Chief J.A.Y. Imonikhe & Anor. V. The Attorney-General Of Bendel State & Ors. (1992)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C.

This is an appeal by the plaintiffs against the decision of the Court of Appeal, Benin Division delivered on the 19th of July, 1989.

The appeal arose from a Chieftaincy tussle. In the claim before the Owan Judicial Division of the High Court of the then Bendel State, the plaintiffs claimed against the defendants as follows:

“(a) A declaration that it is the right and turn of the plaintiffs who represent the Afifia branch of Afonkhiai Ruling House in Ihievbe to produce the next Ukor of Ihievbe and not the defendants who being of Ekueye quarters in Ihievbe are not from one of the recognised branches of the said Afonkhiai Ruling House.

(b) An injunction restraining the 1st and 2nd defendants from recognizing and or installing the 2nd and 3rd defendants and any other person who is not from Afifia branch of the Afonkhiai Ruling House as the next Ukor of Ihievbe.”

From the proceeding, it appears that the 2nd head of claim was to restrain the 1st and 2nd defendant:-. from recognizing the 3rd and 4th defendants from being installed as the next Ukor of Ihievbe.

Parties exchanged their pleadings and the matter went into trial. On the 5th of December. 1985, the Court adjourned for judgment. Then by a motion filed on the 6th of December, 1985, the plaintiffs applied to add one more relief to the two reliefs set out above. The new relief sought to be added read as follows:

“(c) A declaration that the purported appointment and installation of the 3rd defendant by a representative or representatives of Emabu Village on 22nd day of May, 1983, is illegal. Unconstitutional, null and void and of no effect.”

In his considered ruling dated the 23rd of December, 1985, the learned trial Judge refused the application on the grounds that it was a new relief; that there was no evidence to support it and that there was no evidence that the 3rd defendant had been installed. I may observe that those findings were contrary to the evidence and the depositions of the plaintiffs/applicants in the affidavit in support of the motion, particularly in paragraphs 6, 7, and 9 wherein it was deposed as follow:

“6. That I am making this amendment in view of the recent further instructions I received from members of our Ruling House.

7. That I make this amendment not with the intention to cause unnecessary delay or embarrassment but to streamline the relief sought with the evidence already adduced in this case. 8. That the material facts and evidence to sustain the additional relief and minor amendments sought have already been pleaded and given in evidence in this Case.”

However, on the 16th of January, 1986, the learned trial Judge proceeded to give judgment on their claim as originally filed and, on the various findings by him, he dismissed the suit.

The plaintiffs appealed to the Court of Appeal against the refusal to amend the claim and the dismissal of their claim. In its judgment the Court of Appeal in its unanimous judgment, summarized the findings of facts by the learned trial Judge as follows:

“1. The 3rd defendant took part in the race for nomination as a candidate to contest the vacant stool of Ukorship of Ihievbe as a result of the death of the last Ukor Chief Ahonsi.

2. There is a Chieftaincy Declaration published for Ihievhe in B.S.L.N. No.144 of 1979, Exhibit “A”.
3. That the 3rd defendant was in fact installed on the22nd of May, 1983.
4. That there are five branches of family in Afonkhai Ruling House namely:

AFADIA Branch

Afifia Branch

Afaruyia Branch

lyore Branch

Afongbuan Branch

and these five family branches together formed the only Ruling House which is Afonkhiai Ruling House in Ihievbe.

5. That the 1st plaintiff, the 2nd plaintiff now deceased, the 3rd defendant and Chief Kadiri Iyemifonhai were the candidates that were put forward by Afifia family branch of Afonkhiai Ruling House to vie for the Ukorship of Ihievbe.
6. That the said contest was under the auspices of the Chieftaincy Advisory Committee of Afonkhiai House.
7. That when the votes were cast the 3rd defendant emerged successful with five votes and the 1st plaintiff emerged with no vote while the 2nd plaintiff now deceased emerged with one vote, and Chief Kadiri Iyemifonkhai four votes.
8. That the 3rd defendant is a member of the Afifia family Union, Lagos Branch and also a member of Afonkhai Family Union, Lagos Branch holding the office of a Secretary in each one.
9. That at the Afonkhai Chieftaincy Advisory Committee each of the five branches of the family that make up Afonkhai Ruling House was represented by two delegate to constitute the body that conducted the election in which the 3rd Defendant, the 4th Defendant, the 1st and the 2nd plaintiffs were the only contestants for the stool of Ukorship.”

