Chief Michael Uwegba & Ors V. The Attorney-general, Bendel State, Nigeria & Ors (1985)
LawGlobal-Hub Lead Judgment Report
Ajose-Adeogun, J.C.A.
In an action instituted at the High Court of Bendel State holden at Sapele, the plaintiffs (now Appellants herein) were claiming, as endorsed in their amended writ of summons, the following reliefs:-
(a) A declaration that in accordance with the age-long tradition, native law, custom, the usages and the Constitution of the Agbon Clan, the tenure of office of the Otota of Agbon terminates automatically on the demise of the Ovie of Agbon subject to his remaining in office until the next Ovie and the next Otota are named and installed; the next Ovie and the next Otota are named and installed;
(b) A declaration that in accordance with the tradition, native law, custom, the usages and the Constitution of the Agbon Clan, when an Otota dies before the Ovie, it is the right of the said deceased Otota’s sub-clan to elect a new Otota to hold office for the duration of the life of the Ovie;
(c) declaration that the sub-clan entitled to provide a candidate or candidates to fill the vacant office of the Otota of Agbon is the Kokori sub-clan;
(d) A declaration that the purported Chieftaincy Declaration made by the Chieftaincy Committee of the Western Urhobo District Council on 4th January, 1962 relating to the Otota of Agbon Chieftaincy is irregular, wrong, unconstitutional, null and void, and contrary to the age-long tradition, native law, custom, the usages and the Constitution of the Agbon Clan and should be set aside;
(e) A declaration that the directive of the Governor-in-Council of Bendel State contained in a letter No. CH.506/351 dated 13th April, 1982 from the Ministry of Local Government and Chieftaincy Affairs requesting the Kingmakers to consider the nomination of the 4th Defendant as the Otota of Agbon is irregular, illegal, unconstitutional, incompetent, null and void and of no effect whatsoever.
(f) A declaration that the 4th defendant has not been duly appointed as the Otota of Agbon as required by law and that the purported approval of the alleged appointment of the 4th defendant as the Otota of Agbon by the 2nd defendant as published in the Bendel State Legal Notice No.4 of 1982 dated 26th May, 1982 is irregular, wrongful, illegal, contrary to the customary law, unconstitutional, null and void and of no effect and should be set aside;
(g) The plaintiffs claim perpetual injunction restraining the defendants by themselves, their servants, agents or privies or howsoever otherwise from taking any action or any steps on the said purported Chieftaincy Declaration 1962 or on the said letter dated 13th April, 1982;
(h) The plaintiffs also claim perpetual injunction restraining:-
(a) the 1st, 2nd, 3rd defendants by themselves their servants, agents or privies or howsoever otherwise from installing or recognizing or taking any steps in recognizing or installing or causing to be installed or recognized the 4th defendant as the Otota of Agbon and
(b) restraining the 4th defendant by himself, his servants, agents or privies or howsoever otherwise from holding himself out as the Otota of Agbon or wearing any regalia of the Otota of Agbon or permitting himself or taking any steps to be installed or recognized as Otota of Agbon or performing or causing to be performed any act or function of or ceremony connected with his installation as the Otota of Agbon.”
At the end of a full trial during which both parties gave evidence in support of their respective pleadings, the learned trial Judge, the Hon. Justice D.I. Akenzua, in his judgment delivered on 9th May, 1984, dismissed the entire claim of the plaintiffs. Substantial costs were also awarded in favour of each of the four defendants who are now the Respondents herein. Being dissatisfied with the said judgment, the Plaintiffs/Appellants filed this appeal.
Incidentally, the Appellants, all of whom were said to be Senior Chiefs, sued in a representative capacity for and on behalf of Agbon Council of Chiefs. Apart from the first three Respondents who were government functionaries, the fourth Respondent, Chief James Ogboko Edewor was sued in his personal capacity. It was his alleged appointment in May 1982 as the Otota of Agbon by the 2nd Respondent that sparked off the controversies which led to the case in hand. There may be cause to refer to the issue of Appellants’ representative capacity later in this judgment.
Regarding the main controversies which became manifested from the pleadings and the supporting evidence adduced at the trial, the case of each party may be briefly set out. Starting with the plaintiffs (Appellants), their case, based on the Statement of Claim, is that their community, namely the Agbon Clan in the Western Urhobo Division of Bendel State, consists of six (6) sub-clans (villages). These are, in order of seniority, OKPARA, KOKORI, EKU, ORHOKPOR, OVU and IGUN. The head of the entire clan is the Ovie of Agbon and the present incumbent of that office is His Highness Okpara I. He was allegedly so appointed in 1953. Next in rank to the Ovie is the Otota who is also his spokesman. That position was last held by the Late Chief Obodo Emanuwa who was said to have been appointed as the Otota in 1955 but died in 1976.
According to the Plaintiffs, the two eminent Chieftaincies of Ovie and Otota are, by Agbon custom and tradition, filled by rotation from the aforesaid six sub-clans. It is also alleged that in adopting the agreed rotational system, the Ovie and the Otota should not, at any given time, come from the same sub-clan. In support of their contentions, the plaintiffs are not only relying on Agbon native law, custom and tradition but also on the Constitution of the Clan (Exhibit “B” or “D”) alleged to have been approved by the Ovie-in-Council. Reliance is also being placed on a letter dated 11th February 1958 (Exhibit “C”) from the then Ministry of Local Government in the Old Western Region to the then Local Government Adviser, Urhobo Division in Ughelli.
Incidentally, the alleged Constitution of Agbon Clan appears, from the signed copy tendered in evidence as Exhibit “D”, to have been drawn up in 1959. Indeed, it was signed or thumb-impressed on 26th July 1959 by those described therein as respective representatives of the aforesaid six (6) sub-clans, for and on behalf of the entire community constituting the Agbon Clan. There were two such representatives for each of the said six sub-clans.
Now, the provisions of the Agbon Clan Constitution (Exhibit “D”) being relied upon by the plaintiffs is contained in paragraph 25 thereof. It reads thus:-
- OTOTAS (i) Tenure of Otota’s office lapses automatically on the demise of the Ovie; subject to his remaining in office until the next Ovie and the next Otota are named and installed. (ii) If an Otota dies before an Ovie it is still the right of the deceased’s (Otota) sub-clan to elect a new Otota to serve for the rest life time of the Ovie.”
The interpretation given by the appellants to the above-quoted provision, as pleaded in paragraph 15 of their Statement of Claim, is that “the Ovie and the Otota should not be appointed from the same sub-clan at the same time.” Similar interpretation was demonstrated in the evidence of their only principal witness, Chief Michael Uwegba (also 1st plaintiff/appellant herein). In this regard, although the plaintiffs also averred that they would be relying on the government directives in the aforesaid official letter (Exhibit “C”) of 11th February 1958, that letter did not specifically indicate that the Ovie and the Otota should, at any given time, come from different sub-clans. It did, however, direct that the order of rotation in respect of both Chieftaincies should be in order of seniority as follows:-
OVIE OTOTA
- Okpara 1. Kokori
- Kokori 2. Eku
- Eku 3. Orhokpor
- Orhokpor 4. Ovu
- Ovu 5. Igun
- Igun 6. Okpara”
Pausing here for a moment, it will perhaps assist in a clearer understanding of the Appellant’s case – and to some extent also the 4th Respondent’s case, by referring to certain background of the present dispute.
