DEPOSED CHIEF OF BACHAMA LOSES 7-YR-OLD CASE

By NBF News
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It was a victory foretold by some legal minds monitoring the the case. When the seven-year-old case came to an end, the winners were Governor Murtala Nyako of Adamawa State, Hama Bachama, Asaph Zadok, (Goro Ngakye Kuzo Vudeto) and the state Attorney General.

By a writ of summons filed on June 18, 2004, Freddy Soditi Bongo, instituted the action, giving rise to the appeal when he claimed that his deposition on June 11, 2004, was unconstitutional, irregular, invalid, null and void and of no effect whatsoever. He, therefore, sought an injunction to restrain the state government from initiating or proceeding with the process for the selection of Hama Bachama.

He also prayed the court to issue an order reinstating him as the paramount ruler of the Bachama Chiefdom. Zadok applied to be joined as a party to the suit and the court upheld his application. Justice Coram Bansi dismissed the appellant's claims in its entirety. Dissatisfied, Bongo went to the Court of Appeal on September 12, 2010, on seven grounds.

The state of security in Bachama at that time was particularly made a bone of contention by Bongo. He wanted the court to determine whether the trial judge was justified in 'importing extraneous and speculative consideration of the state of security of Bachama Chiefdom' into his judgement.

The Hama Bachama, howrver, wanted the court to determine whether the trial judge was right in concluding that the appellant was given fair hearing before his deposition, and that his deposition did not violate the Chiefs (Appointment and Deposition) Law applicable to Adamawa State. Penultimate Tuesday, the Appeal Court Justices, led by Justice Zainab Bulkachuwa, delivered the judgement. Justice Bulkachuwa reviewed the issues raised by the two contending parties: 'A ground of appeal defines and identifies the wrong said to be committed by a court and challenges the decision by furnishing the rationale being challenged.'

She noted that the objection of Hama Bachama on the fourth ground was that the issue in controversy between the parties before the lower court was whether the deposition of the appellant was in conformity with the relevant law, not on the installation of the third respondent. 'The Appellant on the other hand maintained that though trite that an appeal is usually against a ratio of a judgement and not on the obiter, in exceptional cases an appeal may be against an obiter where it is so closely linked to the ratio as to be deemed to influence the ratio.

'The decision under consideration, to my way of thinking, is a finding based on, in the words of the trial judge, 'according to the evidence before the lower court' and then an addendum of 'since then there has been order and good governance in the Bachama Kingdom. Security is being maintained and sustained.

'As a rule, an obiter should not be made the focus of a ground of appeal. A ground of appeal should arise from the ratio of a decision an appellant is complaining against. The outcome of the decision of the appellate court which may one way or the other affect the case as decided by the tiral or lower court should be the focus of the appellant.

'The ratio of the decision as shown earlier was the installation of the third respondent as the Hama Bachama while the obiter is on the state of affairs in Bachama Chiefdom after his installation. It would not have one way or the other influenced the ratio. It was a passing comment made by the trial judge.

'In any case, the live issue before the Lower Court as pointed out by the 3rd Respondent was whether or not the deposition of the appellant conformed with the provision of the relevant laws and certainly not on the installation of the third respondent as Hama Bachama or the state of affairs in Bachama Chiefdom after his installation.

'I am satisfied that the preliminary objection has merit and I hereby uphold it. I find ground 4 and issue 3 formulated therefrom incompetent and they are accordingly struck out.'

Justice Bulkachuwa put to rest the argument that the learned trial was wrong to have relied on the first and second respondents pleadings not substantiated by evidence and should be considered abandoned: 'The learned trial judge was right in using those facts as admitted facts which needed no poof.'

On the substantive complaint of the appellant that when he was deposed, the provisions of sections 6 and 7 of the Chiefs (Appointment and Deposition) Law CAP 26 Law of Adamawa State 1997 were not complied with nor was he heard before his deposition as enshrined in section 36 (1) of the 1999 Constitution: 'It is trite that the principles of fair hearing as enshrined in the Constitution does not connote that a person must be heard by all means in the determination of his civil rights, rather it connotes that he be given the opportunity of being heard.'

She ruled that the appellant had been given the opportunity of being heard and he was aware what the allegations against him were. Bulkachuwa also contended that 'Section 6 as pointed earlier is permissory and gives the governor the discretion as to the mode and manner he can conduct the due inquiry, it needs not be a formal inquiry.

'From the evidence adduced before the lower court, adequate due inquiry was made by the first respondent as to the state of affairs in Bachama land during the crisis. There is no finding by the lower court that the traditional selectors of the chief were consulted before his deposition. However, from the evidence adduced and exhibits B, C and D, the Senior Zeke and Nzopwato were consulted before the deposition of the appellant.

'I have taken judicial notice that the Numan Federation Local Authority Law is the enabling law that governs the selection of a Chief of Bachama. Section 5 (2) thereof provides that the Senior Zeke and Nzopwato are the principal selectors of a chief of Bachama. I uphold the respondent's submission that it is only when they fail to agree on selection that other members of the Electoral College are involved.'

It was a unanimous judgement in which all the pleadings of the deposed chief were struck out.