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Home » Nigerian Cases » Supreme Court » Peter Higo Ajakaiye Vs Agbebaku Idehai (2012) LLJR-SC

Peter Higo Ajakaiye Vs Agbebaku Idehai (2012) LLJR-SC

Peter Higo Ajakaiye Vs Agbebaku Idehai (2012)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, JSC.

The trial of this matter was at Auchi Judicial Division of the High Court of Bendel State. In a further Statement of Claim running to seventy-five paragraphs which in the main recounted the history of Onto Community and their social organisations, the final paragraph 75 contains the claim which it is useful to set out as hereinunder:-

“1. A Declaration that the order of rotation of Own Ruling Houses as contained in the draft Own Chieftaincy Declaration of 23/1/1957 and as amended in the 151911979 draft Otuo Chieftaincy Declaration which makes the rotation of Own Ruling Houses to be in accordance with the descending order of the traditional order of seniority of the Own Ruling Houses is the correct and appropriate order of rotation of the Ruling Houses according to Otuo Customary Law regulating the succession to the Traditional Ruler Title of the Ovie (Ororoso) of Own and that the said 15th September, 1979 draft Otuo Chieftaincy Declaration be declared as the correct, proper, acceptable and

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registerable Otuo Chieftaincy Declaration made under Section 3 (2) of the Traditional Rulers and Chiefs Edict (now Law) 1979 of the customary law regulating the succession of the Traditional Ruler Title of the Ovie (or Ororoso) of Otuo Chieftaincy.

A Declaration that:

(a) The registered Own Chieftaincy Declaration of 1964.

(b) The decisions contained in the Bendel State Government White Paper on the Report of the Ofili Commission of Inquiry into the Disturbances at Otuo, and

(c) The B.S.L.N. 141 of 1979 Declaration of the Customary Law regulating succession to the Traditional Ruler Title of the Ovie of Otuo;

are null and void in that they are contrary to the Otuo Customary Law Regulating the order of rotation and the succession to the Traditional Ruler Title of the Ovie (Ororoso) of Otuo.

A Declaration that the 17th December, 1973 appointments of the then incoming Otuo Traditional Ruler and Traditional Chiefs whereby the first Plaintiff was appointed the Ovie-elect (Ororoso) of Otuo by Otuo Kingmakers presided over by the out-going Ovie of Own, Chief Igbauma Idehai, are correct, proper, valid and in accordance with Otuo customary Law regulating the succession to the Traditional Ruler Title of the Ovie (Ororoso) of Onto and that the First Plaintiff be declared the Lawful holder and validly appointed Ovie (Ororoso) of Otua being the one duly appointed by those entitled and empowered under Otuo Customary Law to appoint an Ovie (Ororoso) of Otuo.

A Declaration that the appointment and approval of the fifth Defendant as the Ovie of Own by the First, Second, Third and Fourth Defendants are contrary to the provisions of the Traditional Rulers and Chiefs Edict (now Law) 1979 and Otuo Customary Law regulating the succession to the Traditional Ruler Title of the Ovie (Ororoso) of Otuo and that the said appointment and approval be declared null and void.

A Declaration that the said appointment and approval of the Fifth Defendant as the Ovie of Otuo are also contrary to and at variance with the decision contained in the Bendel State Government White Paper on the Report of the Ofili Commission of Inquiry into the Disturbances at Otuo and the two Bendel State Traditional Ruler and Chiefs Edicts, 1979, Extraordinary Gazette Number 16 and B.S.L.N. 141 and the said appointment and approval be declared null and void.