This aspect, relating to the creation of the two Chieftaincies of Ovie and Otota for the entire Agbon Clan, was specifically pleaded in paragraphs 8 – 13 of 4th Defendant/Respondent’s Statement of Defence. Consequently, both parties (the plaintiffs/appellants and the 4th defendant in particular) testified on the said background.
It was averred by the 4th Respondent that before 1953, there were only sectional Ovies within Agbon Clan who were attached to their respective sub-clans. According to him, the present institutions of an Ovie and an Otota for the entire Agbon Clan were political creations. The first meeting of Agbon people for considering the idea of having an Ovie and an Otota for the entire Clan was held at Isiobor in April 1953. That meeting only agreed in principles the necessity to have an Ovie of Agbon. Reference was made to the Intelligence Report (Exhibit “E”) on Agbon by E.R. Chadwick (District Officer Kwale 1930). Thus, 4th Respondent contended that there could “never have been any age-long native law and custom and usages relating to the appointment of Ovie and Otota of Agbon.”
In further support of his above contention, 4th Respondent went on to aver that the present Ovie of Agbon was not appointed in 1953 as alleged by the appellant and neither was the Ovie registered under the purported 1959 Constitution of Agbon. There was also said to be, in fact, a commission of inquiry, appointed by the then Western Region Government, which was still being conducted in 1956 concerning the dispute over the appointment of the Ovie of Agbon.
Even by 1958, the dispute of Ovieship was still raging. It was in consequence of the said dispute and the government enquiry there on that the then Ministry of Local Government at Ibadan wrote the aforesaid letter of 11th February 1958 “to resolve the issues relating to Agbon Chieftaincy Disputes.”
As already indicated above, the letter in question covered both the Ovie and Otota Chieftaincies. The 4th Respondent as well as the Appellants themselves are therefore relying on that same letter (Exhibit “C’) which, apart from the table of rotation already quoted above, reads thus:-
COPY
“No. C.B. 39/1/219,
Ministry of Local Govt.,
Western Region,
Ibadan.
11th February, 1958.
The Local Government Adviser,
Urhobo Division,
Ughelli.
Agbon Chieftaincy Disputes
I am directed to refer to your files Nos. 17/1 and 17/1A and to inform you that the Executive Council has ruled that the dispute as to the Chieftaincies of Ovie of Agbon and Otota of Agbon should be determined in accordance with the following formula:
“The Ovie shall come from each of the six towns of the Clan in the accepted order of seniority starting with Okpara.
In the event of there being more than one candidate from the town whose turn it is there shall be an election by secret ballot by the registered voters of the town.”
- Government has decided the order of rotation to be as follows:……………………
- I am to add that as this decision was taken under section 30(3)(b) of the Chiefs Law, 1957, Government’s ruling is final and is not open to question in any Court.
- I enclose 20 extra copies of this letter for distribution by you to the Western Urhobo District Council, and to other interested bodies as you think fit e.g. the Kokori Progress Union (your letter No. 1338/1/200 of the 5th of December 1957 refers.)
(Signed)
(D. A. MURPHY),
Permanent Secretary,
Ministry of Local Government.”
Testifying on the same background, the Appellants’ only principal witness, Chief Michael Uwegba (P.W.1 & 1st plaintiff/appellant) confirmed that before 1953, there was no single Ovie or Otota for the whole of Agbon Clan. But he disagreed with the existence of alleged sectional Ovies in each sub-clan and referred to them as ‘fetish’. According to him, the present Ovieship was the fruit of an agreement of all the Agbon people. The office is, however, still being governed by Agbon’s age-long tradition, custom and usage.
Reverting back to the remaining important aspects of the plaintiffs/appellants’ case, it is their contention that a body of sixty (60) Kingmakers, made up of the most Senior Chiefs from among the Council of Chiefs (“Eghovwores”), is the appropriate authority vested with “the power, rights, duty and responsibility” to consider and appoint a suitable candidate as the Otota of Agbon whenever that title becomes vacant. In doing so, the said Kingmakers are required to be satisfied that the applicable native law, custom and usages as well as the Constitution of the Agbon Clan have been complied with. Both parties are agreed that the body of Kingmakers is made up of ten (10) senior chiefs from each of the six sub-clans.
Arising from all the above contentions, it is finally the Appellants’ case that the alleged government appointment of the 4th Respondent, as the Otota of Agbon, purportedly made under the Chieftaincy Declaration of 1962, was “irregular, illegal, unconstitutional, null and void and of no effect whatsoever.” They contend first, that the said appointment was not made by the aforementioned Kingmakers of Agbon Clan. Instead, the 3rd Respondent (Commissioner of Local Government) issued a directive in 1982 to the Council of Chiefs to say that 4th Respondent would be appointed as the Otota of Agbon and asking the Council to make all arrangements for the said appointment. The proposals were rejected as being contrary to Agbon custom and tradition. Secondly, Appellants maintained that it was still the turn of the deceased Otota’s sub-clan (Kokori) to produce the next Otota. According to them, the office of Otota terminates with the demise of the Ovie. In his testimony, their principal witness (1st Respondent) put it thus:-
“An Otota remains on his seat as long as he lives and he lives as long as his Ovie for whom he is an Otota lives. A sub-clan can continue to retain his Otota as long as the Ovie lives.”
On their part, the 1st – 3rd Respondents contended that the age-long customary and/or traditional method of selecting and appointing a successor to the office of Otota of Agbon, with the rotational order, is embodied in the registered Declaration of 1962 (Exhibit “V”) made under the Chiefs Law, Cap. 19 Vol. 1 of the then Western Region of Nigeria Law 1959. From the evidence of their only witness, Joseph A. Obaseki (D.W.1) – a principal Secretary in the Bendel State Ministry of Local Govt, Eku Sub-Clan supplied the name of 4th Respondent for the vacant post of the Otota of Agbon. But the Ovie did not adopt the said nomination.
Eku sub-clan, according to the same witness, informed the Ministry of Local Government and Chieftaincy Affairs about their nomination of the 4th Respondent under the 1962 Declaration. Consequently, the then Resident of the Western Urhobo Division informed the Ovie, by letter dated 9th March 1976 (Exhibit “T”) to set in motion the necessary machinery for the appointment of Otota’s successor. It was indicated in the said letter that in accordance with the 1962 Declaration, which was forwarded therewith, the Resident intended to call formally on Eku Sub-Clan whose turn it was, to nominate a candidate or candidates. A request was also made for the names of the Senior Chiefs (Eghovwores) who were to make the nomination as well as the names of the sixty most senior chiefs from all the six sub-clans who should constitute the Council of Kingmakers.
