Traditional Rulers were known and established before the formation of Nigeria, although they presently have no political powers but they are still highly respected and have great influence in society. They play a very important role in our society between people and the government, thats why upon the death, resign, or dethrone of any traditional emir or chief, it will call upon for the appointment of his successor to fill the vacant throne or stool.
More often than not, the nomination, selection and appointment of a new emir/chief is governing by the traditional rules, customs and principles alongside with State chieftaincy law enactments, applicable to the respective states and traditional communities. Those Laws and Customs have the force of law and are meant to be complied with. Courts have in a long line decided cases held that laws are not decorative roses; they are designed to be enforced. Therefore In the event of commission or omission which is not in compliance with the applicable laws and customs, such commission or omission may be declared illegal, irregular, invalid and void, if challenged in the court of law.
In the view of the foregoing, where an appointment of an Emir or any traditional ruler/chief the provisions of law or custom regulating such appointment is violated. The purported appointment and all the procedures taken so far may be declared void to the extent of its incompliance with the established law and custom.
On this line this article aims at apprising the legal framework of chieftaincy and the Zazzau Emir-ship saga particularly the discretionary powers of governor as regard to that.
The writing is restricted to go further into the analysis of the outcome of the pending case before the High Court of Justice of Kaduna State, seeking for determination of the validity of the newly appointed Emir of Zazzau as the matter is currently ‘sub iudice‘. It is therefore a purely academic exercise based on the solid view and opinion of the humble writer.
2. THE DISCRETIONARY POWERS OF A GOVERNOR IN THE APPOINTMENT OF AN EMIR
An executive governor may be at the privilege to exercise absolute discretion in the selection and appointment of an emir or traditional ruler in the following circumstances;
a) WHEN LAW EMPOWERS HIM ;
In ABUBAKAR UMAR BANNURAM & ORS V. LINUS G. HILLARY & ANOR (2013) AELR 1965 (CA) the Court of Appeal affirmed discretionary appointment of a chief appointed to rule Lau Chiefdom by the then Military Governor of Taraba State pursuant to section 4(2) of the Chiefs (Appointment and Deposition) Law, Cap. 26,Laws of Taraba, which empowered the governor to exercise absolute discretion in the absence of nomination. See also the Supreme Court Judgment in the celebrated case of KIMDEY V. MILITARY GOVERNOR OF GONGOLA STATE (1988) 2 NWLR (pt.77) 445 at 448 per KARIB-WHYTE, JSC (as he was then).
B) WHEN THE CUSTOM, TRADITION AND PRACTICE OF THE COMMUNITY CONCERNED PERMIT THAT IN THE ABSENCE OF WRITTEN LEGISLATION THAT REGULATES THE APPOINTMENT OF EMIR/CHIEF IN THE AREA.
If the established Customs and practices of the community concerned grant absolute discretion to the Governor in the nomination, appointment and selection of traditional emir/chief, and with time, such customs obtained the force of law. See KIMDEY v. MILITARY GOVERNOR OF GONGOLA STATE (SUPRA)
c) WHEN THERE IS NO LAW OR CUSTOMARY LAW
In our political setting, the power to make such chieftaincy declarations lies with the executive arm of the State government; see Section 5 (2) b of the CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 as amended. And also ABAEKERE v. MINISTER OF CHIEFTAINCY AFFAIRS (1963) WNLR 53 HC and MOMOH v. OLOTU (1970): 6 N.S.C.C.
The business of the court is to make a finding of what the customary law is and applies the law for declaration but it is not the business of the court to make declaration of customary law relating to the selection or appointment of an emir or chief. See; LIPEDE v. SONEKAN (1995) 1 NWLR (Pt.374).
If any, in the circumstances in which there is no statutory law made by the state house of assembly or traditionally recognized practice of appointing new emir/chief, to this view, the executive body will exercise its discretion as regards to such appointment.
