Chief Ohwovwioghor Ikine V Chief Olori Edjerode (2001)

LAWGLOBAL HUB Lead Judgment Report

A.O. EJIWUNMI, J.S.C.

This appeal emanated from the Court of Appeal (Benin Division) where the appeal of the Respondents was upheld. This was as a result of the appeal of the Respondents to that Court against the decision of the High Court in suit No. UHC/9/88. In that suit, the respondents had by their writ of summons claimed for the following reliefs:-

“(1) A declaration that in accordance with the tradition, native law and custom of the Uwherun Clan, Ughelli Local Government Area of Bendel State, within the jurisdiction of this Honourable Court, the Senior Odion Uwherun is appointed from EROVIE Quarter and EROVIE only, and is not subject to rotation among the five quarters which make up Uwherun.

(2)A declaration that EROVIE Quarter is the only Ruling House in Uwherun Clan.

(3) A declaration that the purported appointment and subsequent gazetting of the 1st defendant from Ehere Quarter as the Senior Odion of Uwherun is contrary to Uwherun native law and custom; usage and tradition and is therefore null and void and should be set aside.

(4) An injunction restraining the 1st Defendant, his servants, agents, or privies or any of the 1st – 4th Defendants from functioning or continuing to function as Senior Odion of Uwherun pending the determination of this suit.”

It would appear that upon being served with this writ, the Learned Counsel on behalf of the 1st – 4th Appellants filed a motion on Notice dated 22/2/88 under the inherent jurisdiction of the Court for orders dismissing the action in suit No. UHC/9/88 for being frivolous, vexatious, oppressive and an abuse of the process of the Court. The motion was supported by an affidavit of eleven (11) paragraphs sworn by one Chief Hivite Egoh, the 2nd Appellant in this appeal. It is in that affidavit that the Appellants disclosed that the Respondents had in suit No. UHC/34/87, sued them for reliefs similar to those that they are now seeking in the present proceedings. In that affidavit also, the steps already taken in suit No. UHC/34/87, were also disclosed. I refer in this regard to paragraphs 5 and 6 of the said affidavit, and which read thus:-

“Para. 5 That on the 12th day of August, 1987, the Plaintiffs/Respondents obtained a temporary injunction against me and the other Defendants/Applicants/Respondents pending the determination of the motion on notice for interim injunction.

Para. 6 That the motion for the interim injunction was argued on the 22nd of October, 1987 and in a considered ruling delivered on the 19th day of November 1987, this Honourable Court dismissed the motion and accordingly discharged the temporary injunction. Thereafter, pleadings were ordered whereby the Plaintiffs/Respondents were ordered to file their statement of claim within 30 days and the Defendants/Appellants/Respondents were also ordered to file their statement of defence within 30 days after service on them of the statement of claim.

The Respondents filed a counter-affidavit dated the 20th of April, 1988, and sworn by Chief Edison Obrutse, the 2nd Respondent in this appeal. In the said counter-affidavit, they replied to several of the allegations contained in the affidavit of the Appellants in support of their motion. It is, in my view, relevant to reproduce paragraph 4 of the said counter-affidavit having regard to the facts disclosed therein:-

“Para. 4: That with regard to paragraphs 7-11 of the affidavit in support of the motion, I say as follows:-

(a) After our motion for interim injunction had been refused and pleadings ordered, we made up our minds to discontinue the action in UHC/34/87 as it couched in quiatimet form.

(b) As the event we wanted to stop immediately had taken place, it became necessary to bring a new action to fight the new situation.

(c) After series of meetings of the Erovie Quarter, we on 9/2/88 filed Notice of Discontinuance Of Suit No. UCH/34/84 against all the Defendants. I attach a certified true copy of the said Notice of Discontinuance and mark same as Exhibit Z.

(d) That the Notice of Discontinuance was entertained on 24/3/88 without opposition from the Defendants/Applicants. Suit No. UHC/34/87 was then struck out with N100.00 costs in favour of the Defendants/Applicants herein. I attach the original copy signed by the Honourable Judge and with the seal of the Court and mark same as Exhibit Z1.

(e) We have never had the intention of prosecuting the same case with two separate suits. We have never contemplated abusing the process of this Honourable Court, much less execute it.

