Stephen Nwako Ononye On Behalf Of Ofili House Of Mgbelekeke Family Of Onitsha V. Michael Uzo Obanye On Behalf Of Okwuora House & Ors (1945)
LawGlobal Hub Judgment Report – West African Court of Appeal
Claim before Native Court for declaration that (a) Plaintiff is head (Okpala) of family, (b) as such head he is entitled to all rights attached to that office, and (c) injunction to restrain Defendants from interfering with Plaintiff’s rights—Suit transferred to High Court—Jurisdiction —Plaintiff’s case dismissed after lengthy trial—Case of Laoye & Ors. v. Oyetunde (Privy Council Appeal No. 28 of 1942) referred and distinguished.
Held: The issue was a bare title and no consequential relief was claimed. The Court below had no jurisdiction.
Non-suit substituted for judgment of Court below.
M. 0. Ibeziako for Appellant. L. N. Mbamefo for Respondents.
The following judgment was delivered by BAKER, Ao.C.J.,
NIGERIA :—
The Plaintiff’s claim in this suit, which was instituted in the Native Court at Onitsha, but transferred by order of the District Officer under section 25 (1) (c) of the Native Courts Ordinance, 1933, to the High Court, is :—
“1. A declaration that according to native law and custom of Onitsha
the Plaintiff herein is the head (Okpala) of Mgbelekeke family.
2. That as such head (Okpala) he is entitled to all the rights attached to that office according to native law and custom and is proper representative according to native law and custom of the family.
- An injunction restraining the defendants from further interference with the Plaintiff’s rites in Okpala-ship
After a lenghty trial upon these issues judgment was delivered in favour of the Defendants dismissing Plaintiff’s claim. A
preliminary point was suggested and argued with the leave of the Stephen
Nwako
Court, viz. that there was no jurisdiction in the High Court to try
the case. Reference was made to Adanji v. Hunvoo, 1 N.L.R. 75. °n”Yev.
There occurs this passage in the judgment of Speed, Ao.C.J. :—Michael
trzo Obaaye
” The claim is expressed to be to establish Plaintiff’s title to the & Others chieftaincy of Fiyento of Badagry. That is all that is asked for in the
writ of summons, and all that we are asked to decide is whether upon Baker, that claim a non-suit was rightly entered.Ag.O.J.
It may be that the chieftaincy carries with it by native law and custom some or many rights and privileges which might be made the subject of an action at law. It may be that upon a claim differently stated the Court might have been forced to decide incidentally the question whether or no the Plaintiff had been duly elected Chief Fiyento according to native law and custom. With that we have in my opinion nothing to do. The claim is to establish title to the chieftaincy and the chieftaincy only.
Now what is the chieftaincy? I say without hesitation that it is a mere dignity, a position of honour, of primacy among a particular section of the native community, and that as such the Court has no jurisdiction to decide upon it. The extent of the Court’s jurisdiction is defined by section 11 of the Supreme Court Ordinance as being equivalent, with an exception which does not affect thib case, to that of the High Court of Justice in England as constituted by the Judicature Acts of 1873 and 1875.
I do not think that it can be reasonably contended that the High Court of Justice in England could entertain such a claim a.9 is made in this action.
It has been urged however that section 19 gives the Court the power to enforce the observance of local law and custom.
In my opinion this section is merely descriptive of how the Court may exercise its jurisdiction and cannot be construed as in any way enlarging the limits of the jurisdiction as laid down by section 9.
My opinion therefore is that the non-suit must stand, and the Divisional Court will be informed accordingly”.
Packard, J., in concurring with this judgment, said “in its ordinary sense as commonly used in this country it conveys to my mind the meaning of a title or dignity and implies from its derivation a headship “.
The present definition of a chief in the Interpretation Ordinance reads :-
” ‘Chief’ or ‘native chief’ means any native whose authority and control is recognised by a native community, and ‘head chief’ means any chief who is not subordinate to any other chief or native authority”.