However, the discretion of the Governor in all the circumstances could be challenged in the court of law and no state law can oust the jurisdiction of a court from assessing same. In ANRETIOLA v. LABIYI & ORS. (1987) AELR 1652 (CA) the court of Appeal declared section 2(c) of the Chieftaincy Matters Edict No.3 of 1985 of Oyo State which was purportedly ousted the jurisdiction of the courts in chieftaincy matters, as null and void to the extent of it inconsistency with sections 1(1), 6(6)(b), 33(1) and 236(1) of the 1979 Constitution.
3. DEFILED LAW AND CUSTOM
Apropos of the preceding submission that established custom is also binding as law, where a rotational custom is in existence between different ruling clans or homes such custom shall be duly adhered to whenever the throne or stool is vacant, and no one can be a candidate for selection or appointment for a throne/stool except is a member of a ruling house whose turn it is to occupy the vacant throne/stool, based on rotational custom the succession to same is governed. See the celebrated Supreme Court case of OLANREWAJU v. OYESOMI  EJSC (Vol. 3) 171 S.C. and also in (2014) AELR 3542 (SC).
However, in a situation where there is no recognised pattern of rotation, the contest is free for all qualified members of the ruling house or houses of the chieftaincy concerned. In such a situation, it is the principle of survival of the fittest that operates for a successful candidate to emerge. See; PRINCE OLANREWAJU v. OYESOMI & ORS (SUPRA).
In the case of ADEFULU v. OYESILE (1989) 5 NWLR (Pt. 122) 377 also reported in (1989) 20 NSCC (Pt. 111) 371 at 401 and in (1989) 12 SCNJ 44. Section 14 subsection (1) of the Chiefs Law, Cap. 20 of the Laws of Ogun State of Nigeria, 1978 required that before one is selected by the kingmakers and then appointed by the governor as OLOFIN OF ILISHAN-REMO he must be nominated by the ruling house in the first place, the Supreme Court held through the erudition of NNAEMEKA AGU, JSC (as he was then) that;
“a valid nomination by the ruling house is a sine qua non for either valid submission for selection by the kingmakers or its approval by the Governor, it follows that any purported selection by the kingmakers or its approval by the Governor of a person not nominated by the ruling house is an exercise in futility. maxim is: ex nihili nihili fit”
Also in CHIEF MICHAEL UWEGBA & ORS V. THE ATTORNEY-GENERAL, BENDEL STATE, NIGERIA & ORS (1985) AELR 2049 (CA) It was an appeal against the judgment of the trial court, which dismissed the declaratory reliefs prayed by the Plaintiffs (later appellants) challenging the appointment of 4th respondent contrary to the rotational custom between the six sub-clans of the Agbon Clan of the Western Urhobo of the then Bendel State. The learned Justices of the Court of Appeal have unanimously allowed the appeal on the ground that such established rotational custom between the six sub-clans must be strictly adhered to.
The OLANREWAJU, ADEFULU and UWEGBA cases(SUPRA) illustrated that nomination, selection and appointment of an emir or any recognised traditional ruler done not in accordance with the chieftaincy law, custom and tradition of the area concerned is an exercise in futility and could be set aside by the court of law if properly challenged.
It stands to reason that, a recognised custom is also law and laws are meant to be abided by. The procedure of doing things laid down by law is the only way of doing same, otherwise is void no matter how beautifully it might seem to have done.
On this point the former CJN Onnoghen, JSC (as he was then) put it in the NWANKWO & 2 ORS. v. YAR’ADUA & 40 ORS. (2010) 12 NWLR (Pt. 1209) 518 at 559. That;
“where a statute lays down the procedure for doing a thing, there should be no other method of doing it”.
4. FINAL ANALYSIS AND CONCLUSION
Chieftaincy Matters in the Zazzau Emirate is governing by the Chiefs (Appointment and Deposition) Cap 25 law of Kaduna State 1930 amended 1991(to be referred as the law after now) And other traditions and customs not covered or permitted to be applied by the law.
The relevant provisions as regards to the nomination, appointment and selection of the new Emir of Zazzau as an Emir whose appointment was originally based on customary law and practice of the historical Emirate are sections 3 and 7.