A perpetual injunction restraining the Defendants from holding 5th defendant out as the Lawful Ovie (Ororoso) of Otuo or as a Lawful out-going or retiring Ovie (Ororoso) of Otuo qualified to head the next Kingmakers in the appointment of the succeeding Ovie (Ororoso) of Otuo with his Traditional Chiefs’

In the amended Statement of defence the 4th and 5th Defendants made some admissions but the most, pertinent to a decision of this appeal are the ones pertaining to the rotational nature of

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appointment of Otuo, that the custom of Otuo was that the Ovie (Head Chief) should reign for a single term of ten years and any individual so appointed shall not be installed for a second term; this in essence is that the Ovie of Otuo is not appointed for life. There is a dispute as to the title of Ovie i.e. where it used to be called Ororoso or has always been called Ovie, this however does not affect the main issue. For the purpose of this matter the title Ovie will be adhered to. Each party agrees that an Ovie has a single term of ten years and if alive up to that length of time he abdicates for a new one.

The plaintiffs as well as the 4th and 5th defendants are from Own Community. Whilst the plaintiffs belong to Orlirla Ruling House, the defendants 4 and 5 are of Amoya Ohigba (or Amoya Nrene).

According to the plaintiffs the Otuo people (Otuo is a corruption of the Benin word Ghotuo) migrated to the hills where they now have their abodes since the reign of Oba of Benin known as Ozolua between the close of 15th and first half of the first decade of 16th century (1481 – 1504 C.C.). They moved out of Benin as war age groups of twelve from six quarters of Benin City; they are conveniently called twelve war companies. These in turn, on getting to the hilly countryside now known as Otuo, settled in six groups on the hills around and the six are:

Orlumba (also called Olumba)

Orlirla (also called Olila)

Amoya

Iyen (also spelt Iyewu)

lzhokha (also spelt Izioha)

Imharbu (also spelt imafun)

According to the plaintiffs/appellants these six form the principal Otuo quarters or wards now and are the ‘ruling houses.” The statement of claim running into over seventy paragraphs and sub-paragraphs attempted a graphic history of Otuo people since they left Benin City about four hundred years ago. There are systems of age groups, promotion from one age group to a higher age group. In the beginning, they were monarchical but when some Ovies became tyrannical it was decided to have a system whereby no Ovie would reign for more than ten years. It was not an election as such that decided who the next Ovie would be; the outgoing Ovie and his council made up of highest age group from the six quarters of Otuo will perform Igbogbo chieftaincy festival and then nominate the next Ovie and his council. The Igbogbo festival is every ten years and the Ovie performing that festival abdicates for the next Ovie. Thus by age group the oldest members of the Community who are under 90 years but more than 65 years of age known as Ikhehrho and Ikheheghoki form the new cabinet with the oldest male Ovie. The Otuos agree this was the practice all along and it was respected practice. However, as is common nowadays, far away administrative and political headquarters wade into age old customs and make laws to streamline them or modify them. Thus in 1964, the Governmentof Mid-Westem Region of Nigeria by virtue of Section 4(2)

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Chiefs Law [ (Cap. 19 Laws of Western Region of Nigeria (applicable in MidWestern Region] made a Declaration (Exhibit 1) as follows:-

‘Ruling Quarters:

There are six ruling quarters and the identity of each ruling quarter is as follows:

(1) Oluma – Amohon

(2) Amoya – Ohigba

(3) Iyeu (Comprising Uzawa, Imorukpa, Imakhise and Ikhueran)

(4) Orake – Olila

(5) Ihiokha – Ighera

(6) lmafun (Obo-Urere) (now ruling)

ii Order of Rotation:

The Ovieship rotates in the following order among the ruling quarters:-

(1) Oluma – Amohon (to present the next candidate)

(2) Amoya – Ohigba

(3) lyeu (comprising Uzawa, Imorukpa, lmakhise and lkhueran)

(4) Orake – Olila

(5) lhiokpa – Ighera

(6) Imafun (Obo-Urere) (now ruling)

iii Kingmakers:

(a) There are twelve Kingmakers. These are the members of the age-group of an out-going Ovie drawn from the six ruling quarters in the manner described in paragraph 3(b) of this Declaration. The age-group of an out-going Ovie is called the Igheghoki group and to be eligible for selection as a Kingmaker, a member of the group must have performed the ceremony which entitles a member to the staff of office of the Igheghoki group known as ‘Ugbo.”

