SHAIBU AKU

V.
USMAN ANEKU

COURT OF APPEAL
(JOS DIVISION)

CA/J/114/90

EMMANUEL TAKON NDOMA-EGBA, J.C.A. (Presided and Read the Leading

Judgment)
YEKINI OLAYIWOLA ADIO, J.C.A.
OBINNAYA ANUNOBI OKEZIE, J.C.A.

THURSDAY 4TH JULY, 1991

APPEAL - Ground of Appeal - Omnibus ground in civil appeals - How framed.

CHIEFTAINCY MATTERS - High Court - Jurisdiction of to entertain Chieftaincy

disputes-Whether ousted by section 11 of the Chiefs (Appointment and
Deposition) Law Cap 20 Laws of Northern Nigeria - Effect of Section 236 of
the 1979 Constitution.

CONSTITUTIONAL LAW - "Disability" or "Deprivation" in Section 39 (2) of the

1979 Constitution - Meaning.

CONSTITUTIONAL LAW - Section 39 (2) of the 1979 Constitution - Custom

preventing a prince from ascending the throne not occupied by his
father - Whether such custom violates Section 39 (2) of 1979 Constitution.

COURT - High Court-Jurisdiction of to entertain Chieftaincy disputes - Whether

ousted by section 11 of the Chiefs (Appointment and Deposition) Law Cap 20
Laws of Northern Nigeria - Effect of Section 236 of the 1979 Constitution.
JURISDICTION - High Court - Jurisdiction of to entertain Chieftaincy disputes -
Whether ousted by section 11 of the Chiefs (Appointment and Deposition)
Law Cap 20 Laws of Northern Nigeria - Effect of Section 236 of the 1979
Constitution.

NATIVE LAW AND CUSTOM - Repugnancy doctrine - When does a custom

violate.

NATIVE LAW AND CUSTOM - "Custom", " Usage" "Practice" - Meanings of.

NIGERIAN LEGAL SYSTEM - Repugnancy doctrine - When does custom violate.

WORDS AND PHRASES - "Custom", "Usage" "Practice" - Meanings of.

[1991] 8 NWLRAku v. Aneku281
WORDS AND PHRASES - "Disability" or "Deprivation" in Section 39(2) of
the 1979 Constitution - Meaning.

Issues:
1.Whether the learned trial judge was right in holding that he had jurisdiction to
entertain this suit notwithstanding the provisions of section 11 of the Chiefs
(Appointment and Deposition) Law Cap. 20 Laws of Northern Nigeria.
2.Whether the Igala Traditional Council could direct that the native law and
custom relating to the selection, appointment and beading of an Achadu be
changed and, hereafter, proceed to 'nominate' and present one of the contestants
preferred for the stoolship.
3.Whether having regard to all the circumstances of this case, the learned trial
judge was right in holding that the appellant was not qualified to be selected or
appointed as Achadu of Igaia since his selection or appointment was in violation of
an age - long custom which debars a prince whose father never reigned as Achadu
from becoming an Achadu.

Facts:
The appellant belongs to the Atiko family, one of the four Ruling Houses
from where an Achadu of Igala is selected. After the death of the reigning Achadu,
it was the turn of the Atiko family to present a candidate for the stool of the
Achadu. Succession to the throne is however by custom restricted to princes whose
fathers had reigned as Achadu at one time or another. The appel lant's father never
became an Achadu since he died before his turn. The appellant, the respondent and
one Ochaje Ejing were contestants for the throne of the Achadu. The evidence
before the trial court was that the appellant was never presented to the Igala
Traditional Council but that it was Ochaje who was actually selected by the Atiko
family.
As a result, there was a serious disagreement as to who would be the
Achadu. A panel was set up with the Attah of Igala land as the Chairman. After
conducting some proceedings, the appellant was recommended to the Local
Government for recognition. The Panel further went ahead to recommend as
follows:
(a)That the existing practice whereby grandsons whose direct fathers had not ruled
as Achadu's are disqualified from ascending to the throne as Achadu should be
rejected.
(b)That the recommended charge should be Gazetted to avoid prostitution in the
ascending process and practice.
The respondent took out a writ of summons against the appellant and the
Igala Traditional Council challenging by declaration and an injunction the
appointment of the appellant.
The learned trial judge considered the evidence and rejected the contention
by the appellant that he had no jurisdiction by virtue of section 11 of the Chiefs
(Appointment and Deposition) Law Cap.20 Laws of Northern Nigeria. He further
held that the panel had no authority to change an age - long custom barring princes
whose fathers were not Achadus from becoming Achadus. He therefore declared
the appointment of the 1st appellant as the Achadu null and void. The 1st appellant
282Nigerian Weekly Law Reports25 November 1991
appealed against the decision, contending that:
(a)The learned trial judge had no jurisdiction to entertain the suit.
(b)The custom which prevented the Appellant from becoming an Achadu is
contrary to Section 39(2) of the 1979 Constitution in that it discriminated
against the appellant.
Section 39 (2) of the 1979 Constitution provides as follows:
"No citizen of Nigeria shall be subjected to any disability or
deprivation merely by reasons of the circumstances of his birth."
Section 11 of the Chiefs (Appointment and Deposition) Law Cap 20, Laws of
Northern Nigeria States:-
"Notwithstanding anything contained in any written law whereby or
whereunder jurisdiction is conferred upon a court, whether such
jurisdiction is original appellate or by way of transfer, a court shall not
have jurisdiction to entertain any cause or matter instituted for: (a) the
determination of any question relating to the selection appointment,
installation, deposition or abdication of Chief".
Held (Unanimously dismissing the Appeal):

