Prof. Louis Cheluno Nwaoboshi & Ors V. The Military Governor Of Delta State & Ors (2003)

LAWGLOBAL HUB Lead Judgment Report

O. UWAIFO, J.S.C.

The Delta State Government approved a chieftancy declaration stating the customary law regulating succession to the title of Obuzor of Ibusa as per legal Notices Nos. 6, 7, 8 and 9 of 1995 published in the Delta State of Nigeria extra-ordinary gazette No. 28 vol. 5 of 21 June, 1995. Persons who called themselves kingmakers wrote to the Government requesting that the selection and appointment of one professor Louis Cheluno Nwaoboshi (now the 1st appellant) be approved and the staff of office presented to him.

A letter dated 20th June, 1995 from the Government to the chairman, kingmakers committee appeared to have conveyed the nod given by the military administrator of the State to the selection of professor Nwaoboshi as the Obuzor of Ibusa. The letter which seemed to have been on the directive of the military administrator proceeded to say in paragraph 2 and 3 as follows:

“2 As regards the presentation of staff of office, I wish to inform you that this is normally done after the traditional ruler has been installed in accordance with the Custom and tradition of the people. Accordingly you may wish to install professor Louis Cheluno Nwaoboshi as the Obuzor of Ibusa and thereafter re-apply for the presentation of staff of office.

3. Once more, accept our congratulations on the appointment of the first Obuzor of Ibusa.”

The declaration made under section 8 of the Traditional Rulers and Chief Edict, 1979 of the defunct Bendel State, applicable in Delta State, stated that there are three ruling houses (Otus) in Ibusa clan, which, in order of seniority, are (i) Otu Odogwu ruling house, (ii) Otu Uwolo ruling house and (iii) Otu lyase ruling house. It also stated the three groupings of villages attached to each ruling house and the succession shall rotate among the three ruling houses. Furthermore, the method of selection of the Obuzor of Ibusa was copiously narrated. The 1st appellant belongs to Otu Odogwu ruling house.

In July, 1995, one Obi (professor) Chike Onwuachi (now applicant/respondent) commenced certiorari proceedings in which he stated in paragraphs 1 and 2 of the affidavit in support as follows:

“1. That I am the applicant in the above matter

2. That my application is for an order of certiorari directed to the respondents namely:
3. Professor L.O. Nwaoboshi
4. C.O. Nwaze, Odogwu of Ibusa
5. W.O. Ikolodo, Uwolo of Ibusa
6. J.I.Okonicha, lyase of Ibusa
7. The Military Administrator Delta State
8. Attorney-General & Commissioner for Justice, Delta State
9. Chief Augustine Izagbo.”

The purpose was to bring up the said declaration stating the customary law regulating succession to the title of Obuzor of Ibusa, Delta State as contained in Delta State legal Notice No.6 of 1995 published in the aforementioned gazette to the court to be quashed. Other reliefs also sought were a declaratory order, permanent injunction, and stay of proceedings. Notwithstanding the inclusion of these other reliefs, it is not in dispute that the action was essentially commenced by the common law prerogative writ of certiorari.

On 20th December, 1995, Odita J, sitting in the High Court holden at Asaba, in a rather lengthy ruling, held that the Executive Council of Delta State Government acted without jurisdiction in making the declaration because it failed to comply with the Traditional Rulers and Chiefs Edict, 1979. He therefore made an order quashing the said declaration stating the customary law regulating succession to the title of Obuzor of Ibusa. He also granted the declaration and the perpetual injunction sought in the writ of certiorari.

The 1st – 4th and 7th respondents to that application for certiorari appealed to the Court of Appeal on six grounds of appeal principally raising issues challenging the propriety of the certiorari order to quash what they regarded as a legislative or subsidiary legislative act. Other issues canvassed by the appellants related to the locus standi of the applicant and ouster of jurisdiction created by decree No. 13 of 1984. I find it appropriate at this stage to remark that this appeal was not properly titled as an action by writ of certiorari should. The parties were erroneously stated thus:

1. Prof. L.O. Nwaoboshi )
2. C. O. Nwanze, Odogwu of Ibusa )
3. W.O. Ikolodo, Nwokolo of lbusa ) ….. appellants
4. J.I. Okonicha, lyase of Ibusa )
5. Chief Augustine Izagbo )

AND

1. The State …….. ) respondents
2. The Military Administrator of Delta State )
3. Attorney-General & Commissioner )
4. Obi (Prof.) Chike Onwuachi )

Not to have regarded the state other than as a symbolic party is misleading. The state in certiorari proceedings represents primarily the authority on whose prerogative the writ of certiorari proceeded to issue. That is what makes it a prerogative writ. The State is not expected to be represented as if a party litigant, and has no real part to play other than as the symbol of authority. I had therefore to state the parties in the proper manner of certiorari proceedings with the title the appeal now bears.

On 14th July, 1998, in a majority decision by Akintan and Rowland, JJCA, Achike, JCA dissenting, the appeal was dismissed. Akintan, JCA observed inter alia:

“it is now settled law that the writs of certiorari and prohibitions may issue where any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority… It is not in doubt that the Delta State Executive Council is made up of a body of persons having legal authority to determine questions affecting the rights of subjects within its area of jurisdiction, that is, Delta State of Nigeria. The body is also charged with the duty to act judicially.”