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(b) The two eldest members of the Igheghoki group in each ruling quarter represent each of the six ruling quarters in the college (cabinet) of Kingmakers, provided that where a ruling quarter is made up of two or more sub-quarters, the two kingmakers representing the quarter are not drawn from one sub-quarter, but from two different s ub-q uarters in such a manner that the selection of the quarters representatives shall from time to time rotate among the sub-quarters.

Qualifications required of Candidates:

The persons who may be nominated to fill successive vacancies in the Chieftaincy shall be:-

(i) Male members of the entitled ruling quarter who belong to the male line of the quarter.

(ii) Members of the age-group next in rank to the Igheghoki group.

Method of Nomination and appointment:-

Upon the notification of a vacancy in the Ovie title by the Secretary of the competent Council, the eldest male member of the ruling quarter shall summon a meeting of the quarter at which a candidate or candidates shall be nominated for presentation to the Kingmakers of Otwa. The Kingmakers shall thereupon meet, at the instance of their eldest member and appoint the Ovie, provided that where two or more candidates are nominated by the entitled ruling quarter, the candidate who obtains a majority of votes of the Kingmakers present and voting shall be declared appointed. Notice of meetings of Kingmakers shall be served upon every Kingmaker by the authority empowered to summon meetings of Kingmakers and proof of service shall be furnished in case of dispute.

Consent to Appointment:

No ones consent is required to an appointment to the Chieftaincy.

vii. Tenure of Office:

Once an Ovie is appointed, he rules for life unless he is incapacitated by ill-health or is deposed or abdicates”.

By this Declaration time honoured practice of having Ovie for a single term of ten years was abrogated, as paragraph vii of the Declaration makes clear. This Declaration was resented by all the communities of Otuo and petitions and representations were made to the Government through the Ministry responsible for Chieftaincy matters. The republican nature of communal cohabitation among Otuo people was thus replaced by monarchical system. The competent authority under

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Western Nigeria Legal Notice No. 22 of 1959, Ivbiosakon District Council never took into consideration the peculiar nature of Ovieship in Otuo into consideration.

For the Defendants, it must be stated that not all averments in Statement of Claim are admitted. Whilst admitting that the tenure of Ovie of Otuo is a single ten year term, gave a completely different order of seniority in selecting the Otuo. Thus the statement of defence in paragraphs 10, 11, 17 state clearly as follows:-

‘(10) ‘The Defendants admit paragraph 23 of the Statement of Claim to the extent that Otuo is ruled by Age grade system, with a tenure of office for 10 years without re-election. The Defendants deny the other averments contained in paragraph 23 and put the Plaintiffs to the strictest proof of same.

(11) The Defendants deny the fact that there is anything in Otuo as Ororosoship. The Defendants aver that the Ovie of Onto Chieftaincy title is rotational amongst the six Ruling Houses. The Defendants deny the order of Rotation contained in paragraph 24 of the Plaintiffs Statement of Claim. In further answer to paragraph 24 of the Plaintiff’s Statement of Claim.In further answer to paragraph 24 of the Plaintiffs’ Statement of Claim, the Defendants aver that evidence shall be led at the trial to prove that Amoya/Ohigbai Ruling House come next to Oluma/ Amoho Ruling House. Evidence shall be led to prove that Olila/ Orake Ruling House is number4 in the order of rotation of the Ovie Chieftaincy title in Otuo.

(17) The Defendants admit paragraph 30 to the extent that the Ovie retire with his age grade at the end of the ten years period of his reign. The Defendants shall at the trial lead evidence of Otuo Custom as regards:-

(a) The appointment of a new Ovie of Otuo.

(b) The appointment of Erinheha and Eringbeva by the different quarters”.

Finally in paragraph 49 of the Statement of Defence the following averments were made:

“In answer to paragraph 75 of the amended statement of claim, the 4th and 5th Defendants aver as follows:-

(a) That the Traditional Ruler of Otuo is known as Ovie and not Ororoso.

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(b) That there was no draft Otuo Chieftaincy Declaration on 23/1/57 but a meeting of the then lvbiosakon (now Owan) Chieftaincy committee at Otuo.

