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SUIT NO. CA/J/114/90

3PLR/1991/36  (CA)





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





Dr. S.S. Amen (with him D. A. Agada and A. A. Ibrahim) – for ­the Appellant

  1. A. Igonoh – for the Respondent



PRACTICE AND PROCEDURE – 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) Lax, 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.

PRACTICE AND PROCEDURE – 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

PRACTICE AND PROCEDURE – 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.

WORDS AND PHRASES -”Disability” or ”Deprivation” in Section 39(2) of the 1979 Constitution – Meaning.



NDOMA-ELBA, 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 recognized 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 recognized 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.

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 lain 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 1st appellant who was never a candidate for the disputed Chieftaincy. The only candidates for the Chieftaincy are listed in Exhibit 10 to which I 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 I have said earlier, I am satisfied that the appoint­ment of the 1st 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 1 have said earlier, l 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. 1 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.”

(3)     The trial court erred in law when it held that “I declare his ap­pointment null and void. 1 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 I of Exh. D 10, the only candidate listed are Ocheje Ejiga, Alhaji Usman Anekwu (the plaintiff) and Alhaji Isah Ameh Adai. 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 I, 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 II 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 where under 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 Chief’.

However, Section 236(/) 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 ertenso 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 other 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. PW 1, 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 PW1 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 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 farfetched. 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 grandchild. The plaintiff was the objector. It was decided that being a grandchild 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 Aphadu 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 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 mourn 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 grandson 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 1955 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 it, 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 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 1st 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.”

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 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 or 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 a person 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 /gala 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 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.

r It was further argued for the appellant that the provisions of Schedule I of . the rgala 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, “expresseo unius est exclusio alterius” (Express enactment shuts the door to further implication). It bears the same meaning, I think, as “expresseo facie cessare taciturn.” 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 “DI “ 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 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 Lair, 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 La,” 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: 1 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


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