1.On How to frame an omnibus ground in civil appeals-

A ground of appeal stating that "the decision of the trial court
is unreasonable, unwarranted and cannot be supported
having regard to the WEIGHT of evidence is inappropriate in
civil cases as it is an omnibus ground effective only in criminal
cases. (P.287, para. D)

2.On Jurisdiction of the High Court of Benue State to entertain Chieftaincy

disputes -
Although Section 11 of the Chiefs (Appointment and Deposition) Law
Cap. 20 Laws of Northern Nigeria applicable in Benue State provides
that no court shall have jurisdiction, whether original, appellate or by
way of transfer, to entertain any cause or matter for the
determination of any question to the selection, appointment,
installation, deposition or abdication of a Chief, by virtue of Section
236(1) of the 1979 Constitution, the High Court of a State has
unlimited jurisdiction to entertain the Chieftaincy dispute
notwithstanding the provisions of Section 11 of the Chiefs
(Appointment and Deposition ) Law Cap. 20 Laws of Northern
Nigeria. (Pp. 287-288, paras. G-A)

3.On Meaning of ''custom" or "usage" -

A custom or usage is the unrecorded tradition and history of the
people which has "grown" with the "growth" of the people to
stability and eventually becomes an intrinsic part of their culture. It is
a usage or practice of the people which by common adoption and
acquiescence and by long and unvarying habit has become
compulsory and has acquired the force of a law with respect to the
place or the subject matter to which it relates.
[1991] 8 NWLRAku v. Aneku283

In the instant case, the selection of an Achadu is regulated by a

custom which precludes a candidate whose father has never been an
Achadu and since from the preponderance evidence it was
established that this practice had never been varied in history, the
practice is binding on the appellant. (P.292, paras. D-F; p. 294, paras.
B-C)

4.On Meaning of "custom" or "usage" -

 A custom which may lead to a revival of slavery, human sacrifice or
any other which falls below the acceptable standard of civilised
behaviours is repugnant to natural justice equity and good
conscience: [Ashogbonv. Oduntan (1935) 12 N.L.R. 7; Rufai v. Igbirra
Native Authority (1957) NRNLR 178 referred to] (P.293 para. G)

5.On Determining whether a custom relating to selection of a Chief is repugnant

to natural justice, equity and good conscience-
A Rule which disentitles a person to a right to which he would
otherwise be entitled is not by that fact alone repugnant to natural
justice, equity and good conscience. In the instant case however the
custom which excludes the appellant from succeeding to a
Chieftaincy stool which was never occupied by his father is not
repugnant to natural justice, equity and good conscience, the
objection of the Attah of lgala land the custodian of the native law
and custom of Igala land notwithstanding. (P. 293, paras. E-H)

6.On Mode of selection of the Achadu of Igalaland -

Schedule 1 of the Igala Native Authority (Modification of Native
Law and Custom) Order Vol. 4 Cap. 77 Laws of Northern Nigeria
which relates to the selection of Atta of Igala from one of the sons of
an Attah is totally inapplicable to the Achadu and cannot change the
age - long custom of selecting only an Achadu from a person whose
fathers had reigned as Achadu. (P.293, paras. A-B).

7.On Meaning of "disability or deprivation within the meaning of section 39 (2)

of the 1979 Constitution -
The appellant in this case who is eligible for enjoyment of all rights
and privileges of the royal family cannot complain of a disability or
deprivation under Section 39 (2) of the 1979 Constitution because he
is prevented by an age-long custom from becoming on Achadu since
his failure to become an Achadu has nothing to do with his status or
standing in the Igala society. (P- 293, paras. B-F)
Per NDOMA-EGBA, J.C.A. at page 293, para. B-E:
"Another point taken for the appellant that the Native Law
and Custom excluding the appellant from succession to the
284Nigerian Weekly Law Reports25 November 1991

Achaduship was contrary "to natural justice, equity and good

conscience", and a violation of Section 39(21) of the
Constitution which says:
 "No citizen of Nigeria shall be subjected to any disability
or deprivation merely by reason of the circumstances of
his birth".
We dealt with this briefly on the prompting of Dr. Amen. With
respect, I do not see any merit in the submission. The Native
Law and Custom in question may be inconvenient to the
appellant and his supporters, but not unreasonable to the
generality of the people affected by it. This is borne out in
Exhibits "D1" to "D10" in the record. The ambition to be an
Achadu is not, as earlier observed, a social stigma, arising from
birth of the appellant. He is otherwise entitled to all the rights
and privileges attached to the Ruling House to which he
belongs, except that he is not in the "direct line" of succession
to the coveted Achaduship. That indeed is a traditional
disability limited only to the right aforesaid which is primarily
the concern of the four ruling houses in evidence herein."

