Chief Iyhejee Elugbe V. Chief Emimigbe Omokhafe & Ors (2004)

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, J.S.C.

The plaintiffs had brought their suit at the Afuze High Court of Edo State as the representatives “of Otuo Ekheheghaki Age-group and members of Otuo clan community except the 4th defendant and his supporters” claiming against the four respondents (herein-after referred to as the defendants) the following reliefs:

1. A declaration that on the death of an Ovie (Ororoso) of Otuo before the expiration of his ten years tenure, no vacancy is created but his immediate deputy who is the second Enriyheha, traditional chiefs automatically ascends the throne for the unexpired term of the late Ovie (Ororoso) in accordance with Otuo customary law regulating succession to the traditional ruler of the Ovie (Ororoso) of Otuo.
2. A declaration that on the 19th December, 1994, Otuo Igbogbe Chieftaincy Festival appointments of the then incoming Otuo traditional ruler chiefs, the 1st plaintiff was appointed as the second Enriyheha traditional chief by Otuo kingmakers.
3. A declaration that on the death of the then Ovie (Ororoso) of Otuo, Chief L.B. Iraoya, on 4/9/95, the 1st plaintiff automatically succeeded him as the Ovie (Ororoso) of Otuo for his unexpired term.
4. A declaration that the 4th defendant, Chief Iyhejee Elugbe not being an Enriheha title holder is competent to be the Ovie (Ororoso) of Otuo in accordance with the Otuo customary law regulating succession to the traditional ruler of Ovie (Ororoso) of Otuo and the Registered Otuo Chieftaincy Declaration 1979.
5. A declaration that any purported recommendation of appointment of the 4th defendant as Ovie (Ororoso) of Otuo is contrary to the Otuo customary law regulating succession to the traditional ruler title of Ovie (Ororoso) of Otuo and is therefore null and void.
6. An injunction restraining the 1st, 2nd and 3rd defendants as agents of the Edo State Government from appointing or recognizing the 4th defendant as the Ovie (Ororoso) of Otuo to succeed Late Chief L. B. Iraoya.

I intend in this judgment to make reference only to such aspects of the proceedings at the High Court which are relevant to the determination of the issues raised in this appeal.

The plaintiffs filed a statement of claim dated 14th May, 1996. The 4th defendant filed a statement of defence on 5th July, 1996. In paragraph 17 of the said statement of defence, the 4th defendant pleaded:

17. At or before the trial of this suit, the defendant will urge this Honourable court to dismiss the plaintiffs’ action upon the following grounds.

(a) The plaintiffs have no locus standi to institute this suit.

(b) The suit discloses no cause of action.

(c) This Honourable Court has no jurisdiction to hear the suit.”

The 4th defendant on the same date i.e. 5/7/96 filed an application that the plaintiffs’ suit be dismissed for reason of the matters pleaded in paragraph 17 of his statement of defence as reproduced above. Arguments were later heard on the 4th defendant’s application. The trial Judge in his ruling of 21st March, 1997 held that he had no jurisdiction to hear the suit. The suit brought by the plaintiffs was accordingly dismissed.

Dissatisfied, the plaintiffs brought an appeal before the Court of Appeal sitting at Benin City. It was inter alia contended by the plaintiffs before the Court of Appeal that the trial Judge was wrong to have peremptorily dismissed plaintiffs’ suit without hearing evidence. The Court of Appeal, Benin (Coram Rowland, Ibiyeye and Akaahs, JCA) heard the appeal. The judgment of the court was delivered on 12th March 2001. In the leading judgment delivered by Akaahs, JCA concurred in by Rowland, JCA and Ibiyeye, JCA the appeal was allowed. The court below was of the view that the parties having filed pleadings the court of trial should have heard the case on its merits. It was ordered that the case be heard on its merits.

The 4th defendant was dissatisfied with the judgment of the court and has now brought this appeal. In the appellant’s brief filed on behalf of the 4th defendant, two issues were identified as arising for determination in the appeal namely:

” (a) Has the lower court jurisdiction to entertain the appeal in view of section 5 of Decree No.1 of 1984

(b) Was the lower court right when it held in its judgment that “In fact the issue of ouster of jurisdiction does not arise and learned counsel has not followed the laid down procedure for raising such issues. It is contained in Order 3 rule 14(2) of the Court of Appeal Rules which stipulate that a respondent who decides to contend on appeal that the decision of the court below should be affirmed on grounds other than those relied upon by the court must give notice to that effect, specifying the grounds of the contention.”

The respondents’ counsel in his brief took a preliminary objection to that part of the appellant’s issues dealing with ouster of the jurisdiction of the court which was hinged on section 5 of Decree No.1 of 1984 and section 1(2)(b)(i) of Decree No. 13 of 1984. The learned counsel then proceeded to formulate one issue for determination, to wit:

“Whether the learned Justices of the Court of Appeal were right in holding that “In fact the issue of ouster of jurisdiction does not arise and learned counsel has not followed the laid down procedure for raising such issue.” It is contained in order 3 rule 14(2) of the Court of Appeal Rules which stipulate that a respondent who decides to contend on appeal that the decision of the court below should be altered on grounds other than hose relied upon by the court must give notice to that effect specifying the grounds of contention. The plaintiffs’ claim was not dismissed for ouster of jurisdiction.”