Chief Etuedor Utih & Ors. V. Jacob Umurhurhu Onoyivwe & Ors. (1991)

LawGlobal-Hub Lead Judgment Report

BELLO, C.J.N. 

The dispute in this case on appeal was deep rooted in the politics of the “Ovie of Evwreni” Chieftaincy title in Evwreni town in the Ughelli Local Government area of Bendel State and the Clan Headship of the town. Although the main issues for determination in the dispute, to wit whether the Court had jurisdiction to make the declarations sought and whether the evidence adduced warranted making the declarations, might appear to be straight-forward, the matter had been made complicated by copious and verbose pleadings filed by the parties and over-production of documentary evidence, namely – Exhibits A, B-B6, C-C19, D-D2, E to V, W-W1, X to Z and 1 to 2 most of which went to no issue.

For the proper appreciation of the issues, it is necessary to set out fully the Plaintiffs’ case as pleaded in their Amended Statement of Claim. After having set out the traditional history of Evwreni from the migration of its peoples from Elele to their founding of Evwreni and their settlement thereat in the 18th century, the plaintiffs averred in paragraphs 9 to 13 as follows:

“(9) Having settled down in Evwreni the new community thought it to be necessary to organise a social order acceptable to all: Evburhu at once emerged as the undisputed leader of the community. He was a great warrior, a mighty hunter and the oldest member of the community. He also was at the head of the party that founded the new settlement. The entire party, therefore, without question accepted his authority and governance as the head of the new community.

(10) When the party left Elele, each family like Evburhu himself, took with it, its own family’s ancestral spirit. This family spirit called Odion was symbolised by the fronds of the Ovbor tree which the family carried with it and worshipped very much like the images or gods of Laban, the Syrian, the father in-law of Jacob as told in the Bible.

(11) As a mark of the acceptance of Evburhu’s authority and governance each family handed to Evburhu its own Odion. Evburhu collected these Edion and bounded them up in a bundle which became, as it were, his “staff of office.” Evburhu thus became, so to speak the living human embodiment of all the spirits of the ancestors of the entire Evwreni people. He made intercessions for anyone wishing him to do so to his ancestors. This has remained so to the present day.

(12) By this singular gesture of the Evwreni people, the Odion became not only the political but also the spiritual head of the Evwreni community. As political head the Odion was like an Executive President with an inner council of officials whom he appointed to hold office at his pleasure. These officials were.

(a) THE OTOTA, who, as the name implies, was mouth-piece and spokesman of the Odion and therefore of the community at all levels. In modern idiom he could be called the Minister or Secretary of State for Information and Communication.

(b) THE AKPOHOR, who as the name implies, rectified or righted all wrongs. He ensured that punishments meted to wrongdoers were carried out. He constituted a court of first instance for minor disputes between members of the community.He ensured, with the aid of the Olotu, the internal security of the community. In modern idiom he could be described as the Minister or Secretary of State for Internal Affairs. He was also Deputy Otota and acted when the Otota was absent.

(c) THE OLOTU, who was the leader of the populace in war and in peace. As leader in peace time, he directed works: clearing and sweeping of the streets and the market places, constructing drainages and bridges, preparing the area for festive occasions and so on. He also organised the police from among “the Ovbrahwa” (the youngmen of the town). In modern idiom he could be called the Minister or Secretary of State for war Works and Defence.

(d) THE OVBORHEVBE who dusted the kolanut and preceded (sic) at every gathering to break the kolanut and open the drink for the Odion’s libation and prayers before they were passed round to all present for a bite and sip. In this role he functioned as Chief Protocol and personal adviser of the Odion, a Minister or Secretary of State for Cultural Affairs.

(13) The foregoing four official titles plus the Odion were the only known Chieftaincy titles in Evwreni which tradition and practice handed down to the present generation. The Odion as the executive President with his executive council formulates laws and governance. There was the Odion’s Court for settling disputes between individuals and groups. There was also the Odion’s council for discussing the problems and issues of the day. A Council meeting may at once be a court as well as a legislature.”

In paragraphs 52 to 79, the plaintiffs then proceeded to narrate the circumstances giving rise to the title “Ovie of Evwreni” in 1936 and the acrimonies and protests that followed in consequence of its emergence. The paragraphs read:

“(52) The title Ovie of Evwreni surfaced in 1936. By that year, Chief Mukoro Mowoe, the man of prominence in Urhobo at the time had become influenced and inspired by the institution of the “Obas”, “Olus, Alafins” and Alakes in Benin and Yoruba traditions and had felt he must create a comparable institution in Evwreni, his home town by creating the stool of “Ovie of Evwreni”, as indeed in all Urhobo and Isoko clans where their titular head did not command any recognition beyond their borders. Such Natural Rulers would be those to accompany him in representation of Urhobo to the Conference of Chiefs in the then Western Region which was then being muted in government circles.

(53) The idea of a Conference of Chiefs was then being urged as a means of bringing together once a year the rulers and Chiefs of the various peoples of the region so they could discuss various issues and problems and be involved in official government policies at headquarters in Ibadan. This was the necessity which the wide spread tax agitation of the early thirties revealed to the colonial government.

(54) Akuruemu, the then Odion and clan Head of Evwreni, was not in Chief Mukoro Mowoe’s good books. He was too much of a traditionalist. He would refuse directions from Chief Mowoe if he thought that it was incompatable (sic) with his role as clan head. Thus the Odion was not as respectful to Chief Mukoro Mowoe as Chief Mowoe would have wished. Moreover, he was smallish in stature and was a lame and a man of straw, most unpresentable in appearance as a traditional ruler. Isiaruvbe, on the other hand, was liked by Chief Mowoe for he was obedient to, and respected, Chief Mowoe. But Isiaruvbe was old and not strong enough to embark on a tedious journey to Ibadan. In any case, a much younger and livelier fellow was needed for the sort of image that Chief Mukoro Mowoe wanted to present of his home clan. So he asked Ovie Isiaruvbe to nominate someone to represent him in Ibadan. Understandably, he did not ask the Odion of Evwreni who ought properly to have nominated someone, if at all.

(55) So it was that Isiaruvbe nominated Arumu who had just then retired as a native authority police. Him Chief Mukoro Mowoe clothed in Chieftain robes and took to Ibadan and introduced as “Ovie of Evwreni”.

(56) Chief Mukoro Mowoe did the same with several Urhobo and Isoko clans. More than that, he picked on the then Ovedje of Uvbor and styled him the “Ovie of Urhobo” and the then Ovbodo-Okpokpor of Ozoro as the “Ovie of Isoko.” Throughout the exercise, Chief Mowoe fed, robed and transported them to Ibadan and back at his own expense.

(57) There never were such titles as “Ovie of Urhobo” and “Ovie of lsako” and no such titles exist today. Similarly there never was such a title as “Ovie of Evwreni and this title ought not to exist today being merely the off shoot of a temporary experience. Unfortunately, however, Chief Mukoro Mowoe (may his name be blessed) got the title established by causing Arumu’s photograph to appear in the first Urhobo Progress Union almanac ever to appear on or about August 13. 1936, wherein Arumu was described in the write up beneath his photograph, as “Ovie of Evwreni.”