(c) That the 1st Plaintiff was not appointed in accordance with the Chiefs Laws as there was a reigning Ovie of 0tuo.

(d) That the Defendants and the Plaintiffs are not competent to draw up a Chieftaincy Declaration for Otuo

(e) That the Ovie of Otuo and the 1st Defendant were in formed in Benin City on the 18th February, 1974 that the purported election of the 1st Plaintiff as Ovie elect was illegal and void.

The Defendants shall rely at the trial of this action on the minutes of the meeting held with the Ovie of Otuo and the Otuo Kingmakers by the Honourable Commissioner for Local Government and Chieftaincy Ajjairs on Monday 18th February, 1974 and all other documents, papers and materials connected and related to Otuo Chieftaincy in particular the Ovie of Otuo”.

Despite the 1964 Declaration, all the communities of Otuo i.e. the si x groups, were averse to the notion of life tenure for their Ovie and prefered the system of ten year single term. There were petitions and representations to the Government in Benin and this led to the new Declaration (Exhibit 2) of 1979 which reads as follows:-

‘DECLARATION MADE UNDER SECTION 8 OF THE TRADITIONAL RULERS AND CHIEFS EDICT, 1979 STATING THE CUSTOMARY LAW REGULATING SUCCESSION TO THE TITLE OF OVIE OF OTUO

There are six Ruling Houses in Otuo known as Oluma-Amahon, Amoya-Ohigha, lyeu (comprising Uzewa, lmorukpa, Imakhise, and Ikhueran), Orake-Olila, Ohiekha-Ighera, and lmafun (Obo-Urere).

Succession rotates around the Ruling Houses in the order stated above, and passes at the expiration of the tenth year of an Ovies rule.

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To qualify, a candidate must be an adult male of patrilineal descent in the appropriate Ruling House, a member of the lmheheghoki age group and an Erinheha title holder.

When a vacancy occurs, the eldest male member of the appropriate Ruling House summons and presides over a meeting of the said Ruling House for the purpose of nominating a candidate(s) for presentation to the Kingmakers. There are twelve Kingmakers comprising the two eldest members from each of the Ruling Houses drawn from amongst the age group of the decease or outgoing Ovies age grade Ikheheghoki. Where a Ruling House is subdivided, selection of the two eldest members shall as much as possible and from time to time reflect the sub-divisions.

The eldest Kingmaker shall summon the Kingmakers’ meeting written notice of which shall be served upon every Kingmaker by the authority empowered to summon such meeting, and where necessary, proof of service shall be furnished. At the meeting of the Kingmakers called for this purpose and presided over by the eldest Kingmaker, the candidate, if one, is approved by a consensus or other wise by a simple majority of votes of those present and voting. DATED at Benin City this 28th day of September, 1979′

After hearing the parties and considering the pleadings, learned trial Judge, Akpovi J: (as he then was) came to a conclusion that the plaintiffs case was proved and held that the declaration of 1964 and 1979 were null and void and of no effect. He never stopped here, rather he went further and made declaration in the following vein:-

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‘It should be remarked that the 5th defendant who was qualified to perform these ceremonies was not allowed by the people to perform these yearly rituals. The purported nomination of the 5th defendant as Ovie of Onto as contained in Exhibit 21 was irregular and wrong according to the custom, more particularly when the retiring Ovie Chief Igbauma Idehai (P.W.2) whose prerogative it was to preside over such an exercise was conspicuously absent. The 5th defendant was not a senior Chief of cabinet rank and was not elected by the proper Kingmakers, So his appointment was of no effect. I accordingly hold the case of the plaintiffs as proved. I hereby make the following declaration:-

That a substitute chieftaincy declaration based on my findings in this case (pages 15 to 16 supra) be made as relating to the Ororoso or Ovie of Otuo, the seniority, rotation, selection and qualification of the kingmakers and ruling houses based on the evidence led before me, which evidence was a reflection of Exhibit 15, a document prepared and presented to Government by the

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lvbiosokon District Council Chieftaincy declaration Committee of 23rd January, 1957 and Exhibit 18, a declaration prepared by the Otuo Council of Chiefs on the 15th September, 1979.

