Prince Felix I. Ogiugo V. Prince Anthony E. Orhue Ogiugo (1999)
LAWGLOBAL HUB Lead Judgment Report
O. OGWUEGBU, J.S.C
The original parties to the proceedings were Prince Ikponminwingie Emuze Ogiugo as plaintiff and Prince Orhue Emuze Ogiugo as defendant. The plaintiff’s claim against the defendant in the Orhionmwon Area Customary Court holden at Abudu in the former Bendel State of Nigeria is for:-
“(1) A declaration that the defendant is not the Enogie of Ugo-Niyeke Ikpoba Orhionmwon Local Government Area within the jurisdiction of this Honourable Court.
(2) A declaration that the plaintiff and not the defendant is the person entitled to (sic)be installed as the Enogie of Ugo-Niyeke Ikpoba Orhionmwon Local Government Area, Bendel Stale.
(3) A declaration that the plaintiff having performed the burial ceremony of his late Enogie and other traditional rites, should be installed the Enogie of Ugo-Niyeke Ikpoba (Ugoneki) according to Bini Native Law and Custom applicable at Ugo-Niyeke.
(4) An injunction restraining the defendant from parading himself as the Enogie of Ugo-Niyeke Ikpoba (Ugoneki) Orhionmwon Local Government Area, Bendel State.”
The facts of the case briefly stated are as follows:
The title of Enogie of Ugo-Niyeke Ikpoba in Orhionmwon Local Government Area of the former Bendel Srate became vacant following the death of the last Enogie, Obamwonyi who died in 1978. He died leaving three daughters surviving him and without a male issue to succeed him.
Succession to the title is based on the principle of primogeniture. The said Enogie Obamwonyi had no brothers either. The family had to select a successor from three of his uncles, namely, Ikponminwingie (plaintiff), Orhue (defendant) and Okunrobo. They were the three surviving sons of Emuze the grandfather of the last Enogie. Emuze himself was an Enogie.
When the three could not agree among themselves as to which of them should succeed the last Enogie, the family decided to select one of them. According to the plaintiff, a meeting of the elders of Ogiugo family was held in December, 1979 and three of them were present at the meeting; that even though the defendant was older than himself(the plaintiff), he was not selected because he did not meet the traditional requirements.
The plaintiff further stated that after his selection, he was presented to the Oba of Benin as the Ogiugo (Enogie) – elect of Ugo-Niyeke Ikpoba and at his palace, the Oba told them to go and perform the funeral rites of the last Enogie. They went home and he performed the ceremony which lasted fourteen days. He stated that he acted as Enogie and performed all the necessary ceremonies associated with the stool including the Ebomisi ceremony. He acted as Enogie from 1978. He was surprised when the defendant came from nowhere to say that he was the Enogie. He therefore instituted the action which led to this appeal.
The defendant on his part denied any admission that his mother did not fulfils the traditional role required of her as the father’s wife. He claimed to have been born in wedlock and being the eldest of the then surviving sons of Emuze, he was the rightful person to succeed the last Enogie in accordance with Bini custom. It was part of his case that the plaintiff was presented to the Oba of Benin by Ogiugo family, that the Oba disapproved the plaintiffs candidature in the face of a competing claim from him, an elder brother and that the Oba directed the family to carry out the funeral ceremonies of the late Enogie. The defendant further stated that on completion of the ceremonies, his family presented him to the Oba who approved his candidature and directed that he be installed. He stated that he was traditionally installed as the Enogie of Ugoneki during the pendency of this case in the Orhionmwon Area Customary Court pursuant to the Oba’s approval. Both parties testified, called witnesses and tendered documents. The Area Customary Court in its considered judgment found that the plaintiff was the rightful candidate duly elected by the family and should be installed as the Enogie. It nullified the installation of the defendant. The defendant who was dissatisfied with the judgment appealed to the Customary Court of Appeal of the former Bendel State of Nigeria sitting at Benin City. That court allowed the defendant’s appeal. The plaintiff being aggrieved by the decision of the Customary Court of Appeal, appealed to the Court of Appeal, Benin Division. The Court of Appeal dismissed his appeal and affirmed the decision of the Customary Court of Appeal. The plaintiff who was not satisfied with the judgment of the court below, has further appealed to this court.
On 7th January, 1998, the court granted the defendant leave to cross-appeal on one ground of appeal which complained of the locus standi of the appellant to prosecute this appeal.
Briefs of argument were filed by both parties in respect of the main appeal and the cross-appeal.
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