(58) The entire Evwreni clan were enraged by the Alamanac. The Evwreni Women Society turned out in the streets singing a song in derision, the lyrics of which were “Ovie ri Mowoe Ovie ri photo” literally meaning “Mowoe’s King is Alamanac King” metaphorically meaning “Mowoe”s King is a fake.”

Chief Mukoro Mowoe, a man of pre-eminent stature, was not to be tarnished by the agitation of fry. In the year 1947, he became member for Warri Province in the newly created Western House of Assembly, and this further strengthened the position of the Ovie in Evwreni.

(59) Against all advice of caution from his well meaning compatriots, Chief Mowoe took the further step of getting the British Colonial District Officer for Urhobo (Sobo) Division at the time, who was either Mr. Karkick or Mr. Mackenzie, to approve an arrangement where Arumu, as Ovie of Evwreni, and Akuruemu, as Odion of Evwreni, should function as joint clan Head.

(60) Consequent thereupon, the official monthly allowance which government paid to the Odion as clan Head was shared into two so that Akuruemu got 31pounds as the Odion while Arumu got 10% as the Ovie. This was done behind the back of Akuruemu who, having got wind of what was to happen, refused to attend a meeting with Chief Mowoe and Mr. Karkick or Mackezie in Ughelli where he would have been formally told of the arrangement.

(61) Akuruemu refused at first to share his money with Arumu. He, however, succumbed to pressure when Chief Mowoe threatened him with removal as the Odion of Evwreni and reminded him of the fate of his brother before him, by name Itegbe Isabiza (Isaza) who was arrested as clan Head of Evwreni for his alleged connivance with the tax agitation of (1928) in Evwreni, and locked up in the Warri Prisons where he died.

(62) Igeghe’s death was deeply mourned by all Evwreni who regarded it as my matyrdom, (sic). To recompense his family for the loss, Evwreni as a whole decided that his brother, Akuruemu, should be Odion in his place. This was how Akuruemu became the Odion of Evwreni despite his infirmities and inadequacies.

(63) In retrospect, however, Akuruemu gave only 8/’9197 to Arumu and kept ‘a31.2/_ to himself, the 2/_ being for the trouble he, the Odion, had to take in collecting the money from Ughelli. Odion alone signed for the money in the treasury records as this arrangement was not officially recognized.

(64) The forgoing was the state of affairs, with the Ovie acknowledging his subordination to the Odion without any trouble until in or about the year 1955 when there was to be an election into the West Region House of Assembly. The then Action Group Party which formed the government of then Western Region wanted to maintain a controlling influence over all the Local Government Areas by ensuring that the existing council of Chiefs in the Local Government Councils were made up of Chiefs sympathetic to the Action Group course.

(65) It turned out, however, that the Ughelli Local Government Council (then called Eastern Urhobo Disctrict Council was one of the few Local Councils in the Region that had no council of Chiefs. So a directive was issued from Ibadan that a list of the traditional rulers of the various clans in the said Council Areas be compiled for transmission to Ibadan. The name of Chief Amrovbe Abokitia, who was then the Odion of Evwreni, was to have been sent, but powerful elements like Late Chief Jereton Marienre and Chief Jabin O. Obahor prevented it by sponsoring the propping up Arumu, styled the “Ovie of Evwreni” to vie for the position thus bringing home forcefully the truth in the proverbial saying, often credited to late Chief Scott-Emuakpor during those turbulent days that to mutely watch the money pluck the maize cob is to create an unchecked opportunity for it to pluck the kolanut.

(66) The acrimony and confusion generated by the dispute led to nobody being appointed as traditional ruler of Evwreni in that year and the matter was left in the fog until after independence in 1960.

(67) Chief Mukoro Mowoe had died on the 10th August, 1948 and Chief Scott-Emuakpor had died on 11th September, 1952. Thereafter those who appeared to lead, direct and influence thought in Evwreni were: Late Chief Jeteon Marienre, Chief A. J .A. Obahor and in most recent times Dr. Mudiaga Odje.

(68) Meanwhile the Customary Courts had been created by the then Action Group Government of the then Western Region which ensured that these courts were manned by the traditional Chiefs who were Action Group oriented. Thus Amrovhe Abokitia became the Judge of the Grade C Customary Court which had territorial jurisdiction over Evwreni and Uwerun clans.

(69) Avavava, the then Odion of Unerurhie, which is a quarter in Evwreni, or shall it be said, a small village in Evwreni clan, whose Odion was regarded in colonial times as next in rank to the Odion of Evwreni, took advantage of Chief Amrovhe Abokitia’s pre-occupation with the Customary Court, and urged Chief Otobo, then a junior Minister in the Ministry of Local Government and Chieftaincy Affairs in charge of chieftaincy matters, to give him a seat in the Ughelli Council of Chiefs; Avavava was an Action Group member and Chief Otobo not being conversant with the political setting in Evwreni and actuated by a desire to provide a regard to Avavava as a Government Party supporter, gazetted Avavava as the Odion of Evwreni and gave him a seat in the Council of Chiefs Ovie Arumu was then an N.C.N.C. member towing the line of his benefactors, Chief Marienre and Chief Obahor.

(70) Chief Amrovhe Abokitia rightly felt stabbed at the back. He was then Odion of Evwreni and not Avavava. That Avavava should be so gazetted, when he, Amrovhe. was still alive and when Avavava, not being an Okpahwa born, could never have become an Odion of Evwreni, was an anathema or execration.

(71) Upon realising the mistake done, the government created the stool of Odion-Orode of Evwreni and postponed gazetting the title holder, leaving unaltered the gazette publication on Avavava as Odion of Evwreni.

(72) In 1962 Chief Marienre and Chief Obahor and Ovie of Arumu wrote a petition complaining that the Ovie of Evwreni was the rightful Clan Head of Evwreni and ought to be gazetted as against the Odion-Orade or Odion of Evwreni. This petition led to the setting up a Commission of Inquiry in that year, the purpose being to determine who the Clan Head of Evwreni should be as between the Odion-Orode and the Ovie.

(73) The findings of the said inquiry never saw the light of day. Then came the creation of the then Midwestern State and the setting up of an interim administration in which Chief Marienre was the Minister for Chieftaincy Affairs. It was during this time that Chief Marienre gazetted Arumu as the Ovie of Evwreni and gave official government recognition to the title for the first time.

(74) The interim administration lasted 6 months and then selection were held to the House of Assembly. After the elections, Chief Marienre became the Governor and through his influence Arumu became a member of the then Midwestern House of Chiefs. Whereupon he got government loan to buy a car.

(75) Following this state of affairs, the Odion of Evwreni (Odion Orode), Chief Amrovhe Abokitia petitioned, but nothing came out of the petition before the military coup of 1966 upset the applecart.

(76) Then came the civil war and the dispute remained dormant. The war over, the Military administration reopened the matter. Samuel Ogbemudia, the Military Governor of the State at the time set up a research section in his office to look into the Divisions and the Chiefs structure in the Divisions. Mr. Patridge was appointed to head this section. In pursuance of this assignment, Mr. Patridge came to Evwreni in 1970. There was then a vacancy in the clan Headship of Evwreni but the conflicting views encountered by Mr. Patridge made it impossible for him to establish the truth of the matter. So the issue could not be settled before the ouster of the Gowon’s Military Administration and the supplanting of the Murtala Muhammed’s Administration.

