CORAM
mohammed lawal garba -Justice of the Supreme Court of Nigeria
emmanuel akomaye agim -Justice of the Supreme Court of Nigeria
chioma egondu nwosu-iheme-Justice of the Supreme Court of Nigeria
haruna simon tsammani-Justice of the Supreme Court of Nigeria
jamilu yammama tukur-Justice of the Supreme Court of Nigeria
PARTIES
PRINCE RASAK YESUFU OGIEFO
APPELLANTS
1. HIS ROYAL HIGHNESS JAFARU ISESELE 1, ONOGIE OF EWU
2. THE PERMANENT SECRETARY, DIRECTORATE OF LOCAL GOVERNMENT & CHIEFTAINCY AFFAIRS
3. ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, EDO STATE
4. PA IJIBOR ONI OJIEFO
5. CHIEF OHUE INEGBE
6. CHIEF IKHALEA EBARE
RESPONDENTS
AREA(S) OF LAW
CHIEFTAINCY LAW, CUSTOMARY LAW, CONSTITUTIONAL LAW, STATUTORY INTERPRETATION, SUCCESSION LAW, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The case arose from a dispute over succession to the throne of Onogie of Ewu following the death of HRH Isesele Ojeifo II on August 6, 1997. The 1st Respondent (his eldest surviving son) and the Appellant (his grandson by his deceased eldest son) both claimed entitlement to the throne. The 1st Respondent relied on the Bendel State Legal Notice No. 70 of 1979 which provided for succession by primogeniture, while the Appellant argued for a different interpretation of Ewu customary law. The High Court granted the 1st Respondent’s claims and dismissed the counter-claims. The Court of Appeal affirmed this decision, leading to this appeal to the Supreme Court.
HELD
1. The appeal was dismissed for lacking merit.
2. The Supreme Court affirmed the concurrent decisions of the lower courts.
3. The Court held that BSLN 70 of 1979 was the applicable and exclusive law determining succession to the throne.
4. The Court found that succession by primogeniture was properly established.
5. Costs of N3 million were awarded against the Appellant in favor of the 1st Respondent.
ISSUES
1. Whether the Court of Appeal was right in holding that the stool of Onogie of Ewu could only be subject to the rule of primogeniture ?
2. Whether the Court of Appeal was correct in affirming the “inviolability” of the Bendel State Legal Notice No. 70 of 1979 ?
3. Whether the Court of Appeal was right in affirming that the 1st Respondent is the legitimate successor to the throne ?
RATIONES DECIDENDI
EFFECT OF CODIFIED CUSTOMARY LAW
“The settled law is that a codified or enacted or registered declaration of customary law has statutory force and remains the exclusive determinant of what the relevant customary law is. The existence of such codified or enacted customary law does not require proof by evidence.” – Per Emmanuel Akomaye Agim, JSC
UNCHALLENGED FINDINGS ON APPEAL
“Any decision, holding or finding not appealed against in an appeal against a judgment, is accepted as correct, conclusive and binding on the appellant.” – Per Emmanuel Akomaye Agim, JSC
PRIMOGENITURE RULE – APPLICATION
“In this case, the late Ewu of Onogie is survived by the 1st respondent as the eldest male child. He is therefore the heir-apparent. Assuming the late Onogie had no surviving male child, his grandsons cannot be in the line of succession, as the succession would pass to the surviving eldest brother as the heir apparent.” – Per Emmanuel Akomaye Agim, JSC
PERFORMANCE OF CUSTOMARY RITES
“A person who is not the heir-apparent cannot perform the rites and ceremonies necessary for ascension to the throne of Onogie of Ewu and if such a person purports to engage in the performance of such rites and ceremonies by any means, such performance and the rights and ceremonies are of no effect.” – Per Emmanuel Akomaye Agim, JSC
PURPOSE OF LEGAL NOTICE
“The BSLN 1979 is obviously made to determine who is the heir-apparent upon the demise of an Onogie and not leaving it open to dispute that may be difficult to resolve with attendant disruption of the peace, unity and relationships in the community.” – Per Emmanuel Akomaye Agim, JSC
CONCURRENT FINDINGS OF FACT
“The concurrent findings by the two lower Courts that the Bendel State Legal Notice No. 70 of 1979 was the applicable law which regulated succession to the throne of Onogie of Ewu by primogeniture have not satisfactorily been shown to be perverse.” – Per Mohammed Lawal Garba, JSC
RETROSPECTIVE LEGISLATION – EFFECT
“I have looked at Legal Notice No. 1 of 2004 and found that it has a commencement date of 3rd July, 2004 which is not retrospective enough to affect the accrued cause of action of the plaintiff.” – Per Emmanuel Akomaye Agim, JSC
HEIR APPARENT – DETERMINATION
“It is glaring from the express provisions of the BSLN 1979, that it determines who the heir-apparent is upon the demise of the Onogie of Ewu and thereby foreclosed any dispute or contest on who the heir-apparent is or should be.” – Per Emmanuel Akomaye Agim, JSC
LEGISLATIVE AMENDMENTS DURING LITIGATION
“The object of Exhibit DW1 was clearly to undermine (and render nugatory) the proceedings of the lower Court in the instant suit. By so doing, the Edo State Government had most unfortunately disposed itself to treating the Court with sheer disdain, levity and contempt.” – Per Emmanuel Akomaye Agim, JSC
PROOF OF CUSTOMARY INSTALLATION
“The finding of the Court of Appeal concurring with the trial Court’s finding that the 1st respondent performed the requisite customary rites for his installation as Onogie of Ewu and was so installed as Onogie of Ewu has not been shown or even alleged to be perverse in any respect.” – Per Emmanuel Akomaye Agim, JSC
BINDING NATURE OF LEGAL NOTICE
“Since 1979 when the BSLN 1979 was made no person in Ewu including the cross-appellant has challenged the Ewu customary law on succession to the throne of Onogie of Ewu declared therein as inaccurate or not reflective of the said customary law.” – Per Emmanuel Akomaye Agim, JSC
CHALLENGING CONCURRENT FINDINGS
“The concurrent findings of fact and conclusions therein by the two Courts below, are inviolable. The Appellant failed to demonstrate by this appeal why such findings should be disturbed.” – Per Haruna Simon Tsammani, JSC
RULE OF LAW IN CHIEFTAINCY MATTERS
“In the area where the rule of law operates, the rule of self-help by force is abandoned. Nigeria being one of the countries in the world which proclaim loudly to follow the rule of law, there is no room for self-help by force to operate.” – Per Emmanuel Akomaye Agim, JSC
CASES CITED
Not Available
STATUTES REFERRED TO
1. Bendel State Legal Notice No. 70 of 1979
2. Traditional Rulers and Chiefs Edict 1979
3. Edo State Legal Notice No. 1 of 2004
4. Constitution of the Federal Republic of Nigeria 1999 (as amended)