CHIEF OLAWOLE UNUIGBOKHAI & ORS v. CHIEF DANIEL AIGBEVBOISA & ORS
(2016)LCN/8442(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 30th day of March, 2016
CA/B/272/2013
RATIO
PROCEDURE: ORIGINATING SUMMONS; NATURE OF ORIGINATING SUMMONS
Originating Summons is used for non-contentious actions i.e. those actions where facts are not likely to be in dispute. Where facts are in dispute, Originating Summons procedure will not be appropriate.
See the following cases: –
– OSUNBADE VS OYEWUMI (2007) ALL FWLR Part 368 page 1004.
– INAKOJU VS ADELEKE (2007) 4 NWLR Part 1025 Page 423. PER JIMI OLUKAYODE BADA, J.C.A.
PROCEDURE: WHERE CAN AN ACTION BE COMMENCED BY ORIGINATING SUMMONS
An action may be commenced by Originating Summons where
(a) The sole issue is one of construction of a statute or written law or deed or will or contract or an instrument made under any statute or written law or other documents or other question of law.
(b) Where the Rules of Court or any statute or written law specifically provides that such action are required to be commenced by Originating Summons for example the Fundamental Right (Enforcement Procedure) Rules 1979 and certain applications under the Companies Proceeding Rules 1992.
(c)Where a statute or any written law provides for a right but does not specify means by which application may be brought under the same statute for example actions for prerogative order of certiorari, mandamus, prohibition, habeas corpus, judicial review and certain actions under the Companies Proceeding Rules 1992. It may be used also where a statute has not provided for it.
See the following cases: –
– AKUNNA VS ATTORNEY-GENERAL, ANAMBRA STATE (1977) 5 S.C.
– BALONWU VS OBI (2007) 5 NWLR Part 1028 Page 488.
– DOHERTY VS DOHERTY (Supra).
– OLOYO VS ALEGBE (Supra).
– UNILAG VS AIGORO (Supra).
Where an action is commenced by an Originating Summons instead of Writ of Summons, the appropriate order to be made by the Court is to direct that pleadings be filed. But, if the facts are contained in an affidavit which has been controverted, the Court has a duty to invite the parties to adduce oral evidence to resolve the issues in controversy. See the following cases: –
– OSUNBADE VS OYEWUNMI (Supra).
– FALOBI VS FALOBI (1976) 9 – 10 SC Page 11.
– DAPIANLONG VS LALONG (2007) 5 NWLR Part 1026 page 199.
– THE GOVERNOR OF KOGI STATE VS MOHAMMED (2009) 13 NWLR Part 1159 page 491 at 519 paragraphs D – E. PER JIMI OLUKAYODE BADA, J.C.A.
INTERPRETATION: ATTITUDE OF COURT TOWARDS INTERPRETATION OF STATUTES
The law is already settled on interpretation of statute that the Court must first examine the ordinary literal meaning. The Supreme Court in the case of ATTORNEY-GENERAL, OGUN STATE VS ALHAJI A. ABERUAGBA & OTHERS (1985) 4 SC Part 1 Page 288 at 383 – stated as follows: –
“In the interpretation of statutes, the ordinary literal meaning must first be examined. If the words are clear and unambiguous, then the ordinary literal meaning must be given to them, for then the intention of the law maker has not been obscured. It is only where there is doubt or ambiguity, that recourse is made to other cannons of interpretation.
See the following cases: –
– AWOLOWO VS SHAGARI (1979) 6 – 9 SC Page 51.
– BAKARE VS NRC (2007) 17 NWLR Part 1064 Page 639.
– ODUTOLA HOLDINGS LTD VS LADEJOBI (2006) 12 NWLR Part 994 Page 321 at 358.
– RIVERS STATE GOVERNMENT VS SPECIALIST KONSULT (2005) 7 NWLR Part 923 Page 145 at 179.
– UNIPETROL VS E.S.B.I.R. (2006) 8 NWLR Part 983 Page 624 at 641.
– IBRAHIM VS BARDE (1996) 9 NWLR Part 474 Page 513 at 577 paragraphs B – C.
– OJOKOLOBO VS ALAMU (1987) 3 NWLR Part 61 Page 377 at 402 paragraphs F – H. PER JIMI OLUKAYODE BADA, J.C.A.
