How a chieftaincy dispute moves from the traditional council to the High Court
The route a chieftaincy dispute must take is frequently decisive. Going to court too early is a common and expensive error.
A stool has fallen vacant and two families each say the turn is theirs. A selection has been made and those who were not consulted say the process was not the one the custom requires. A recognition has been withdrawn. Chieftaincy disputes are unlike ordinary civil disputes: they are about tradition, lineage and standing within a community that everyone involved has to keep living in afterwards, and the record that decides them is frequently not written down anywhere.
The law
What the law provides
Chieftaincy in Nigeria sits at the meeting point of three sources of law: the customary law of the particular community, the chieftaincy legislation of the state, and the Constitution.
The starting position is that the applicable customary law of the community governs who may be considered, how a selection is made, and who has the authority to make it. That customary law is a question of fact to be proved by evidence, unless it has become so notorious through repeated judicial decision that it may be judicially noticed. Establishing what the custom actually is — and that it has been consistently observed — is therefore usually the central task in the case, not a preliminary to it.
Layered over that is state chieftaincy legislation, which typically provides for the registration of a chieftaincy declaration recording the applicable custom, prescribes the composition and role of kingmakers, and provides for recognition or approval by the appropriate authority. Where a registered declaration exists, it is ordinarily the governing instrument, and a selection made contrary to it is exposed to challenge.
Customary law is not applied without limit. A custom that is repugnant to natural justice, equity and good conscience, or that is incompatible with a written law, is not enforced by the courts. Constitutional guarantees — notably the right to a fair hearing — apply to chieftaincy processes as they do elsewhere.
Customary arbitration is separately recognised. Where parties voluntarily submit a dispute to elders or a traditional body, agree in advance to be bound, and the decision is delivered according to the custom, the outcome may be binding and may be pleaded in later proceedings. The conditions are strict and each of them has to be established.
The process
What happens in practice
The first question is which route the dispute must take, and it is frequently the decisive one. Where state chieftaincy legislation provides an internal procedure — complaint to a traditional council, or to the appropriate authority — that route may need to be exhausted before a court will entertain the matter. Going to court too early is a common and expensive error.
The second question is jurisdiction. Depending on the nature of the claim, proceedings may lie in the High Court of Benue State, or by way of appeal from a Customary Court to the Customary Court of Appeal, whose jurisdiction is confined to questions of customary law. Characterising the claim correctly at the outset determines which court can hear it at all.
Where the matter is litigated, the evidence is substantially traditional. It is given by elders and members of the ruling houses, and it addresses lineage, rotation, and how the community has in fact behaved on previous occasions when the stool fell vacant. A registered declaration, where one exists, is tendered. Contemporaneous records of past selections — minutes, letters of recognition, gazette entries — carry considerable weight precisely because so much of the rest is oral.
These matters are frequently appealed. Nothing here should be read as an estimate of duration in any particular case.
Our role
How the firm acts
We take instructions on the custom as the community has observed it, and identify the ruling houses, kingmakers and other persons whose role the custom or the declaration recognises. We examine any registered chieftaincy declaration and the records of previous selections, and advise on the route the dispute must properly take before any proceedings are commenced.
Where the matter is litigated, we prepare and file the process, assemble and present traditional evidence, and appear at first instance and on appeal, including before the Customary Court of Appeal. We also advise traditional councils and families on selection processes in advance of a vacancy, and act in customary arbitration where the parties wish the matter resolved within the community.
Questions
Questions clients commonly ask
Must a chieftaincy dispute go to court?
Not in the first instance, and frequently not at all. Where state chieftaincy legislation provides an internal procedure — a complaint to the traditional council or the appropriate authority — that route may need to be followed before a court will entertain the matter. Many disputes are also capable of resolution within the community.
How is customary law proved?
As a question of fact, by evidence — usually the evidence of elders and members of the relevant families, supported by records of what has actually happened on past occasions. Where a custom has been established repeatedly in decided cases, a court may take judicial notice of it without further proof.
Is a decision of elders binding?
It may be. A customary arbitration can bind the parties where they voluntarily submitted the dispute, agreed in advance to accept the outcome, and the decision was given according to the custom. Each of those conditions must be established, and a decision that does not meet them may not be binding.
What is a chieftaincy declaration?
It is a document registered under state chieftaincy legislation that records the customary law applicable to a particular chieftaincy — the ruling houses, the order of rotation where there is one, and the persons entitled to select. Where one exists, it is ordinarily the governing instrument.
Can a custom be set aside by a court?
A court will not enforce a custom that is repugnant to natural justice, equity and good conscience, or that is incompatible with a written law. Constitutional protections, including the right to a fair hearing, also apply to chieftaincy processes.
Please do not send confidential or sensitive information through this website. Contacting the firm does not create a lawyer–client relationship, and no such relationship exists until the firm has confirmed in writing that it is able to act for you.