Nigerian Cases Referred to in the Judgment:

Ashogbon v. Oduntan (1935) 12 NLR 7
Rufai v. Igbirra Native Authority (1957) NRNLR 178

Nigerian Statutes Referred to in the Judgment:

Chiefs (Appointment and Deposition) Law, Cap. 20, Laws of
Northern Nigeria, S. 11
Constitution of the Federal Republic of Nigeria, 1979 Ss. 39 (2) and 236

Book Referred to in the Judgment:

Blacks Law Dictionary, Fifth Ed. p.347

Appeal:
This was an appeal against the judgment of the High Court of Benue State
wherein the selection and appointment of the appellant as the Achadu of Igala was
declared null and void. The Court of Appeal unanimously dismissed the appeal and
affirmed the judgment of the High Court.

History of the Case:

Court of Appeal:
 Division of the Court of Appeal to which the Appeal was
brought: Court of Appeal, Jos
Names of justices that sat on the Appeal: Emmanuel Takon Ndoma-
Egba, J.C.A (Presided and Read the Leading Judgment); Yekinni
Olayiwola Adio, J.C.A.; Obinnaya Anunobi Okezie, J.C.A
Appeal No: CA/J/114/90
Date of Judgment: Thursday, 4th July, 1991
[1991] 8 NWLRAku v. Aneku(Ndoma-Egba, J.C.A )285

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High Court:
Name of the High Court: High Court, Idah
Name of the Judge: Ogebe, J

Counsel:
Dr. S.S. Amen (with him, D.A. Agada and A.A. Ibrahim) - for the Appellant

J. A. Igonoh - for the Respondent

NDOMA-EGBA, J.C.A. (Delivering the Leading Judgment): The overriding

issue, on the pleadings and recorded evidence for determination in this appeal is
whether the Igala Traditional Council could direct that the Native Law and
Custom relating to the selection, appointment and beading of an Achadu be
changed and, thereafter, proceed to "nominate" and present one of the contestants
preferred for the stoolship.
From the printed record of this appeal, Achaduship is an important
Chieftaincy, traditionally next in precedence to the Attah of Igala land.
The question proposed and set out above for answer is taken from a range
of issues identified in the briefs of argument exchanged to which reference
would be made.
 In outline, the facts which gave rise to the present appeal are these. By a
Writ of Summons issued from Idah High Court in Benue State against the
defendants, jointly and severally plaintiff claimed as follows:
"(a) A declaration that the 1st defendant is by Igala Native Law and
Custom not eligible for appointment to the stool of Achadu and
consequently that his purported appointment by the 2nd defendant is null
and void. (The 2nd defendant is Igala Traditional Council).
(b)A declaration that the mode and procedure for appointment was contrary to
the laid down native law and custom on this subject matter and
ALTERNATIVELY, that the 1st defendant's appointment is null and void being
contrary to the rules of natural justice as the whole exercise was conducted in
secrecy to the detriment of the founded and unabridged right of the plaintiff to
ascend to the Achadu stool.
(c)A declaration that the plaintiff is the legitimate and recognised appointee
supported by the three accredited ruling houses to the exclusion of the 1st
defendant's house which according to Igala Native Law and Custom is now
extinct as far as ascendancy to this stool is concerned and; consequently, that the
plaintiff is the only candidate that should be recognised as a member of the 2nd
defendant's council (Igala Traditional Council).
(d)A perpetual injunction restraining the 2nd defendant from recognising and
parading the 1st defendant as the duly appointed Achadu and member of the
Council".
Pleadings were filed and delivered. Thereafter, the case was set down for
hearing before Ogebe J.
286Nigerian Weekly Law Reports25 November 1991(Ndoma-Egba, J.C.A )