ACTION: PARTIES TO AN ACTION; WHO IS A NECESSARY PARTY
A necessary party is one without whose presence the Court cannot properly adjudicate on the issues before it. It is one whose presence is needed so as to be bound by the orders to be made in the suit. See – GREEN VS GREEN (1987) NWLR Part 61 Page 481. PER JIMI OLUKAYODE BADA, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
Between
(1) CHIEF OLAWOLE UNUIGBOKHAI
(2) CHIEF FOLORUNSHO ORUAME IZEGAEGBE
(3) CHIEF ABRAHAM IMMOYE APPELLANTS
(4) CHIEF ALUFA JEGEDE
(For themselves and on behalf of the Otuo Council of Chiefs and Elders excluding Chief and Elders of Chairman’s Ruling House) – Appellant(s)
AND
(1) CHIEF DANIEL AIGBEVBOISA
(2) CHIEF BENSON ONO AFEKHENA
(3) CHIEF BEN USIFOKHAI RESPONDENTS
(4) CHIEF KAYODE OJESEME AJAKAYE
(5) CHIEF ORUAME OLUBAKA
(6) CHIEF JULIUS SEGUN OJEABUO
(For themselves and on behalf of the Orake-Olila Ruling House of Otuo)
(7) ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, EDO STATE – Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment):This appeal emanated from the Judgment of High Court of Justice, Edo State of Nigeria in the Afuze Judicial Division in Suit No:- HAF/19/2012 CHIEF DANIEL AIGBOVBIOISA & 5 OTHERS AND ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE EDO STATE & 4 OTHERS, delivered on 8th day of April 2013, wherein Judgment was entered in favour of the Claimants.
Briefly, the facts of the case are that the Claimants now Respondents filed a suit by Originating Summons asking for the following reliefs:-
(a) A declaration that by the provisions of the Registered Declaration Bendel State Legal Notice (BSLN) 141 of 1979 otherwise known as the Declaration of Customary Law Regulating Succession to Traditional Ruler Title, particularly paragraphs 2 and 4 thereof and the provisions of Sections 11, 13(1), 2(c) (ii), 14(c), 19(3) (c), 20(1) ? (2)(b) of the Traditional Rulers and Chief Law 1979, Section 6(b) of the Constitution of the Federal Republic of Nigeria 1999 as amended as well as the order of
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injunction granted in suit No HAF/15/2004 Chief Kayode Ojeseime Ajakaiye Vs Chief Julius Segun Ojeabuo & Ors the Orake-Olila ruling house is yet to produce the Ovie and its ten year tenure has not begun to run.
(b) A declaration that the defendants cannot commence or continue the celebration of the Ikherevbo and Imuewe age grade festivals which marks the promotion of the Otunesa age grade to Ikherevbo, the Ikherebo age grade to Imuewe and Imuewe age grade to Ikheghoki age grade from which a new Ovie of Otuo from another ruling house to wit Ohiekha ? Ighera (also known as Iziokha- Ighera) would emerge while suit No. HAF/15/2004 Chief Kayode Ojeseime Ajakaiye Vs Chief Julius Segun Ojeabuo & Ors is yet in Court.
(c)An order of perpetual injunction restraining the defendants from commencing or continuing the celebration of Ikherevbo and Imuewe age grade festivals which mark the promotion of the Otunesa age grade to Ikherevbo, the Ikherevbo age grade to Imuewe and Imuewe age grade to Ikheghoki age grade or doing, performing, celebrating or attempting to do, perform, celebrate anything, festival or ceremony
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that can or would have or has the effect of rendering the outcome of suit No HAF/15/2004 Chief Kayode Ojeseime Ajakaiye Vs Chief Julius Segun Ojeabuo & Ors nugatory including commencing or continuing the celebration of the Ikherevbo and Imuewe age grade festivals during which the Otunesa age grade moves to Ikherevbo, the Ikherevbo age grade moves to Imuewe and transit to Ikheghoki age grade from which a new Ovie of Otuo from another ruling house to wit Ohiekha-Ighera (also known as Iziokha-Ighera) would emerge while suit no is yet in Court and the term of the Orake-Olila ruling house has not begun to run.
At the conclusion of hearing and addresses by counsel for the parties, Judgment was given in favour of the Claimants and the Court declared that by the provisions of the Registered Declaration Bendel State Legal Notice (BSLN) 141 of 1979 otherwise known as the Declaration of Customary Law Regulating Succession of Traditional Ruler Title particularly paragraphs 2 and 4 thereof and the provision of Section 11, 13(1) (2) (c) (ii) 14(c) 19(3)(c) 20(i) & 2(b) of the Traditional Ruler and Chiefs Law 1979 and Section 6(b) of the Constitution of
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the Federal Republic of Nigeria (as amended), the Orake-Olila Ruling House is yet to produce the Ovie and its ten year tenure has not begin to run.