(f) We are prosecuting suit No. UHC/9/88 and no more. We have nor naira-power. It is the 1st-4th Defendants/Appellants that are oppressing the Erovie Quarter with naira-power. Their motion was filed on 22/2/88. They did not find out at the Registry if anything had been done to Suit No. UHC/34/87.

It is thus clear from the affidavit and counter-affidavit of the parties, that though Suit No. UHC/34/87, was filed as alleged by the Appellants, however, that action had been struck out from the list of the Court since the 24th of March, 1988. Apart from the motion on notice dated 10th March, 1990, it must be noted that the 1st-4th Appellants also filed two other motions on notice in respect of this matter against the Respondents. The first one to which reference was made earlier in this judgment was dated, the 2nd December, 1988. The other one that was filed by them, was dated the 22nd December, 1988. These two motions on notice remained on the list of the Court until the 27th of February, 1990, when they were struck out on the application of their Learned Counsel, Chief A.O. Akpedeye.

Thereafter, Learned Counsel for the 1st-4th Appellants, moved their motion dated 10th of March 1990. By that motion, the Appellants prayed the Court for the following orders:-

“1.Dismissing this action in Suit No. UHC/9/88 for being frivolous, vexatious, oppressive and an abuse of the process of the Court.

2. Dismissing this action in Suit No. UHC/9/88 on grounds:

(a)that the Court has no jurisdiction to entertain it;

(b)that the subject matter of the suit being the appointment and recognition of a Chief is not justiciable

3. And for any further or other order or orders as this Honourable Court may deem fit to make in the circumstances”.

The motion, which was supported by a 17 – paragraph affidavit, was sworn by Chief Hivite Egoh, the 2nd Appellant. After hearing the argument of Counsel for the parties, the Learned Trial Judge delivered a considered ruling. By his reasoning in the said ruling, the Learned Trial Judge acceded to the prayers of the Applicants/Appellants. He accordingly dismissed Suit No. UHC/9/88, on the grounds that the action was an abuse of the process of Court, and also statute barred. The Court therefore lacked jurisdiction to entertain it.

As the Respondents were dissatisfied with the ruling of the Court, an appeal was lodged in the Court of Appeal. Pursuant thereto the appeal was heard in the Court below. And that Court found in favour of the Respondents. The leading judgment of the Court, delivered by Ige, JCA, was concluded thus:

“It is true that in an earlier Suit No. UHC/34/87 was brought by the Appellants against the Respondents in 1987, but a motion of discontinuance had been filed on 19/2/88 in respect of same. Suit No. UHC/34/87 was then struck out on 24/3/88 with N100.00 costs awarded in favour of the Respondents. The case No. UHC/9/88 filed on 25/1/88 from the facts endorsed on the writ of summons cannot be held prima facie to be frivolous, vexatious or an abuse of Court or judicial process in any way. An order made upon a notice of discontinuance cannot operate as a bar to any subsequent suit based upon the same facts. I do not see how the Respondents have been harassed or oppressed by the writ taken out in Suit No. UHC/9/88.”

As the 1st-4th Appellants were dissatisfied with the judgment of the lower Court, they have appealed to this Court. Pursuant they sought leave to appeal to this Court upon the grounds of appeal for which leave was granted to them. I do not deem it necessary to reproduce them in this judgment. Thereafter the Learned Counsel for the Appellants, acting in consonance with the Rules of this Court, filed and served the Appellant’s brief. The Respondents, upon being served with the Appellants’ brief filed, their Learned Counsel also filed and served the Respondents’ brief. A reply brief was however filed for the Appellants upon being served with the Respondents’ brief.

In the Appellants’ brief, the following are the issues identified for the determination of the appeal:-

(i) whether this action is not statute barred;

(ii) whether the trial Court has jurisdiction to entertain the reliefs endorsed on the writ of summons;

(iii) whether the action is not an abuse of judicial process.

In the Respondents brief, three issues were also identified for determination of the appeal. But as they are similar to those set out above from the Appellants’ brief, I do not need to have them copied here. The merit of this appeal would accordingly be determined upon the issues set down in the Appellant’s brief. Before considering the arguments in the briefs, it is pertinent to observe that the right of the Appellants to file a reply brief is not to be used as a second opportunity to re-argue the argument already proffered for the Appellants in the Appellants brief. My understanding of a reply brief is for Learned Counsel for the Appellants to present argument in answer to that of the Respondents, and which had not been addressed in the Appellants’ brief. It is, in my view an unwarranted waste of the time of the Court for counsel to represent argument which had already been set down in the Appellants’ brief. It is clear from a cursory reading of the reply brief filed for the Appellants in the instant appeal, the reply brief is unnecessary and should not have been filed. A reply brief should be strictly limited to finding answers to questions raised in the Respondents’ brief, and which the Appellants’ had not addressed or dealt with in the Appellants’ brief.