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Four witnesses, including the plaintiff himself, testified in support of the

claims, while five, in all supported the 1st defendant's side of the controversy.
At the conclusion of the evidence and addresses of counsel, the learned trial
judge declined to declare the 1st defendant, Shaibu Aku, as the only candidate for
the stool of the Achadu. Rather he declared it vacant to enable:
 "........ the Ruling Families carry out another exercise to appoint
a candidate in accordance with their native law and custom".
The Italics is provided
The learned trial judge had this to say further during the judgment:
"From a careful consideration of all the submissions made before me
in writing and orally, it has become very clear to me that under the
native law and custom governing the Achadu title only a candidate
whose father had been an Achadu is entitled to the throne if he
satisfies the other requirements of that exalted office. All the
witnesses who testified in this case agreed that not once in the history
of the dynasty had a grandson ascended the throne, the only exception
being the present case. To my mind something cannot be said to be
the customary law or native law and custom regarding any subject if it
is happening for the first time because the essence of native law and
custom is repetition of events. In other words, something must have
happened so repeatedly in the past that it is now accepted as the native
law and custom regarding that subject".
He agreed with the submission of learned counsel for the plaintiff that the
panel set up by the 2nd defendant on record, supposedly to look into the
disagreement of the Atoki Ruling House to present a qualified candidate for the
stool, whose turn it was, departed from its terms of reference and went on to
recommend 1 st appellant who was never a candidate for the disputed Chieftaincy.
The only candidates for the Chieftaincy are listed in Exhibit 10 to which 1 would
refer in relation to the text of the recommendations of the said Panel.
Ogebe J, the learned trial judge in this case, summarised his judgment as
follows:
"From all that 1 have said earlier, I am satisfied that the appointment
of the I st defendant (Shaibu Aku) is in gross violation of the Native
Law and Custom regarding such appointment......."
Absolutely aggrieved by the judgment aforesaid, the appellant protested the
decision upon the grounds set out, inter alia, hereunder, without the particulars
which are fully reproduced and subjoined to each of the complaints:
"(1) That the decision of the trial court is unreasonable, unwarranted and
cannot be supported having regard to the WEIGHT of evidence adduced
before it.
(2)The trial court erred in law and also on the facts, when the Honourable Judge
held that "from all that I have said earlier, I am satisfied that the appointment of the
1st defendant is in gross violation of the native law and custom regarding such
appointment and I declare his appointment null and void. I also declare that the 1st
defendant is not eligible to ascend the throne of Achadu and I hereby restrain the
2nd Defendant perpetually from holding the 1st
[1991] 8 NWLRAku v. Aneku(Ndoma-Egba, J.C.A )287

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defendant out as the Achadu".

(3)The trial court erred in law when it held that "I declare his appointment null
and void. I also declare that the 1st defendant, is not eligible to ascend the throne
of Achadu and I hereby restrain the 2nd defendant perpetually from holding the
1st defendant out as the Achadu".
(4)That the trial Court erred in law when it declared the post of Achadu vacant to
enable the ruling families carry out another exercise to appoint a candidate in
accordance with their native law and custom.
(5)The trial judge erred in law when he held that: "I also agree with the
submission of the learned counsel for the plaintiff that the Higher Panel went out
of it's terms of reference to recommend somebody who was never a candidate
before it. At page 1 of Exh. D 10, the only candidate listed are Ocheje Ejiga,
Alhaji Usman Anekwu (the plaintiff) and Alhaji Isah Ameh Adaji. The 1st
defendant was only brought in, in the middle of the proceedings when his brother
Ocheje Ejigah was said to have substituted him for himself'.
(6)That the trial court has no jurisdiction over the case.
(7)That more grounds of appeal will be filed on the receipt of the certified
records of proceedings".
Ground 1, the general ground, is, as phrased, ineffective, this case not
being an appeal against a conviction for a criminal offence.
As it stands, it may be safely overlooked since the other grounds, by
implication, raised issues of fact. It should be mentioned at once that in view of
the use of the word "satisfied" in the conclusion of the judgment appealed from,
the latter is primarily one of facts.
The relief sought in this appeal is to set aside the judgment of the court
below and declare the selection of the 1st defendant, herein appellant, as valid,
having regard to the Native Law and Custom of the people.
The 2nd defendant, the Igala Traditional Council, appears to have accepted
the judgment of the court below. It is apparent in the printed record that it did not
appeal.
An interim point raised in the record compiled and amply examined by the
learned trial judge, was one of jurisdiction of the court below to entertain the
suit. Counsel on both sides did not adequately advert to the question and made
 few submissions to guide the court. On the part of the appellant, the omission is
perfectly understandable.
Section 11 of the Chiefs (Appointment and Deposition) Law Cap. 20, Laws
of Northern Nigeria applicable to Benue State, would if it stood alone, deprive
the trial court of jurisdiction. It enacted:
"Notwithstanding anything contained in any written law whereby
or whereunder jurisdiction is conferred upon a court, whether such
jurisdiction is original, appellate or by way of transfer, a court shall
not have jurisdiction to entertain any cause or matter instituted for:
(a) the determination of any question relating to the selection
appointment, installation, deposition or abdication of a
288Nigerian Weekly Law Reports25 November 1991(Ndoma-Egba, J.C.A )