Dissatisfied with the said Judgment, the Appellants appealed to this Court.
The learned counsel for the Appellants formulated four issues for the determination of the appeal. The issues are reproduced as follows:-
ISSUES FOR DETERMINATION OF THE APPEAL
ISSUE NO. 1
Whether from the conflicting affidavit evidence of the parties, there were no serious contentious issues to make Originating Summons an unsuitable proceedings. (Distilled from Ground 1)
ISSUE NO. 2
Whether the trial Court was right in the interpretation of the Registered Declaration (BSLN) 141 of 1979 particularly paragraph 2 thereof. (Distilled from Grounds 3, 5 and 7)
ISSUE NO. 3
Whether the learned trial
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Judge was right to restrain the 2nd ? 5th Defendants from performing or celebrating the traditional age grade festival in Otuo.
(Distilled from Grounds 2 and 6).
ISSUE NO. 4
Whether the proper parties were before the Court.
(Distilled from Ground 4).
The learned counsel for the 1st to 6th Respondents on the other hand adopted the issues for determination of the appeal as formulated on behalf of the Appellants.
At the hearing of the appeal on 1st day of February 2016, the learned counsel for the Appellants stated that the notice of appeal was filed on 6/5/13. (See pages 126 ? 134 of the record). The record of appeal was transmitted to this Court on 3/7/2009. The Appellants? brief of argument which was filed on 6/9/13 was deemed as properly filed and served on 14/5/2014.
He adopted and relied on the said Appellants? brief as his argument in urging that this appeal be allowed.
?
The learned counsel for the 1st to 6th Respondents also adopted and relied on the Respondents?
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brief of argument filed on 8/10/2015 as his argument in urging that the appeal be dismissed.
The learned counsel for the 7th Respondent referred to the 7th Respondent?s brief of argument filed on 25/2/15 and deemed as properly filed and served on 12/10/15. She adopted the said 7th Respondent?s brief of argument and stated that the 7th Respondent is a nominal party joined simply because he is the Chief Law Officer of Edo State and that he has no interest in the appeal. She submitted that the 7th Respondent would abide by the Judgment/orders of this Honourable Court.
ISSUE NOS 1 AND 2 (Taken together)
?Whether from the conflicting affidavit evidence of the parties there were no serious contentious issues to make originating summons an unsuitable proceedings. (Distilled from Ground 1).?
?Whether the trial Court was right in its interpretation of the Registered Declaration (BSLN) 141 of 1979 particularly paragraph 2 thereof (Distilled from Grounds 3, 5 and 7)
The learned counsel for the Appellants stated that
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the Claimants now Respondents commenced this action by Originating Summons and supported it with 38 paragraphs affidavit with several exhibits attached thereto. The 2nd ? 5th Defendants now Appellants also filed a counter- Affidavit of 38 paragraphs. The Appellants also filed a notice of Preliminary Objection to challenge the competence of the action to be tried as an Originating Summons proceedings.
He submitted that the affidavit evidence of the parties conflicted on material facts as to what is the custom of the Otuo people on the age grade celebration and its effect on the Ovieship of Otuo, whether the age grade festival has taken place or not. Either way, what effect does the age grade celebration by the custom of Otuo has on a Ruling House who engages in litigation during its ten year tenure?
Learned counsel for the Appellants submitted that Originating Summons is used for actions where the facts are not in dispute or likely to be in dispute. He relied on the following cases:
– DOHERTY VS DOHERTY (1968) NMLR Page 241.
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OLOYO VS ALEGBE (1983) 2 SCNLR Page 3.
– UNILAG VS AIGORO (1991) 3 NWLR Part 179 Page 376.
He also submitted that there is no way the trial court can interprete the Bendel State Legal Notice 141 of 1979 i.e. Exhibit ?A? without a factual basis which is evidence of the custom of Otuo in relation to the tenure of the Ovieship when a Ruling House is disputing it.
He urged that Issue No. 1 be resolved in favour of the Appellants.