Be that as it may, I will now set down the argument advanced on behalf of the Appellants, in respect of the 1st issue. In this issue, the Appellants are asking whether this action is not statute barred. The argument of Learned Counsel for the Appellants proceeds upon the basis that the action being in the nature of a Tort, its commencement is limited to 6 years from the date of the cause of action. And cited the provisions of Section 4(1)(a) of the Limitation Law, Cap 39, of the laws of Bendel State, 1976, in support of that submission. Next, it is submitted for the Appellants that the Court below fell into error when it held that the cause of action occurred in April 1985, when the 1st Appellant was gazetted as the Senior Odion of Uwherun. He, therefore, argued in the Appellants’ brief, that as the appointment of the 1st Appellant was made in accordance with the provisions of the Registered Chieftaincy Declaration published in Bendel State Legal Notice No. 88, of 1979, the cause of action for the Respondents commenced from the date of the publication of the said gazette. And he further argued that the Respondents should have commenced their action by that date. It is further contended for the Appellants that, the action could have commenced against the Bendel State Executive Council, if they had felt aggrieved with the publication of the gazette in which the 1st Appellant was appointed as the Odion. They don’t, it is argued, have to wait for nine years for the 1st Appellant to be appointed to commence the action to claim the rights they are now claiming by this action. In support of that submission made for the Appellants, the following cases were referred to:- Adigun v. A.G. Oyo State (1987) 1 NWLR (Pt. 53) 678 at 698; (1987) 3 SC. P.250 at 275; Adefulu & 12 ors. v. Oyesile & 5 ors. (1989) 12 S.C. 43; (1989) 5 NWLR (Pt. 122) 372 at 403.

Having regard to the argument of learned Counsel for the Appellants, that the Court below fell into error by holding that the Respondents commenced their action well within the limitation period, learned Counsel submitted that the authorities; namely, Solomon v. African Steamship Co. Ltd. 9 NLR p.99; Cowbie v. Gill 1973 L.R. SCP. 107 at 110; and Letong v. Copper 1965, 1 QB 222 at 224, relied upon by the Court of Appeal do not apply to the facts of the case under consideration. He further contended that this Court, on the authority of Fred Egbe v. Hon. Chief Judge Adefarasin (1987) 1 NWLR (Pt. 47) 1, should have no difficulty in holding that the action is statute barred.

The reply of the Respondents to the argument advanced for the Appellants in respect of the 1st issue is that the contention made by the Appellants that the cause of action arose since the publication of B.S.L.N. No. 88 of 1979 was promulgated was wholly wrong. It is therefore argued for the Respondents that the Court of Appeal was right in its conclusion that the cause arose in April 1985 when the 1st Appellant was made the Senior Odion of Uwherun. And, therefore, urged that the decision of the Court below on the point be upheld. In addition to that submission, it was argued in the Respondent’s brief that S.4(1)9 of the Limitation Law of the Bendel State of Nigeria 1976 is not applicable to the facts as the action, in the view of learned Counsel for the Respondents, was not founded in tort nor in contract.

It is further argued for the Respondents that a declaratory relief may be made in favour of a Plaintiff when there is no cause of action. He cites as authorities for this proposition, the following cases: Kaduna State v. Hassan (1985) (Pt. 8) 2 NWLR 483 at 497; Beredugo v. College of Science & Technology, (1991) (Pt. 187) 4 NWLR 651.

In my respectful view, the main question for consideration in this issue is whether the Court below was right to have held that the action was not statute barred. What then are the principles to bear in mind when determining the term “cause of action” With regard to that question, may I refer to the case Amodu v. Amode (1990) 5 NWLR (Pt. 150) 356 where at 367, Agbaje, JSC in the course of his judgment accepted the following definitions of the expression “cause of action” when he quoted the following definition of the term:-

“The term “cause of action” means all those things necessary to give a right of action whether they are to be done by the plaintiff or a third person” Hernaman v. Smith (1855) 10 Exch 659, per Parke B, at p.666. “Cause of action” has been held from the earliest time to mean every fact which is material to be proved to entitle the plaintiff to succeed – every fact which the defendant would have a right to traverse.” Cooker GILL (1873) L.R.8C. P. 107 per Brett J, at p.116.”

