Chief Abubakar Zibiri Odugbo V. Chief Aliu Abu & Ors (2001)

LAWGLOBAL HUB Lead Judgment Report

EJIWUNMI, J.S.C.

This appeal is against the judgment of the Court below (Benin Division). That court, by its judgment delivered on the 26th day of May, 1995, upheld the judgment of the Auchi High Court in respect of the claims of the plaintiffs before that Court. It must be noted that the plaintiffs at the commencement of this action included Bawa Shaibu 1st plaintiff and 7th plaintiff Chief Momoh Bello Bawa (described as Ivbiaro Most Senior Title Holder) ‘Odion Ejere’. And later during the proceedings, Chief Sule Elabor was joined as the 8th plaintiff; following the death of the 7th plaintiff. In this court, however, the plaintiffs are as stated above.

In respect of this appeal, the only point argued for the 1st defendant, who alone has appealed to this Court, concerns the jurisdiction of the Auchi High Court of the former Bendel State to entertain the plaintiffs’ action. In the High Court, the plaintiffs’ by virtue of paragraph 17 of their third amended statement of claim, filed with the leave of the court, pleaded thus:-

“17. Whereof the plaintiffs claim against the defendants jointly and severally the following reliefs, that is to say:

1. A declaration that according to Ivbiaro Customary Law, it is the most senior title holder, ‘Odion Ejere’ who has the exclusive preserve of conferring on deserving Ivbiaro person ‘Ejere’ title (i.e. Chieftaincy Title) by turbanning and it is he who becomes the village head of Ivbiaro in Ivbi-Ada-Obi clan when a vacancy occurs.
2. A declaration that the purported appointment and approval of the 1st defendant by the Executive Council as the village head of Ivbiaro in Ivbi-Ada-Obi clan in Owan Local government

area in Owan Judicial Division as contained in Bendel State Legal Notice (B.S.L.N.) 77 of 1986 are irregular, illegal, invalid, and contrary to Ivbiaro customary law and the provisions of Edict No. 16 of 1979 and therefore null and void and of no effect.

3. A declaration that the purported appointment and approval of the 1st defendant as the clan head of Ivbi-Ada-Obi by the 4th defendant acting for the Bendel State Executive Council as contained in Bendel State Legal Notice (B.S.L.N.) 77 of 1986 are not in accordance with the approved chieftaincy declaration regulating succession to the Clan Headship of Ivbi-Ada Obi clan and so illegal, null and void and of no effect whatsoever.
4. A declaration that the 7th plaintiff Momoh Bello Bawa is the person entitled by Ivbiaro customary law and under the approved Ivbi-Ada-Obi chieftaincy declaration of Customary Law regulating succession to the Traditional Rulers of Ivbi-Ada-Obi clanship to be appointed the clan head. Alternatively, a declaration that the 8th plaintiff, Chief Sule Elabor, the Senior Daudu of Ivbiaro is to act and/or succeed as the village head of lvbiaro and Clan Head of lvbi-Ada-Obi in the event that the 7th plaintiff’s incapacity continues unabated and/or on his death.
5. An injunction restraining the 1st defendant from parading and/or holding himself out as the village head of lvbiaro and as the clan head of lvbi-Ada-Obi.
6. An injunction restraining the 2nd, 3rd and 4th defendants themselves, their servants and agents from installing the 1st defendant or giving him staff of office and/or dealing with him in any manner whatsoever as the village head of lvbiaro and clan head of Ivbi-Ada-Obi.
7. An injunction restraining the 1st defendant from conferring on any Ivbiaro person customary title (i.e. Ejere Title) and/or to receive any customary perquisites connected therewith.”

It is I think desirable to give briefly the facts that led to the claims of the plaintiffs. It would appear from the pleadings and the evidence led that Ivbi-Ada-Obi clan is made of 3 villages, namely (1) Errah, (2) Ivbiaro and (3) Warrake. It is claimed by the plaintiffs that the clanship head rotates among the 3 villages, by virtue of the 2nd schedule (section 30 (2)) of Traditional Rulers and Chiefs Edict 1979. After the death of the Clan Head from Errah, it came to the turn of Ivbiaro. It is the plaintiffs’ case that the most senior titled man or Odion-Ejere, who is the Village Head will be the Clan Head. It is also the plaintiffs’ case that one Adamu Odugbo who was a Clan Head appointed according to Ivbiaro custom, the Chiefs who are the present plaintiffs when Adamu Odugbo died the Village Head eventually descended on Momoh Esimiki, who was succeeded in 1979 by the 7th plaintiff, Chief Momoh Bello Bawa. It is further claimed by the plaintiffs that during the reign of the 7th plaintiff, he performed the duties of the village head, which included, (a) granting owners consent to timber exploiters, and (b) distribution of essential commodities. He was also addressed formally as the Village Head of Ivbiaro. Following a dispute as to who was the rightful Village Head, and upon a report made to the then Bendel State Executive Council, the Owan Traditional Council was directed to enquire into the dispute. But the Owan Traditional Council went further to select the 1st defendant as the Village Head. The plaintiffs then commenced this action as they contended that the enquiry itself was devoid of any fairness and against the customary law of their community with the appointment of the 1st defendant not being a titled man or chief, an Odion-Ejere. On this aspect of their case the plaintiffs pleaded in paragraphs 10,11,12(a),13,14,15 & 16 of their 3rd amended statement of claim thus:-

“Para. 10:

The plaintiffs will lead evidence of Ivbiaro Customary Law to show that Ivbiaro is one of the three Ruling Houses in Ivbi-Ada-Obi Clan, namely:- Errah, Ivbiaro and Warrake and succession to the Clan Headship rotates around the headships of the Ruling Houses in that order. When a vacancy occurs, the head (i.e. Village Head) of the appropriate Ruling House automatically succeeds. The plaintiffs will rely on the Ivbi-Ada-Obi Clan approved chieftaincy declaration as contained in B.S.L.N. 142 of 1979.

Para. 11:

The plaintiffs state that they were shocked and embarrassed when the Executive Council in B.S.L.N. 77 of 1986 announced the approval of the purported appointment of the 1st defendant as the Clan Head of Ivbi-Ada- Obi even though it was obvious to the 4th defendant that the 1st defendant was never appointed Ivbi Aro Village Head in accordance with Ivbi Aro Customary Law and by those entitled to do so.

Para. 12:

The plaintiffs will lead evidence to prove conclusively that the 1st defendant was at no time appointed a village head in 1979 when the stool became vacant as required by Ivbi Aro Customary Law and did not act in the said capacity between 1979 and 3/10/86 and will contend that the said appointment of the 1st defendant by the Executive Council was not made bonafide as there was no vacancy in the stool of Ivbi Aro Village Headship at the time the Executive Council purportedly made the said appointment and gave approval.

Para. 13:

The plaintiffs will at trial contend vigorously that under the Customary Law of Ivbi Aro and Edict No. 16 of 1979, it is a condition precedent that a person must first be a village head before he can be appointed the Clan Headship of Ivbi-Ada-Obi Clan and the Clan Headship automatically devolves on whoever is for the time being the village Head of Ivbiaro.