On Issue No. 2, learned counsel for the Appellants contended that by virtue of Section 39 of the Traditional Rulers and Chiefs Law 1979 and the First Schedule thereto the Ovie of Otuo is a recognised Traditional Ruler title. Succession to the title of the Ovie of Otuo is regulated and governed by a Registered Declaration embodied in the Bendel State Legal Notice (BSLN) 141 of 1979 and made pursuant to Section 3 (1) under Part 2 of the Traditional Rulers and Chiefs Law 1979.
He argued that where a declaration has been validly made in respect of a recognised chieftaincy and registered, it represents
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the applicable customary law regulating the selection and appointment of a candidate to a vacant chieftaincy and the provision of such a registered declaration shall prevail until amended.
He relied on the following cases: –
– FASAD VS BABALOLA (2003) 6 M.J.S.C. Page 43 at 54 paragraphs E ? F.
– OGUNDARE VS OGUNLOWO (1997) 6 NWLR Part 509 Page 360.
He referred to the Registered Declaration (BSLN) 141 of 1979 which regulate succession to the title of the Ovie of Otuo which provided in paragraph 2 as follows: –
?(2) Succession rotates around the ruling house in the order stated above and passes at the expiration of the tenth year of an Ovie?s rule.?
It was stated on behalf of the Appellants that the tenure of the last Ovie of Otuo, Chief Julius Leje-Elugbe from Iyeu Ruling House (comprising Uzawa, Imoukpa, Imakhize and Ikhueran) terminated on the 18th day of December 2004 by virtue of the Edo State Legal Notice (E.S.L.N.) 5 of 1996 approving the appointment copied at page 32 of the Record of Appeal.
?
The learned counsel for the Appellants contended that from the19th day of December 2004,
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the right to produce an Ovie for Otuo accrued and became vested in the next Ruling House being Orake-Olila Ruling House whose turn it is to produce an Ovie for Otuo has been enmeshed in litigation since 2004.
He referred to the interpretation of the trial Court on paragraph 2 of the Registered Declaration (BSLN) 141 of 1979 when it determined whether the litigation in Suit No. HAF/15/2004 has any effect on the tenure of the Ruling House where it held at page 123 of the Record of Appeal as follows: –
?I therefore hold that there has not been an Ovie on the throne since 2004 and the 10year tenure has not started running in that the Registered Declaration regulating succession to Traditional title of Otuo states in Section 2 that succession rotates around Ruling Houses and pass from one to the other at the expiration of ten years of an Ovie?s rule. The Ovie-Olila has not started enjoying the tenure as a result of litigation.?
?
The learned counsel for the Appellants submitted that in the interpretation or construction of a statute, if the words are plain, precise and unambiguous, they should be given their ordinary
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and natural meaning. He referred to the following cases:
– SHELL PETROLEUM DEVELOPMENT CO. NIG. LTD VS FEDERAL BOARD OF INLAND REVENUE (1996) 8 NWLR Part 446 Page 256 at 258.
– NAFIU RABIU VS THE STATE (1981) 2 NCLR Page 326.
– FASEL SERVICES LTD & ANOTHER VS NIGERIAN PORTS AUTHORITY & ANOTHER (2003) 41 W.R.N. Page 129 at 160 paragraphs 10 ? 15.
He went further in his submission that the interpretation placed on paragraph 2 of the Registered Declaration (BSLN) 141 of 1979 by the trial Court is too narrow and restrictive. He went further that a more liberal and broad approach ought to be applied. He relied on the case of P.D.P. VS INEC (2001) 1 WRN Page 1 at 40 paragraphs 40 ? 45.
In his response, the learned counsel for the Respondents stated that in an Originating Summons procedure in which the interpretation of a statute is in issue, there is a clear difference between the interpretative role of the Court and grant of
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the reliefs sought consequent on the interpretation.
He stated further that in this matter on appeal, the Respondents had sought the interpretation of the relevant provision of the Registered Declaration (BSLN) 141 of 1979, the Traditional Rulers and Chiefs Law 1979, Section 6(b) of the Constitution of the Federal Republic of Nigeria 1999 as amended, as well as the order of Interlocutory Injunction granted in Suit No. HAF/15/2004 ? CHIEF KAYODE OJESEIME AJAKAIYE VS CHIEF JULIUS SEGUN OJEABUO & OTHERS for the determination of the question whether or not the Orake-Olila Ruling House has begun to enjoy its turn to produce the Ovie of Otuo or has in fact produced the Ovie and whether the Appellants can lawfully do any act that will have the effect of rendering the outcome of Suit No. HAF/15/2004 nugatory.