Then it proceeded to hold as follows:-

“(1) The decision of the High Court dismissing the two original Claims (set out as paragraphs 14(a) and 14(b) in the amended statement of Claim) is hereby affirmed.

(2) That the amendment allowing a third claim as per the amendment sought by the appellant; and as amended by this Court, is hereby granted, and sent back to the High Court for a trial de novo of that issue only. Parties are at liberty to amend their pleadings.

For the avoidance of doubt, the issue/claim to be tried is as follows:-

“A declaration that the purported installation of the 3rd defendant by a representative or representatives of Emabu Village on 22nd day of May 1983 is illegal, unconstitutional, null and void and of no effect.”

I may add that the learned Justices of the Court of Appeal had observed that by the above findings which were based on the evidence before the learned trial Judge it was manifest that there was sufficient material upon which the learned trial Judge should have granted the application to amend the reliefs claimed by adding the third head of claim.

Dissatisfied with the decision of the Court of Appeal, the plaintiffs, with the leave of this Court, and upon extended time, appealed to this Court against the whole decision, particularly the part of the judgment remitting the case to the High Court for retrial. Seven grounds of appeal running to five pages of type- script were filed. But in my opinion, the issues raised by the grounds were succinctly put by the learned Senior Advocate to the plaintiffs (hereinafter called the appellants) as follows:

“2.01. Did the Appellant adduce sufficient material evidence to sustain the declaration sought in the amendment granted by the Court of Appeal without remitting the case back to the trial Court for hearing de novo.

2.02. Whether the circumstances of this appeal warrant the exercise by the Supreme Court of its powers under Section 22 of the Supreme Court Act 1960 in favour of the Appellant by ordering the declaration ought without remitting the case to the High Court for hearing de novo.

2.03. Whether the Court of Appeal was right in returning the case to the High Court for trial de novo on the declaration sought having held that the amendment sought should have been granted since no new evidence was required to enable the Court decide on the declaration sought by the amendment.

2.04. Whether this was not a proper case in which the Court of Appeal should have exercised its powers under Section 16 of the Court of Appeal Act 1976, Order 1 Rule 20, and Order 3, Rule 23 of the Court of Appeal Rules 1981 without sending back the case to the High Court for a decision on the new Relief from the amendment.”

The three issues formulated by learned counsel to the respondent in paragraphs 2.01 – 2.03 of his clients’ brief are not materially different. However, learned counsel for the respondent has further taken objection of issue number 2.02 as formulated by the appellant. Citing (1) Daniel Dibiamaka & 2 Ors. v. Prince O. Osakwe & Anor. And Obiodor & 2 Ors. (1989) 3 NWLR. (Pt.107) 101, at p.104. (2) Alhaji Lamidi Daodu Olowosago & Ors. v. alhaji Amuda Adebanjo & 2 Ors. (1988) 4 NWLR (Pt.88) 275, he submitted that as there was no ground of appeal to sustain the issue, it ought to be struck out.

In my view, the objection was well – taken. There is no ground of appeal raising any particular question on section 22 of the Supreme Court Act. It is an enabling law which this Court can resort to as and when necessary. The fact that it can be relied upon by the Court just like any other relevant law does not elevate it to the status or an issue. As this Court has stated a number of times, an issue for purposes of an appeal is a substantial question of law or of fact or both arising from the grounds of appeal filed in the appeal which when resolved one way or the other will affect result of the appeal. A legal authority which supports a decision or part of it does not ipso facto become an issue. So, without prejudice to whether or not I may find it necessary to invoke the powers vested in this Court by section 22 of the Supreme Court Act, 1960. I agree with learned counsel for the respondent that appellant’s “issue” numbered 2.02 is not a proper issue.

