Chief J.A.Y. Imonikhe & Anor. V. The Attorney-General Of Bendel State & Ors. (1992)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C.

This is an appeal by the plaintiffs against the decision of the Court of Appeal, Benin Division delivered on the 19th of July, 1989.

The appeal arose from a Chieftaincy tussle. In the claim before the Owan Judicial Division of the High Court of the then Bendel State, the plaintiffs claimed against the defendants as follows:

“(a) A declaration that it is the right and turn of the plaintiffs who represent the Afifia branch of Afonkhiai Ruling House in Ihievbe to produce the next Ukor of Ihievbe and not the defendants who being of Ekueye quarters in Ihievbe are not from one of the recognised branches of the said Afonkhiai Ruling House.

(b) An injunction restraining the 1st and 2nd defendants from recognizing and or installing the 2nd and 3rd defendants and any other person who is not from Afifia branch of the Afonkhiai Ruling House as the next Ukor of Ihievbe.”

From the proceeding, it appears that the 2nd head of claim was to restrain the 1st and 2nd defendant:-. from recognizing the 3rd and 4th defendants from being installed as the next Ukor of Ihievbe.

Parties exchanged their pleadings and the matter went into trial. On the 5th of December. 1985, the Court adjourned for judgment. Then by a motion filed on the 6th of December, 1985, the plaintiffs applied to add one more relief to the two reliefs set out above. The new relief sought to be added read as follows:

“(c) A declaration that the purported appointment and installation of the 3rd defendant by a representative or representatives of Emabu Village on 22nd day of May, 1983, is illegal. Unconstitutional, null and void and of no effect.”

In his considered ruling dated the 23rd of December, 1985, the learned trial Judge refused the application on the grounds that it was a new relief; that there was no evidence to support it and that there was no evidence that the 3rd defendant had been installed. I may observe that those findings were contrary to the evidence and the depositions of the plaintiffs/applicants in the affidavit in support of the motion, particularly in paragraphs 6, 7, and 9 wherein it was deposed as follow:

“6. That I am making this amendment in view of the recent further instructions I received from members of our Ruling House.

7. That I make this amendment not with the intention to cause unnecessary delay or embarrassment but to streamline the relief sought with the evidence already adduced in this case. 8. That the material facts and evidence to sustain the additional relief and minor amendments sought have already been pleaded and given in evidence in this Case.”

However, on the 16th of January, 1986, the learned trial Judge proceeded to give judgment on their claim as originally filed and, on the various findings by him, he dismissed the suit.

The plaintiffs appealed to the Court of Appeal against the refusal to amend the claim and the dismissal of their claim. In its judgment the Court of Appeal in its unanimous judgment, summarized the findings of facts by the learned trial Judge as follows:

“1. The 3rd defendant took part in the race for nomination as a candidate to contest the vacant stool of Ukorship of Ihievbe as a result of the death of the last Ukor Chief Ahonsi.

2. There is a Chieftaincy Declaration published for Ihievhe in B.S.L.N. No.144 of 1979, Exhibit “A”.
3. That the 3rd defendant was in fact installed on the22nd of May, 1983.
4. That there are five branches of family in Afonkhai Ruling House namely:

AFADIA Branch