(77) Dr. Egbafe became the Commissioner for Local Government and Chieftaincy Affairs in 1977 or thereabout. The policy of the government then was to systematise the Chieftaincy Institutions in the State. So communities were invited to declare their traditional Chieftaincy titles for government’s approval. The protagonists of the Ovie submitted applications relating to the Ovie title while exponents of the Odionship title submitted declarations relating thereto.

(78) The declaration submitted by the Odion through the Ughelli Local Government Council got lost in transit and were not forwarded to Benin for the consideration of the Executive Council. But the application submitted on behalf of the Ovie was transmitted to Benin. Although the Ovie did not submit a declaration, Dr. Egbafe proceeded to submit and recommend the Ovie’s application to the Executive Council for approval. The Executive Council approved it and caused the title holder in the person of the 1st defendant herein to be gazetted under a law which was no longer in operation in the Bendel State at the time of the said approval in 1978.

(79) Nevertheless, the question as to the Clan-Headship of Evwreni remained unsolved. Then the Ighodaro Chieftaincy Declaration Review Commission was empanelled to declare the traditional rites relating to the installation of all the traditional Rulers in the State. The Commission found as a fact that in Evwreni it was impossible to declare rites relating to any particular Chieftaincy title as the question of the traditional ruler of Evwreni was confused and unsettled. So the Commission recommended to government that government should set up a Judicial Inquiry to determine the matter. That recommendation has not been implemented hence this action to put to rest once and for all this all time vexed question.”

For brevity, it is not necessary at this stage to reproduce the reliefs sought by the plaintiffs. They will be highlighted in the declaration made by the trial Judge.

The defendants raised the issue of jurisdiction in limine by motion on notice praying the court to strike out the suit which was filed on 18th July, 1978 on the ground that the claim sought to invalidate the appointment of the 1st defendant as a Chief by virtue of the Appointment of the Ovie of Evwreni, B.S.L.N.6 of 1978 p.87, of which the court had no jurisdiction under section 36 of the Chiefs Law, Cap.37 Laws of Bendel State of Nigeria, 1976. In a considered Ruling delivered on 28th November, 1979, Oki, J., as he was then, held that by virtue of section 4(8) and 274 of the 1979 Constitution which had come into force on 1st October, 1979, section 36 of the said Law would be deemed to be non-existent and the court had jurisidiction to hear and determine the claim.

The defendants were not also penurious in the use of English language as disclosed by their pleadings. After having admitted the settlement at Evwreni, paragraphs 13 and 14 of their Defence averred:

“13. In further reference to paragraphs 8,9,10,11,12 and 13 of the statement of claim, the defendants aver that at the early stage of the new settlement at Evwreni, there was no title as Odion. The Ovie, his title-holders (among whom are the Otota, Olotu, Akpohor and Ovborhevbe) and other elders that form the Clan Council exercised both political and judicial function – the Ovie being the undisputed head.

14. In further reference to the facts pleaded in paragraph 13 above, the defendants stated that Odion title came as a child of circumstances after some years of settlement at Evwreni and neighbouring Clan of Iyede, Ogor, Uwheru and Ewu. Consequent on losses suffered by Evwereni and on the advice of a native doctor all the Ephors representing the spirits of the departed ancestors be brought together and given to the eldest man and served together as this would make for strength. This was done and the eldest man to whom all the Ephors were handed over to was one Avweroho from Okpahwa. He served these Ephors each time the people were set for war.”

In answer to the averments of the plaintiffs in paragraphs 52 to 79 of the Amendment Statement of Claim, the Amendment Defence started in paragraphs 31 to 42 thus:-

“31. With reference to paragraphs 52 and 53 of the statement of claim the defendants stoutly deny that the title of the Ovie of Evwreni surfaced in 1936, and that that year, the idea of the conference of chiefs was being urged as a means of bringing together the rulers and chiefs of the various peoples of the region at Ibadan. Defendants aver that there could not be an idea of the conference of chiefs as at that date in view of the administration set up and constitution of the time.

31. With further reference to paragraphs 52 and 33 of the statement of claim, the defendants state that there was no question of creating the stool of Ovie of Evwreni as such stool existed long before he was born. As to whether Chief Mowoe was influenced by Benin and Yoruba traditions the defendants make no admission nor denial and put the plaintiffs to the proof.
32. With reference to paragraphs 54, 55, 56, 57, 59 and 60 of the statement of claim, the defendants plead as follows:-

(a) Ovie Asiaruvbe had died just after the tax agitation of 1927-28 and Ovie Arumu had been elected Ovie of Evwreni in early 1930s. There was therefore no possibility of Ovie Asiaruvbe nominating Arumu Asedewo nor was there any business for the Ovie of Evwreni to do at Ibadan politically at that time – 1936.

(b) At the death of Ovie Asiaruvbe, Akuruemu was the Odion of Evwreni and in the interim Akuruemu was appointed by the Colonial Government as the President of the Evwreni Clan Court and acted for the Ovie of Evwreni as Clan head, and was paid.

(c) After the appointment and Coronation of His Highness Arumu Asedewo, the District Officer for Urhobo arranged that the amount due to the Clan Head of Evwreni be paid to both the Ovie and the Odion during the lifetime of the Odion who has been acting.

(d) That Chief Mowoe had no reason to be opposed to the Odion being the Clan Head if that was the tradition as Chief Mowoe himself was of the same quarter Okpahwa with the Odion Akuruemu. Chief Mowoe was not the man of such mean character to pressurise the Odion to accept anything less than what properly belong to him.

(e) At no time did Chief Mukoro Mowoe create title in clans in Urhobo and Isoko where such titles were not in existence. Chief Ovedje of Ovbor and Chief Ovbodokpojpor of Ozora were never called or made Ivies of Urhobo and Isoko respectively by Chief Mowoe.

(f) Chief Arumu Asedewo was appointed a Court Messenger in 1907and retired in 1922. He was then appointed a Warrant Chief by Court Warrant dated 30th August, 1923, and was installed as the Ovie of Evwreni 3rd August, 1936. Defendants will at the trial of this action rely on all papers, Gazettes, pamphlets, books, documents, letters written to and/or about Ovie Arumu Asedewo.