The main thrust of the argument of learned counsel for the appellant is that on the findings by the two lower Courts, the contents of the relevant Chieftaincy Declaration (L.N. No.144 of 1979) and the powers vested in the Court of Appeal by section 16 of the Court of Appeal Act. 1976, the Court of Appeal should have entered judgment for the appellants on the third head of claim rather than remitting it to the High Court for retrial. It was the contention of learned Senior Advocate for the appellants. Chief Ihensekhein, that on the face of the Chieftaincy Declaration Odionwere is the central and indispensable figure in any valid Chieftaincy installation and that as it was clear from the evidence of the Odionwere, who testified as P.W.3, that he did not take part in the installation of the 3rd defendant, the purported installation was invalid. So there was no need for a retrial, he submitted.

Learned counsel for the respondent Mr. Omo-Ehizogie conceded it that there were five branches of Afonkiai Ruling House, namely Afadia, Afifa, Afarugia. Iyore and Afongbuan and that succession to the traditional title of Uko rotated among the Ruling Houses. He also agreed that it was the turn of Afifia to produce the Uko when the incumbent died in 1983. He contended that the 3rd defendant was a member of Afifa. Ruling House and in a contest with three other contestants before the Chieftaincy Advisory Committee on 10/5/85 scored the highest vote. But because the acting Odionwere was the son-in-law to the 2nd plaintiff/appellant, the Odionwere declared the 2nd plaintiff/appellant who scored the lowest vote duly elected. On the announcement of the wrong result, the members of Afonkhiai Ruling, House held a meeting and delegated one member from each Ruling House to go to Emambu Village Ihievbe to inform them that the 3rd defendant was the Ukoelect and would be installed. He argued that what the Ruling House did was in accordance with custom, as the Emambu Village is the custodian of the Juju, called Erimi-Ihievbe, used for the installation. He argued that once an Uko had been installed by the use of Erimi-Ihievbe no other Uko could be installed during his life time. In answer to the point raised by the learned Senior Advocate for the appellants, learned counsel on behalf of the respondent submitted that although the Chieftaincy Declaration, Exh. “A” said the Odionwere had to install the Uko of Ihievbe with the assistance of Emambu quarter, the Odionwere as a matter of fact and practice had no role to play during the installation of the Ukor. After an Ukor had been elected the only role left for the Odionwere to play was to have formally invited Emambu quarter to perform the installation by invocation of Erimi – Ihievbe. There was nothing sacred or crucial in the Odionwere’s duty of inviting Emamu quarter, he submitted Further, he pointed out that contrary to the contention of the Odionwere that the 3rd defendant was not qualified to be Ukor, the two lower Courts held the contrary. Also, he submitted that as the appeal is on the Court of Appeal’s exercise of its discretion, unless this Court comes to the conclusion that the exercise of it was manifestly wrong, arbitrary, reckless or injudicious, it ought not interfere merely because, faced with similar circumstances, it would have reacted differently. In his submission there is no where it is shown in the appellant’s brief that the Court’s discretion was wrongly exercised. So, there is no ground for this Court to intervene. On the contrary, the grounds upon which the Court of Appeal exercised its discretion to order a retrial have not been faulted, he submitted.