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However, Section 236(1) of the Constitution, confers "unlimited jurisdiction"

on a State High Court to hear and determine a wide range of civil and criminal
matters, including Chieftaincy cases and supersedes the Chiefs Law, supra. The
learned trial judge himself relied on our decision per Akanbi J.C.A. in CA/J/26/87
delivered on the 23rd of November, 1987 (yet unreported), and claimed jurisdiction.
The decision referred to is quoted in extenso at pages 124 to 125 of the compiled
record.
It would be necessary at this stage to recount, briefly, the facts which
emerged from the pleadings and the evidence recorded.
The appellant is a farmer and belongs to Atiko Family, one of the four Ruling
Houses from which Achadus are traditionally selected for installation. The turn for
the disputed Achaduship was that of the 1st appellant's family group, following a
definite and recurrent order. Succession to the throne is however, by custom,
limited to aspirants whose fathers had succeeded to the stool, at one time or another.
Appellant's was never enthroned. Although, qualified in other aspects, that was a
permanent disability practised from time long past in Igala. In the interregnum, a
female descendant from a Chiefly family holds the stool until the cessation ot'tter
regency on the appointment of a completely qualified Achadu,
The female descendant is traditionally known and reigns as a regent by the
designation "Akadi".
 Admittedly, the appellant was not the only candidate for the Achaduship
presented to the Igala Traditional Council, the 2nd defendant on record. One Ocheje
Ejiga was also a contestant.
Appellant asserted in his pleadings and evidence adduced in support of them,
that his father was an Achadu and in right of that he was buried in "Egbe", the
traditional burial ground reserved for deceased Achadus. PW1, Isah Ameh Adaji,
categorically stated that it had never happened in the history of Achaduship for a
man whose father was not an Achadu to be appointed Achadu and that it was
Ocheje who was presented to the Igala Traditional Council as the eligible candidate
for the Achaduship and not the appellant. The latter never appeared before the 2nd
defendant on record. In a previous meeting of three families of the four Ruling
Houses, Ocheje Ejiga was selected and brought before the Council for endorsement
of his selection. The evidence of PW 1 is on record at page 55 to 58.
Two other Ruling Houses did not support the appellant's claims to the
stoolship. Thus, the appellant's evidence was actually discredited by a majority of
the Ruling Houses, although there was no dispute that Atiko family of which the
former is a member, is entitled to the stool, provided a candidate whose father was
an Achadu could be found within it.
Briefs of argument were exchanged, pursuant to the Rules.
At the hearing of the appeal before us, the parties adopted and relied on them.
Counsel on both sides were heard in amplification and clarification of the contents.
Doctor Ameh urged in support of the appeal that the constitutional rights of the
appellant under Section 39(2) of the Constitution should, especially, be considered
and that his client should not be subjected to any "disability or deprivation", by
reason of the circumstances of his birth.
With respect, I do not think that Dr. Ameh sufficiently appreciates the
relevance of the constitution to the circumstances of the appeal in hand. It does not
[1991] 8 NWLRAku v. Aneku(Ndoma-Egba, J.C.A )289

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concern any infringement of the fundamental rights of the appellant. The issue
is the eligibility of the appellant to the disputed stoolship. He was born into a
Ruling Family and that is an enviable status in Igala land, as well. The
Achaduship eluded him because by the tradition practised from time
 immemorial, he could not attain his ambition. His frustrated aspiration is not as a
result of his "standing" in Igala society. He was not an outcast, "Osu" or born
into a slave Barracoon. These are some of the disabilities contemplated
in Section 39(2) of the Constitution, the practice of which is, if it leads to
deprivation of the rights which a citizen should otherwise have enjoyed, is
unconstitutional. This would be further examined along with the submission on
the reasonableness of the application of certain practices and their repugnancy to
Equity and good conscience. Dr. Ameh's reference, in his argument, to
jurisdiction in limine in the context of the facts of the present appeal, is obviously
far fetched. The meaning of the phrase "jurisdiction in limine" is elementary.
What was not understood is the relevance of that to Section 39 of the
Constitution, supra.
A number of issues were identified in both briefs of argument. All this
revolve on the cardinal issue proposed and set out at the commencement of this
judgment and considered as a single question to be decided and this is whether
the appellant's father was ever an Achadu. If he was, then the Achaduship was
within his reach. If not, not. The undisputed fact that he belonged to Atiku
Ruling House whose turn it was to occupy the disputed Chieftaincy (Achadu)
cannot prevail.
The appellant subsequently conceded that his father was not an Achadu. He
died before his turn, although he himself, the appellant had been Achadu for
three years and lives in Achadu's traditional compound, probably, on the fiat of
His Highness, the Attah of Igala. Appellant's admission is as follows:
"I was nominated and presented to members of the Four Ruling Houses. We
went to Attah and he said we should tell Igalamela first. When Igalamela
gathered I was presented to them but someone stood up and said I was not
entitled as a grand child. The plaintiff was the objector. It was decided that
being a grand child would not stop me from becoming Achadu. All of us
went to Attah's Palace and Attah told 2nd defendant (council) to investigate
the objection to my candidature. We gathered before the 2nd defendant. 2nd
defendant appointed a panel to investigate the matter. The panel met. The
representatives of the four ruling families appeared before the panel. I
appeared before the panel. I was present from the day the panel sat. 3 men
from each Ruling House were chosen to speak on behalf of the panel. Ochai
Ahadu - also appeared before the panel. Mr. Adole headed the panel. Alhaji
Musa was the Secretary. Ocheje presented me before the panel to take the
title in his place because of his old age. He asked to stand up. I was later
communicated in writing that I was the right candidate"
Obviously, the appellant could not have been "selected" according to the
Native Law and Custom of the people. He was, in fact, "nominated" by the Igala
Traditional Council on the directive of the Atta of Igala as its Chairman. Indeed,
there were some consultations which were far from being participation in the
Selection of the appellant by the Ruling Families: a profound change of the
290Nigerian Weekly Law Reports25 November 1991(Ndoma-Egba, J.C.A )