It was further the case of the 1st – 3rd Respondent that the Ovie took no positive action on the requests made to him to set in motion the machinery for the appointment of a new Otota. He, the Ovie, also failed to summon a meeting of Agbon Kingmakers for considering the nomination of the 4th Respondent by the Eku sub-clan for the said vacant stool of Otota. In the result, the Bendel State Government exercised its powers under section 22 of the Chiefs Law, 1979 to confer the Chieftaincy of the Otota of Agbon on the 4th Respondent. The said appointment was later published in the Bendel State Gazette, Vol. 19 of 26th May 1982 (Exhibit “H”). A letter dated 8th June 1982 from the Office of the Permanent Secretary, Ministry of Local Govt. and Chieftaincy Affairs informing the Ovie and the Ethiope Local Government about the aforesaid exercise of the Governor’s powers was put in evidence as Exhibit “G”
As should be expected, the case of the 4th Respondent followed virtually a similar line as that of the first three Respondents who represented the Bendel State Government. He was relying principally on the same Declaration of 1962 which was claimed to be “the only valid and subsisting native law and custom regulating the appointment of the Otota of Agbon.” According to the 4th Respondent, he was duly nominated by his sub-clan Eku, whose turn it was to produce the next Otota under the said Chieftaincy Declaration. Reference has already been made earlier herein to his testimony on the background and origin of the present Ovie and Otota of Agbon Clan. His reliance on the letter (Exhibit “C”) written by the then Ministry of Local Government on 11th February, 1958, setting out the order of rotation of the sub-clans in the selection of an Ovie or Otota, has also been mentioned above. He saw the said letter only in 1972. Other relevant aspects of the 4th Respondents’ case may also be briefly reviewed. According to him, after he was nominated by Eku sub-clan, his name was forwarded to the Ovie and to the Resident of the then Ethiope Local Government Council. The said letter, admitted in evidence as Exhibit “Y”, was written by the Okaorho of Eku in his Palace on 14th July, 1976. It is a short letter which reads thus:-
“The Ovie of Agbon,
Okpara I,
P. O. Box 1,
Agbon.
Dear Sir,
Nomination of Otota of Agbon
At a meeting of the Okakuros and Oghovwores held on the 1st July, 1976 at Eku, Chief James Ogboko Edewor was unanimously elected as the Otota of Agbon in my Palace at Eku and he was presented to Eku Community.
This was in accordance with the Rules and Regulations of Declarations of Agbon Chieftaincy by Customary Law dated 14th February, 1962.
Yours faithfully,
R.T. Okaorho of Eku.
Oyibomuona Ayaoworho”
It is to be noted that the Declaration referred to in the above-quoted letter is the same as the one tendered in evidence as Exhibit “V” and also being relied upon by the first three Respondents on behalf of the government. As already indicated earlier, it was the contention of all the Respondents that the said Declaration embraced all the native law and customs applicable to the appointment of an Otota. According to them, any other customary usage, rule or tradition was excluded and could not be followed in the making of such an appointment. This is in sharp contrast to the Appellants’ contention that the age-long custom and tradition of Agbon people as well as their written Constitution of 1959 should also be followed.
Testifying further, 4th Respondent alleged that the Ovie did not act on the above-quoted letter (Exhibit “Y”). Hence he was instructed by Eku Community “to write to the Government by way of a reminder.” He did so as in the letter, Exhibit “W”, dated 7th January 1980 – some over three years after the first letter. Eventually, the Bendel State Government appointed him as the Otota of Agbon. He received a “Certificate of Registration of a Traditional Chief under Part III of the Traditional Rulers and Chiefs Edict 1979” (Exhibit “Z”), dated 27th May, 1982. The present action was instituted in the following month of that year.
In the rest of his oral evidence under cross-examination at the trial, 4th Respondent agreed that “the Agbon Clan has its own custom which came into existence in 1953 when all the sub-clans gathered in Isiokoto.” He was also aware of the Constitution of Agbon which according to him, “was subscribed (to) by the representative(s) of the six sub-clans.” On the issue of the order and rotation of appointments to the two chieftaincies in question, 4th Respondent agreed “that Otota and Ovie cannot come from the same sub-clan.” Elaborating further, he stated as follows:-
“I know that while the Ovie is in Okpara, the most senior village next to Okpara is Kokori. When the reigning Ovie dies, Ovieship moves down the ladder to the next village. Even if the Otota is still living in a sub-clan, if the Ovie dies, the Otota moves down to the next sub-clan down the ladder.”
When questioned by the trial Court as to what would happen upon the death of an Otota while the Ovie is still alive, his answer was that “the stool of Otota moves to the next sub-clan down the ladder.” This is what the four Respondents are advocating in the present case. They do not accept that in such a situation, the sub-clan of the deceased Otota should still nominate the next succeeding Otota. But all parties are agreed that the right of Ototaship is for the sub-clan and not for the individual. They also accept that Otota’s office is very closely related to that of Ovie and is next in seniority thereto.
Such was the totality of the evidence, as summarized above, given by all the parties before the learned trial judge who dismissed plaintiffs’ entire claim. Minus the omnibus complaint of the decision being against the weight of evidence, ten grounds of appeal were filed against that judgment.
In his brief of Arguments, learned Counsel for the Appellants, Mr. Kehinde Sofola, SAN, took some preliminary points based on the parties pleadings, First, he observed that the binding effect of pleadings is to narrow down the issues in a case. That proposition is unassailable, especially having regard to authoritative decisions in cases such as African Continental Seaways Ltd. vs. Nigerian Dredging Road and General Works Ltd. (1977) 5 S.C. 235 and City Property Development Ltd. vs. Attorney-General of Lagos State (1976) 7 S.C. 15.
Reference was also made to a defendant’s obligation to deny specially in his pleading any of plaintiff’s specific allegations in the statement of claim. Again, there is no doubt that the High Court (Civil Procedure) Rules (Order 13 rule 11 in Bendel State) and the case of Lewis & Peak (N.R.L.) Ltd. vs. A.E. Akhimien (1976) 7 S.C. 157 support that proposition. Finally, counsel observed that averments contained in pleadings and on which no evidence is if adduced are deemed to have been abandoned. The case of M.R. Ojikutu etc vs. Bintu Fatumo Fella (1954) 14 WACA 628 was cited in support of the said observation which, of course, is clearly logical since pleadings do not amount to evidence. There is, however, the reservation that admitted averments need no further proofs and so form part of the case.
The main purpose of Appellants’ Counsel in making the above well- known observations was to show that certain facts averred in their Statement of Claim had been impliedly accepted by the defendants. The implication, of course, would be that the trial court should find in favour of the Appellants on such facts.
Consequently, failure to do so would be an error in law or even on the facts impliedly accepted.
Assuming that learned counsel for the Appellants is right in his observations referred to above, the overall effect will not materially advance the arguments on the real issues raised by his grounds of appeal. For an instance, on the question as to whose primary responsibility it is to select the Otota of Agbon, the Appellants averred in their Statement of Claim (paragraphs 7-9) that a body of sixty (60) Kingmakers should exercise that right. Quite contrary to counsel’s criticism that the said paragraphs of Appellants’ pleading were not specifically denied, the first three Respondents did deny same in paragraph 4 of their Defence and “put the plaintiffs to the strictest proof …… thereof.” Equally, the 4th Respondent “categorically and vehemently denies paragraphs 7, 8 and 9 of the Statement of Claim.” But in addition to their denials, the two sets of Respondents separately admitted the existence of the body of Kingmakers but only as constituted in the 1962 Registered Declaration and not, as alleged by the Respondents, under the age-long custom, tradition and Constitution of the Agbon Clan.
Besides, the learned trial judge himself was said to have also found as a fact the existence of the body of Kingmakers. Nevertheless, the real issue is still as to whether the proper law and procedure had been adopted by the government in the appointment of the 4th Respondent as the new Otota of Agbon Clan. Merely establishing, directly or impliedly, that the Kingmakers had the authority to select an Otota does not by itself and in the context of the present case, resolve that issue.
