Alhaji Chief Pa. Sule Jubril & Ors V. Attorney-general Of Edo State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment delivered on 20/4/2009 by the High Court of Justice, Edo State holden in the Benin Judicial Division (hereafter simply referred to as “the lower court”) presided over by Hon. Justice D. I. Okungbowa (hereafter simply referred to as “the learned trial Judge”). The Appellants herein were the Plaintiffs before the lower court and the said court in its judgment dismissed all the claims of the Appellants against the Defendant (now Respondent).

The Appellants commenced the instant case against the Respondent by way of Originating Summons. The lower court however later ordered parties to file pleadings. The latest of the Appellants’ pleadings are their Amended Statement of Claim dated 11/2/2002 and Reply to Statement of Defence dated 1/6/2004. These processes were filed on 3/12/2002 and 1/6/2004 respectively.

The latest of the Respondent’s pleading is its Amended Statement of Defence dated 21/7/2006 and filed on 24/7/2006.

The case of the Appellants as set up in their pleadings is to the effect that the Bendel State Legal Notice (BSLN) No. 15 of 1991 with retrospective commencement date of 1/7/1984 but dated 12/7/1991 which approved the appointment of late Prince Umoru Omogua as the Onogie (Clan Head) of Jagbe in Etsako West Local Government Area of Edo State is null and void. This is because the same is contrary to the Traditional Rulers and Chief Edict, 1979 wherein the mode of succession to the clan headship of Jagbe is by gerontocracy i.e. to say the most senior male member of Jagbe clan automatically becomes the Onogie upon a vacancy and not by primogeniture i.e. from father to son. The Appellants averred that as provided by law, the late Prince Umoru Omogua was not qualified to have been made an Onogie (Clan Head) of Jagbe. In the premises, the Appellants claimed the following reliefs against the Respondent –

“(i) A declaration that the Legal Notice B.S.L.N. 15 of 1991 with retrospective commencement date of 1st July, 1984 but dated the 12th day of July, 1991 wherein the Governor of Edo state of Nigeria purportedly approved the appointment of late Prince Umoru Omogua as the Onogie (clan Head) of Jagbe in Etsako West Local Government Area of Edo state is null and void same being contrary to the Traditional Rulers and Chiefs Edict, 1979.

(ii) A declaration that by the provision of the Traditional Rulers and Chiefs Edict, 1979, the mode of succession to the clan Headship of Jagbe is by gerontocracy, that is to say, the most senior male member of the Clan before the Clan Head, and not by primogeniture.

(iii) A perpetual injunction restraining the Defendant from recognizing and/or conferring on any member of Jagbe community the title of Onogie of Jagbe except as stated above.”

In the main, the Respondent in its pleading controverted the case of the Appellants as set up in their pleadings. While admitting that the Appellants by Originating Summons sought a declaration in relation to BSLN No. 14 of 1991, the Respondent denied that such a declaration was sought in relation thereto in the instant action. That it was in respect of BSLN No.15 of 1991 that they sought a declaration. It is the stance of the Respondent that the Onogie is a chieftaincy to which Part II of the Traditional Rulers and Chiefs Edict No. 1 of 1979 applied and that the approved and registered declaration published as BSLN No. 38 of 1979 applicable thereto, having been found to be defective was set aside by another approved and registered declaration published as BSLN No. 14 of 1991. The Respondent made further averments to the effect that the registered declaration published as BSLN No.14 of 1991 was made in accordance with the provisions of the law relating to the making of Chieftaincy Declarations.

The Appellants called one witness in the proof of their case; while the Respondent called two witnesses in this regard. The lower court having had the benefit of the addresses of the parties and after evaluating the evidence adduced before it, found the Appellants’ action to fail in its entirety and accordingly dismissed the same.

The Appellants being aggrieved with judgment of the lower court lodged an appeal against the same, by a Notice of Appeal (undated) but filed on 20/7/2009. The Notice of Appeal contains five grounds of appeal.

In accordance with the Rules of this Court, parties filed and exchanged Briefs of Arguments. Appellants’ Brief of Argument is dated 28/10/2011 and filed on the same date. Appellants’ Reply Brief is dated 6/12/2011 and filed on 7/12/2011. Both Briefs were settled by Isaac Oseghale Esq. Respondent’s Brief of Argument dated 18/11/2011 and filed on the 21/11/2011 was settled by C.A. Ebosele (Mrs.) Chief State Counsel (CSC), Ministry of Justice, Edo State.

The appeal was entertained on 14/3/2013, and both learned Senior lead counsel for the Appellants, A. Akpomudje SAN, and learned CSC leading P.O. Aigbokhaebholo (Miss) (Legal Officer) adopted and relied on the Briefs of Arguments hereinbefore identified, filed on behalf of their respective clients in aid of their positions in the appeal. It is pertinent to note that at the hearing of the appeal, learned CSC for the Respondent specifically declared that the record of appeal compiled by the Appellants is alright. That the Respondent has no grouse with the record of appeal as transmitted to this Court by the Appellants.

The Appellants formulated two issues for the determination of the appeal in their Brief of Argument. The issues read thus: –