Jabin Onesa Ogaga V. Thomas E. Umukoro & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

This appeal is against the judgment of the Court of Appeal sitting in the Benin Division of the court which judgment was delivered on the 11th of April, 2003

The appeal to the Court of Appeal Benin was from a ruling of the High Court of Delta holden at Otu-Jeremi which suit was in respect respect of a dispute arising from successorship to the Kingship stool of Ovie of Ewu (or Eghwu) a community in Ughelli South Local Government Area of Delta state. Both the Defendant/Appellant and Plaintiff/Respondent came from the Ruling House (Okpor Ruling House) whose turn it is to produce the King of Ewu Kingdom.

For clarity, I shall recast the Plaintiff’s Statement of claim at the trial High court specifically the claim in paragraph 29 thereof:-

1. A declaration that the 1st Defendant was never appointed as the Ovie of Ewu or Ovie-elect of Ewu within the jurisdiction of this Honourable Court.
2. A declaration that the 1st Defendant was never selected and/or appointed as the Ovie of Ewu by the Ahavwa Kingmaker or any relevant body in Ewu as Ewu customs demand.
3. A declaration that the 1st Defendant is not the Ovie by the customs of Ewu the Ovie of Ewu.
4. A declaration that the purported approval of 1st Defendant as Ovie of Ewu by the Delta State Government headed by the 2nd Defendant as announced in December, 1995 while an inquiry on the same Ovieship set up by the 2nd Defendant has not sat to hear evidence and submit report is against natural justice and the constitutional requirement of fair hearing, a breach of the 1979 constitution of Nigeria and therefore null and void and against the constitutions of Inquiry Law 1976 applicable to Delta state.
5. An order of perpetual injunction restraining the 2nd and 3rd Defendants from further recognizing the 1st Defendant as Ovie of Ewu and/or from granting a staff of office or any insignia of office to the 1st Defendant as such Ovie.
6. An order of perpetual injunction restraining the 1st Defendant from parading himself as Ovie of Ewu and/or from presenting himself to anyone, anybody and/or authority as the Ovie of Ewu or Ovie – elect of Ewu for any purpose whatsoever especially for the purpose of being presented with the staff, certificate and/or any insignia of office as Ovie of Ewu.
7. A declaration that the Plaintiff is the Ovie of Ewu.

In his Amended statement of Defence, the Defendant/Appellant raised a question of jurisdiction contending that the Supremacy and Enforcement of Powers Decree No. 12 of 1994 coupled with Section 32 of the Traditional Rulers and Chief Edict, 1979 of the defunct Bendel State applicable to Delta State ousted the jurisdiction of the trial court. The issue was heard as a preliminary point of Law.

The trial High court ruled that it had no jurisdiction to hear the case. On appeal by the plaintiff who was dissatisfied, the court below held that section 32 of the Traditional Rulers and Chief’s Edict, 1979 was unconstitutional; having regard to the 1979 constitution and that Decree 12 of 1994 did not oust the jurisdiction of the trial High court. The Court of Appeal then remitted the case to the High Court for trial on the merits. It is against the appeal that the Defendant/Applicant has appealed to this Court.

At the hearing, Mr. Ajineh adopted the Brief of the Appellant and a Reply Brief and on behalf of the Appellant formulated a single issue viz:-

“Whether by the combined effect of the provisions of Section 19 (1) of the Traditional Rulers and Chiefs Edict 1979 applicable to Delta state and section 1 (2)(b) (i) of Supremacy and Enforcement of powers) Decree No.12 of 1994, the Court of Appeal was right when it held that the High court sitting at Otu-Jenemi has jurisdiction to hear and determine the substantive suit by remitting same to the said court for hearing on the merit.”

Learned counsel for the Respondent, Mr. Odjessa adopted the Brief of the Respondent in which was also crafted a sole issue follows:-

Was the Court of Appeal right when it held that the High Court of Justice, Delta state has jurisdiction to hear and determine the substantive case despite section 19 (1) of the Traditional Rulers and Chiefs Edict 1979 and the Supremacy and Enforcement of Powers Decree No. 12 of 1994

The two issues, each differently couched by each side are in the main the same in substance and so, what is left is to answer the question posed.

Learned counsel for the Appellant, Mr. Ajineh contended that it is the Plaintiff’s claim that determines the jurisdiction of any court whether the court has jurisdiction to hear and determine a claim before it. He cited Yalaju Amaye v. A.R.E.C. Ltd. (1990) 4 NWLR (pt.145) 422 at 441 para C; Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 at 549 para B; Magaji v. Matari (2000) FWLR (Pt.18) 237 at 252 para H; Okulate v. Awosanya (2000) FWLR (Pt.25) 1666 at 1696 paras A – B.

That the appointment or approval of the Appellant as the Ovie of Ewu was an act of the Delta state Government and the further recognition accorded the Appellant by the 2nd Respondent by so gazetting the said approval/appointment was also an act of the Delta state Government done pursuant to Section 19 (1) of the Traditional Rulers and Chiefs Edict of 1979 of the defunct Bendel State now applicable to Delta state. That reliefs 4, 5, and 6 of the Plaintiff/Respondent in the Statement of Claim are a direct challenge of the acts of the Delta State Executive council represented by 2nd and 3rd Defendants/Respondents.

Mr. Ajineh of counsel for the Appellant called the attention of the Court to Section 21 (2) (b) (i) of the Supremacy and Enforcement of Powers) Decree No. 12 of 1994.