Chief Ideliaguahan Ozogula Ii V. The Queen: Ex Parte Chief Lewis Ekpenga (1962)

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ADEMOLA, C.J.F

This is an appeal from an order of Mandamus made by Doherty, J., in the High Court of the Western Region, ordering the appellant to perform certain traditional ceremony which by customary law of his tribe was his duty to perform on the death of a class of Chief, namely Ibo Chieftaincy, to which the deceased father of the respondent belonged in order to make it possible for the respondent to assume the role of his deceased father and confer the title on one of his brothers if he does not take the title himself.

The respondent asked for a redress in the High Court by way of Mandamus on the ground that the appellant, who is the Idibiado or head of all the Ibo Chiefs in his town known as Sobe, has refused to perform a public duty which by customary law it was his duty to perform. He said his father, Ekpenga, who was one of the twenty Ibo Chiefs in the town, died since March, 1959. The appellant, he said, according to custom when an Ibo Chief in the Usalla quarter of Sobe died, must perform certain ceremonies after which the chieftaincy title will pass on to his (respondent’s) family. Despite all efforts by him and remonstrances by other Chiefs in the town, the appellant refused to perform the ceremonies. At one time he gave as a reason for the refusal, that the respondent has not buried his father at a place called Igbosomogbe which he maintained was the proper place for the burial of Chiefs of that class. Evidence was led by the respondent which was not contradicted by any other Chief save the appellant’s own assertions, that it is immaterial where the deceased Chief was buried, the ceremonies must be performed by the appellant, and mention was made of other Chiefs of that class who were not buried at Igbosomogbe but the appellant and his ancestors before him performed such ceremonies.

The learned trial Judge on the preponderance of evidence before him found on this and all other issues in favour of the respondent and ordered that the writ of Mandamus should go.

The two grounds of appeal filed and argued before us are as follows:-

1.The Court erred in law in granting an order of Mandamus when all the ingredients of the order were not established.

2.The decision is against the weight of evidence.

It is convenient to deal first with the second ground. The only point Counsel made on this ground was that the Judge said in his judgment that the appellant did not call any witness; he argued that this should not prejudice his case. It is not correct, in my view, to put the attitude of the Judge that way. In effect the position is as follows: This is a case involving an issue of Native Law and Custom. The dispute is between a Head Chief and one of his sub-chiefs. There are in all twenty sub-chiefs of that category. To prove the Native Law and custom in issue some of the sub-Chiefs gave evidence in favour of the assertion made by the sub-Chief. The Head Chief gave evidence stating his own version of what is Native Law and Custom on the point. He did not call one witness. The learned trial Judge felt that he was unable to accept the uncorroborated evidence of the Head Chief there was no other evidence oral or otherwise- to support his story. Out of the twenty sub-Chiefs of that class, the learned Judge felt that at least one of them should have been called in support of the assertions of the Head Chief. I can-not agree more with the views expressed by the learned Judge in the circumstances of this case. It was of the greatest importance that the Native Law and Custom be strictly proved. It is correct that a custom is not proved by the number of witnesses called, but it is not enough that one who asserts the custom should be the only witness. There is ample evidence before the learned Judge to justify his findings of what the Native Law and Custom of the Sobe people is on the point, and this ground of appeal must fail.

In regard to the first ground of appeal, it was submitted that this is not a case in which a Mandamus should be granted. Counsel was allowed on this ground to argue a number of points, some of which I will now consider.

(a)It was submitted that the respondent had no legal right conferred upon him by statute or by charter or by common law, and therefore cannot sue.

It is enough to state that there was clear evidence that the issue which was fought was one of Native Custom or Customary Law of the Sobe people and in effect this is the common law of the people. The learned Judge accepted that it is Native Law and Custom of the Sobe people that all titles are inherited only after due performance of traditional ceremonies. The Customary Law therefore, conferred the right on the respondent and his family to succeed to the Chieftaincy of the deceased. In other words, the chieftaincy is hereditary and by Native Law and Custom of the people of Sobe the respondent and his family have a legal right to the chieftaincy.

It was urged upon us that as the respondent had other lawful effective remedy, a writ of Mandamus should not have been allowed him. In this con-nection, Counsel referred to Part III, Sections 20 and 21, Chiefs Law (W.N.) Law No. 20 of 157; he said Section 21(1) permitted the appropriate Minister to cause enquiry to be made. Section 21(1) reads:

The Minister may cause such inquiries to be held at such times and in such places and by such person or persons as he may con-sider necessary or desirable for the purposes of this Law.

It is obvious that this Section is not a remedy at law which was contemplated as an alternative remedy to Mandamus.