Legalpedia Citation: (2023-07) Legalpedia 19939 (CA)

In the Court of Appeal

BENIN JUDICIAL DIVISION

Thu Mar 16, 2023

Suit Number: CA/B/18/2017

CORAM

Tunde Oyebanji Awotoye JCA

PARTIES

ALIU CHRISTOPHER OLORUNLOJU

APPELLANTS

ANTHONY ADEYEMI SULE & ORS

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, CUSTOMARY LAW, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

At the trial Court (High Court of Justice, Igarra Edo State), the Claimant claimed that the Ibinata Ruling House of Aiyegunle consist of two branches namely Omogbai (Enaifoghe) family and Etaigbodi (Aliu) family and that the Chieftaincy titles of the “Oyah” (Village head) and “Daudu” of Osi Aiyegunle Village in Akoko Edo Local Government Area Edo State is rotational between Omogbai (Enaifoghe) family and Etaigbodi (Aliu) family both of Ibinata House of Aiyegunle. The claimant said the Chieftaincy titles of Oyah of Aiyegunle is not hereditary.

The learned trial Judge after hearing the parties and their respective witnesses entered judgment in favour of the Claimant.

Miffed by this decision the 1st Defendant made the instant appeal

HELD

Appeal allowed (in part)

ISSUES

Ø Whether having regards to the provisions of section 22(3) of the traditional rulers and chiefs laws of bendel state 1979 now applicable in edo state, the trial court had the jurisdiction to entertain the suit in the first place?

Ø Whether in view of the preponderance of the evidence on record in favour of the appellant, it was right for the learned trial judge to find and hold that the appellant who was the substantive “oyah” of aiyegunle community at all material times was not duly appointed and therefore not qualified to retain the throne?

Ø Whether the 1st respondent made out a successful case for the nullification of the appointment of the appellant as the “oyah” of ayiegunle community?

RATIONES DECIDENDI

PRESCRIBED LEGAL LINE OF ACTION – WHEN A STATUTE PRESCRIBES A LEGAL LINE OF ACTION FOR THE DETERMINATION OF AN ISSUE

There are steps to be taken by the claimant under Section 22 and 23 of the Traditional Rulers and Chiefs Law of BENDEL STATE 1979 (now applicable in Edo State) before the lower Court could have jurisdiction to hear the claim of the claimant.

“(3) Where there is a dispute as to whether a traditional chieftaincy title has been conferred on a person in accordance with customary law or as to whether a traditional chieftaincy title has to be conferred on the right person THE PRESCRIBED AUTHORITY OR THE EXECUTIVE COUNCIL AS THE CASE MAY BE, MAY DETERMINE THE DISPUTE”

(6) The Executive Council may, on the application of an aggrieved party;

1. Review the decision of prescribed authority made under Subsection (3) of this Section and substitute its own decision therefore; or

1. Approve the conferment of a Traditional Chieftaincy title on a person if such approval was withheld by the prescribed authority contrary to Subsection (5) of this Section.”

The law is settled on the meaning of Section 22(3) and (6) of the Traditional Rulers and Chiefs Law. A claimant in a chieftaincy dispute must comply with its provision for the Court to have jurisdiction in his matter. The claimant must apply to the Executive Council.

In OKOMALU v. AKINBODE & ORS NSCQR VOLUME 26 (2006) PAGE 227 (4350), the bone of contention was a minor chieftaincy of Baale of Osegere which had the Olubadan of Ibadan as the prescribed authority. The plaintiffs sought various declaratory reliefs against the Respondents. The Respondents on the other hand contended that the action was premature as the plaintiff had not exhausted the administrative avenue provided by law. The Respondents relied on the provision of Section 22 (2) of the Chiefs Law of Oyo State, 1978. NIKI TOBI JSC. (of blessed memory) held as follows:-

“Counsel for the respondents have presented Section 22 (2) of the Chiefs Law of Oyo State, 1978 as the alpha and omega. I think that subsection empowers the commissioner designated to institute enquiries in accordance with Section 21 of the Chieftaincy disputes. It appears to be the subsection on the exhaustion of remedies available to a party before commencing an action. While I concede that failure to exhaust local remedies will oust the jurisdiction of the Court to hear the matter, the response to the petition of the appellant, Exhibit 10 is very adequate answer and defence to Section 22(5).”

One needs to understand the above opinion of TOBI JSC.

The Claimant in OKOMALU’S case (Supra) in compliance with the provision of Section 22(2) of the Chiefs Law petitioned the State Governor but the response of the Governor was a complete blockade not granting him audience on the Baale of Osegere Chieftaincy thereby leaving the claimant with no other option but to institute an action.

In SUNDAY EQUAMWENSE v. JAMES AMAGHI ZENWEN (1993) 11 SCNJ 27., BELGORE JSC (as he then was) opined as follows on this point:-

“Where a statute prescribes a legal line of action for determination of an issue be that issue an administrative matter, chieftaincy matter or a matter taxation the aggrieved party must exhaust all the remedies in that law before going to Court. The provision of Section 236 of the 1979 Constitution is not an open gate for all High Courts to assume jurisdiction in all subjects.”

See also ALECHENO ADOBE OBE v. MTN (Nigeria Communication) decided on 16/4/2021 reported in ELC 3520 SC. There is need to state that OKOMALU’s case (supra) was decided on 7/4/2006. The lower Court relied on OLU of WARRI & ORS v. KPEREGBEYI & ORS (1994) 4 NWLR (Pt. 334 page 416; which was a Supreme Court case decided much earlier. It is therefore dead law. A later decision of the Supreme Court on the same point takes precedence over an earlier one.

In the instant case the claimant ought to have complied with the provision of Section 22(3) of the Traditional Rulers and Chiefs Law of Bendel State 1979 (now applicable in Edo State) before the lower Court could have jurisdiction. This was not done. The jurisdiction is contingent upon the happening of an event which never happened. See GOYANG KAYILI v. YILBUK & ORS 7 NWLR (PT. 1457). – Per T. O. Awotoye, JCA

CUSTOMARY LAW – IN DETERMINING QUESTIONS OF CUSTOMARY LAW

I find the resolution of the facts by the learned trial Judge unimpeachable and I fully agreed with his Lordships findings. According to Section 70 of the Evidence Act 2011:

“In deciding questions of customary law and custom the opinions of traditional rulers, Chiefs or other persons having special knowledge of the customary law and custom and any book or manuscript recognised as legal authority by people indigenous to the locality in which such law or custom applies are admissible”

The learned trial Judge was on the right track to have relied on the evidence of the traditional chiefs. – Per T. O. Awotoye, JCA

CASES CITED

STATUTES REFERRED TO

1. Traditional Rulers and Chiefs Law of Bendel State, 1979 (now applicable in Edo State).
2. Constitution of the Federal Republic of Nigeria, 1999 (as amended)
3.  Evidence Act 2011

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