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unwritten Law and Custom of the people and an impediment on the generally
accepted process. Appellant was imposed on the people.
Alhaji Aliyu Ocheja Obaje, CBE, CON, First Class Chief and Atta of Igala
testified for the appellant (D.W.4). His Highness referred to the latter as the Achadu
of Igala Ogba; Prime Minister of the Attah, known traditionally as the husband of
the Attah. He stated further on oath:
"I know the customs relating to appointment of Achadu and other subordinate
Chiefs. When death occurs of Achadu a report will be sent by Ikabi to Ugbola,
the traditional liaison officer between Attah and Achadu. He will then inform
Attah with black cloth for Attah to mount the death of her husband. A
grandson is entitled to aspire to the Chieftaincy title of his grandfather under
Igala Native Law and Custom. The 1st Defendant is a grandson of Achadu.
The issue that a grandson should not reign has never occurred until this
contest. We go by the male line".
The witness did not mention any instance where a grand, son was installed as
Achadu on the demise of his grandfather. I think, with respect, that the evidence of
the Attah is irrelevant an unhistorical. It shows clearly the unyielding determination
of the traditional Ruler to radically break with the culture and history of the people,
in the appointment of subordinate Chiefs in Igala land.
The evidence of Alhaji Suleiman Musa is important. He was the Secretary of
the Igala Traditional Council (2nd defendant) at the material time and testified for
the appellant. The substance of his evidence is that there had been a prolonged
disagreement since 1985 as to who in the appellant's family was a fit and proper
person to ascend the throne since it was their turn. The disagreement could not be
conclusively resolved. No acceptable candidate was nominated by the family. In
view of the continuing stalemate, a higher panel was instituted, with the Attah as
the President. After conducting some proceedings, the appellant was recommended
to the Local Government for recognition.
The terms of reference of the Panel and its authority were not explained. Nor
was the exercise supported by any law. Having regard to the provisions of the
 Chiefs (Appointment and Deposition) Law, Laws of Northern Nigeria, supra, the
initiative of the 2nd defendant (The Igala Traditional Council) was, in my view, in
excess of its powers.
The recommendation of the Panel reads inter alia, thus:
"(i)That the existing practice whereby grandsons whose direct fathers had not ruled
as Achadu's are disqualified from ascending to the throne as Achadu should be
rejected. This is because by the Igala Tradition of inheritance every grandson from
the male side is qualified to claim the property of his grandfather.
(ii)That the Traditional Council should liaise with the elders of Achadu dynasty and
offer the necessary sacrifices to appease the god over the existing practice which
prevents grandsons from ascending to the throne of Achadu.
(iii)That the recommended change should be Gazetted to avoid prostitution in the
ascending process and practice".
The foregoing speak for themselves as to the determined effort of the 2nd
defendant to break with the past, in order to accommodate the ambition of a single
[1991] 8 NWLRAku v. Aneku(Ndoma-Egba, J.C.A )291

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individual; the appellant in this case.