That as the traditional ruler has been variously called Ororoso or Ovie, the title Ororoso should be preferred as there are many idol priests in Onto who are properly called Ovie

That the following are hereby declared null and void as being inconsistent with procedure of the chieftaincy law and the chieftaincy customary law of Otuo:

(a) The registered Otuo Chieftaincy declaration of Otuo of 1964 Exhibit I.

(b) The decisions contained in the Bendel State Government White Paper on the report of the Ofili Commission of Enquiry into the disturbances in Otuo, Exhibit 3 and

(c) The Bendel State Legal Notice No. 141 of 1979 as per Exhibit 2, a declaration of the customary law relating to succession to the traditional ruler title of the Ovie of Otuo.

That the appointments of the 1st plaintiff on the 17th December, 1973 as the in-coming traditional ruler and of the traditional chiefs presided over by the out-going Ororoso, Chief Igbauma Idehai (P.W.2) were proper, correct and valid and in accordance with Otuo customary law regulating the succession to the traditional ruler title of Otuo.

That the appointment of the 5th defendant as the Ovie of Otuo was also null and void.

As the 5th defendant has already left office by the time of judgment there would be no need to order an injunction against the 1st to 3rd defendants from treating the 5th defendant as an Ovie of Otuo. An injunction would however issue to restrain the 5th defendant from putting himself forward as an out-going or retiring Ovie of Ororoso of Otuo and from regarding himself as head of the next set of kingmakers from the appointment of the next Ovie or Ororoso of Otuo and his traditional chiefs. The plaintiffs are entitled to the costs of this action which I have accessed (sic) at N750.00 against the 4th and 5th defendants jointly and severally.”

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This decision led to the appeal to Court of Appeal, Benin Division. It must be pointed out that Exhibit 2 (supra) was made after due enquiry had been made by the Government – Ofili Commission of Inquiry and Ighodaro Chieftaincy Review Commission which led to Traditional Rulers and Chiefs Edict of 1979. The Court of Appeal allowed the appeal. Ogundare, JCA. (as he then was) in reviewing what took place in trial Court by way of evidence adverted to the issues formulated by the parties based on the grounds of appeal before the Court and faulted the findings of trial High Court which he quoted in extenso with his comments as follows:

‘The finding of the learned trial Judge that the incumbent Ovie; Chief Idehai (P.W.2) abdicated in 1973 is, with utmost respect to the learned Judge, not home out by the preponderance of the evidence before him. He said in his judgment;

‘I do not agree with Mr. Esemokhai that there was no vacancy in 1973 when the 1st plaintiff was appointed Ovie. I have accepted the evidence coming directly from the predecessor-in-office, Chief Igbauma Idehai (P.W.2) that he had been appointed to rule Otuo for life but when he realized that the people kicked against this life tenureship as inconsistent with Otuo customary law, he complied with that customary law by abdicating his Ovieship, after running his full term of 10 years, and then presided over the other king-makers in nominating and electing the 1st plaintiff. He was therefore no longer an Ovie on the l7th of December 1973, when the 1st plaintiff was installed Ovie. Although government in their White paper (Exhibit3) based on Ofili Commission of Enquiry talks of removing from office Chief Igbauma Idehai (P.W.2) in 1979, he had long left office.’

Later the learned Judge added:-

‘By way of observation I should record that by Exhibits 7’, 10 and 11’, the official records continued to treat Chief Igbaumaldehai (P.W.2) as Ovie up to 1976. This means that he was still regarded as Ovie. This is a confusion which arose from the officials treating Chief Igbauma Idehai as still a reigning Ovie after 1973 when he had abdicated in accordance with Otuo customary law and the people had long ceased to treat him as Ovic in Otuo. The situation was that he was Ovie dejure in the hands of the officials and a retired Ovie de facto before the people. This sort of situation arose from the usual bogey of official recognition of chiefs in this country. 1st plaintiff as a chief appointed by his people could not totally hold out himself as the chief until after Governments recognition or approval. The situation that obtained in Otuo was that Chief Igbauma Idehai had abdicated as Ovie, in 1973 and had customarily presided over the nomination and election of the 1st plaintiff in the same year and the 1st plaintiff had fulfilled all customary procedures and was de facto the ruler of

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Otuoye Government went and hand-picked the 5th defendant without the backing of the customary law and procedure and gave him paper recognition as the Ovie of Own.’