Mr. Mbanefo contends that this is merely a claim for headship of a family and amounts to nothing more than an action in which a declaration is sought to establish the heir at law. He goes on to say that the head of the family signs leases of land and that it is not a question of recognition but of succession. He asks us to say that the word “rights” in the claim includes “rites” and that a claim to property is attached. He referred to the case of 0. L. Laoye & Ors. v. A. Oydunde, which went to the Privy Council (Appeal No. 28 of 1942), as establishing the right of such a declaration. The facts in that appeal are well known to this Court. The plaintifIN claimed “as owners against the defendant possession
of all that property with the buildings erected thereon, including all furniture and paraphernalia therein known as the family house of the plaintiffs and called Sohun’, situate at Igbo market in Ogbomosho in the Oyo Province “. The trial Judge dismissed the claim and his decision was upheld in this Court on the ground that the 1st plaintiff was a headchief which had not been then disputed and the trial Court had no jurisdiction to try an issue as to whether the Bale had been elected according to native law and custom, even though further relief was claimed. The Law Officer sent by the Attorney-General to assist the Court as amicus curiae on the one point that he had not in fact (as it had been discovered) been appointed a headchief withdrew upon opposition to his appearance. Before their lordships an entirely different point not argued and never previously doubted in this Court was taken, viz. that the curtailed language of section 2 (2) of Ordinance No. 14 of 1930, which is merely ancillary to sub-section (1), is not to be taken to refer to anything other than what is specified in sub-section (1) or to go beyond the scope of the title. It followed that as the Bale was not a headchief, sub-section (2) had no application to his office. The appeal was allowed and it was declared that the possession of the Sohun was illegal and that the 1st Appellant was entitled to be appointed Bale and to be given possession of the Sohun with its furniture and paraphernalia. It seemed to be the argument of counsel in this case that as a declaration that he was entitled to be appointed Bale which had not been claimed in the writ was given, it followed that this can be claimed where it is the sole and not a subsidiary issue. When we were unable to agree that this case was in any way on all fours with the present one he went on to argue that as the Okpala is merely a family head the declaration could be given in the same way as a person could be declared heir at law : and that `rights’ in the second part of the claim was wider than `rites’ in the third and related to a claim for property.
The Okpala (Okpara) is described the Dr. Meek’s “Law and Authority in a Nigerian tribe” as the senior elder (or more correctly the recognised head) of the extended family. He receives obedience and tokens of respect and has duties in assisting members of the family : he is also the holder of the family ofo (sacred symbol of office) and is the chief priest and ceremonial head of the cult of the founder of the family. The senior Okpala is the ritual head of the group ; he has not executive authority but is consulted on all matters affecting the welfare of the kindred.
The whole of the case in the Court below proceeded upon, and the evidence was called as to, the one issue of the right to this title Okpala, which “conveys the meaning of a title or dignity and implies from its derivation a headship “. At page 79 of the
case cited above (Aclaenji v. Hunvoo), which has been regarded as established law since it was tried, there is a passage :—
It may imply some rights to land or property, but that is uncertain in this case. It may also connote a variety of other rights and privileges according to the native custom. These rights and privileges vary in almost every instince and probably the only thing which is common to every chieftaincy is the bare title or dignity. Whatever jurisdiction the Court has to entertain this claim must be contained in the Supreme Court Ordinance; it is not contended in this case that any other law confers it”.
It is of interest to note that while there was a provision at the time the trial took place that no appeal normally would lie from a decision of a Native Court in any matter relating to family status original civil jurisdiction has since been excluded by the proviso to section 12 of the new Supreme Court Ordinance No. 23 of 1943 in any matter which is subject to the jurisdiction of a Native Court relating to family status.
The question of jurisdiction is in limine, and as we are satisfied that the only issue was a bare title and no consequential relief is claimed, we uphold the submission of counsel that the Court below had no jurisdiction. For the judgment in the Court below we accordingly substitute a non-suit. We set aside the order as to costs in the Court below and assess the costs in this Court at forty-five guineas.