I should begin my consideration of this appeal by agreeing with learned counsel for the respondent that the discretion whether or not to order a retrial was that of the Court of Appeal and not that of this Court. I also believe that the clear principle discernible from many decided cases is that unless this Court comes to the conclusion that the exercise of it was manifestly wrong, arbitrary, reckless, injudicious or contrary to justice, it can not interfere, even if it might have exercised the discretion differently if the discretion were that of this Court. See on this: The University of Lagos & Anor. v. C.I.O. Olaniyan & 2 Ors. (1985) 1 NWLR (Pt.1) 156, p. 165; The University of Lagos & Anor. v. M.I. Aigoro (1985) 1 NWLR (Pt. 1) 143; John Akujobi Nwabueze v. Obioma Nwosu (1988) 4 NWLR (Pt.88) 257, at p.l60 and so many other cases. The question, however, is whether the Court below exercised the discretion on right principles.

In order to resolve the issue correctly, it is necessary to recapitulate the circumstances which led to the order of retrial. The learned trial Judge refused to allow the amendment sought to add a third relief mainly on the grounds that it was a new relief, that there was no evidence to sustain it, and that there was no evidence that the 3rd defendant had been installed the Uko of Ihievbe. As I have pointed out, these conclusions were contrary to the findings which the learned Judge made in his judgment which I summarized above and the affidavit in support of the motion to amend. The Court of Appeal was therefore right when it held:

“I am satisfied therefore that issues were properly joined on the matters sought except as to the fact or fiction of “appointment”. Subject therefore to deletion of the word “appointment”, the amendment sought should have been granted, since no fresh issues have been raised thereby, and no new evidence is required to enable the Court decide on the declaration sought by the amendment vide Akinkuowo v. Fajimoju 1965 NMLR 349; Chief Ojah v. Chief Ogoni 1976 4 S.C. 69.”

Then it proceeded to order the desired amendment. Indeed, in view of the fact that the court of trial had already adjourned for judgment before the amendment was sought, the only basis for a grant of an amendment of the claim or pleadings at that stage was to make them accord with the evidence already on record. In this regard it, is necessary to state although by the rules, an amendment to the pleadings can be made at any stage of the proceedings, different considerations apply depending on whether the amendment is being sought before or after the close of evidence by the parties. Before the close of evidence, such amendments are allowed to make such evidence as may be called admissible, as any evidence on an issue which was not pleaded or a claim not on record is strictly inadmissible: See on this -Aniemeka Emegokwue v. James Okadigbo (1973) 1 All NLR (Pt.1) 379; Obijuru v. Ozims (1985) 2 NWLR (Pt.6) 167. But once the calling of evidence has been concluded, any amendment of the pleading or claim can be justified or allowed only on the premises that evidence in support of it is already on record; so it is necessary and in the interest of justice to allow the amendment in order to make the pleading or the claim accord with the evidence already on record. The rationale of it is that such an amendment should be allowed to enable the Court to use the evidence already on record to settle the real issue in controversy between the parties. See on this Otto Hamana v. Yesuff Brothers (1961) 1 All NLR 355, p. 356; Ababio v. Quartey & Anor., P.c. Appeal No, 94 of 1914; also Seklin v. Little 6 T.L.R. 366; England v. Palmer 14 W.A.C.A 569. So the Court of Appeal was right to have held, on its findings supported by those of the learned trial Judge that evidence in support of the amendment was already on record, to have allowed the amendment.

It is in what followed after ordering the amendment that, with respects, I am of the firm view that the learned Justices of the Court of Appeal slipped. After the amendment, the Court remitted the matter to the High Court for a hearing de novo by another Judge, with liberty for the parties to amend their pleadings. In my respectful opinion, that is not the purpose of an amendment at that stage of the proceedings. It could not rightly be used to afford an opportunity to the party which sought to regularize the evidence on record by an amendment to reopen his case and call evidence afresh. What a Court should do after allowing the amendment at so belated a stage is to consider what judgment the parties are entitled to in view of the evidence on record, including that one regularized by the amendment. I note that in this case the Court of Appeal gave two reasons for ordering a retrial, namely that there was the “need to consider fully the evidence led, and that which may have to be led as to the installation claimed to have taken place on 22/5/83;” secondly, to enable the Court to look carefully into the provisions of B.S L.N. 144 of 1979 – the Chieftaincy Declaration.