The appellant admitted in his evidence in Chief (page 13) that one Ocheje
presented him before the Council, suggesting that he appellant, should be
Achadu in his (Ocheje's) place because he (Ocheje) was old. This is another
dimension to the case.
The Attah significantly admitted;
"I am President of Igala Traditional Council. We set up a higher
Panel. It sent me a recommendation which we debated. The
Council finally appointed 1st defendant (appellant). We considered
the merits of the report which agreed with the Native Law and
Custom and we recommended the 1 st defendant (appellant) to the
Governor for appointment".
Clearly, the Attah did not consider Native Law and Custom relevant to his
preference for the appellant. His action, I must say, with respect, was not only
emotional. It was arbitrary.
 Exhibits P2 (page 224) of the record, was signed by the Secretary of Igala
Traditional Council, Alhaji Suleiman Musa. The concluding part of it reads;
"The ball is now in Ikabi and the contestants from the Ruling
Houses Court...."
Whatever else Exhibit P conveys, the message understood is that the
appointment of the 1st appellant rests on the will of the 2nd defendant. The real
composition of it was not in evidence in the court below.
The position, as it appears, is that the appellant sat tight in the Achadu's
traditional residence even after the judgment appealed from and had to be
ordered out on the intervention of the court. The 2nd defendant was permanently
restrained from holding the appellant out as an Achadu. As said earlier, the 2nd
defendant did not appeal, even against the decision aforesaid.
Another protest which was received in evidence at the court below was
signed by one A. Tokula for Amoma-Omepe Descendants' Union, the material
part of which reads:
"That Alhaji Usman A. Aneku (Plaintiff, respondent) is a direct
son of Achadu Ogede whose father had held the title of Achadu. It
is against our custom and tradition to instal a man whose father
had never reigned as Achadu''.
The emphasis is supplied. The excerpts contradicts the evidence of His
Highness, the Attah of Igala (DW4).
Exhibit P2 is another significant evidence. See pages'229 and 230 of the
record. It strongly suggests that the occupation of the Achaduship Igalaogwu is
by "application" and not by selection" for appointment in accordance with the
tradition of the people. This introduces another feature of the dispute. See also
the concluding paragraph of Exhibit P4. It was written on behalf of three of the
Ruling Families and addressed to the Attah of Igala and Chairman of Igala
Traditional Council. It states inter alia:
"We wish to seize this opportunity to sound a note of warning to
your Highness against any attempt to appoint someone whose
direct father has never held the title of Achadu. We wish also to
further warn you against the inherent danger in any attempt to
cause confusion and disunity in the Achadu Family".
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 It is abundantly clear that the intention of the President of the Igala
Traditional Council is to enthrone the appellant as Achadu willy-nilly, and contrary
to the Native Law and Custom. The evidence supporting this observation is ample
and unrefuted.
It is not in dispute that the Achaduship rotates in the Ruling Families,
changing at the death of a former incumbent and that at the material time of this
action, it was the turn of the the appellant's family group. What is being contended
is that the appellant could not succeed to the stoolship because his father was never
an Achadu.
His claim may have been considered valid even if his direct father reigned for
a short time and was deposed, or, for some other reasons, dethroned or exiled
abdicated.
By virtue of his traditional position, the Attah is, as he claimed, the custodian
of the Native Law and Customs of Igala Land in the sense that, he ensures their
applicability and compliance. Not only that. He is the "conscience" of the people in
regard to the enforcement of the native law and custom in a particular set of
circumstances. He proclaims their existence but, in view of the nature and scope of
custom or usage, he can neither change nor introduce new ones. Any such action
would be revolutionary and such upheavals beget more serious revolution.
See Exhibit 14.
The Attah cannot wrest a hereditary title from aperson traditionally entitled to
hand it to a usurper. He would, by that course of action, be exceeding his authority
as custodian of the Native Law and Custom of the people of Igala.
Custom is the unrecorded tradition and history of the people. DW4, the Attah
of Igala may well interpret and apply this, if it had been practised from the dim past
and has "grown" with the "growth" of the people, as Sir Henry Maine said in his
book on the Ancient Law, to stability and, eventually, becomes an intrinsic part of
their culture. This does not "vary" as said of the Lord Chancellor in the
development of Equity, with the length of any traditional Ruler's foot, the depth and
breath of his authority notwithstanding. In my view, the essence of a custom is in its
uninterrupted practice, acceptability and habit of compliance by the people
concerned over a long period of time, until the particular usage is codified in
reaction to the changing society: its composition, repetitive patterns of behaviour,
economic and political pressure.
In the present appeal, the people have protested, warned and cautioned against
an abrupt break with the past, that an aspirant to Achaduship whose father had
never been an Achadu is, by the tradition of the people, disqualified.
An example of a change of custom or usage by legislative process is the Igala
Native Authority (Modification of Native Law and Custom Order) Volume 4, Cap.
77, Laws of Northern Nigeria, concerning the selection and installation of Ata'gala
(Attah of Igala). It is enacted in Schedule 1 thereto as follows:
"In respect of the bestowal of the title of Ata of Igala, known as Ata'gala, the
Ata shall be chosen by the Achadu in consultation with the traditional Igala
Mela from those descendants in the male line....... four Ruling Houses
namely..... and who are the sons of an Attah"
In the case of the selection of an Achadu, the custom which precludes a candidate
whose father has never been an Achadu is extant, and unaltered by any
[1991] 8 NWLRAku v. Aneku(Ndoma-Egba, J.C.A )293