What is really at variance between the parties is the manner and procedure by which the Kingmakers’ right can be exercised as well as the extent of their functions.
Similar consideration as above may be said to be applicable to the two other questions spotlighted by appellants’ counsel as having been impliedly accepted by the Respondents based on the state of pleadings. These relate to the agreed order of rotation in the appointment of an Otota or an Ovie and to the automatic termination of the former upon the demise of the latter. But the said agreement does not resolve the more serious issues raised by the present appeal. An attempt will be made presently to crystalize and set out those issues – even though the three counsel involved in this appeal had different lists on them. But suffice it to say at the moment, as already indicated earlier, that the aforesaid three questions raised in counsel’s observations on the pleadings will not materially solve or affect the main issues postulated by the present appeal. Indeed, Respondent’s counsel in the rest of his Brief and in oral arguments before this court did not place too much emphasis on his said opening observations.
Regarding the real issues in the appeal, learned counsel for Appellants set out six (6) of them in his Brief. The first two relate to the questions of the trial court’s jurisdiction to entertain the suit and of the trial judge’s refusal to grant the application for amending the appellants’ State of Claim during the proceedings. Mr. Sofola’s arguments on those two issues were based on grounds 5, 9 and 10 of the appeal.
Quite frankly, the alleged errors which learned counsel sought to attack under those three grounds have ceased to be of any real significance to the main issues on this appeal.
To begin with, the focal point on the issue of jurisdiction does not relate to the entire suit itself but to the 1962 Chieftaincy Declaration made under section 4(3) of the Chiefs Law Cap. 19 Vol. 1 of the then Laws of Western Nigeria 1959 (reproduced as Cap. 37 Vol. 1 of the Laws of Bendel State already repealed by Traditional Rulers and Chiefs Edict, 1979). Thus, the issue is not, as stated in Appellants’ brief (page 5), “whether the trial court had jurisdiction to entertain the suit.” But in fairness to Mr. Sofola, SAN, he did not predicate his arguments on that basis but rather on the 1962. Declaration itself. The sum total of his argument before this court is that the said 1962 Declaration is not exhaustive of the customs and usages of Agbon clan. Consequently, counsel’s complaint was and could only be that the learned trial judge abdicated his function (not jurisdiction) to examine and declare whatever inadequacies could be found in the particular 1962 Declaration made under an existing Law.
There can be no doubt that the Declaration in question, being a sort of administrative subsidiary regulation, can always he examined in the light of its enabling enactment or Law. A competent court – in this case the High Court of Bendel State, has the power and duty or, if one prefers to use the word, jurisdiction in a wide sense, to examine any Declaration made under the appropriate Chiefs Law and made a pronouncement concerning its compliance with that Law.
Having said as much, it is apparent that the learned trial Judge in the court below did not abdicate his function to consider the 1962 Declaration. In fact, his Lordship did so, tracing it to section 11 of the current applicable Law (Edict No. 16 of 1979). He then came to the conclusion that since the said Declaration was duly approved and registered by a competent Authority, it must be deemed “as the customary law of Agbon Clan in so far as the selection and appointment of the 4th defendant as the Otota….. is concerned.” That is not to say, at this stage, that the said conclusion is right or wrong. But it does defeat the arguments under grounds 5 and 9 of this appeal regarding the trial Judge’s failure to exercise jurisdiction or any consideration over the 1962 Declaration.
While still on grounds 5 and 9 of the appeal, it is pertinent to observe that the appellant’s claim which is germane thereto (item (d) thereof) wants the trial court to declare the 1962 Declaration as null and void and that it he set aside on the basis that it is contrary to the age-long tradition, native law, custom et cetera of the Agbon Clan. That is a far cry from saying that the said Declaration contravenes its enabling enactment or Law. In any event, counsel for the appellants did indicate in his closing address at the trial court the withdrawal of that item (d) of their claim. It was a correct approach. As a matter of fact, Mr. Sofola, SAN, used the same 1912 Declaration (Exhibit “V”) in some of his other arguments both in the lower court and in this court.
Next is the issue of the learned trial Judge’s refusal to grant Plaintiff/Appellants’ application for amending their Statement of Claim. As already mentioned above, it is related to ground 10 which is also regarded as not being so material to the real substance of this appeal as argued in this court. The principles governing amendments to pleadings are now too well established to require any elaborate re-statement and comments. The specific enabling provision is to be found in the Civil Procedure Rules of every High Court (Order 14 in Bendel State). While an amendment may be made at any stage of the proceedings, one important aspect of the requirements therefore which is relevant to the issue now under consideration, is that any amendment must be such as may be necessary “for the purpose of determining the real question or questions in controversy between the parties…..” (Order 14 Supra).
In the Brief of Arguments filed for the appellants, their counsel quoted, out of context, the real reason why the amendment sought was refused. The uncompleted sentence quoted from the ruling of the learned trial Judge (page 71 of the record) is as follows:-
“I cannot grant this amendment and if the plaintiffs accept the new facts as elicited through cross-examination, it will be prejudicial to the defence…”
But the rest of that single but long sentence reads thus:-
“……to grant this application which will give a semblance of the fact that the said new facts are the fact., pleaded by plaintiff(s) ab initio” (Italics Mine.)
The two quotations above ought to have been brought together and should be read as a single sentence to see the real reason (as Italicized above) why the application was refused. What actually happened was that the defence counsel elicited certain facts from the plaintiffs’ principal witness during his cross-examination. Those facts related to the true composition of the Agbon Council of Chiefs which the plaintiffs had confused with the body of sixty (60) Kingmakers. The correct facts, as agreed by the said plaintiffs’ witness during his cross-examination, had already been pleaded in paragraph 6 of 4th Defendant/Respondent’s Statement of Defence. Besides, the plaintiffs had also, in a subsequent Reply (paragraph 5 thereof) admitted those facts regarding the true composition of the aforesaid Council of Chiefs. It was with that background that counsel for the Plaintiff/Appellants sought the proposed amendment materially to reflect the admitted facts and repeat other facts already pleaded by them.
Quite clearly and correctly too, the learned trial Judge was of the view that granting the proposed amendment would make it seem that the admitted facts originally emanated from the plaintiffs. His Lordship also found that their stand had all along been against those facts until their principal witness was made to correct and admit them during his cross-examination by the defence. In any event, the important consideration in such a situation is whether the facts proposed to be adduced through the amendment are already properly before the court. To allow them to be brought in again, as the Appellants herein attempted to do, would, in the ‘Words of Ademola, J, (as he then was) be “to confuse the issues which were (no longer) in doubt.” See the case of Prof. v. Oyenuga & Ors. vs. Provisional Council of the University of Ife (1965) N.M.L.R. 9 at page 11). In the same Oyenuga’s case, His Lordship went on to describe such an amendment as being “not only a useless and immaterial amendment, but that, if granted, it would be no answer to the action.”
Those remarks in Oyenuga’s case (supra) equally apply to the attempted amendment applied for by the Appellants during the proceedings in the lower court – even though they had not closed their case at the time of their application. Besides, as hinted much earlier in this judgment, the issue raised by the proposed amendment could not have prejudiced the Appellants’ case because it is not so material to the real issues in controversy between the parties. Consequently, the learned trial Judge was right in rejecting the said application for the proposed amendment.