Now as the Chieftaincy Declaration was already before the Court, having been tendered as Exh. A, I do not see what else the Court could have done but to interpret and apply it to the facts established in evidence. As for the first ground for the order, it appears tome to be a contradiction on the part of the Court of Appeal to have held that there was already evidence on record upon which to order the said amendment and at a later stage to hold that there was need to call further such evidence. However, as I stated before, the purpose of an amendment at that stage is not to enable a party to re-open his case. For these reasons, I am satisfied that the Court of Appeal was in error to have remitted the case to the High Court for a retrial. As no issue of credibility of witnesses arose, the Court should have invoked its powers under section 16of the Court of Appeal Act of 1976 and given whatever judgment to which the parties were entitled on the evidence on record: See Chief Frank Ebba v. Washi Ogodo & Anor. (1984) 1 SSCNLR 372. It must be noted that by the provisions of section 16 of the Court of Appeal Act, 1976, (now Cap. 75 of 1990) reinforced by Order I rule 20(5) of the Court of Appeal (Amendment) Rules, 1984, the Court of Appeal has been given certain wide powers intended for expediting the administration of justice: See on this Mrs. Alero Jadesimi v. Adolo Okotie-Eboh & Ors. (1986) 1 NWLR (Pt.16) 264: Chief P.U. Ejowhhomu v. Edok-Eter Mandilas Limited (1986) 5 NWLR (Pt. 59) 1. In exercise of the powers conferred by that Section and the Order the Court of Appeal is empowered to rehear the case on the evidence on the record of appeal and make any order which the court or trial is entitled to make in order to determine on the merits the real issue in controversy between the parties. As such is the case, to have remitted the case to the High Court on the reasons given is contrary to the letters and spirit of section 16 of the Court of Appeal Act and Order 1 rule 20(5) Rules.

Now by section 22 of the Supreme Court Act, 1960 now section 22 of Cap. 424 of 1990, the Supreme Court is given powers identical with those given to the Court of Appeal Act. In exercise of those powers, I shall now consider what orders the Courts below could have made on the strength of the evidence, the findings and the chieftaincy Declaration. Exh. A. See: Eze v. Ndukwe (1961) 1 All NLR 564; also A.G. of Bendel State & Ors v. P.L.A. Aideyan (1989) 4 NWLR (Pt.118) 646. Now paragraphs 4 and 5 of Exh. A state as follows

“4. Upon the demise of an Ukor, the eldest son informs the Udion of each of the component village of the Clan. The Odionwere then announces the death. Interment takes place within three days upon demise. Burial rites and ceremonies are then performed and completed by the Ruling House before installation’”

5. On the appointed day, the Odionwere assisted by the representatives of Emabo quarter installs the Ukor’”

From the very words of paragraph 5 thereof it is clear that it is the Odionwere who, with the assistance of Emabo quarter, has to install that Ukor. Evidence shows that it was the Odionwere who announced the demise of the late Ukor. This was in accordance with paragraph 4 of Exh. A. It was also for the Odionwere to announce the election of a new Uko, Also by Exh. A, it was for the Odionwere, assisted by the representatives of Emabo quarters to instal the new Ukor. But accepted evidence shows that it was the representatives of the five units of Afonkhiai Ruling House who went round to inform the people that the 3rd defendant had been elected as the would – be Ukor. Also the purported installation of the 3rd defendant as the Ukor was not done by the Odionwere but by a representative of Emabo Quarters.

What then is the effect of the procedure for the announcement and installation which were not sanctioned by the Chieftaincy Declaration, Exh. A Now under the Chief Law of Bendel State (Cap.37 of 1976) a, it is expressly provided in section 9 as follows:

“Where a declaration in respect of a recognised chieftaincy is registered under this part, the matters therein Stated (including any recommendation under paragraph (b) of subsection (2) of section (4) shall be deemed to be the customary law regulating the selection of a person to be the holder of that chieftaincy to the exclusion of any other customary usage or rule 9.”