34. The defendants admit paragraph 58 of the Statement of Claim only to the extent that Chief Mukoro Mowoe became a member for Warri Province in the Western House of assembly in 1947 but emphatically deny the other averments contained therein and will at the trial insist on strict proof.
35. The defendants aver that in 1955, His Highness Arumu Asedewo who was installed the Ovie of Evwreni in 1936 was still the Ovie of Evwreni. In 1963 the part II of the Chiefs Law was applied to his own title and was accorded recognition by the Western Regional Government in Gazette No.48 Volume 12 of July 4, 1963. He also became member of the House of Chiefs of the Mid-west (Bendel) in 1964.
36. Defendants admit that Chief Mowoe and Chief Scott- Emuakpor had died on 10/8/48 and 11/9/52 respectively but are not in a position to make any other admission in respect of paragraph 67 of the statement of claim.
37. Paragraph 68 of the statement of claim is admitted only to the extent that Amrophe Abokitia became a Judge of Customary Court Grade ‘C’ which had jurisdiction over Evwreni and Uwheru and plaintiffs are put to proof of the other facts pleaded therein.
38. In further reference to paragraph 68 of the statement of claim the defendants state that the Court consisted of a number of Judges namely, Ovie Arumu Asedewo, Chief James Okievo-representing Evwreni while Chief Idigbe, Chief Alfred Guede and Mr. Edemete represented Uwheru. The Presidentship of the Court was rotational.
39. The defendants are not in a position to admit or deny the averments contained in paragraphs 69, 70, 71,72,73 and 75 of the statement of claim and put the plaintiffs to strict proof.
40. With reference to paragraph 74 of the statement of claim, the defendants admit that Chief Marienre became the Governor of then Mid-western Region but emphatically deny the other averments contained therein and at the trial of this action, defendants will insist on strict proof.
41. With reference to paragraphs 76, 77 and 79 of the statement of claim, the defendants state that Mr. Patridge was to look into all Chieftaincy titles in the State with a view to getting registered declaration of same. It was for this purpose that the Chieftaincy declarations Review Commissions was later set up, and that Commission called for Memoranda and the defendants submitted a Declaration. The defendants aver that these bodies were not set up to decide the issue of the Clan Head of Evwreni or of any other community.
42. Paragraph 78 of the statement of claim is admitted to the extent that 1st defendant was gazetted as the Ovie of Evwreni but they are not in a position to admit or deny the other facts pleaded therein. The defendants however aver that in 1975 representatives of the Evwreni Community including those from Okpahwa quarter were present at a meeting of Eastern Urhobo Divisional Development Council Chieftaincy Committee when the Declaration of the title of the Ovie of Evwreni was made. Defendants will at the trial rely on the minutes of the meeting of the said Committee dated 15th May, 1975.”

In his judgment, Omo-Agege, J., the trial Judge indicated that he was not in a position to review the decision of Oki, J. on jurisdiction and proceeded to reinforce that decision by reference to section 4(8) of the 1979 Constitution which he thought was applicable although, as he pointed out, the suit was filed on 18th July, 1979 before the Constitution came into force.

The learned trial Judge also considered whether the trial was a nullity for non-compliance with section 258 of the Constitution in that he did not deliver his judgment within three months of the conclusion of evidence and final addresses. He resolved the issue in favour of validity. The learned trial Judge then exhaustively considered the evidence adduced by the parties and the submissions of their counsel. He granted the following declarations:

“(1) A declaration that, according to Evwreni traditional system, customary law and usage and unwritten constitution, there is no such Chieftaincy title as Ovie of Evwreni in Evwreni Clan. As already noted there is now an Ovie of Evwreni duly recognised by Government and in the person of Jacob Umurhurhu Ononyibe, 1st defendant, as per gazette Notice No. BSLN 6 of 1978 but who according to Mr. Obaseki of the Ministry of Chieftaincy Affairs, he is the head of a sub-clan. The tradition as documented and established by evidence in pre-colonial times and for some time after was that there was an Ovie in Evwreni whose power never went beyond his own quarter of Urevbe. As framed the declaration sought is in accord with the evidence and I so declare.”

(3) A declaration that, of the foregoing Chieftaincy titles known and recognised under Evwreni traditional system, customary law and usage and unwritten constitution, the Odion (Odion Orode) of Evwreni is the Clan Head and traditional ruler of Evwreni clan while the others are his subordinate aids at the Evwreoi town level as well as at the clan level. The evidence fully supports this relief and accordingly I make the declaration.

(6) A declaration that the Bendel Government has unlawfully been paying the Stipends rightly due the Clan Head of Evwreni to Jacob Umurhurhu Onoyivbe who is published in Gazette Notice No.BSLN 6 of 1978 at B7 of the 1978 supplements to the Bendel State Gazette as “Ovie of Evwreni” when by governments own showing the government was still to decide whom to recognise as the Clan Head of Evwreni.

Chief Jacob Umurhurhu Onoyivbe is the Ovie of Evwreni. The Government has said so; there is no evidence that Evwreni as a whole has said so. Yes, Barrister Amrophe has said it is too late in the day to say that there is no Ovie of Evwreni; I think that was his legitimate opinion but it is an opinion not shared by the generality of the people. But the Government is saying, at least through Mr. Obaseki, that Chief Umurhurhu is the Head of a sub-clan. If he is being paid a stipend as the Head of -sub-clan he is entitled to keep his money; it is then for the Odion to endeavour to have his own stipend paid to him. But the stipend payable to the Clan Head of Evwreni cannot in the light of the evidence before me properly be paid to the Ovie. To the extent that the Ovie is being paid as a Clan Head of Evwreni, the declaration sought is hereby made.”

He refused to make the undermentioned declarations:

“(2) A declaration that, according to Evwreni traditional system, customary law and usage and unwritten constitution, the known Chief titles in Evwreni are five only, namely:

I. The Odion (Odion-Orode) of Ewreni.

2. The Otota of Evwreni.
3. The Akpohor of Evwreni.
4. Olotu of Evwreni.
5. The Ovborevbe of Evwreni.

All the above five titles are known Chieftaincy titles in Evwreni. The title of “ovie” is also known in Evwreni except that it was not accepted generally. As framed the declaration sought under this head does not accord with the evidence and cannot therefore be made.”

(4) A declaration that, according to Evwreni traditional system, customary law and usage and unwritten constitution, at the Evwreni Clan level, the Odion, of Unenurhie is next in rank to the Odion of Evwreni, Akpohor of Evwreni, Olotu of Evwreni and Ovberevhe of Evwreni. Paragraph 53 of the Intelligence Report on Evwreni (Exhibit L) shows how the various members of the clan council sat in the council hall. The Ovie has a seat in the clan council and according to paragraph 52 of the Report. “He assumed the position accorded to him by virtue of his being the head of the Urevbe quarter council, but exercised no privileges apart from that.” Though regarded as subordinate at the clan council to the Odion of Evwreni (The President) and to the Odion of Uneni-Urhie who was the (Vice President) the position of the Ovie vis-a-vis the other titles was not clearly defined either in the report or by some other evidence before me. The declaration sought under this head cannot be made.”

(5) A declaration that the title “Ovie of Evwreni” was the unwelcomed creation of the politics of the late thirties to the sixties which all Evwreni abhors as contrary to Evwreni traditional system, customary law and usage and unwritten constitution and as having no functional role in the traditional institution of Government of Evwreni. Yes, the title of “Ovie of Evwreni” as distinct from an Ovie in Evwreni is a creation arising from the politics of the late thirties to the mid-sixties but it certainly was not unwelcomed to all Evwreni; Urevbe Quarter and some other accepted it with open hands and Evwrenis as a whole cannot be said to have abhorred it, plaintiffs certainly do but not the defendants! No way; this declaration cannot be made.”

Both parties were not satisfied with the decision of the trial court. The defendants appealed against the granting of the three declarations Nos. 1, 3 and 6 while the plaintiffs cross-appealed against the refusal to make the declarations Nos.2, 4 and 5. The notice of appeal contained seven grounds of appeal and with the leave of the Court of Appeal, six more additional grounds were allowed to be argued. On the other side, the notice of cross-appeal contained three grounds. The plaintiffs also sought to affirm the judgment of the trial court on other grounds.