What now remains is to consider the remaining four (4) out of the six (6) issues listed in the Appellants Brief and their supporting grounds of appeal (Nos. 1, 2, 3, 4, 6, 7 and 8). A careful look at those remaining four issues will show that they actually raise three main issues. The suggested fifth issue (item (e) on counsel’s list) is and can be examined under the fourth (item d). The first two issues (item (a) and (b) relating to jurisdiction and amendment) have already been disposed of earlier herein. Thus, one is left with the remaining three main issues which arc now as follows:-
(i) “what is the native law and custom of the Agbon Clan in relation to the tenure of a sub-clan of the office of the Otota of Agbon, particularly when the incumbent Otota dies during the lifetime of the Ovie.
(ii) What is the effect and validity of the 1962 Declaration, made under S.4(3) of the Chiefs’ Law, (on) the customary law regulating an appointment of the Otota of Agbon in relation to the subject-matter of the dispute before the court? and
(iii) What is the legality of the purported exercise by the 1st – 3rd defendants in relation to the “approval” of the nomination of the 4th defendant as the Otota of Agbon?”
(Items (c), (d), and (f) of Counsel’s list)
A careful consideration of the other suggested issues arising from this appeal, as separately listed by the two counsel representing the Respondents, reveals that they are already well accommodated in those three quoted above.
The ones suggested by the learned Senior State Counsel on behalf of the 1st – 3rd respondents are rather narrow as they deal only with specific questions on certain aspects of the case and not with the broader issues raised in the appeal. An example is the question whether Kokori or Eku sub-clan should nominate the Otota (item (a)(ii) at page 4 of 1st – 3rd respondents Brief). That question is too limited and does not reflect the basic issue regarding the native law and custom generally applicable to such an appointment as being contended by the plaintiffs/appellants. As for the only issue suggested by the learned counsel for the 4th respondent, it simply asks the question whether “the trial Judge (is) correct when he dismissed all the claims of the appellants”. To say the least, that question just begs the issues to be decided. In the result, this appeal will be considered on the above quoted three issues form the appellants’ counsel.
Arguments on the first issue were canvassed underground 1 of the appeal. The relevant testimonies and documentary evidence, as put before the trial court by all the parties, regarding the native law and custom on the tenure of office of an Otota have already been briefly summarized above. By the said ground 1, Appellants are complaining about the learned trial Judge’, failure to evaluate properly the evidence led by them in support of the averments in their Statement of Claim and on which issues were joined.
The averments in question and the issues posed by them relate, inter alia, first to the question whether in accordance with Agbon Clan’s age-long tradition, native law and custom as well as their usages and constitution, the tenure of office of an Otota “terminates automatically on the demise of the Ovie of Agbon subject to his (the Otota) remaining in office until the next Ovie and the next Otota are named and installed”.
Indeed, the above question postulates the very first relief in item (a) of the appellants’ claim. Facts relating to that issue were not only pleaded (see paragraphs 9 and 13 of the Statement of Claim) but clearly given in evidence at the trial. Also of importance to the Appellants’ case are the averments, pleaded and given in evidence by them, that upon the death of an Otota before the Ovie, the former’s sub-clan still has the right to elect a new Otota for the duration of the life of the later (see paragraph 14, ibid). The second relief in item (b) of the appellants’ claim is based on those said averments and the supporting evidence given at the trial.
In their own pleadings, the respondents specifically denied the material aspects of the above averments of the appellants (see paragraphs 4, 8 and 9 of 1st – 3rd respondents’ and paragraphs 5, 8, 9 and 10 of 4th respondents’ respective statements of defence). Consequently, they did not only join issues with the appellants on these aforesaid averments but they (Respondents) also gave evidence in respect of the propositions.
What is more, other relevant facts, admitted by both parties – particularly the 4th Respondents, were also given in evidence orally and in documents. These, as pointed out by Appellants’ counsel, include the primary right of the 60 (sixty) Kingmakers to determine the person entitled to be elected as an Otota, the fact that the offices of Otota and Ovie, being closely tied together, should not coincide in one village at the same time, the Ototaship being a right to the sub-clan itself and not to an individual and the termination of Ototaship upon the death of an Ovie. It should perhaps be added that the third relief in item (c) of the appellants claim for a declaration that Kokori (not Eku) sub-clan should provide the next Otota is derived or based on the aforesaid first two reliefs in items (a) and (b) thereof.
Undoubtedly, the learned trial Judge was not unaware of the conflict created in the situation described above regarding some important aspects of the appellants’ case. On a number of occasions in the judgment now under consideration. His Lordship did summarize the case for each of the parties – including the contentious facts referred to above. For example, while restating the plaintiffs’ case in a nutshell, the following passage occurs:-
“According to the plaintiffs, the appointment to the office of an Otota in Agbon Clan is by the ten Ohonmwonres from each sub-clan, namely: Okpara, Kokori, Eku, Orhokpor, Ovu and Igun, on the recommendation by the sub-clan of the Otota elect. The law applicable for this appointment is both in the constitution of Agbon Clan approved by the Ovie-in-Council and the Western Chieftaincy Ruling of 1958. The Constitution is Exhibit B in this action. At page 25, sub-paragraph 2 of Exhibit B, there contain the provision for the tenure of office of an Otota. If an Otota dies in the life time of an Ovie, the village or sub-clan that produced that Otota will still produce another Otota. An attested constitution of Agbon Clan was also tendered by the plaintiffs as Exhibit D. In their Evidence, the plaintiffs contended that the Kingmakers recommend to the Ovie and the Council of Chiefs that a particular person is fit and proper to be the Otota of Agbon, and in turn the Ovie will communicate this recommendation of the Council of Chiefs to the Government.
Government will then act in accordance with the constitution of the Agbon Clan. According to Agbon Clan constitution, native law and customs, when the Ovie is in Okpara sub-clan, Otota will be in Eku sub-clan and so on to the last sub-clan in order of seniority. Eku sub-clan according to the plaintiff is not the next sub-clan to produce an Otota, but Kokori because Chief Obodo Emanuwa, the last Otota of Agbon who hailed from Kokori sub-clan pre-deceased the Ovie of Agbon who is now in Okpara sub-clan and according to the tradition and custom and the Constitution, Kokori sub-clan still retains the right to produce an Otota.”
The need for quoting the above passage at some length may become apparent when considering the other remaining two issues raised by this appeal and the arguments on the grounds covering them. Similar consideration applies to the Evidence in support of the defence as summarized by the learned trial Judge – particularly in the passages containing facts in opposition to those of the plaintiffs.
Now, the point being made from all the above is that a summary or restatement of evidence is not the same exercise as the evaluation and findings of a trial Judge on those evidence. This is the gravamen of Mr. Sofola’s complaint in ground 1 of the appeal. There is some justification in it. A very careful and anxious examination of the judgment in question reveals quite clearly that at no stage of it did the learned trial Judge evaluate or even attempt to make some findings on any of the above issues or facts as predicated in the parties’ pleadings. The approach adopted, after re-stating the case for either party, was that His Lordship proceeded immediately to consider the 1962 Chieftaincy Declaration as being the solution to all the issues raised in the case before the trial court.