It was submitted on behalf of the Respondents that words of the instrument, statute and the order of interlocutory injunction were what were interpreted and that facts did not play a part.
He relied on the following cases:
– INAKOJU VS ADELEKE (2007) 2 MJSC Page 1 at 46.
– OYEFOLU VS DUROSINMI (2001) FWLR Part 69 Page
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1422 at 1424 ratio 3 and 1432 paragraphs G ? H.
The learned counsel for the Respondents finally urged the Court to hold that Originating Summons procedure was proper and suitable in the circumstances of this case and to resolve this Issue No. 1 in favour of the Respondents.
On Issue No. 2, he submitted that the Court interpreted and gave a community reading to the provisions of the Registered Declaration Exhibit ?A? and the Traditional Rulers and Chiefs Law of Bendel State 1979 applicable in Edo State.
It was also contended on behalf of the Respondents that before making its findings, the trial Court examined the provisions of Section 19 and 20 of the Traditional Rulers and Chiefs Law which prohibits the installation of any person as Traditional Ruler without the approval of the Executive Council and which also prohibits anyone permitting himself to be installed without the approval aforesaid. The punishment for violation of the law is two years imprisonment with or without option of fine.
He urged this Court to hold that the trial Court came to the proper conclusion when it held that the Orake-Olila Ruling House is yet
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to produce the Ovie and its ten year tenure has not begun to run. He urged that this Issue No. 2 be resolved in favour of the Respondents.
The first issue for the determination of the appeal is whether from the conflicting affidavit evidence of the parties there were no serious issues to make Originating Summons an unsuitable proceedings.
Originating Summons is used for non-contentious actions i.e. those actions where facts are not likely to be in dispute. Where facts are in dispute, Originating Summons procedure will not be appropriate.
See the following cases: –
– OSUNBADE VS OYEWUMI (2007) ALL FWLR Part 368 page 1004.
– INAKOJU VS ADELEKE (2007) 4 NWLR Part 1025 Page 423.
An action may be commenced by Originating Summons where
(a) The sole issue is one of construction of a statute or written law or deed or will or contract or an instrument made under any statute or written law or other documents or other question of law.
(b) Where the Rules of Court or any statute or written law specifically provides that such action are required to be commenced by Originating Summons for example the Fundamental
14
Right (Enforcement Procedure) Rules 1979 and certain applications under the Companies Proceeding Rules 1992.
(c)Where a statute or any written law provides for a right but does not specify means by which application may be brought under the same statute for example actions for prerogative order of certiorari, mandamus, prohibition, habeas corpus, judicial review and certain actions under the Companies Proceeding Rules 1992. It may be used also where a statute has not provided for it.
See the following cases: –
– AKUNNA VS ATTORNEY-GENERAL, ANAMBRA STATE (1977) 5 S.C.
16.
– BALONWU VS OBI (2007) 5 NWLR Part 1028 Page 488.
– DOHERTY VS DOHERTY (Supra).
– OLOYO VS ALEGBE (Supra).
– UNILAG VS AIGORO (Supra).
Where an action is commenced by an Originating Summons instead of Writ of Summons, the appropriate order to be made by the Court is to direct that pleadings be filed. But, if the facts are contained in an affidavit which has been controverted, the Court has a duty to invite the parties to adduce oral evidence to resolve the issues in controversy. See the following cases: –
– OSUNBADE
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VS OYEWUNMI (Supra).
– FALOBI VS FALOBI (1976) 9 ? 10 SC Page 11.
– DAPIANLONG VS LALONG (2007) 5 NWLR Part 1026 page 199.
– THE GOVERNOR OF KOGI STATE VS MOHAMMED (2009) 13 NWLR Part 1159 page 491 at 519 paragraphs D ? E.
In this appeal under consideration, the issue in controversy between the parties is the interpretation of the relevant provisions of the Registered Declaration BSLN 141 of 1979, the Traditional Rulers and Chiefs Law 1979, Section 6(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), as well as the Order of Interlocutory Injunction granted in Suit No. HAF/15/2004 ? CHIEF KAYODE OJESEIME AJAKAIYE VS CHIEF JULIUS SEGUN OJEABUO & OTHERS for the determination of the question whether or not the Orake-Olila Ruling House has begun to enjoy its turn to produce the Ovie of Otuo or has in fact produced the Ovie and whether the Appellants can lawfully do any act that will have the effect of rendering the outcome of Suit No ?HAF/15/2004 nugatory.