At the hearing of the appeal and the cross-appeal in the Court of Appeal, the parties agreed to canvass the issues on jurisdiction and section 258 of the Constitution only and, if both succeeded, it would not be necessary to argue the other grounds. But if both issues failed, counsel would then argue the remaining issues in the appeal and cross-appeal. Accordingly, learned counsel argued these two grounds:

“1. The Court below lacked jurisdiction to entertain the suit, the same having being instituted in September, 1979 for the judicial determination of a question excluded from such determination by the provisions of section 163(3) of the Constitution of the Federation 1963 No. 20;

Section 36 of the Chiefs Law, 1979 No.16 as amended, as well as Section 12 of the Interpretation Law, Cap. 76 Laws of the Bendel State of Nigeria, 1974.

2. The entire judgment is a nullity on the ground that it was delivered later than three months after the conclusion of evidence and final address contrary to the mandatory provisions of Section 258 of the Constitution of the Federal Republic of Nigeria.”

In his very thorough judgment to which Ogundare and Ndoma-Egba, J.J.C.A., concurred, Musdapher, J.C.A. reviewed the decision of this Court in Ifezue v. Mbadugha (1984) 5 S.C.79, (1984) 1 SCNLR 427; Odi v. Osafile (1985) 1 S.C. 37; (1985) 1 NWLR (Pt. 1) 17; Awoyale v. Ogunbiyi (1985) 2 N.WL.R. (Pt. 10) 861; Sodipo v. Lemminkainen (1985) 2 N.W.L.R. (Pt. 8) 547; Chukwuogor v. Obuora (1987) 3 N.W.L.R. (Pt. 61) 454; Farola v. Mustapha (1985) 2 N.W.L.R. (Pt 7) 438 and Obadairu v. Uyigue (1986) 3 S.C. 39.

He concluded that the judgment of the trial court had been delivered in flagrant contravention of Section 258(1) of the Constitution and the judgment was therefore a nullity.

On the issue of jurisdiction, Musdapher, J.C.A. observed as follows:

“The question to be answered is whether or not each of the seven arms of the appellant’s claim set out can be regarded as relating to the selection, appointment, installation, deposition or abdication of a Chief which are caught within the provisions of Section 36(a) of the Chiefs Law. It had been held by Oki, J. (as he then was) in these proceedings that items 1 and 2 are clearly matters that came under the purview of Section 36 of the Chief’s Law. I respectfully agree. It is my view further, that all the other items have to do with the respondents abhorrence to the appointment of the 1st appellant as the Ovie of Evwreni, that is the traditional ruler and clan head of Evwreni, Claim No.3 was that the ODION and not the OVIE was the clan head. Claim No. 4 was a declaration of the order of precedence of the traditional title holders of Evwreni clan without the OVIE. Claim No.5 was asking for a declaration that the Ovie who was appointment was still a non-existent institution. Claim No.6 was a declaration against the State Government which was not a party to the action and accordingly unmaintainable against the appellants. In all the claims, it is my considered view, that the respondents are questioning the validity of the approval and appointment by the Government of the 1st appellant as the Ovie of Evwreni as published in the Official Gazelle No.BSLN 6 of 1978. I cannot myself see, how anyone of the declarations sought would not affect the selection, appointment, installation, recognition and grading of appellant as the Ovie Evwreni. With the greatest respect to the learned Counsel for the respondents, all the cases cited by him referred to above are not relevant to the matters herein. The dispute in this matter as positively manifested in paragraphs 79, 80, 81 and 91 of the Amended Statement of Claim was a dispute the subject matter of which was Chieftaincy. That being so, by the provisions of Section 36(a) of the Chiefs Law, 1976 as amended, the jurisdiction of the High Court was precluded. The jurisdiction of the court was also precluded by Section 161(3) of the Constitution of the Federation, No.20 of 1963. Section 165 of the aforesaid Constitution defined Chieftaincy question as:-

“any question as to the validity of the appointment, recognition, installation, grading, deposition or abdication of Chief.”

By this action, the respondents are questioning the validity of the appointment, recognition and the grading of the appellant as the Ovie of Evwreni.”

Accordingly, the learned justice of Court of Appeal held that the matter in dispute was a chieftaincy matter and by virtue of the provisions of Section 161(3) of the 1963 Constitution of the Federation and Section 36 of the Chiefs Law, the jurisdiction of the courts had been ousted. He emphasized that the issue was determined in accordance with the organic law existing on 18th July, 1979, when the action was filed and the 1979 Constitution which came into force on 1st October, 1979 was inapplicable.

The plaintiffs were also aggrieved by the decision of the Court of Appeal and have now appealed to this Court. Bereft of their particulars, the four grounds of their appeal read:

“1. The learned Justices of Appeal erred in law when they held that by virtue of Section 161(3) of the 1963 Constitution of the Federal Republic of Nigeria and Section 36(a) of the Chiefs Law of the Bendel State, 1976 now Section 32 of the Traditional Rulers and Chief Law (No.16) 1979 which ousted the jurisdiction of the court in Chieftaincy matters, the Ughelli High Court lacked jurisdiction to entertain this action filed on the 18th July, 1979, some 44 days before the coming into force of the 1979 Constitution

2. The learned Justices of Appeal erred in law in holding that the judgment delivered in this case by the learned trial Judge of first instance was in flagrant disregard to Section 258(1) of the 1979 Constitution and therefore a nullity.
3. The learned justices of Appeal erred in law when they held that the subsequent amendment to Section 258 of the Constitution by the introduction of subsection 4 by the Constitution (Suspension and Modification) (Amendment) Decree 1985 No. 17 does not apply to this case as it has no retrospective effect.
4. The learned justices of Appeal erred in law when they dismissed the respondents’ cross-appeal.”

Because the foregoing grounds Nos. 2, 3 and 4 were contingent on the issue of jurisdiction, it is most appropriate to determine it first. The constitutional provisions and the enactments at the material time which are relevant to the determination of the jurisdictional issue may first be stated. Section 161(3) of the 1963 constitution of the Federation provided:

“(3) Notwithstanding anything in any other provision of this Constitution (including in particular section 32 of this Constitution) but without prejudice to the proviso to subsection (1) of section 22 and subsection (4) of section 27 of this Constitution, no chieftaincy question shall be entertained by any court of law in Nigeria, and a certificate which is executed by an authority authorized in that behalf by a law coming into force in a territory on or after the date of the commencement of this Constitution (including a law passed before that date) and which states –

(a) that a particular person is or was, by reference to that territory or a part of it, a chief of a specified grade at a specified period; or

(b) that the provisions of a law in force in that territory relating to the removal or exclusion of chiefs or former chiefs from areas within the territory have been complied with in the case of a particular person.

shall be conclusive evidence as to the matters set out in that statement.”

Subsection (1) of Section 22 and Subsection 4 of Section 4 of Section 27 referred to above stated thus:

“22-(1) In the determination of his civil rights and obligations a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality:

Provided that nothing in this subsection shall invalidate any law by reason only that it confers on any person or authority power to determine –

(a) questions arising in the administration of a law that affect or may affect the civil rights and obligations of

any person; or

(b) chieftaincy questions.