An analysis of the said 1962 Declaration occupied a considerable portion of the judgment, covering about eight (8) pages (115 -123 of the record). At the end of it, still without a word regarding the court’s evaluation or findings on the issue upon which the first three reliefs being claimed by the appellants were based, the trial Judge concluded thus:-
“By virtue of the Declaration of 1962 (Exhibit ‘V’) and by virtue of section 23 of the Traditional Rulers and Chiefs Law, 1979………..I am bound to deem exhibit V as the customary law of Agbon Clan in so far as the Selection and appointment of the 4th defendant as the Otota of Agbon Clan is concerned. Therefore claims in reliefs a, b and c in the Amended Writ of Summons cannot be made and are consequently dismissed.”
It was the contention of Appellant’s counsel that the above approach adopted by the learned trial Judge was too narrow. There is some force in that contention, the positive effect of the said complaint on the final outcome of the case will be examined and weighed when considering the remaining two issues and the grounds of appeal thereon. Meanwhile, it is noteworthy that no convincing answer, or at all, is discernible from any of the respondents’ briefs concerning the appellants’ complaint in the 1st ground of appeal, as outlined above. The nearest approach to it by counsel to the 1st – 3rd respondents in their brief is the acceptance of certain facts as not being in dispute between the parties. These accepted facts have already been mentioned herein before. But nothing was said in any of the respondents’ briefs as to how the learned trial Judge resolved the disputed facts. The plain truth is that his Lordship did not do so at all.
One glaring result of the aforesaid attitude of the learned trial Judge was that his Lordship wrongly dismissed the first item (a) in the appellant’s claim, viz, that “the tenure of office of the Otota of Agbon terminates automatically on the demise of the Ovie of Agbon, subject to his remaining in office until the next Ovie and the next Otota are named and installed”. Apart from the evidence of the appellants’ witness in support of that item, a witness of the 4th Respondent, one Chief Michael O. Orogun (D.W.1) gave evidence to the same effect in the following manner:-
“The tenure of an Otota will terminate and move to the next sub-clan in seniority on the death of the Ovie. If the Ovie of Agbon dies, Ovieship goes to the next sub-clan in seniority while the Otota is still living. When this occurs, the Otota will be asked to be nominated from the next sub-clan if both happen to be in the same sub-clan, it is a right for sub-clan not for individual. It is true to say that the tenure of an Otota is controlled by the life of Ovie.”
Since the above-quoted evidence, given on behalf of the 4th Respondent, is clearly in support of item (a) in the plaintiffs’ claim, it is difficult to appreciate why it had to he dismissed by the learned trial Judge. Even the evidence of the 4th Respondent himself, if properly evaluated, amply supported the proposition in the first item of the claim before the trial court. He agreed “that Otota and Ovie cannot come from the same sub-clan” and that “if the Otota is still living in a sub-clan, if the Ovie dies, the Otota moves down to the next sub-clan, down the ladder”. Earlier in his (4th Respondent’s) evidence under the same cross-examination by Mr. Sofola, SAN, the witness had admitted that the right of an Ototaship is for the sub-clan and not for the individual” and that “Otota’s office is very closely related to that of the Ovie”.
The clear implication of all the above, if properly evaluated, is to the same effect as the declaration sought in item (a) of the claim before the trial court, unfortunately, the learned trial Judge depended so heavily on the 1962 Chieftaincy Declaration that no proper consideration was given to the nature of the said item and the relevance of the evidence available thereon. But the all-important 1962 Declaration has nothing to do with the declaration being sought by the appellants in the first item of their claim, the declaration of 1962 obviously relates to “The Customary Law regulating the appointment of the Otota of Aghon Chieftaincy”. It can therefore only come into effect when a new appointment is to be made made; and that depends on when a vacancy occurs. All that the first item of the claim is saying is that a vacancy does not really occur while the Ovie is alive.
The Declaration does not attempt or pretend to define the tenure of office of a living Otota. That is a matter for the native law and custom of the Agbon Clan and it is the very issue which the appellants wanted to be decided first before any other issue in their claim. All available evidence from both sides at the trial, if evaluated, sufficiently showed that a living Otota may not have to vacate office immediately upon the demise of an Ovie if the succeeding Ovie will not come from the same sub-clan as the said Otota. Hence the addition of the proviso in item (a) of the claim that the proposition therein is “subject to his (Otota) remaining in office until the next Ovie and the next Otota are named and installed.”
Arising from the above, the dismissal of the relief in item (a) of the appellants’ amended writ of summons by the learned trial Judge was erroneous and it is hereby so held. Undoubtedly, the issue raised in the said item was important that it was desirable to have it resolved in order to prevent further arguments or litigations thereon. This is all the more so as the 1962 Chieftaincy Declaration has no bearing on it. Even the rotational order of appointing an Otota from the 6 sub-clans, which may be said to be the most essential feature of the said Declaration, is, curiously enough, not in controversy between the parties. The reliefs in items (b) and (c) are more closely related to the 1962 Chieftaincy Declaration since they touch on the issue of appointing a successor to a post Otota. Consequently, they will be dealt with later in this judgment when considering the other issues raised by the remaining grounds of appeal.
Next among the aforesaid three issues raised in this appeal is the effect and validity of the aforesaid 1962 Chieftaincy Declaration on the subject matter of the dispute before the court. Four grounds of appeal (Nos. 2, 3, 6 and 8) were argued together by Mr. Sofola, SAN, in respect of the said issue. The sum total of all his arguments was that the learned trial judge “misconstrued the claim before him and/or oversimplified the issues that fell to be decided by the trial court.” His Lordship regarded the only issue for decision as being “a straight contest between custom relied upon by the plaintiffs and the Declaration relied upon by the defendants” – so said appellants’ counsel. This view is amply borne out by learned Judge’s opening remarks soon after his re-statement of the case for each party and the submissions of counsel thereon. His Lordship stated thus:-
“I have considered the evidence adduced in this case. I have also considered the various submissions of the learned counsel and the legal authorities cited by them. From the evidence adduced, the plaintiff’s bone of contention is that the appointment of an Otota of Agbon Clan, should follow and comply with the age-long custom and tradition of Agbon people; and that having not followed or complied with the said custom, the 4th defendant’s appointment should be nullified and voided. What therefore I am to decide is what is the operative law regulating the appointment of an Otota of Agbon. Is it the native law and custom and the constitution of Agbon Clan or is it the 1962 Chieftaincy Declaration, Exhibit ‘V’.” (Italics mine)
As indicated earlier herein when considering ground 1 of the appeal, the entire judgment of the learned trial Judge was devoted virtually to the above issue regarding the Chieftaincy Declaration of 1962 and its enabling enactment, the Traditional Rulers And Chiefs Edict, 1979 (hereinafter referred to as “the Law”). But in developing his arguments further, appellants’ counsel submitted that since the said Declaration was silent on all the issues raised by the Appellants, it could not be the only answer to them, as held by the trial Judge. It was also Counsel’s contention that the validity or effect of matters not provided for in a secondary legislation ought to be tested by its enabling Law. Consequently, the main thrust of Mr. Sofola’s arguments is that if the failings of the 1962 Chieftaincy Declaration had been established, as he submitted they were, the “learned trial Judge did not need to have inhibited himself on the issue”. This was more so in this particular case as “there was absence of provision on the subject-matter of the action”.
The Declaration, in that event, could not have “displaced any customary law by its silence”.
Of course, the short answer by counsel for all the respondents in reply to the above contentions of Mr. Sofola. SAN, as also found by the learned trial Judge, was that the said Declaration alone represented, at the material time, the customary law of Agbon on Otota Chieftaincy matters to “the exclusion of any other customary usage or rule.” This proposition is based wholly on the interpretation of the aforesaid enabling enactment. Certain sections of it were referred to by both counsel.