I have to point it out straightaway that facts are irrelevant in the interpretation of statute, instrument and the Order of
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Interlocutory Injunction.
In INAKOJU VS ADELEKE (Supra), the Supreme Court per Tobi JSC held among others that: –
?In Originating Summons, facts do not have a pride of place in the appeal. The cynosure is the applicable law and its construction by the Court.?
In this case, the custom of Otuo was irrelevant because a Registered Declaration is deemed to be the custom in relation to the process of nomination and selection and succession to the stool to which it relates and it prevails over any other custom or usage.
A careful reading of the affidavit deposed to by the Appellants would reveal that the facts have no bearing on the issue for determination in the case because the trial Court was to interprete relevant provisions of the Registered Declaration BSLN 141 of 1979, the Traditional Rulers and Chiefs Law 1979, Section 6(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), as well as an Order of Interlocutory Injunction.
In OYEFOLU VS DUROSINMI (Supra), the Supreme Court defined the limits of the powers of the Court in the exposition of the words of a registered declaration where
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the words used are clear and unambiguous thus: –
The Court has no power to breath into it matters that are not contemplated in the declaration. It must give effect to the unambiguous declaration of the provisions without adding anything thereto. When in the words of the declaration there is no ambiguity, then no exposition contrary to the expressed words is to be made.?
Therefore, I am of the view that Originating Summons Procedure was proper and suitable in the circumstances of this case.
On Issue No. 2, whether the trial Court was right in its interpretation of the Registered Declaration BSLN 141 of 1979 particularly paragraph 2 thereof.
The learned counsel for the Appellants stated that by virtue of Section 39 of the Traditional Rulers and Chiefs Law 1979 and the First Schedule thereto, the Ovie of Otuo is a recognised Traditional Ruler title. And succession to the title of the Ovie of Otuo is regulated and governed by a Registered
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Declaration embodied in the Bendel State Legal Notice (BSLN) 141 of 1979 and made pursuant to Section 3(1) under Part 2 of the Traditional Rulers and Chiefs Law 1979.
He contended that it is now settled law that where a declaration has been validly made in respect of a recognised chieftaincy and registered, it represents the applicable customary law regulating the selection and appointment of a candidate to a vacant chieftaincy and the provision of such a registered declaration shall prevail until amended.
The Registered Declaration (BSLN) 141 of 1979 which regulates succession to the title of the Ovie of Otuo provided in paragraph 2 as follows: –
?(2) Succession rotates around the Ruling House in order stated above and passes at the expiration of the tenth year of Ovie?s rule.?
The learned counsel for the Appellants contended that the tenure of the last Ovie of Otuo Chief Julius Leje-Elughe terminated on 18th day of December 2004 by virtue of the Edo State Legal Notice (ESLN) 5 of 1996 approving the appointment copied at page 32 of the Record of Appeal. He stated further that from the 19th day of December 2004, the right
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to produce an Ovie for Otuo accrued and became vested in the next Ruling House being Orake-Olila Ruling House in accordance with the Registered Declaration. Orake-Olila Ruling House whose turn it is to produce an Ovie for Otuo has been enmeshed in the litigation since 2004 when the right accrued to them in Suit No. HAF/15/2004.
The trial Court in interpreting paragraph 2 of the Registered Declaration (BSLN) 141 of 1979 to determine whether the litigation in Suit No. HAF/15/2004 has any effect on the tenure of the Ruling House held at page 123 of the Record of Appeal as follows: –
?I therefore hold that there has not been an Ovie on the throne since 2004 and the 10th year tenure has not started running in that the Registered Declaration regulating succession to traditional title of Otuo states in Section 2 that succession rotates around Ruling Houses and pass from one to the other at the expiration of ten years of an Ovie?s rule.
The Orake-Olila has not started enjoying the tenure as a result of litigation.?
The learned counsel for the Appellants submitted that the principle of
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interpretation or construction of a statute is that if the words of the statute are plain, precise and unambiguous, they should be given their ordinary and natural meaning and further that the principle of interpretation must be applied with liberalism not to defeat the obvious end of the statute.
In the instant appeal, I am of the view that the provisions of the Registered Declaration (Exhibit ?A?) and the Traditional Rulers and Chiefs Law of Bendel State 1979 are plain, precise and unambiguous, therefore should be given their ordinary meaning. And that is exactly what the lower Court did after considering and applying the provision of Sections 19 and 20 of the Traditional Rulers and Chiefs Law which prohibits the installation of any person as traditional Ruler without the approval of the Executive Council.