27-(1) Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof; and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto.

(4) Nothing in this section shall invalidate any law by reason only that the law provides for the removal or exclusion of a person who is or was a chief by reference to a territory or a part of a territory from a particular area within that territory.”

Under Section 165(1) of the Constitution “Chieftaincy question” was defined as meaning “any question as to the validity of the Section, appointment, approval of appointment, recognition, installation, grading, deposition or abdication of a chief.”

The Chiefs Law, Cap. 19 Laws of the Western Region of Nigeria, 1959 which “then applied in the Bendel State provided in section 30:

“30. (1) Where a vacancy occurs in a recognized chieftaincy after the application of Part II of this Law but before the making of a declaration –

(a) the vacancy shall be filed in accordance with the customary law applying to that chieftaincy:

(b) the Governor in Council may approve the person so appointed or set aside the appointment.”

In exercise of its power under Section 30 of the Law, the Executive Council of the State appointed the 1st defendant as the Ovie of Evwreni with effect from 7th June, 1977 as per B.S.L.N.6 of 1978 which reads:

“CHIEFS LAW (CAP 19)

Appointment of the Ovie of Evwreni

Date of Commencement: 7th June, 1977

It is hereby notified for general information that in exercise of the powers vested in it, by Section 30(1) of the Chief’s Law, (Cap.19), and all other laws enabling it in that behalf, the Executive Council of the Bendel State of Nigeria has approved the appointment of Chief Jacob Umurhurhu Onoyivwe as the Ovie of Evwreni in Ughelli Local Government Area with effect from 7th June, 1977.

DATED at Benin City this 22nd day of February, 1978,”

Furthermore, Section 36 of the Chiefs Law, Cap. 37 of the Laws of the Bendel State of Nigeria, 1976, which replaced Section 24 of its predecessor, prescribed as follows:

“36. Notwithstanding anything in any written law whereby or whereunder jurisdiction is conferred upon any court, whether such jurisdiction is original, appellate or by way of transfer, no court shall have jurisdiction to entertain any civil cause or matter-

(a) instituted for the determination of any question relating to the selection, appointment, installation, deposition, suspension or abdication of a chief; or

(b) instituted for the recovery or delivery up of any property in connection with the selection, appointment, installation, deposition, suspension or abdication of a chief;

Provided that any recognised chief whose appointment has been approved by the Executive Councilor any minor chief whose appointment has been approved in accordance with Part 3 shall not be precluded from taking action in a court of competent jurisdiction for the recovery or delivery of such property and related damages;

(c) calling in question anything done in the execution of any of the provisions of this Law or the repealed Law or in respect of any neglect or default in the execution of any such provision by the Governor of Western Nigeria in Council, a Minister, the Executive Council, the State Commissioner, a Local Government Council, or its Secretary, a Committee, a ruling house or a Kingmaker; or

(d) calling in question anything done by the Governor of Western Nigeria with respect to a chief or chieftaincy (whether before or after the application of this Law to such chief or chieftaincy) under the provisions of the Appointment and Deposition of Chiefs Ordinance. [24].”

It is apt to restate that the Court of Appeal decided the jurisdictional question on the above specified laws existing on 18th July; 1978 when the suit was filed without adverting itself to the provisions of the 1979 Constitution which came into force after the suit had been filed. The Court of Appeal was right in holding that the provisions of 1979 Constitution were inapplicable to the facts of the case. In my view, the submission of learned counsel for the plaintiffs invoking the application of Section 4(8) and 274 of the 1979

Constitution which enjoined the National Assembly from enacting any law that ousts the jurisdiction of a court of law was misconceived.

It has been decided by this court, in several cases, that the relevant law applicable in respect of a cause or matter is the law in force at the time the cause of action arose and in the case of the law relating to jurisdiction when the action was instituted: Uwaifo v. Attorney-General of Bendel State (1982) 7 S.C.124; (1983) 4 NCLR 1; Attorney-General of Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552.

The cause of action in the case on appeal may be said to have arisen from 7th June, 1977 when the 1st defendant was appointed as the Ovie of Evwreni. As shown earlier, the claim was filed on 18th July, 1978. It follows therefore the applicable laws on the issue of jurisdiction were the laws in force on the 18th July, 1978, to wit Sections 161(3) and 161(1) of the 1963 Constitution and Section 36 of the Chiefs Law which have been set out in this judgment. By virtue of the provisions of these sections, no question as to the validity of the selection, appointment, approval of appointment, recognition, grading, deposition or abdication of a chief shall be entertained by any court of law.

In parenthesis, it may be observed that although the Instrument of the appointment of the Ovie Evwreni, B.S.L.N.6 of 1978, is an existing law within the meaning of Section 274 of the 1979 Constitution, nevertheless, the provision of Section 6(6)(d) of the said Constitution is inapplicable and irrelevant because the competence of the maker of the instrument was not in issue.

Reference has also been made to the Traditional Rulers and Chiefs Law No.16 of 1979 of Bendel State which has effect from 24th August, 1979. For the same reason, this Law is also irrelevant.

In his submission before us, learned counsel for the plaintiffs conceded that the issue raised in the claim ordinarily concerned chieftaincy question but contended the question did not fall within the purview of Section 161(3) of the 1963 Constitution. Relying on Anisminic v. Foreign Compensation Commission (1969) 2 W.L.R.163; Francis v. West Drayton V.D. C. (1957) 2 Q.B.136, and Akaza v. Commissioner of Police (1974) 4 ECSLR 443, learned counsel submitted that it was a well established rule of construction that where a statute sought to oust the jurisdiction of the court, the statute must be strictly interpreted. He pointed out that the plaintiffs were seeking for a declaration that the title “Ovie of Evwreni” was unknown under the Evwreni native law and custom and such declaration did not come within the ouster provisions of Section 161(3) of the 1963 Constitution.

Responding, learned counsel for the defendants indicated that the trial court had held that reliefs Nos. 1 and 2 of the claim were caught by the ouster provisions while the Court of Appeal held all the reliefs sought were questioning the validity of the approval of the 1st defendant as the Ovie of Evwreni. Learned counsel contended that the plaintiffs had failed to discharge the task to upset the concurrent findings of facts by the two courts squarely placed on them by Overseas Construction Company (Nig.) Ltd. v. Creek Enterprises (Nig.) Ltd. (1985) 3 NWLR (Pt. 13) 407.

It is clear to me that reliefs Nos. 1, 2 and 5 seeking a declaration that there is no such title as Ovie of Evwreni under the customary law of Evwreni Clan as recognised by the Government offends Sections 161(3) and 165(1) of the 1963 Constitution which prohibited the courts from entertaining any question as to the recognition of a chief. Reliefs Nos. 3 and 4 raised the issue of grading of a chief, to wit that the Odion (Odion Orode) is the Clan Head and the others are his subordinates and that the Odion of Unenurhie was next in rank to the Odion of Evwreni, Akpohor of Evwreni. Olotu of Evwreni and Ovberevbe of Evwreni, which are contrary to Section 161(3) and 165(1) that prevented the court to entertain question of grading.