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codification.
The unilateral intervention of His Highness, the Attah of Igala (DW4),
obviously in support of the appellant, is, by what has been said, fruitless. The
recommendation of the so-called "Higher Panel" which also decided in favour of
the appellant is, similarly futile.
It was further argued for the appellant that the provisions of Schedule 1 of
the Igala Native Authority (Modification of Native Law), Order, supra, ought to
apply to his purported appointment (appellant). This argument ignores the well
known principle of interpretation of statutes expressed in the Latin
Jargon, "expressio unius est exclusio alterius" (Express enactment shuts the door
to further implication). It bears the same meaning, I think, as "expressio facie
cessare tacitum". The order cited above prescribes the mode of the selection of
an Attah of Igala. It excludes the manner of the selection and installation of an
Achadu.
Another point taken for the appellant that the Native Law and Custom
excluding the appellant from succession to the Achaduship was contrary "to
natural justice, equity and good conscience", and a violation of Section 39(2) of
the Constitution which says:
"No citizen of Nigeria shall be subjected to any disability or deprivation
merely by reason of the circumstances of his birth".
We dealt with this briefly on the prompting of Dr. Amen. With
respect, I do not see any merit in the submission. The Native Law and Custom in
 question may be inconvenient to the appellant and his supporters, but not
unreasonable to the generality of the people affected by it. This is borne out
in Exhibits "Dl" to "DIO" in the record. The ambition to be an Achadu is not, as
earlier observed, a social stigma, arising from birth of the appellant. He is
otherwise entitled to all the rights and privileges attached to the Ruling House to
which he belongs, except that he is not in the "direct line" of succession to the
coveted Achaduship, That indeed is a traditional disability limited only to the
right aforesaid which is primarily the concern of the four ruling houses in
evidence herein.
Joshua Igono Esq. of counsel for the respondent referred to Keay
and Richardson, the joint Authors of Law in Africa series, with particular
reference to Native and Customary Courts in Nigeria, and commented, rightly, I
think, that a Rule which disentitles a person a right to which he would otherwise
be entitled is not in itself sufficient to invalidate it, any more than the
disqualification of the appellant to ascend the Achaduship, renders the rule of
Customary Law at issue invalid. The objection of the Attah of Igala to it does not
and cannot make it cease to be an established custom - a native law governing
the selection and appointment as opposed to "nomination" of an Achadu.
Learned counsel also cited in support of his argument the decisions
in Rufai v. Igbirra Native Authority (1957), NRNLR 178 and Ashogbon v.
Odutan (1935), 12 NLR 7 which I consider applicable.
Mr. Igonoh's submissions are, in my judgment, to a material extent,
cogent. I agree with his perception of the doctrine of repugnancy to "natural
justice, equity and good conscience" as it applies to this appeal. That would be
one which as decided in Ashogbon v. Odutan supra± encourages the revival of
slavery, human sacrifices or any other which "falls below the acceptable standard
of civilised behaviour". A rule which excludes a person, as in this case, from
succeeding to a Chieftaincy stool which was never occupied by his father, does
not offend such progressive notions, any more than the custom precluding, in
some ethnic groups
294Nigerian Weekly Law Reports25 November 1991(Ndoma-Egba, J.C.A )

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in the country, a brother or son, from marrying the wife of his deceased father or
brother. Mr. Agada's argument (for the appellant) about Section 34(1)(2)(4) of the
High Court Law, applicable in Benue State, is a misconception of its ambit.
I have read the record, and, with respect, am unable to see, as Mr. Agada
contended, where the trial court in its judgment departed from its findings to grant a
relief not sought in the writ of summons or statement of claim which overtakes the
former for the decision in Ekpenyong & Ors. v. Inyang Effiong Nyong (1975) 2 S.C.
71 to apply.
On the character and function of custom or usage in a progressive
community, Ogebe J. aptly, referred to and adopted (learned counsel for the
respondent also referred to it in his briefs of argument at page 13) the definition of
it in Black's Law Dictionary, fifth Edition at page 347. It says:
"A usage or practice of the people, which, by common adoption; and
acquiescence, and by long and unvarying habit, has become compulsory, and
had acquired the force of a law with respect of the place or subject matter to
which it relates. It results from a long series of actions, constantly repeated,
which have, by such repetition and uninterrupted acquiescence, acquired the
force of a tacit and common consent".
The foregoing says all that matters in relation to the practice, repeatedly
mentioned and stressed in this judgment. There is no evidence that the usage has
been broken or violently interrupted in the past. It prevails now.
In conclusion, we find no justification whatsoever to disturb the judgment
appealed against. We agree with the analysis of the facts and Law made by Ogebe J
and in consequence affirm the judgment. The appeal is dismissed with N700.00
costs in favour of the respondent.

ADIO, J.C.A: I have had the opportunity of reading, in advance, the judgment just
read by my learned brother, Ndoma-Egba, J.C.A. I agree with the judgment and the
consequential orders including the order for costs.

OKEZIE, J.C.A: I have had the advantage of .reading in draft the lead judgment of
my learned brother Ndoma-Egba, J.C.A. which has just been delivered. I agree with
him entirely that this appeal lacks merit and should be dismissed. It is plain from
the record of proceedings that the appellant as plaintiff simply failed to substantiate
his claim at the trial and the trial court was right in dismissing his claim. I will
affirm the decision of the trial court and dismiss the appeal with N700.00 costs in
favour of the respondent.

Appeal dismissed