The law is already settled on interpretation of statute that the Court must first examine the ordinary literal meaning. The Supreme Court in the case of ATTORNEY-GENERAL, OGUN STATE VS ALHAJI A. ABERUAGBA & OTHERS (1985) 4 SC Part 1 Page 288 at 383 ? stated as follows: –
?In the interpretation of
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statutes, the ordinary literal meaning must first be examined. If the words are clear and unambiguous, then the ordinary literal meaning must be given to them, for then the intention of the law maker has not been obscured. It is only where there is doubt or ambiguity, that recourse is made to other cannons of interpretation.?
See the following cases: –
– AWOLOWO VS SHAGARI (1979) 6 ? 9 SC Page 51.
– BAKARE VS NRC (2007) 17 NWLR Part 1064 Page 639.
– ODUTOLA HOLDINGS LTD VS LADEJOBI (2006) 12 NWLR Part 994 Page 321 at 358.
– RIVERS STATE GOVERNMENT VS SPECIALIST KONSULT (2005) 7 NWLR Part 923 Page 145 at 179.
– UNIPETROL VS E.S.B.I.R. (2006) 8 NWLR Part 983 Page 624 at 641.
– IBRAHIM VS BARDE (1996) 9 NWLR Part 474 Page 513 at 577 paragraphs B ? C.
– OJOKOLOBO VS ALAMU (1987) 3 NWLR Part 61 Page 377 at 402 paragraphs F ? H.
As stated earlier, the language of the statues under consideration are precise, plain and unambiguous and the lower Court was right when it gave it its ordinary meaning before coming to its final conclusion as follows: –
?In conclusion, I
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hold and declare that the provisions of the Registered Declaration Bendel State Legal Notice (BLSN) 141 of 1979 otherwise known as the Declaration of Customary Law regulating succession of Traditional Ruler particularly paragraph 2 and 4 thereof and the provision of Sections 11, 13(1), 2(1)(C), 14(c), 19(3)(c), 20(1),(2)(b) of the Traditional Rulers and Chiefs Law, Section 6(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) the Orake-Olila Ruling House is yet to produce the Ovie and its ten year tenure has not begun to run.?
Therefore, Issue Numbers 1 and 2 are hereby resolved in favour of the Respondents and against the Appellants.
ISSUE NOS 3 AND 4 (Taken together)
?Whether the learned trial Judge was right to restrain the 2nd to 5th Defendants from performing or celebrating the traditional age grade festival in Otuo. (Distilled from Grounds 2 & 6).?
?Whether the proper parties were before the Court. (Distilled from Ground 4).
The learned counsel for the Appellants submitted that the order of injunction restraining
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the 2nd to 5th Appellants from commencing the process of nominating and installation of an Ovie in Otuo pending the determination of Suit No HAF/15/2004 is incongruous and made in vacuo. He relied on the case: – GREEN VS GREEN (2001) 1 FWLR Part 76 Page 795 at 810 ? 811.
He contended that the learned trial Judge ought not to have granted the injunction restraining the celebration of the age grade festival.
He urged that this Issue 3 be resolved in favour of the Appellants.
On Issue No. 4, learned counsel for the Appellants stated that the Registered Declaration Bendel State Legal Notice 141 of 1979 provided for six ruling houses in Otuo. He went further that the suit was initiated by the Respondents in a representative capacity for themselves and on behalf of the Orake-Olila Ruling House against the Appellants.
It was submitted on behalf of the Appellants that since order of the Court will affect the right of other Ruling Houses in Ovie of Otuo, the trial Court ought to invoke its powers under Order 16 Rule 3 of the Edo State High Court (Civil Procedure) Rules 2012 to join other Ruling Houses as Defendants. He relied on the case of: –
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EKPERE VS AFORIJE (1972) ALL NLR (Reprint) Page 224 at 229.
He therefore urged this Court to strike out the case as the proper parties are not before the Court.
Learned counsel finally urged that this appeal be allowed.
In his response, the learned counsel for the Respondents stated that the injunctive order against 2nd to 5th Defendants now Appellants was not made at large to restrain all age grade festivals. Rather, its scope was limited to ?any festival that would operate to commence the process of nomination and installation of an Ovie of Otuo.?
The order according to counsel for the Respondents serves the purpose of protecting the res.
?