The relief sought in Declaration No.6, which was granted by the trial court, that the stipends paid by the Government to Ovie of Evwreni as the Clan Head of Evwreni were unlawful was also offensive to Section 36(c) of the Chiefs Law which ousted the jurisdiction of the court to entertain any civil cause or matter calling in question anything done under the Chiefs Law or any other laws. The circular letter No.CU.33-64 of 6th May, 1969 from the Secretary Urhobo District Council to the then Ovie of Evwreni, Exh. Y. showed that the Ovie was paid salary by virtue of his office. Section 114(1) of the Local Government Law, Cap.68, Laws of Western Region of Nigeria 1959 under which the Council was established authorised the Council to pay the salary. That being the case, the payment of the salary being a “thing done” under the Local Government Law, the Plaintiffs could not call that “thing” to question by virtue of the imperative provision of Section 36(c) of the Chiefs Law.

For the reasons stated above, I find the decision of the Court of Appeal to be unimpeachable. I hold that by reason of Sections 161(3) and 36 of the 1973 Constitution and the Chiefs Law, Cap.37, a court of law has no jurisdiction to entertain the plaintiffs’ claim.

A Learned counsel for the plaintiffs has advanced a very interesting proposition that in a declaratory action, a court may circumvent and by-pass the ouster of jurisdiction and entertain the action. Citing the Rules of the Supreme Court of England 1985 and 1988 paragraphs 15 sub-paragraph 16(1), the Discipline of Law, Lord Denning at pages 79-81, the Queen v. Governor W.R. Ex Parte Ajaguna (1959) WNLR 44 at 48-49, the Queen v. Governor W.R. Ex Parte Olaje (1962) WNLR 240, the Resident Ibadan Province v. Lagunju 14 WACA 549 at 553; the Queen v. Resident Ijebu Province ex Parte Oshunlaja (1957) WNLR 173 at 174-175 and the Queen v. The Governor ex Parte Ojo (1962) WNLR 62 at 63, he contended the High Court’s jurisdiction to make declaration could not be felled by the ouster provisions of any statute because declaratory actions were now “a procedural device for ascertaining and determining the rights of parties or for the determination of a point of law and as parallel method of attacking the order or decision of an inferior court or tribunal by the prerogative order of certiorari especially where the time for doing so has expired.” (Italics mine).

Despite the express words ousting the jurisdiction of the court, continued learned counsel, the courts had entertained, the application for certiorari in the cases he cited. Declaratory action, he further submitted, being a parallel to certiorari what applied to the one should by parity of reasoning apply to the other. He reinforced his submission with Olaniyan v. Lagos University (1985) 2 NWLR (Part 9) 599; Gongola State v. Tukur (1989) 4 NWLR (Part 117) 592 and Barnard v. National Dock Labour Board (1953) 2 Q.B.18 and concluded that a court of law had no limit to make declarations except one put by itself.

In his reply, learned counsel for the defendants stated that it was strange to treat this case as if it was a certiorari proceedings when the case was not based on any order or decision of any inferior court or tribunal. He pointed out that the case was an attack on the appointment of the Ovie made by the Governor and not by a court of law or a tribunal.

I have perused the cases on certiorari and I find in none was the ouster of jurisdiction circumvented as has been alleged by learned counsel. In the Resident of Ibadan case (supra), the former Supreme Court of Nigeria granted certiorari compelling the Resident to hold a due inquiry before giving approval to the appointment of a chief as was required by the empowering Ordinance. On appeal, the West African Court of Appeal held that the granting of the certiorari did not involve any question relating to the appointment of a chief of which the court was precluded from hearing and determination by the Ordinance. The matter was held to be outside the ouster provision of the Ordinance. The observation of Foster-Sutton, P. at page 553 of the report is apt. He stated thus:

“In my view proceedings by way of certiorari taken with the object of compelling the executive to perform its quasi judicial function of holding due inquiry, cannot be said to be a cause or matter instituted for the determination of any question relating to the selection or appointment of a chief within the meaning of the Ordinance. It determines no question relating to the selection or appointment. It is merely a means of compelling the performance of a statutory duty, and I do not think it was the intention of the legislature to deprive the subject of this common law right, nor do I think that the Ordinance does so.”

The decision was followed by Ademola, C.J., as he was then, in the Queen v. The President of ljebu Province (supra). The Queen v. The Governor, Western Region (supra) was the decision of the High Court of Western Region Wherein Jibowu, C.J. held that an application for certiorari should proceed because the Chiefs Law, 1957, which applied to the case, did not expressly preclude the courts from issuing prerogative writs including certiorari. The Queen v. Governor in Council, (supra), where Charles, J. dismissed an application for certiorari on the ground that the applicant did not discharge the onus on him, did not raise any issue of ouster of jurisdiction. In the other case of the Queen v. Governor In Council, (supra) Bairamian, F.J. stated at page 63 of the report:

“It is settled law that despite express words taking away certiorari, the court will issue it for manifest defect of jurisdiction in the tribunal which made the order, and the objection may be founded on the character and constitution of the inferior court or the nature of the subject-matter of the inquiry, or the absence of some preliminary proceedings which was necessary to give jurisdiction to the inferior court.”

In the case on appeal there is no question of any want of jurisdiction of an inferior court or tribunal.

I find no parallel whatever between the cases on certiorari cited by learned counsel for the plaintiffs and the claim for declarations in the case on hand.

Learned counsel for the plaintiffs has also urged us to depart from the decision of this Court in Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt.58) 539 on the ground that it is not good law and Uwaifo v. Attorney-General Bendel State (1982) 7 S.C.124: (1983) 4 NCLR I was wrongly decided. Referring to Sections 6(6)(b), 6(6)(d) and 274(3) of the 1979 Constitution, learned counsel contended the 1979 Constitution conferred general jurisdiction to the courts and clearly intended the courts to retain their powers of entertaining declaratory actions and writs of certiorari to invalidate any law such as the Instrument of Appointment of the Ovie which is inconsistent with an existing law, in this case the Chiefs Law.

Learned counsel for the defendants responded that the onus was on the plaintiffs to show the decision of this court in Mustapha v. Govenor of Lagos State (supra) is no more good law. He stressed that the court has recently decided the case of Alao v. Akana (1988) 1 NWLR (Pt.71) 431 on the same principles governing chieftaincy question and accrued rights conferred by Section 161(3) of the 1963 Constitution.

He invited us to note that the 1st defendant had an accrued right to the Ovie title and that right was protected by Section 6(6)(d) of the 1979 Constitution which ousts the jurisdiction of the courts in relation to any action, such as this case, which seeks to challenge or question the ouster provisions of the 1963 Constitution and the Chiefs Law, 1976 and the Instrument by which the 1st defendant was appointed as the Ovie of Evwreni.

In Mustapha v. Lagos State (supra), this court decided that the jurisdiction of the court was ousted on two grounds:

(I) the Legal Notice No.6 of 1979 of 24th July, 1979 was an existing law within the meaning of Section 274(3) of the 1979 Constitution and as such Section 6(6)(d) of the Constitution has precluded the court from the determination of the competence of the maker of the Legal Notice, and

(2) by the provisions of Sections 25(6), 52(a) (c) (d) of the Chiefs Law, Cap.25 Laws of Lagos State and Section 161(3) of the 1963 Constitution.

