Musa Sha (Jnr) & Anor V. Da Rap Kwan & Ors (2000)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C.

The proceedings leading to this appeal were first initiated on the 22nd day of July, 1988 in the High Court of Justice of Plateau State of Nigeria, holden at Jos. In that court, the plaintiffs, for themselves and on behalf of the LO-Kwei family claimed against the 1st and 2nd defendants, for themselves and on behalf of the Lo-Kazang family, together with the 3rd and 4th defendants jointly and severally as follows –

“A declaration that the 2nd defendant being not a member of the LO-Kwei family is not eligible and indeed not entitled to contest the post of GWOM KABONG (i.e. village head of Kahong) and/or to be selected, elected. installed or otherwise whatsoever.

(b) A perpetual injunction restraining the 2nd defendant from contesting or otherwise seeking to be selected as the Gwom Kabong (i.e. village head of Kabong).

(c) A perpetual injunction restraining both the 3rd and 4th defendants from appointing and/or installing the 2nd defendant, SALE MANDYENG, as the Gwom Kabong (i.e. the village head of

Kabong).

(d) An order that the Gwom Kabong (village head of Kabong) should be selected from the members or the Lo-Kwei family to the exclusion of the members of the Lo-Kazang family.

(e) An order deeming the 2nd plaintiff DA BITRUS SHA DUNG as duly selected and installed as the Gwom Kabong (village head of Kabong) as being the only candidate originally nominated by the Lo-Kwei family in accordance with the Birom Native Law, Custom and tradition.

(f) Nullification of the appointment of the 2nd defendant.

(g) And such further relief appearing herefrom.”

Pleadings were ordered in the suit and were duly settled, filed and exchanged. The case accordingly proceeded to trial and the parties testified on their own behalf and called witnesses.

The plaintiffs’ case as pleaded and testified to is that Lo-Kwei family is one of the three ruling families in Du District. Kwei. The founder or the Lo-Kwei ruling family was one of the two sons of Du Bwot. Lo-Kwei family was the founder of Kabang village and had always produced the village head of Kabong whose title is Gwom Kabong. The plaintiffs claimed that it was much later in time that members of the Lo-Kazang family came and met members of the Lo-Kwei family in Du District. The Lo-Kwei family allowed the Lo-Kazang family to settle with them and the two families had since been living together and interacting in various way”. They however stressed that only members of the Lo-Kwei family were entitled to he appointed Gwom Kabong and that members of the Lo-Kazang family had never aspired nor had any of them ever been made the village head of Kabong. It was the Lo-Kwei family that had always produced the village head of Kabong, otherwise known as Gwom Kabong right from the appointment of Shom Tiri as the first “Gwom Kabong” until this day. They stated that the Lo-Kazang family had always supported the Lo-Kwei family and the head of the latter family, in appreciation of this loyalty, had occasionally delegated the 1st defendant to represent the Lo-Kwei family at certain functions. It was not until in 1987 that the 1st and 2nd defendants’ people started to aspire to the post of Gwom Kahong. So, on the 12th October, 1988, the 3rd defendant wrote a letter appointing the 2nd defendant as the Gwom Kabong. The plaintiffs’ family and the Kabong community rejected this appointment as null and void and a violation of their customary law, hence this action.

For their part, 1st and 2nd defendants, while admitting that the plaintiffs’ family is one of the three ruling families in Du Oistrkl. denied that Kabong village was rounded by the Lo-Kwei family. They claimed that Kabong was founded by Du Bwot, the father of Kwei and Zang, the respective founders of Lo- Kwei and Lo-Kazang families. The defendants stated that members of Lo-Kwei and Lo-Kazang families are one and the same people as they of blood relations and cannot therefore inter-marry. They claimed that both families hold their meetings together, own their land jointly and do a number of other things together as blood relations. It is the case of the defendants that since Lo-Kwei and Lo-Kazang are one entity, the 2nd defendant is entitled to be appointed the Gwom Kabong. The 3rd and 4th defendants which are the Jos Local Government and the Jos/Barkin Ladi Traditional Councils offered no evidence at the trial.

At the conclusion of hearing, the learned trial judge, Azaki. J., as he then was, after a review of the: evidence found for the plaintiffs. He was of the view that only the members of the Lu-Kwei family could contest or be selected or appointed Gwum Kabung. Although he held that the only issue for determination was whether or not the 2nd respondent was a member of the appellants’ family and that both families did not inter-marry, he proceeded to state that it was not relevant to resolve whether the two families were related to each other by blood through a common forefather, Du Bwot in order to decide whether the respondents could as of right contest the Gwom Kabong Chieftaincy. He then went on to nullify the 2nd defendant’s selection as Gwom Kabong on the ground that he was not from the Lo-Kwei family and therefore not entitled to be selected as the village head of Kabong.