On what evidence was this finding based? P.W.2, the incumbent Ovie at the time Exhibit I was registered, testified and said in his evidence in chief:-

‘I was Oba of Otuo from 1961 to 1973 for 12 years. When I completed my term of office I handed over to the next age group of company. I handed over directly to 1st plaintiff.”

The Obaship is rotated according to seniority of Oluma, Orlirla, Ohigba.’

Cross-examined, he said:

‘I was gazetted for life as Oba.’

The witness was silent as to die method of his abdication. In Exhibit 7 & 7A, however, he attended a meeting on 18/2/74 with the Commissioner for Local Government and Chieftaincy Affairs in his capacity as the Ovie of Otuo.

Among other Chiefs and elders of Otuo present at the meeting were the 2nd

Appellant and the 1st respondent. He spoke at length at the meeting as Ovie.He was quoted as saying at the meeting:

‘The Ovie denied that he told the king-makers that he had abdicated and that Chief Ajakaiye was to succeed him.’

Again in Exhibit 11, a letter P.W.2 wrote on 3 1st January 1974 in his capacity as Ovie of Otuo, he described the 1st respondent therein as ‘Otuo Traditional Ruler elect.” On 17th April, 1974 P.W.2 in his capacity as Ovie of Own wrote Exhibit 17 to the Hon. Commissioner, Ministry of Local Government and Chieftaincy Affairs and in it he wrote as follows:

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Chief Peter Higo Ajakaiye (Elu Edelgbini) of Orhirla as Head of Orlirla-Orake Ruling House, the Ororoso of Otuo-elect (First Enriyheha) who is to succeed me either after my death or after the Government has set aside the 3rd February 1964 registered Cum Chieftaincy declaration.’

In the face of all these documentary evidence of what the P.W.2 wrote or said in 1974 it is difficult to see how the trial Judge arrived at his finding that P.W.2 abdicated in 1973. The learned Judge ought not to have accepted P.W.2s oral evidence in court. On the totality of the evidence at the trial, the finding that P.W.2 had abdicated in 1973 is clearly perverse and I have no hesitation in setting it aside.’

Learned Justice of Court of Appeal held that the 1964 declaration (Exhibit 1) was validly made by the then Government of Mid-Western State and properly registered. Even though Exhibit I did not truly reflect the customary practice of Oluo as regards tenure of office of an Ovie that would not render the declaration invalid once it was made by proper authority. Unless it was successfully impugned that it never reflected the customary law of Otuo on appointment or succession to the throne of Ovie, it was valid and remained in force in December 1973 when Chief Idehai was still alive and he could not appoint a successor as he purported to have done. Thus 1964 Declaration remained valid to the exclusion of any other customary practice as regards appointment of an Ovie of Ctuo. Chief Idehai could not therefore lawfully have abdicated for another person until he died or was deposed under the Chieftaincy law of the State. Even if there was a vacancy the stool of Ovie in 1973 it could not be lawfully said that the 1st appellant (now deceased) was duly selected in accordance with the declaration of 1964 (Exhibit 1), or in accordance with the Chiefs Law of Mid-Westem State. Secondly the appointment, as required by law, was not approved by the Governor-in-Council (See S. 16 Chiefs Law of the State).