I also adopt the above definitions of the expression “cause of action”. In the con of this appeal it is necessary also to advert to the question as to when the cause of action might be affected by the statute of limitations if pleaded by the opposite party. It will be recalled that one of the challenges mounted against the claim of the Respondents in this appeal is that the action was statute barred. As previously stated, the Court below took the contrary view by holding that the action was not statute barred. It is common ground that the question as to whether an action is statute barred is dependent on the nature of the action, and the relevant provisions of the statute of limitations. In the instant case, the case as aforesaid is predicated upon the appointment of the 1st Appellant as the Senior Odion of Uwherun in April 1985. Though the action by itself was not identified as one sounding in contract or tort, the provisions of Section 4(1)(a) of the Limitation Law of Bendel State of Nigeria 1976, was considered applicable by the Court below.

Its provisions read thus:-

“4(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say

(a) Action founded on simple contract or on tort”

In any event there has been no objection to that approach. What is in contest in this appeal is whether the Court below was right to have held that the date for the commencement of the action arose in April 1985, and not September 1979, the latter date being the position taken by the Appellants; and which was when the Bendel State Legal Notice No. 88 of 1979 was promulgated. In arriving at that conclusion, the Court below, per the judgment of Ige, JCA, with Akpabio and Ogebe, JJCA concurring, said thus:-

“It is very essential when dealing with Limitation Statutes to determine the precise date upon which the cause of action arose because it is then that time will start to run.

“A cause of action arises when there is in existence, a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed.”

See the cases of Solomon v. African Steamship Co. Ltd. 9 NLR. P. 99; Cooke v. Gill 1873 L.R. SCP 107 at 110 and Letang v. Copper 1965 1 QB. 222 at 224″.

After a review of the facts germane to the determination of whether the cause of action was statute barred or not, learned Justice of the Court, Ige, JCA, then made this apt observation. It reads:-

“The cause of action in this case although provided for under Section 8 of the Traditional Rulers and Chiefs Edict of 1979 (Bendel State) yet it did not arise until April, 1985. I think it will lead to an absurdity for anyone to take an action within six years of the promulgation of the Edict of 1979 when no appointment had been made in accordance with the provisions of the said Edict.”

For that view of the Court below, and with which I am in full agreement, may I refer to the case of Turburville and anor. v. West Ham Corporation (1950) 2 K.B.D. 208. This was a case of some assistant school teachers and the adjustment of their salaries during the 2nd World War. The teachers put salary claims which their corporation-employer rejected. Time, it was held, would not commence in respect of their cause of action, consequent upon the rejection of their claims, until that rejection was communicated to them and not before. Hence, it was held, inter alia, that the plaintiff’s cause of action did not accrue until they received notice of rejection of their claims on 25th February 1946, and therefore the time limit had not expired when the Writs were issued on 23rd January, 1947.

Reverting to the issue under consideration in this appeal, the argument proffered for the Appellants lacks merit. While it is clear that the Traditional Rulers and Chiefs Edict of 1979 (Bendel State) was promulgated in 1979, the Plaintiffs could not have commenced any action until the appointment of the 1st Appellant in April 1985.

The argument advanced for the Appellants that the Respondents would have commenced action against the Bendel State Executive Council soon after the promulgation of the Traditional Rulers and Chiefs Edict of 1979, must also be rejected.

In this regard, it must be borne in mind the settled principle that it is the right of a Plaintiff to initiate action against a Defendant who he believed had a right to a relief. In the instant case, the Respondents cannot be faulted for bringing their action against the Appellants as they have done in this case. And as I am clearly of the view from what I have said above that the action was not statute barred, this issue must be resolved against the Appellants. And I so hold.

Issue II. With regard to this issue, the question raised therein for the Appellants, is whether the trial Court has jurisdiction to entertain the reliefs endorsed on the Writ of Summons. In the view of learned Counsel for the Appellants, the trial Court has no jurisdiction to adjudicate over the claim of the Respondents. The claim, it is argued for the Appellants, is an attempt to challenge the competence of the Executive Council of the Bendel State Government with regard to the enactment of the Traditional Rulers and Chiefs Law No. 16 of 1979. And it is therefore contented for the Appellants, that the trial Court was right to have held that it had no jurisdiction to entertain the suit. In support of that submission reference was made to the following cases:- Utih v. Onoyivwe (1991) 1 NWLR (Pt. 166) 166 at 202; Mustapha v. Govt. of Lagos State (1987) 2 NWLR (Pt. 58) 538 and Alao v. Akano (1988) 1 NWLR (Pt. 71) 431 at 433.