I have already held that although the Instrument of Appointment of the Ovie is an existing law within the meaning of Section 274(3) of the 1979 Constitution, section 6(6)(d) of the Constitution is inapplicable to the case because the competence of the maker of the Instrument has not been in issue.

Consequently, Mustapha case and the present case are only at par in respect of the second limb of the latter case, i.e. ouster of jurisdiction by virtue of Chiefs Law and 1963 Constitution.

I am in complete agreement with the contention of learned counsel for the defendants that to warrant a departure from the decision in Mustapha v. Governor of Lagos State (supra), the onus is on the plaintiffs to show within the principles laid down by this court in Bucknor-Maclean v. lnlaks (1980) 8-11 S.C.1; Eperokun v. University of Lagos (1986) 4 NWLR (PI.34) 162 and Clement v. Iwuanyanwu (1989) 3 NWLR (Pt. 107) 39 that the decision was given per incuriam and it was manifestly erroneous or that rigid adherence to it may perpetuate injustice in a particular case and also unduly restrict the proper development of the law.

Learned counsel for the plaintiffs has not brought his contention within any of the aforesaid principles to justify a departure from the previous decision. Since the decision of the Privy Council delivered on 5th May, 1952, see the Resident of lbadan v. Lagunju, 14 W.A.C.A.549 up to 30th September, 1979 when the 1979 Constitution changed the situation by conferring general unlimited jurisdiction under Sections 6 and 236, the law had always been that courts of law had no jurisdiction to entertain any question relating to the appointment, approval of appointment, recognition, grading and deposition of a chief. Except in the cases instituted on or after 1st October, 1979,when the 1979 Constitution came into force, it is too late in the day to question the binding force of the decisions in Mustapha v. Lagos State (supra) and Alao v. Akano, (supra) and the previous cases before them which are too numerous to mention.

The plaintiffs’ counsel also complained against the dismissal of his cross-appeal by the Court of Appeal without having given him the opportunity to argue it and to be heard. As I have earlier indicated, the Court of Appeal with the consent of learned counsel for the parties decided to determine the issue of jurisdiction first and if that issue succeeded, that would be the end of the matter and, if it failed, the other grounds including the cross-appeal would then be argued. Learned counsel is now complaining against his approbation. Surely, counsel cannot approbate and reprobate on the same issue at the same time.

Moreover, jurisdiction is blood that gives life to the survival of an action in a court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise. Since the Court of Appeal had held that the courts, including the Court of Appeal, have no jurisdiction to entertain the suit, and it was right in so holding, hearing the submission of counsel on the cross-appeal by that Court would not only be an abortive and unfruitful academic exercise but it would also have unnecessarily wasted the valuable time of the court.

Under Order 3 rules 18 and 25 the Court of Appeal Rules 1981, the Court has the power to dismiss an appeal which it has not heard on the merits. I think the court of Appeal was right in dismissing the cross-appeal in the circumstances of the case.

I would apply the same treatment, as the Court of Appeal did to the cross-appeal, to the ground of appeal in this court raising the issue of the failure of the trial Judge to comply with Section 258 of the 1979 Constitution. Since the Court had no jurisdiction the whole trial was a nullity.

Consequently, whether the trial court complied with the section or not has become an academic question and the court will not answer such question: Nkwocha v. Governor of Anambra State (1984) 6 S.C. 362; (1984) 1 SCNLR 634; Governor of Kaduna State v. Dada (1986) 4 NWLR (Pt.38) 687 and Akeredolu v. Akinremi (1986) 2 NWLR (Pt. 25) 710.

For the foregoing reasons, I affirm the decision of the Court of Appeal. The appeal is dismissed with N500 costs to the respondents.M. L. UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother the Chief Justice of Nigeria. I entirely agree.

In my opinion, the cardinal issues to be determined in this appeal are whether the claims before the High Court concerned chieftaincy matters; and if they did, whether the jurisdiction of the High Court was ousted. In its judgment, the Court of Appeal (per Mustapher, J.C.A.) found as follows-

“It had been held by Oki, J. (as he then was) in these proceedings that items 1 and 2 are clearly matters that came under the purview of Section 36 of the Chiefs Law, I respectively agree. It is view further, that all the other items have to do with the respondents’ abhorrence to the appointment of the 1st appellant as the Ovie of Evwreni, that (is) the traditional ruler and clan head of Evwreni. Claim No. 3 was that the ODION and not the OVIE was the clan head. Claim No.4 was a declaration of the Order of precedence of the traditional title holders of Evwreni clan without the Ovie. Claim No.5 was asking for a declaration that the Ovie who was appointment (sic) was still a non-existent institution. Claim No.6 was a declaration against the State Government which was not a party to the action and accordingly unmaintainable against the appellants. In all the claims, it is my considered view, that the respondents are questioning the validity of the approval and appointment by the Government of the 1st appellant as the Ovie of Evwreni as published in the Official Gazette Notice No. B.S.L.N. 60 of 1978. I cannot myself see, how anyone of the declarations sought would not affect the selection, appointment, installation, recognition and grading of appellant as the Ovie of Evwreni.” (italics mine).

I, respectfully agree with these findings by the Court of Appeal. By section 36 (a) of the Chiefs Law, Cap.37 of the Laws of Bendel State (which has since been repealed by the Traditional Rulers and Chiefs Edict, No.16 of 1979, but which was applicable to this case at the time the action was instituted on the 18th day of July, 1979)

“36. Notwithstanding anything in any written law whereby or whereunder jurisdiction is conferred upon any court, whether such jurisdiction is original, appellate or by way of transfer, no court shall have jurisdiction to entertain any civil cause or matter-

(a) instituted for the determination of any question relating to the selection appointment, installation, deposition, suspension or abdication of a chief;”

Furthermore by section 161 subsection 131 of the 1963 Constitution, which was in operation at the time of filing the action –

“(3) Notwithstanding anything in any other provision of this Constitution (including in particular section 32 of this Constitution) but without prejudice to the proviso to subsection (1) of section 22 and subsection (4) of section 27 of this Constitution, no chieftaincy question shall be entertained by any court of law in Nigeria,..”

In the light of the foregoing, it follows, therefore, that at the time this case was instituted the High Court of Bendel State lacked the jurisdiction to entertain any dispute which concerned chieftaincy. Consequently, the High Court’s jurisdiction to entertain the present case, which had been found by the Court of Appeal to have raised chieftaincy question, had been ousted. The power and unlimited jurisdiction vested on the High Court at a later date by the provisions of section 6 subsection 6 and section 236 subsection (1) of the 1979 Constitution respectively could not avail the appellants, since the 1979 Constitution has no retrospective effect – see Uwaifo v. A-G. of Bendel State (1982) 7 S.C.124; (1983) 4 NCLR 1; Din v. A-G. of the Federation (1988) 4 N.W.L.R. (Pt. 87) 147 and A-G. of Lagos Stare v. Dosunmu (1989) 3 N.W.L.R. (Pt. 111) 552.

It is for these and the fuller reasons contained in the judgment read by my learned brother, the Chief Justice of Nigeria that I too will dismiss the appeal. Accordingly, the decision of the Court of Appeal is hereby affirmed with N500.00 costs to the respondents.

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SC.160/1988