Amusa Momoh & Anor Vs Jimo Olotu (1970)

LawGlobal-Hub Lead Judgment Report

 ADETOKUNBO ADEMOLA, CJN

This is an appeal from a ruling made by Kester, Acting Chief Justice, Western State, as he then was, on a motion filed in Suit No. 1/115/66 praying the court to order a dismissal of the plaintiff’s action on the ground that it is frivolous, vexatious and an abuse of the process of the court, and also on the grounds that

(a) the court has no jurisdiction to entertain the claims;
(b) the relief claimed is one which the court ought not to grant; and (c) the plaintiff has no locus standi to maintain the action.

It was also sought in the alternative to strike out the statement of claim on the ground that it disclosed no cause of action, and that judgement be entered for the defendant.

The writ of summons in the case is for “a declaration that the correct custom for the selection of an Olukare is not from father to the eldest son, but devolves on whosoever the Owalukare family in conclave puts forward and is accepted by the king-makers.”

Pleadings were ordered and filed in the matter, and the relevant paragraphs of the statement of claim filed are the following; that is to say paragraphs 1,2,3,4,6, 7, and 8 and are as follows:
“( 1) The plaintiff is a member of Owalukare ruling house of Okela Quarters, Ikare.
(2) The plaintiff brings this action on behalf of himself and other members of Owalukare ruling house.
(3) The first defendant was in 1955 and 1956 the Chairman of the Ikare District Council.

(4) The first defendant is the present Olukare of Ikare and claims to be the direct son of previous Olukare.
(6) Sometime in 1956 a declaration was made and signed by the first defendant as Chairman of the Ikare District Council stating that the correct custom for the succession to the Olukare Chieftaincy is that the “eldest son (of a reigning Olukare) succeeds to the title.”

(7) The said declaration was accepted by the Ministry of Chieftaincy Affairs as the correct native law and custom regulating the succession to the Olukare Chieftaincy.

(8) The plaintiff avers that the said declaration is not in accordance with the native law and custom of the Ikare people and has not been published in any gazette and is of no effect or validity.”

In the statement of defence of the 2nd defendant, there are the following pertinent paragraphs, namely paragraphs 2, 3, 4, 5, and 6 which are as follows:
” (2) The 2nd defendant is not in a position to admit or deny paragraphs 1 and 2 of the statement of claim.
(3) The 2nd defendant is not in a position to admit or deny paragraphs 1 and 2 of the statement of claim.
(4) With reference to paragraphs 6, 7, 8, 9, 10 and 11 of the statement of claim the 2nd defendant avers that:
(a) a declaration relating to the Olukare of Ikare chieftaincy dated 14th June, 1956, and signed by the 1st defendant as the Chairman of the Ikare District Council was made in 1956;
(b) as a result of certain things the apropriate authority caused an inquiry to be held to ascertain, inter alia, whether the said declaration was in accordance with the relevant native law and custom;
(c) the inquiry was held and a report dated August 1956, was submitted to the appropriate authority;
(d) amendment of the said declaration in certain respects became necessary;
(e) the declaration (as amended) was dated 22nd October, 1956, and was signed by one Bada as the Chairman of the Ikare District Council; and
(j) the declaration (as amended) has been approved and registered.

(5) With further reference to paragraphs 6, 7, 8, 9, 10 and 11 the 2nd defendant avers that:
(a) on the death of an Olukare, his eldest son succeeds to the title unless he shall be known to be a thief, be left-handed, be of unsound mind, impotent, be in anyway bodily deformed, has still-born at first child’s birth or be known to be a stammerer; and
(b) if the eldest son shall be disqualified on any of the afore-mentioned grounds, then the next son of the deceased Olukare shall succeed to the title.

(6) The 2nd defendant avers that the registered declaration which contains the statements in paragraphs 5(a) and 5(b) above correctly states the customary law regulating the selection of a person to be the holder of Olukare of Ikare chieftaincy.
After hearing arguments of counsel on the aforesaid motion the learned trial judge ruled that although sections 22 (1) (b) and 158 (4) of the Constitution of the Federation ousted the jurisdiction of the courts in Chieftaincy questions, the claim before the court, in his view, was not a chieftaincy matter and as such he dismissed the motion. In his ruling the learned trial judge said as follows

“The claim before the court does not raise any issue as to the validity of the selection or appointment of the present Olukare. It does not raise any question as to the validity of the appointment of a Chief… Paragraph I of the statement of claim which is not denied shows that the plaintiff has a real interest to raise the question; and the defendants having joined issue with him have made themselves proper contradictors. They have true interest to oppose the declaration sought. Until evidence is led and until after hearing the court cannot say if it should exercise its discretion in granting the relief sought or not.”

The learned judge continued
“As to the plaintiff not having locus standi to maintain the action,
paragraph 1 of his statement of claim says that he is a member of Owalukare ruling house of Ikare. That fact has not been denied. In my view he has a right to bring the action because he has been excluded by the declaration. He has a grievance.”
Finally he said-
“From the averments in the statement of claim there is a dispute and the parties have joined issue in that respect. Paragraphs 3 and 6 of the statement of claim say that the 1st  defendant was the Chairman of the Council and that he signed the declaration about the custom complained of. Paragraph 7 says that the 2nd defendant accepted the declaration as the correct native law and custom. The application to strike out the statement of claim is refused. Motion is dismissed.”
We are in no doubt that the learned Acting Chief Justice was in error when he held that the matter before him was not a chieftaincy question. Whichever way one looks at the case, it is clear that the claim should have been dismissed.