeal upon which issue I in this appeal is based.
In conclusion I find no merit in this appeal which I hereby dismiss with N10,000.00 costs to the plaintiff/respondent. I affirm the judgment of the Court of Appeal.