To ease reference, we should reproduce the relevant provisions.
Section 3(1) provides that;
“Upon the death, resignation or disposition of any chief other than a chief of a kind referred to in Section 4, THE GOVERNOR MAY APPOINT as the successor of such chief or head chief, ‘ANY PERSON SELECTED IN THAT BEHALF BY THOSE ENTITLED BY CUSTOMARY LAW AND PRACTICE TO SELECT IN ACCORDANCE WITH CUSTOMARY LAW AND PRACTICE”. (Emphasis Supplies)
While subsection (2) moves further and states;
“Where no selection is made before the expiration of interval as is usual under customary law and practice, the Governor may himself appoint such person as HE MAY DEEM FIT AND PROPER to carry out such duties incidental to the chieftaincy as it may be necessary to perform”. (Emphasis Supplies)
Section 7 provides that;
“The power of the Governor under the preceding section of this law SHALL only be exercise after receiving the advice of the COUNCIL OF CHIEFS”. (Emphasis Supplies)
Based on the provision of the subsection 1 of the section 3 Supra, the Governor MAY only appoint ANY PERSON selected by the persons entitled to the selection/nomination of a new emir in the customary law and practice of the Zazzau Emirate. The operative word in the section 3(1) is “MAY” It is trite law that, the use of the word “may” in any statute, except where the circumstances dictate otherwise, connotes permissiveness; an option either to do or not to do the act. See UGWANYI v. F.R.N. (2012) LPELR – 7817 (SC); OGUALAJI v. AG; RIVERS STATE (1997) 6 NWLR (pt.508) 209.
However, the word “MAY could also acquire a mandatory meaning from the circumstances in which it is used. As it has been established by a long line of decided cases that the Courts would interpret the word “MAY” as mandatory wherever it is used to impose a duty upon a public functionary to be carried out in a particular form or way for the benefit of a private citizen. See OGUALAJI v. AG; RIVERS STATE (SUPRA).
It will be left to the court to decide whether the word MAY used in the section 3 (1) implies mandatory compliance or not, thus make it mandatory for the Governor to accept the Kingmakers nomination or not. As courts are to adopt construction that would bring out the purpose of legislation. See COCA-COLA LTD v AKINSANYA (2017) 17 NWLR (Pt. 1593) 74, 123, and NNAJIOFOR v. FRN (2018) LPELR-43925(CA).
The clear discretion of the Governor in the appointment arises under subsection (3) of the said section 3 of the law if there is no nomination from the kingmakers as is usual under customary law and practice of the Zazzau Emirate, however such discretion is not absolute but under the advice of the COUNCIL CHIEFS as provided under section 7 of the law. The word SHALL used in the section 7 implies necessary compliance see. NWANKWO & 2 ORS. v. YAR’ADUA & 40 ORS. (SUPRA).
As clearly stated in the introduction, this article was not intended to make any analysis or commendation in respect to the pending suit before the High Court of Justice, Kaduna State. The reasons being that, we lack the capacity to make such from the four-wall roof of the matter;
Firstly the writing is purely academic, expressing the opinion of the writer in respect to the matter.
The matter is left for the Court to decide ‘sub iudice‘, so taking steps to make any analysis and conclusion on the rudiments of the suit is highly prejudicial.
In the Legal realm cases are decided on their peculiarities based on the evidence and facts established before the court of law. See NSEFIK V. MUNA  EJSC (VOL. 34)89 S.C.
And lastly, there is paucity of reliable facts to make such even if one wishes to make the conclusion, most of the available facts on the emergence of the newly appointed Emir of Zazzau are not authoritative, it will be highly irrational to jump to the conclusion on speculative facts.
ALKASIM ABUBAKAR Is a law student of AHMADU BELLO UNIVERSITY ZARIA. He is a paralegal, political analyst and critic, an educationist, a season and inspirational poet, an avid reader and a prolific writer, he has written numerous articles on various areas of law and contemporary issues and he is widely published.
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