Next, it is argued in the Appellant’s brief that the Bendel State Legal Notice (B.S.L.N.) No. 88 of 28th September 1979, created vested rights which accrued to the Appellants in September, 1979. These rights, according to their learned Counsel are protected by the provisions of Sections 161(3) and 1265(1) of the 1963 Constitution, and also, Sub-sections (a) and (c) of Section 32 of the Traditional Rulers and Chiefs Law No. 16 of 1979. The rights so vested, the Appellants further argued, are protected by the combined effect of the provisions of Section 11 (1)(c) of the Interpretation Act (Cap 192) Vol. 10 of the Laws of the Federation of Nigeria and Section 6(6)(d) of the 1979 Constitution, and preclude the Courts from adjudicating in respect of matters ousted by the Traditional Rulers and Chiefs Law.

The contention for that position of the Appellants is that the provisions of the said Traditional Rulers and Chiefs Law qualify as existing law within the meaning of the 1979 Constitution. For this submission, reference was made to: Uwaifo v. A-G. Bendel State (1982) 7 S.C. 124; A-G. Imo State v. A-G Rivers State (1983) 8 S.C. 10. Finally on this issue, it is contended for the appellants that the claims of the Respondents, not being justiciable, the Court below was wrong to have held to the contrary. Reliance is placed for that contention on Adigun v. A-G. Oyo State (1987) 1 NWLR (Pt. 53) 678 at 698.

For the Respondents, the thrust of the arguments set out in the Respondents’ brief, is that the Appellants’ contention that the Appellants have a vested right which remains protected is erroneous. It is also argued for the Respondents that the Appellants are wholly wrong in the submission made for them that as a result of such vested rights, the jurisdiction of the trial Court is ousted in chieftaincy matters by virtue of the provisions of Section 161(3) and 37 of the 1963 Constitution . It is also argued for the Respondents that in this case, the Appellants and the trial Counsel, wholly misconceived the claim of the Respondents. They contend that what they were challenging in Court was not the registered declaration of Bendel State Legal Notice No. 88 of September, 1979, but the appointment of Chief Edjerode as the Senior Odion of Uwherun Clan. And that the appointment of Chief Edjerode as the Senior Odion of Uwherun Clan was not in accordance with their established native law and custom for such an appointment. Therefore, it is argued for the Respondents that the provisions of Section 274(b) of the 1979 Constitution do not apply to the instant case.

I think a convenient starting point in the resolution of the contentions of Counsel in this issue, is to first advert to the decision of the Court below. In the course of delivering the leading judgment, Ige, JCA, said, inter alia, thus:-

“In this case the endorsement on the Writ discloses a cause of action as from April 1985 and it is the 1979 Constitution that applies and not the 1963 Constitution. This case must be distinguished from that of Utih v. Ononyivwe (1991) 1 NWLR (Pt. 116) 202, where the Supreme Court held that by reasons of Section 161(3) and 36 of the 1963 Constitution and the Chiefs Law Cap 37, a Court of Law has no jurisdiction to entertain the Plaintiff’s claims”

The view of the Court below, quoted above is undoubtedly right upon the facts and circumstances of this appeal. One of the issues raised in the case of Chief Aliu Abu & Ors.v . Chief Abubakar Zibri Odugbo & Ors. S.C. 112/96 (2001) 7 S.C. (Pt. I) 168; (2001) 7 S.C.N.J. 170 was similar to the question now under consideration. As what I said in the course of my judgment is appropriate answer to this question, I will therefore quote, in extenso, what I said, inter alia, in that judgment at pp. 288-290, thus:-

“It cannot be disputed that with the coming into force of the 1979 Constitution the 1963 Constitution went in abeyance and will only apply to causes of actions that arose under it. Both parties agreed that the cause of action in this matter arose in 1985. Therefore and in the light of the provisions of section 4(8) of the 1979 Constitution, any law enacted by the Bendel State Government before the coming into force of the 1979 Constitution and which contradicts any of the provisions of the said Constitution after it came into force is either modified or repealed to conform with the Constitution. It is in order to provide for this type of a situation that section 274 of the 1979 Constitution was enacted”.