It follows that when such a Declaration is duly made and registered under section 11 of the Law. it becomes the constitution and embodiment of the entire custom of the town with respect to chieftaincy matters, to the exclusion of any other customary rule or usage.

Learned Senior Advocate for the appellant has submitted that the manner of election and installation of the 3rd defendant by a representative of Emabo Quarters as the Ukor is unconstitutional, illegal and so null and void. Learned counsel for the respondent has on the other hand submitted that the situation whereby the representatives of the family units and of Emabo Quarters had to act was created by the refusal of the Odionwere to act in accordance with true result of the voting during the election of the Ukor. It is my view that if the Declaration had intended such an act, it should have expressly said so: but it did not so provide. Now a constitution is the organic law, a system or body of fundamental principles according to which a nation, a state, body politic or organization is constituted and governed. In this respect, we have the Constitution of the Federation of Nigeria and of the States of the Federation, as well as that of different organizations in the country and of different towns and villages in Nigeria. Any act which infringes or runs contrary to those organic principles or systems is said to be unconstitutional. So, in this case the form of announcement of the election and of installation is unconstitutional. Being contrary to the Chieftaincy Declaration of Ihievbe and the Chiefs Law, they are also illegal. It follows also that they are illegal and void and of no effect. Now, a Declaration derives its force and authority from the Chiefs Law itself and is absolutely binding on all who may be interested in the chieftaincy. As it is so, it appears to me that on the production of Exh. A. all that the Court should have done was to apply its provisions to the facts of the case as established by evidence. I cannot see how it became necessary, on the facts established by evidence in this case that the Court of Appeal should make an order for further evidence to be taken on the purported installation of the 3rd defendant as the Ukor or Ihievbe.

In the result the appeal succeeds and is allowed. I set aside the order of the Court of Appeal remitting the case for trial de novo by another Judge of the High Court as well as the Order for costs made by the Court of Appeal. In its place I make the following orders, namely:

(i) I affirm the dismissal of the first two heads of claim filed by the plaintiffs;

(ii) I grant to the plaintiffs a declaration that the purported appointment and installation of the 3rd defendant as the Ukor of Ihievbe by a representative or representatives of Emabo Village on the 22nd day of May, 1983 was illegal, unconstitutional, null and void and of no effect.

(iii) I assess and award costs against the 3rd and 4th defendants as follows:

(i) N1,500.00 in the High Court

(ii) N750.00 in the Court of Appeal

(iii) N1,000.00 in this Court.A. G. KARIBI-WHYTE, J.S.C.: I have read the leading judgment of my learned brother Nnaemeka-Agu, J.S.C, in this appeal. I agree entirely with his reasoning and the conclusion that the appeal succeeds.

The appeal is based on the very narrow issue of whether the Court below was right after amending the statement of claim to have sent the parties back to the court of trial for retrial.

The rules of practice allow amendment to the pleadings to be made at any stage of the proceedings. But different considerations apply to amendments sought before or after close of evidence by the parties. Before close of evidence, amendment is allowed to render evidence to be called admissible. This is because evidence on any issue not pleaded is stricto sensu inadmissible – See Emegokwue v. Okadigbo (1973) 1 All NLR. (Pt.1) 379. Where however, amendment is sought after the close of evidence, it can only be justified if there is already evidence on the record, and it is necessary to bring the pleadings in line with such evidence. It is to enable the Court to rely on such evidence to settle the issue joined on the pleadings. As was slated by their Lordships of the Judicial Committee of the Privy Council in Ababio IV v. Quartey & Anor. PC. Appeal No.94 of 1914.

” ….the Court ought to have allowed all the necessary amendments that were required for the purpose of enabling the use of evidence that had been obtained for the purpose of settiing the real controversy between the parties”.

See England v. Palmer (1954) 14 WACA at p.661. Since the issue in controversy was the determination of validity of the appointment and installation of the 3rd defendant as the Ukor of Ihievbe, and sufficient evidence having been led as to the appointment and installation, the Court of Appeal was right to have allowed the amendment.