Arising from the arguments for all the parties, as briefly summarized above, it is desirable to consider how far Mr. Sofola’s contentions are correct in the light of the Chieftaincy Declaration itself (Exhibit ‘V’) and its enabling Edict (No.16 of 1979). It is common ground that the Ovie is a traditional ruler title while the Otota is a traditional Chieftaincy title. The former is listed in the First Schedule of the Edict as a traditional ruler while the latter appears in the Second Schedule (ibid) as a traditional chief.
Both come under the competency of Ethiope Traditional Council and Ethiope Local Government Council (since 1979). Consequently, the provisions in part II of the Edict are specifically applicable to the office of Ovie while those in part III apply to Ototaship, subject to the addition of Sections 3 – 12 of the former in respect of any declaration made under the latter. The position was the same under the then laws of Western Nigeria 1959 Cap. 19 and the subsequent Cap. 37 of the Laws of Bendel State.
The purpose of a declaration, as defined by the Edict itself, is to embody, in a legally binding written statement, “the customary method of selecting a person to be the holder of a traditional ruler title or of a chieftaincy title as the case may be”. The most obvious advantage of such an exercise is to mini raise or even prevent incessant and endless litigations on chieftaincy matters. Hence the provision in section 11 of the Edict which read thus:-
“Where a declaration in respect of a traditional ruler title is registered or re-registered under this edict, the matters therein stated (including any recommendation under paragraph (b) of sub-section (2) of section 3 of this Edict) shall be deemed to be the customary law regulating the selection of a person to be the holder of that traditional ruler title to the exclusion of any other customary usage or rule.”
Since this appeal is concerned only with the traditional Chieftaincy title of Olota, it is in part III of the Act that the solution to the aforesaid arguments of counsel should be sought. It is important to point out, at this stage, one important feature in the provisions (part III) applicable to traditional chiefs that clearly distinguishes the methods and rules by which the selection and appointment of any such chief differ from those of a traditional ruler. In the former (i.e. Ototaship) with which this appeal is concerned, there are two possible but separate and distinct avenues for the selection, conferment and approval of such a title. But in the case of a ruler title (as the Ovieship), there is only one avenue or procedure as laid down in part II, section 3 – 19.
One avenue, in the former case, is under the provisions of section 22 which permits a prescribed authority “consisting of one person or a committee of two or more persons” to approve an appointment of a Traditional chief made in accordance with the appropriate customary law. Such an authority may also determine a dispute arising from the conferment of such chieftaincy under the customary law. This exercise has nothing to do with the State’s Executive Council except where an aggrieved party applies to it and then an enquiry may be set in motion in accordance with section 27 of the law (part IV – General). The other avenue, also for the selection and conferment of the same title, depends on or follows a validly made Declaration in accordance with the provisions in Section 23 of the Law.
While still on the distinction drawn above regarding the respective operation of the provisions in sections 22 and 23 of the Law, it is noteworthy that the approval of the State’s Executive council is compulsorily required to complete the appointment of a person selected for and conferred with a chieftaincy title under the procedure in the latter (section 23) but not in the former (section 22). Also worthy of note, because of its importance to this appeal, is the fact that the extensive procedure for filling vacancies in traditional ruler titles as contained in sections 14 -19 of the 1979 Edict (No. 16) is not applicable to the filling of vacancies in traditional chieftaincy titles, the procedure to be adopted for an appointment like the one of an Otota (traditional chieftaincy) must be as laid down in the applicable chieftaincy Declaration, Exhibit ‘V’ in this case.
All that is required in a situation like the one under consideration, after a person’s name has been nominated or selected by his sub-clan, is to forward such name or names (where more than one) to the Kingmakers who then make the appointment or conferment which is subject to the approval of Executive Council. Following such government approval, the appointment will usually be gazetted; and that is all that the law requires.
There is, in my view, no need for a Certificate of Registration by a “Government Department”, like the one (Exhibit “Z”) issued to the 4th respondent in this case, when a traditional chief has been appointed by the Kingmakers under section 23 of the Edict and his appointment approved and gazetted by the State Executive Council. Such a certificate is required for an appointment made and approved by a “prescribed authority” in accordance with section 22: see section 25 (ibid). This is understandable, because, as disclosed earlier herein, an appointment under section 22 does not require the approval of the State’s Executive Council but only of the “prescribed authority” which “shall forward the name and other particulars of (the appointee) to the appropriate Government Department for registration”. There is no role envisaged for the secretary to the traditional council in appointments made under either section 22 or section 23 of the Edict. His functions and those of the Kingmakers, as spelt out in sections 14 -19 (part 11) of the Edict) relate to traditional ruler titles and are not included in the provisions for traditional chieftaincy titles under part III.
Much earlier in this judgment, it was observed that failure of the learned trial Judge to evaluate and make findings on issues of facts raised by both parties might affect other consequential issues raised in this appeal. First, there were the conflicting testimonies in the pleadings and testimonies of the parties which tended to confuse the true position as to whether the appointment of the 4th Respondent was made under section 22 or section 23 of the Edict. As already mentioned above, there is a clear distinction in the respective operation of each of those two sections. Definite findings on those issues might have affected the judgment in one way or the other.
It is conceded that the traditional chief title of Otota already has a Chieftaincy Declaration duly made, approved and registered in respect thereof in 1962 under sections 3 – 6 of the then applicable law (Edict No.16 of 1979). Consequently, the purported appointment of the 4th Respondent ought strictly to follow the procedure laid down in that Declaration and in strict compliance with relevant provisions of the enabling Law -particularly sections 3 – 11 (in part II) and section 23 in part III. But the testimonies from both sides of the dispute would suggest that the correct procedure was not adopted by the State Government (represented by 1st – 3rd respondents) – in the appointment of the 4th Respondent as the Otota. This aspect may now be quickly examined.
As contained in the learned Judge’s summary evidence, the plaintiffs before him stated that the “Kingmakers of Agbon Clan had not recognized Eku sub-clan and have not appointed the 4th defendant an Otota because it is not the turn of Eku sub-clan to produce a candidate but Kokori sub-clan”. It was also stated on the part of the Defendants, that Eku sub-clan supplied the name of 4th defendant for the vacant title but that the Ovie of Agbon did not accept the nomination. This was the evidence of Joseph Amen Obaseki (Principal Assistant Secretary in the Chieftaincy Affairs Division of the Ministry of Local government, Bendel State – D.W.1 for 4th defendant). Apparently, the said Ministry had also been informed of the said nomination by Eku sub-clan. As a result, a letter (Exhibit ‘T’) dated 9th march, 1976 was addressed by then Resident, Western Urhobo Division, to the Ovie saying that he intended giving “formal notice to Eku to nominate a candidate or candidates as provided in the Declaration.” He further consequently called on the Ovie to furnish him, inter alia, with the names of the sixty (60) Kingmakers. As the Ovie did not heed the said letter, so said the witness, “the government then exercised its powers under section 22 of the Chiefs Law 1979 in favour of the 4th defendant.” Before then the 4th defendant had protested to the government about the delay in his appointment.