“It is therefore my view that, taking into consideration the provisions of the 1979 Constitution (supra) the ouster clauses in the Traditional Rulers and Chiefs Law 1979 of the defunct Bendel State, now applicable to Delta State, stood impliedly repealed or modified by the 1979 Constitution in order that it is brought into conformity with its provisions. The fact that Decree No. 1 of 1984 suspended section 4(8) of the 1979 Constitution, will not revive the ouster clauses in the Traditional Rulers & Chiefs Laws 1979 since the Decree did not contain express provisions to that effect, and nor can such manifest intention be gathered from its provisions. The Traditional Rulers and Chefs Laws 1979 of Bendel State stands repealed in part. See pages 366-368 of Craies on Statute Law (7th Edition).

The decision in Uwaifo’s case prohibits the courts, even after 1st October, 1979 from questioning any Edict or Decree made between 1st January 1966 and 30th September, 1979 on the ground that the person or authority which made it had no capacity or power to make it, but did not preclude the courts from questioning the validity of such laws or any of their provisions that are inconsistent with the provision of the 1979 Constitution. In other words, courts are precluded from questioning the capacity and power of the authorities in promulgating such laws. They are equally prohibited from questioning the validity of what the authorities did under such laws or interfering with any accrued or subsisting rights by virtue of such actions at the time they were still valid and subsisting. In Uwaifo’s case, supra, Idigbe, JSC succinctly stated the Law thus:-

“It seems to me that while the Constitution empowers the courts to inquire into the validity of any existing law, it clearly intends that the courts should not inquire into proceedings which seeks to determine issues or question as to the competence of any authority of person (i.e Legal capacity, power, legal qualification or jurisdiction of any authority or person) to make any existing law promulgated between 15th January, 1966 and 1st October, 1979.”

It is important to note that the preclusion or prohibition is limited and confined to existing laws. It therefore becomes abundantly clear that if such laws or any of their provisions are inconsistent as from 1st October 1979 with the provisions of the 1979 Constitution, such laws or any of their provisions whether or not pronounced upon by the courts as being inconsistent with the said Constitution, are impliedly rewarded or modified to conform with its provisions. Likewise, all things done or purported to be done under such impliedly repealed or modified laws after 1st October 1979, are equally of no effect. In Garnett v. Bradley (1878) 3 App. Cas. 944 at 966, commenting on the issue of implied repeal of a statute by another, Lord Blackburn stated thus-

“I shall not attempt to recite all the contrarieties which make one statute inconsistent with another. The contraria which make second statute repeal the first. But there is one rule, a rule of common sense, which is found constantly laid down in these authorities to which I have referred, namely that when new enactment is couched in a general affirmative language and the previous law, whether a law of custom or not, can well stand with it for the language used is all in the affirmative, there is nothing to say that the old law shall be repealed… But when the new affirmative words are, as was said in Stradling v. Morgan Plowd, 206 such as by their necessity to import a contradiction, that is to say, where one can see that it must have been intended that the two should be in conflict, the two could not stand together, the second repeals the first.”

It is therefore my view that this aspect of the 2nd issue must be resolved against the Appellants.

The next question that I would deal with, however, briefly is whether the trial Court having regard to the claims before it, is vested with the jurisdiction to entertain the action. It is common ground in this appeal that objection was taken by the Appellants to the claim of the Respondents upon being served with their Writ of Summons. Pleadings have not been filed and exchanged. However, from the wording of their claim(1), the Respondents are seeking for a declaration that according to the custom of the Uwherun Clan, the Senior Odion Uwherum is appointed from Erovie Quarter and Erovie Quarter only, and is not subject to rotation among the five quarters which make up Uwherun.

The 2nd claim which is that Erovie Quarter is the only Ruling House in Uwherun Clan, is in terms also a declaration for the Customary law with regard to that claim. By their 3rd head of claim, the Respondents are claiming that the purported appointment and subsequent gazetting of the 1st Appellant from Ehere Quarter as the Senior Odion of Uwherun is contrary to Uwherun native law and custom, usage and tradition. This claim is evidently also for a declaration of the Customary law governing the appointment of the Senior Odion of Uwherun. It follows that in respect of all the claims, it seems apparent on a proper reading of the claims that the reliefs sought by the Respondents are for declaration of the Customary Law with regard to the appointment of the Senior Odion of Uwherun. It is not, in my respectful view, as argued for the Appellants both in the Appellant’s brief and their Reply brief, claims in respect of Chieftaincy Matters. Their claims are pointedly for declaration in respect of the Customary Law with regard to the appointment of the Senior Odion of Uwherun.