The question is whether the Court below was also right to have sent the case back to the Court of trial. I do not think that was the right course to take. The Court below gave two reasons for sending the case back. First, there was the need to consider fully the evidence led, and that which may have to be led as to the installation claimed to have taken place on 22/5/83. Secondly, to enable the Court to look carefully into the provision of B.S.L.N. 144 of 1979 – namely the Chieftaincy Declaration.

I do not think these reasons are tenable. These were the considerations for allowing the amendment to the statement of claim. The Chieftaincy Declaration was already in evidence as Exhibit A. The amendment is surely not intended for that purpose. Now, having granted the amendment in consideration of Exhibit A and the evidence on the installation, the proper course for the Court below to adopt was to construe the provisions of Exhibit A in the light of the evidence already before it.

In the circumstance, absent the determination of credibility of witnesses, the Court below should have resorted to its enabling powers under section 16 of the Court of Appeal Act 1976 to decide the controversy between the parties as if it was a court of trial -See Chief Frank Ebba v. Ogodo & Anor. (1984) 1 SCNLR, 72; Jadesimi v. Okotie-Eboh & Ors. (1986) 1 NWLR. (Pt.16) 264. The Court below acted contrary to the spirit and intendment of section 16 of the Court of Appeal Act 1976 and Order 1 rule 20(5) of the Rules of the Court of Appeal.

The question now is what order will this Court make The Supreme Court has similar powers in section 22 of the Supreme Court Act Cap. 424 of 1990 as section 16 of the Court of Appeal Act, to exercise all the powers of the Court below and to have full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Supreme Court, as a Court of first instance.

– See Eze v Ndukwe (1961) 1 All NLR. 564.

On a reading of Exhibit A, which is the enabling declaration of customary law, it is clear from paragraph 5, thereof, that the Odionwere with the assistance of Emabo Quarter, has to perform the installation of the Ukor. The Odionwere is by paragraph 4 of Exhibit A. to announce the demise of the Ukor and the election of a new Ukor. The Odionwere’s participation in the installation of the Ukor is dominant and essential to its validity.

Evidence before the Court is that the Odionwere did not participate in the installation ceremony of the 3rd Defendant. Rather his election was announced by representatives of the five units of the Afonkhiai Ruling House. Again the installation of 3rd Defendant as the Ukor was done by the Emabo Quarter without the Odionwere.

Now section 9 of the Chiefs Law of Bendel State, Cap.37 of 1976 Laws of Bendel State provides that.

“Where declaration in respect of a recognised chieftaincy is registered under this part, the matters therein stated (including any recommendation under paragraph (b) of subsection (2) of section (4) shall be deemed to be the customary law regulating the selection of a person to be the holder of that Chieftaincy to the exclusion of any other customary usage or rule.”

Exhibit A was duly made and registered under section 11 of the Chieftaincy Law. It therefore becomes the constitution of and the accepted custom to the exclusion of any other customary rule or usage with respect to the Chieftaincy matters stated therein. The appointment and installation of the Ukor of Ihievbe is not valid unless as prescribed by Exhibit A.

I think learned Senior Advocate Mr. Ihesenkhien for the Appellant rightly submitted that the installation of the 3rd Defendant as the Ukor oflhievbe without the participation of the Odionwere is unconstitutional and void. It is accepted proposition of law that where a law has provided and prescribed the method and procedure for creating a status or condition, non-compliance with the provisions of the statute cannot result in the creation of the status or condition. The effort will obviously be a nullity. So it is in this case. The form of announcement and installation being contrary to Exhibit A, made under section 9 of the Chieftaincy Law of Bendel State, the announcement and installation are unconstitutional and void.

For the above reasons and the much fuller reasons given in the leading judgment, I allow this appeal.

I abide by all the orders made and the costs awarded in the leading judgment.

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SC.318/1990