Perhaps, it is necessary to observe that a number of correspondence passed between the Ovie and his Agbon Council of Chiefs as well as the people of Kokori sub-clan on the one hand and some government functionaries as well as the people of Eku sub-clan, including the 4th Respondent, on the other. Most of these letters, written between 1976 and 1982 and tendered in evidence as exhibits before the trial court, showed some measure of disputes or disagreement between the two main parties described above. There was Exhibit “K”, dated 1st April, 1976, from the Ovie and Agbon Council of Chiefs. The said letter, addressed to the Resident of Western Urhobo Division, pointed out, inter alia, that “there is no time limit in the Declaration registered in respect of appointment of an Otota of Agbon”. It ended on the following serious note:-
“As to part of your paragraph 2, one is left in doubt as to your intentions but if however, your letter to the Ovie is not a condition precedent to giving notice to the next village, and you want to proceed with the appointment of an Otota without due consultation with the Ovie and his chiefs, then you can please yourself. Thank you”.
The above letter formed part of the case for the appellants because it was specifically pleaded. Taken together with the evidence of the plaintiffs as already reviewed above, it should be apparent that the Appellants, representing Agbon council of Chiefs, were protesting against the 1962 Declaration and particularly against the method being adopted in the appointment of the 4th respondent.
There is no doubt that all the matters referred to above and the conflicts and confusion arising therefrom were not evaluated and resolved in the judgment of the lower court. Instead, the learned trial Judge took refuge under the 1962 Chieftaincy Declaration. Yet, it is apparent that the appointment in question was not made in strict compliance thereto. While a good part of the defendants/respondents’ case showed that the appointment was made under section 22 of the Law, the learned trial Judge himself held that “the exercise had been brought within the provisions of sections 23 and not section 22 of the Traditional Rulers and Chiefs Laws 1979”. His Lordship was clearly not correct in that conclusion.
For one thing, it is not competent for a court to make out for party to a suit a case which is different from that which such party has put forward before the court. The case of the 1st-3rd respondents was that 4th Respondent’s appointment was made under section 22 of the Law. In support of that, they tendered his Certificate of Registration (Exhibit “Z”) which could only have been issued for an appointment under the said section 22 of the law. There was the letter of the Permanent Secretary, Ministry of Local Government and Chieftaincy Affairs (Exhibit “G”) dated 8th June, 1982, informing the Ovie in paragraph 2 thereof, about 4th Respondent’s appointment, in the following terms:-
. “2. Since you failed to comply with the Governor-in-Council’s directive communicated to you in my letter No. CH/506351 of 12th April 1982, the Governor has been obliged to exercise his powers Section 22(6)(b) of the Traditional Rulers and Chiefs Law, 1979 by approving the appointment of Chief James Ogboko Edewor as the Clan Olota of Agbon, Ethiope Local Government Area, with effect from the 26th day of May, 1982. A copy of Legal Notice B.S. C. N. 4 of 1982 published in the supplement to Bendel State of Nigeria Extraordinary Gazette No. 25, volume 19, of 26th May, 1982, notifying the approval is attached”. (Italics mine).
It is difficult to appreciate how the lower court could possibly shift the basis of the above-quoted exercise of the governor’s powers as published in the Gazette. Enough has already been said earlier herein to draw the distinction between a selection and appointment made under section 22 and that made under section 23. If the lower court found that the 4th Respondent’s appointment did not conform to section 22 under which the governor purported to have exercised his powers of approving the said appointment, the proper course was to have declared it irregular and therefore null and void and of no effect. Consequently, the relief in item (b) of the plaintiffs/appellants’ claim ought to have been granted and not dismissed.
Similarly, it is to be observed, as already clearly indicated above, that apart from the irregular exercise of the Governor’s powers, the preliminary steps taken by the government functionaries were those applicable to the procedure for filling vacancies in a traditional ruler title under sections 14 – 19 of part II of the Law. Those preliminary steps, not required under part III (ibid), were therefore also irregular. One of said irregular steps was the letter (Exhibit ‘F’) dated 13th April, addressed to the Ovie. It is the subject-matter of the relief in item (e) of the plaintiffs/applicants’ claim. In the circumstances, the said relief ought also to have been granted and not dismissed.
As the briefs of all the respondents and the oral arguments put before the court have not satisfactorily answered the above-mentioned irregularities, this appeal must succeed on the grounds covering those issues as outlined herein before. It is conceded that enough reasons have not been given to support the arguments in support of the reliefs in items (b) and (c) of the appellants’ claim. Since those two reliefs relate to the appointment of a new Otota of Agbon, they must be governed by the existing Chieftaincy Declaration of 1962, albeit in strict compliance with its enabling Law, until the same shall have been amended in accordance with section 7 of the said Law.
There is now no need to grant the reliefs in item (g) of the appellants’ claim for perpetual injunction to restrain any of the Respondents “from taking action or any steps on the said purported Chieftaincy Declaration 1962 or on the said letter dated 13th April, 1982″. It is apparent that such action or steps had already been taken, although irregularly. There is thus nothing further to restrain in that regard. Similar consideration should apply to the relief in item (h) (a) of the Said claim. But arising from the decisions herein, regarding particularly the reliefs in items (c) and (f) of the claim, the Appellants are consequentially entitled to their relief in item h(b) for the perpetual injunction sought against the 4th defendant/respondent.
In the final result, the appeal herein is allowed and the judgment of the lower court dismissing the entire claim of the plaintiffs/appellants is hereby set aside. It is my further judgment that the Plaintiff/Appellants are entitled to the reliefs in items (a), (e), (f) and h(b) of their claim. Accordingly, the declarations and order sought in those items are granted as follows:
(i) It is hereby declared that in accordance with the age-long tradition, native law, custom, the usages and the Constitution of the Agbon clan, the tenure of office of the Otota of Agbon terminates automatically on the demise of the Ovie of Agbon subject to his remaining in office until the next Ovie and the next Otota are named and installed;
(ii) It is also hereby declared that the directive of the Governor-in-Council of Bendel State contained in a letter No. CH.506/351 dated 13th April, 1982 from the Ministry of Local Government and Chieftaincy Affairs requesting the Kingmakers to consider the nomination of the 4th defendant as the Otota of Agbon is irregular, illegal, unconstitutional, incompetent, null and void and of no effect whatsoever;
(iii) It is further hereby declared that the 4th defendant (Chief James Ogboko Edewor) has not been duly appointed as the Otota of Agbon as required by law and that the purported approval of the alleged appointment of the 4th defendant as published in the Bendel State Legal Notice No.4 of 1982 dated 26th May, 1982 is irregular, wrongful, illegal, contrary to the law, null and void and of no effect and should be set aside; and
(iv) The defendant (Chief James Ogboko Edewor) is personally hereby restrained from holding himself out as the Otota of Agbon or wearing any regalia of the Otota of Agbon or permitting himself or taking any steps to be installed or recognized as Otota of Agbon or performing or causing to be performed any act or function of or ceremony connected with his installation as the Otota of Agbon.”
As already indicated above, the declaration sought by the Plaintiffs/Appellants in the remaining items of their claim. viz; (b), (c), (d), (g) and h(a) are hereby dismissed.
The appellants are entitled to costs in the lower court and also of this appeal. After listening to counsel, the former are assessed at N200.00 against each of the four respondents and the latter at N250.00 also against each of the said respondents. In addition, it is ordered that the costs of N1,500.00 already paid to 4th respondent be refunded to the Plaintiffs/Appellants.
Other Citations: (1985) LCN/0010(CA)