Having regard to the argument proffered for the Appellants, on this point, I will refer to the following cases where the point was considered and firm pronouncement made thereon. In Adigun v. Attorney General of Oyo State & Ors. (1987) 1 N.W.L.R (Pt. 53) 678 at p. 702, Obaseki, JSC, said:-

“On the issue of jurisdiction, learned counsel submitted that the making of declarations in respect of customary law relating to selection of Chiefs is purely administrative under the provisions of section 4 of the Chiefs Law Cap 21 Laws of Oyo State 1978 and that it is not a function exercisable by the Court or vested in the court. The exercise of such functions is not directly related to the general jurisdiction of the courts under section 236(1) of the Constitution of the Federal Republic of Nigeria 1979. He then referred to: Merchants Banks Ltd. v. Federal Minister of Finance (1961) All NLR 598; Carltona Ltd. v. Commissioner of Works (1943) 1 All ER 560 at 564; Bull v. Attorney General for N.S.W. (1916) 2 AC. 564. Learned Counsel therefore urged the court to hold that in respect of Chieftaincy matters, the courts have only supervisory or appellate jurisdiction on the making of declarations as to customary laws relating to the selection of traditional chiefs under the law.”

“It is clear from the Chiefs’ Law that the court cannot assume the functions of the Chieftaincy Committee as regards the making of declarations of customary law governing the selection and appointment of traditional chiefs. The Appellants have not by their claim asked for that declaration. What the Appellants seek is a declaration that Ogunmakinde Ande is under the customary law of Iwo the only Ruling House. In carrying out this judicial task, the court will from the evidence adduced ascertain and find whether there is customary law on the matter, what the customary law is and then decide whether on the evidence, Ogunmakinde Ande is the only Ruling House in Iwo from which Oluwo of Iwo can be selected and appointed. It cannot, in my view, be correctly and legally argued that the High Court cannot entertain and adjudicate on such a claim in exercise of its unlimited jurisdiction vested in it by section 236(1) of the Constitution of the Federal Republic of Nigeria 1979. I prefer Chief F.R.A. Williams’ submission on this point.”

Before that firm view referred to above, proceeding from Obaseki JSC, his Lordship had also, in Adigun v. A-G. of Oyo State (supra), made the following observation at page 689:-

“The learned trial Judge was perfectly justified to have referred to the procedure for making declarations of customary law regulating the appointment of Chiefs under the Chiefs’ Law by bodies other than the court. The Court of Appeal quite properly held that “it is not the business of the courts to make declarations of customary law relating to the selection of Chiefs under the Chiefs’ Law. But it is the business of the court to make a finding of what the customary law is and apply the law for the purpose of the claims for declarations.”

On this issue, it is my humble view that the contention of the Appellants that the claim before the Court as presently revealed in the Writ of Summons must be rejected. The authorities that have been reviewed above show very clearly that the action is justiciable.

I now turn to the fourth issue. Here the Appellants are contending that the action of the Respondents is frivolous, vexations, oppressive and an abuse of the process of the Court. The submissions in support of this contention are not dissimilar to that which they sought to persuade the Court below to hold in their favour. With due respect to the learned Counsel for the Appellants, it is my view that the Appellants’ contention lacks merit. I am firmly of the opinion that an appeal upon the facts in the printed record does not support their contention. From the facts, already reviewed, it is manifest that before hearing of this action commenced, the Respondents had clearly discontinued with Suit No. UHC/34/87, which formed the subject of their complaint. If it has to be restated; for an action to be declared frivolous, vexatious, oppressive and an abuse of the process of Court, it must be shown quite clearly that there are two or more actions between the same parties in respect of the same subject matter in one or more courts at the same time. This is not the position in respect of this appeal.

In the result, for all the reasons given, this appeal is completely devoid of any merit. It is therefore dismissed in its entirety. The Respondents are entitled to their costs, and are awarded N10,000.00.

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SC.43/97