On Issue No. 4, it was contended on behalf of the Respondents that the Appellants sued for themselves and on behalf of Otuo Council of Chiefs and Elders and Otuo Council of Chiefs and Elders is the body having the responsibility for the fixing of festivals of which the Igbogbe culminates in the passing out of an Ovie and the nomination of the next Ovie. The Respondents deposed to that fact and it was not controverted. See paragraphs 20 ? 23 of the Respondents? affidavit in
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support of the Originating Summons at page 5 ? 6 of the Record.
He contended that all the parties sought to be bound by the orders sought and granted are those joined in the suit.
Learned counsel for the Respondents therefore urged that Issues 3 and 4 be resolved in favour of the Respondents.
There is no doubt that the order made against the 2nd ? 5th Appellants was made to protect the res i.e. the right of the Orake-Olila Ruling House to produce the Ovie of Otuo. The right to produce the Ovie became vested in the 1st to 6th Respondents Ruling House when the former Ovie?s tenure expired. But the right to produce the Ovie is different from the actual commencement of the tenure of the ruling house. The commencement of the tenure would be consequent upon the nomination, selection and approval of the new Ovie by the Executive Council of Edo State.
?
The injunction sought by the Respondents was to protect the right of the Orake-Olila Ruling House to assume the stool when all legal impediments had been cleared. The approval of a nominee for the Ovieship of Otuo from the Orake-Olila Ruling House by the Executive Council of Edo
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State was one of the numerous contingent events that must occur before the Ovie of Otuo title can be said to be vested in the Orake-Olila Ruling House and the tenure of an Ovie from the said Ruling House can be said to have commenced. See ? AGBETOBA VS LAGOS STATE EXECUTIVE COUNCIL (1991) 4 NWLR Part 188 Page 664 at 687 paragraph F ? G.
In view of the foregoing, the order of injunction was properly made.
On Issue No. 4 concerning proper parties. The Appellants sued for themselves and on behalf of Otuo Council of Chiefs and Elders. There is uncontroverted evidence in the affidavit sworn to by the Respondents that the Otuo Council of Chiefs and Elders is a body having responsibility for fixing of festivals of which the Igbogbe culminates in the passing out of an Ovie and the nomination of the next Ovie. It was the body that engaged in plans and meetings to commence the said festival. It was therefore the body to be sued for the purpose of securing the rights of the Orake-Olila Ruling House to produce the Ovie of Otuo and ensuring that the said right is not defeated by premature succession to the stool by any other Ruling House.
?
In view
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of the foregoing, I am therefore of the view that the necessary parties to the suit were the Appellants who had the Responsibility to fix the festival. A necessary party is one without whose presence the Court cannot properly adjudicate on the issues before it. It is one whose presence is needed so as to be bound by the orders to be made in the suit. See ? GREEN VS GREEN (1987) NWLR Part 61 Page 481.
Consequent upon the foregoing, Issues 3 and 4 are hereby resolved in favour of the Respondents and against the Appellants.
With the resolution of Issues 1, 2, 3 and 4 in favour of the Respondents and against the Appellants, the appeal therefore lacks merit and it is hereby dismissed.
In the result, the Judgment of the lower Court in Suit No ?
HAF/19/2012 CHIEF DANIEL AIGBOVBIOSA & 5 OTHERS AND ATTORNEY-GENERAL & COMMISSIONER FOR JUSTICE & 4 OTHERS delivered on 8th day of April 2013 is hereby affirmed.
The Respondents are entitled to costs which is assessed as (N75,000.00) Seventy-five thousand Naira against the Appellants.
PHILOMENA MBUA EKPE, J.C.A.:
I have had the privilege of
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reading in draft the judgment just delivered by my learned brother J.O. BADA, JCA in which he dismissed the appeal for lacking in merit.
Having extensively dealt with the issues formulated by both counsels, I am in total agreement with the reasoning and conclusions of my learned brother in the lead judgment. Consequently, I too agree that this is unmeritorious and it is hereby dismissed.
I abide by the order as to costs.
HAMMA AKAWU BARKA, J.C.A.: I agree.
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Appearances:
MR. D.A. ALEGBE with him, I. BRAIMOHFor Appellant(s)
MR. MICHAEL OKOGHIE for 1st to 6th Respondents
MRS. OSA GAJA for 7th RespondentFor Respondent(s)
Appearances
MR. D.A. ALEGBE with him, I. BRAIMOHFor Appellant
AND
MR. MICHAEL OKOGHIE for 1st to 6th Respondents
MRS. OSA GAJA for 7th RespondentFor Respondent