The Court of Appeal, with regard to the order for the trial Judge amounting to a Counter declaration to the Exhibits I and 2, held that such a declaration was ultra vires of the trial Court and that it was as such a nullity. It is not the function of the Court to draft a chieftaincy declaration, even though it could declare a declaration null and void. The pedestal relied upon by learned trial Judge, Exhibits 15and 18 were of no legal effect as they were not the declarations made by the State Executive Council as required by Chiefs Law. Court of Appeal relied on the judgment of this Court in Adigun & ors. v. Attorney-General of 0yo State (1987) 1 NWLR (Pt.53) 678, 702; and on sections 3,4 and 5 of Chiefs Law 1979(Bendel State 16 of 1979). Exhibit 15 was never approved by the Regions Minister responsible for chieftaincy matters and subsequent declaration of 1964 (Exhibit 1) made the Exhibit 15 of no effect whatsoever, this is manifest in the Law itself saying in s. 7(5):

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‘7(5) Upon a declaration in respect of a chieftaincy being made by the Minister every declaration made under this law or the repealed law relating to that chieftaincy that is not approved shall be void and of no effect.’ Exhibit 18 neither originated from a Traditional Council nor was it approved by the Executive Council of the State. Consequently, held the Court of Appeal, it had no force of law and could therefore form no basis to a declaration for the office of Ovie of Otuo.

As for the order made by trial Court on whether the title of the chieftaincy in issue or known as Ovic or Ororoso, it was not a prayer asked for by any of the parties. The final decision of Court of Appeal insetting aside the decision of trial Court on the Ovieship is in what was recommended in Ofili Commission of Inquiry and accepted by the Government and it is Exhibit 3. The recommendation in Exhibit 3 says:

‘The order of rotation of the Ovieship embodied in the 1964 Otuo Chieftaincy declaration should be supported and upheld as it is acceptable to the majority of those competent to express an opinion on it.”

Court of Appeal finally put the matter to rest when it held:-

‘The sum total of all I have been saying is that on the totality of the evidence, both oral and documentary, before the learned trial Judge it is difficult to see how he could, with respect to him, come to the conclusion that there was a customary law in Own laying down the order, by seniority of groups of villages or quarters, of rotation for the appointment of the Ovie. In view of this, therefore, there was no stronger evidence to vitiate the report of the Ofili Commission and I am of the view that the governments decision ought not to be interfered with. All the authorities enjoined by law to take part in the making of a declaration having acted within the scope of their authority, it is not the business of a court to super-impose its view on their decision.

Consequently, I am of the firm view that the learned trial Judge was in error to declare the 1979 declaration void. That declaration has superceded the 1964 declaration and removed from it the patent error of customary law of Otuo as contained in the latter declaration, that is, the life tenureship of the term of office of an Ovie. All sides agreed that since the abolition of the monarchy the Ovie had always ruled for 10 years and then replaced. To that extent the 1964 declaration was

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wrong and this error was corrected in the 1979 declaration. The 1964 declaration having been repealed and replaced with the 1979 declaration there was no longer any need to pronounce on it.

The 1st appellants appointment being in accord with the existing declaration and the law – The Traditional Rulers and Chief Law, 1979, the appointment was valid and the trial Judge was wrong to declare it invalid.”

Against this decision an appeal was filed in this Court. The plaintiffs/ appellants in support of theirgrounds of appeal formulated thefollowing issues for determination:

ISSUES FOR DETERMINATION IN THE APPEAL:

In the appellants view, the issues which arise for determination by this Honourable Court can be summarized as follows:-

(1) Whether the Court below was not in error when it held that the 1964 Chieftaincy declaration, Exhibit I in this case, was properly made, and that it therefore had a binding force of law in respect of the Ovie of Otuo Chieftaincy.

(2) Whether the Court below was not in error when in effect it held that the learned trial Judge was wrong to have made a declaration in respect of the Ovie of Otuo chieftaincy.

(3) Whether the Court below was right to have set aside the declaration Order made by the learned trial Judge to the effect that the Chieftaincy declarations of 1964 and ?979 were null and void.

(4) Whether the Court below was not in error when it over-ruled the learned trial Judge in respect of his findings of fact in this case; and whether the judgment of that Court is not against the weight of evidence.”


SC. 320/1990

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