His Highness Erejuwa Ii The Olu Of Warri & Ors. V. Egharegbeyiwa O. Kperegbeyi & Ors (1994)

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WALI, J.S.C. 

The plaintiffs brought an action in Warri High court, Warri Judicial Division as per the amended Writ of Summons, seeking the following declarations and orders that:-

“The recommendation, nomination and/or selection of Mr. Isaac Omiretsuli Jemide for the conferment of the Chieftaincy Title of Oshodi by His Royal Highness, Obemi Emiko Erejuwa II, The Olu of Warri as per letter dated 25th October, 1985 be declared null and void and contrary to the Itsekiri customary law regulating the nomination, selection and conferment of the said Oshodi.

2. That the recommendation, nomination and selection and conferment of the title of Oshodi on Isaac O. Jemide – the 2nd defendant, by the Olu of Warri is not in accordance with the hitherto existing Itsekiri customary law relating to the Oshodi Chieftaincy title and family.
3. That the 2nd and 3rd defendants who style themselves as members of the Udefi/Oshodi families have not the mandate of the accredited Head of Oshodi family to recommend, nominate or select Isaac O. Jemide for the appointment of Oshodi by the Olu of Warri.
4. That the recommendation, nomination/selection of the rightful candidate for the aged long Oshodi family has no time in Legal memory been the competence of Udefi/Oshodi families as claimed by the 2nd to 4th defendants.
5. That the recommendation, nomination/selection of the rightful candidate for the conferment of the title of Oshodi to the Olu of Warri from time immemorial had been the exclusive prerogative of ‘Oshodi Family’ of which 1st, 2nd and 3rd plaintiffs are the indisputable Head and existing senior members respectively of the Oshodi family.
6. That the conferment of the title of Oshodi of Warri on Isaac Omiretsuli Jemide as per letter dated 14th November, 1985 be declared irregular and contrary to Itsekiri Customary Law known to the Itsekiri, null and void and of no effect and should be set aside.
7. Perpetual injunction restraining the defendants by themselves, their privies, servants and/or agents or otherwise whosoever from conferring parading, recommending, nominating or selecting the 2nd defendant with the Chieftaincy title of Oshodi.
8. Perpetual injunction restraining the 2nd defendant from parading or holding out himself as and/or performing the traditional functions of Oshodi of Warri.
9. Further or other reliefs.
10. IN THE ALTERNATIVE

(a) Declaration that the conferment of the title of Oshodi on Isaac Jemide is contrary to the Traditional Rulers and Chiefs Edict, 1979 and thereby null and void.

(b) Perpetual injunction restraining the defendants by themselves, their privies, servants and/or agents or otherwise whosoever from conferring, parading, recommending, nominating or selecting the 2nd defendant with the Chieftaincy title of Oshodi.

(c) Perpetual injunction restraining the 2nd defendant from parading or holding – out himself as and/or performing the traditional functions of Oshodi of Warri.”

On the order of the trial court, pleadings were filed and exchanged. Thereafter the defendants filed the following Notice of Motion dated 16th February, 1987 in which the following preliminary points of objection were raised (which were also raised in the Statement of Defence filed by the 2nd, 3rd and 4th defendants):-

“(i) That pursuant to S. 22 of the Traditional Rulers and Chiefs Law, 1979, otherwise known as Edict No. 16 of 1979 of Bendel State of Nigeria, this Honourable Court has no jurisdiction to entertain the plaintiffs’ claim as set out in their Statement of Claim.

(ii) That the plaintiffs have no locus standi to institute the action setout in their Statement of Claim.”

After exhaustive arguments for an against the preliminary objection, the learned trial Judge ruled in favour of the defendants”

“the preliminary points raised by Dr. Emiko are well taken an in the result this action is accordingly struck out.”

The plaintiffs appealed to the Court of Appeal Benin Division against the said Ruling. In a well considered judgment of that court written by Ogundare JCA (as he then was) and with which both D. Mustapher and Salami, JJCA agreed, he allowed the appeal, set aside the order of the trial court of striking out the case for want of jurisdiction and remitted it to the same court for hearing on the merits.

The defendants have now appealed to this Court against the said judgment and order of the Court of Appeal. Henceforth the plaintiffs and the defendants will be referred to as the respondents and the appellants respectively.

In compliance with Rules of this Court, briefs of argument were filed and exchanged. In the brief of arguments filed by the appellants, the following 3 issues were formulated for determination by this Court –