Chief J. O. Edewor V. Chief M. Uwegba & Ors. (1987)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C.

A fairly similar situation arose in Oloyo v. Aiegbe (1983) 2 S.C.N.L.R. 35 where this Court among other things had to decide whether the word ‘shall’ used in section 103(1) of the Constitution of the Federal Republic of NIGERIA 1979 had a peremptory or directory meaning.

There I was of the view that –

“there is no general rule for determining when the use of the word ‘shall’ implies a peremptory or directory mandate but as Lord Campbell L.C. said in Liverpool Borough Bank v. Turner (1860) 2 De G.F & J 582 at pp. 587 and 588 it is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the Statute to be construed”ng Judgment): In this suit which emanated from the Orerokpe Judicial Division of the High Court of Bendel State, the Plaintiffs/Respondents (hereinafter known as respondents) had claimed against the Defendant/Appellant (hereinafter known as Appellant) and the Defendants/Respondents in these terms:

“(a) a declaration that in accordance with the age long tradition, native law, custom, the usages and the Constitution of the Agbon Clan, the tenure of office of the Otota of Agbon terminates automatically, on the demise of the Ovie of AGBON subject to his remaining in office until the next Ovie and the next Otota are named and installed;

(c) a declaration that in accordance with the tradition, native law, custom, the usages and the constitution of the Agbon Clan, when an Otota dies before the Ovie, it is the right of the said deceased Otota’s sub-clan to elect a new Otota to hold office for the duration of the life of the Ovie;

(d) a declaration that the sub-clan entitled to provide a candidate or candidates to fill the vacant office of the Otota of AGBON is the Kokori sub-clan;

(e) a declaration that the purported Chieftaincy Declaration made by the Chieftaincy Committee of the Western Urhobo District Council on 4th January, 1962 relating to the Otota of Agbon Chieftaincy is irregular, wrong, unconstitutional null and void, and contrary to the age-long tradition, native law, custom, the usages and the Constitution of the AGBON Clan and should be set aside’

(e) a declaration that the directive of the Governor-in-Council of Bendel State contained in a letter No.CH.506/351 dated 13th April, 1982 from the Ministry of Local Government and Chieftaincy Affairs requesting the King-makers to consider the nomination of the 4th Defendant as the Otota of Agbon as irregular, illegal, unconstitutional, incompetent, null and void and of no effect whatsoever;

(f) a declaration that the 4th defendant has not been duly appointed as the Otota of Agbon as required by law and that the purported approval of the alleged appointment of the 4th Defendant as the Otota of Agbon by the 2nd defendant as published in the Bendel State Legal Notice No.4 of 1982 dated 26th May, 1982 is irregular, wrongful, illegal, contrary to the customary law, unconstitutional, null and void and of no effect and should be set aside;

(g) the plaintiffs claim perpetual injunction restraining the defendants by themselves, their servants agents or privies or howsoever otherwise from taking any action or any steps on the said purported Chieftaincy Declaration of 1962 or on the said letter dated 13th April, 1982;

(h) the plaintiffs also claim perpetual injunction restraining:-

(a) the 1st, 2nd, 3rd defendants by themselves, their servants otherwise from installing or recognising or taking any steps in recognising or installing or causing to be installed or recognised the 4th defendant as the Otota of Agbon and

(b) restraining the 4th defendant by himself, his servants agents or privies or howsoever otherwise from holding himself out as the Otota of Agbon or wearing any regalia of the Otota of Agbon or permitting himself or taking any steps to be installed or recognised as Otota of Agbon or performing or causing to be performed any act or function of or ceremony connected with his installation as the Otota of Agbon.”