3PLR – AJAKAIYE V. IDEHAI

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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AJAKAIYE

V.

IDEHAI

IN THE SUPREME COURT OF NIGERIA

FRIDAY, 23RD SEPTEMBER, 1994.

SC .320/1990.

3PLR/1994/14  (SC)

 

OTHER CITATIONS

8 NWLR (PT. 364) 504

 

BEFORE THEIR LORDSHIPS

MOHAMMED BELLO, C.J.N. (Presided)

SALIHU MODIBBO ALFA BELGORE, J.S.C. (Read the Leading Judgment)

IDRIS LEGBO KUTIGI J.S.C.

SYLVESTER UMARU ONU, J.S.C.

ANTHONY IKECHUKWU IGUH, J.S.C.

 

BETWEEN

1. CHIEF PETER HIGO AJAKAIYE .
2. CHIEF JOHN EIHMIGBAI OMOKHAFE

(For themselves and on behalf of Orhila – Orake

Ruling House and Members of Otuo, Clan

Community except the fourth and fifth Defendants and their supporters)

 

AND

1. CHIEF AGBEBAKU IDEHAI
2. CHIEF JOHN ILAVBAOJE IBOI ESEKHOMO

 

REPRESENTATION

Kayode Sofola, ESQ. (with him, D.O. Coker, ESQ.) – for the Appellants

Chief Ojo Esemokhai – for 2nd Respondent

 

MAIN ISSUES

ACTION – Parties to an action – ‘Actio personalis moritur cum persona’ (A personal does not survive death) – Effect of maxim – When applicable – When not applicable.

ACTION – Parties to an action – Death of party to suit – Effect – When action subsists – When it does not.

ACTION – Representative action – Effect – Where named party dies – Whether action also dies – Option open to those represented.

ADMINISTRATIVE LAW – Chieftaincy declaration – Where validly made under enabling law – Limitation on power of court in respect of- Whether court can declare it null and void.

ADMINISTRATIVE LAW – Power conferred by statute on bodies other than courts – Whether court has jurisdiction to exercise such power.

ADMINISTRATIVE LAW – Statutory function – Where statute imposes function on an office – Whether court can exercise such function – Power of court it# respect of such function – Extent and scope.

APPEAL – Findings of fact by trial court – Attitude of appellate court thereto – When it will interfere therewith.

CHIEFTAINCY MATTERS – Chieftaincy Declaration – Where validly made Nature and efficacy of – Power of court in respect of – Extent and scope.

CHIEFTAINCY MATTERS – Chieftaincy Declarations on Ovie of Otuo chieftaincy in Edo State made in 1964 and 1979 – Validity of.

COURT – Chieftaincy Declaration – Where validly made under enabling law – Limitation on power of court in respect of – Whether court can declare it null and void.

COURT – Prayer not sought from court – Duty on court not to grant.

COURT – Statutory function – Where statute imposes function on an office Whether court can exercise such function – Power of court in respect of such function – Extent and scope.

COURT – Statutory function – Whether court has power to exercise.

JUDGMENT AND ORDER – Prayer not sought from court – Duty on court not to grant.

JURISDICTION – Chieftaincy Declaration – Where validly made under enabling law – Limitation on power of court in respect of – Whether court can declare it null and void.

JURISDICTION – Power conferred by statute on bodies other than courts Whether court has jurisdiction to exercise such power.

JURISDICTION – Statutory function – Where statute imposes function on an office ~- Whether court can exercise such function – Power of court in respect of such function- Extent and scope.

MAXIM – ‘Actio personalis moritur cum persona’ (A personal action does not survive death) – Effect of – When applicable – When not applicable.

PRACTICE AND PROCEDURE – Findings of fact by trial court – Attitude of appellate court thereto – When it will interfere therewith.

PRACTICE AND, PROCEDURE – Parties to an action -‘Actio personalis moritur cum persona’ – Effect of maxim – When applicable – When not applicable.

PRACTICE AND PROCEDURE – Parties to an action – Death of party to suit Effect – When action subsists – When it does not.

 

MAIN JUDGEMENT

BELGORE, J.S.C. (Delivering the Leading Judgment):

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 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.

 

2. 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.

 

3. 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 Onto 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.

 

4. 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) 19 79 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.

 

5. 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.

 

6. A perpetual injunction restraining the Defendants from holding 5^th 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 appointment of Own, 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:

 

1. Orlumba (also called Olumba)

 

2. Orlirla (also called Olila)

 

3. Amoya

 

4. Iyen (also spelt Iyewu)
5. lzhokha (also spelt Izioha)

 

6. 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 Government of Mid-Western Region of Nigeria by virtue of Section 4(2) Chiefs Law [ (Cap. 19 Laws of Western Region of Nigeria (applicable in Mid Western Region] made a Declaration (Exhibit 1) as follows:-

 

1. “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 lkbueran)

 

(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.”

 

(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 sub-quarters in such a manner that the selection of the quarter’s representatives shall from time to time rotate among the sub-quarters.

 

1. 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.

 

1. 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.

 

1. Consent to Appointment:

 

No one’s consent is required to an appointment to the Chieftaincy.

vii.     Tenure of Q)Tice:

 

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

 

By this Declaration time honoured practice of having Ovic 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 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 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 30tothe 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.

 

(b)     That there was no draft Otuo Chieftaincy Declaration on 23/1/57 but a meeting of the then lvbiosakon (no,” 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 foi 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 ofthe 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 six 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 77TLE 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 (OboUrere).

 

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

 

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

 

4. 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 Ovie’s 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.

 

5. 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 otherwise 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:-

 

“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 Ovic 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:-

 

1979. 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 seniofity, 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 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.

 

2. 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

 

3. 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)      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 M 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.

 

4. 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.2f were proper, correct and valid and in accordance with Otuo customary law regulating the succession to the traditional ruler title of Otuo.

 

5. 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.”

 

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, J.C.A. (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 his 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 (Exhibit’3′) based on Ofi I i 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 Ovieupto 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 Government’s 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 defacto the ruler of 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:

 

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.2’s 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 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 of0yo 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 Region’s 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):

“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 Ctuo.

 

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 government’s 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 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 appellant’s 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 their grounds of appeal formulated the following 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.”

 

Before the hearing of this appeal but after the appeal was filed, first plaintiff/ appellant Chief Peter Higo Ajakaiye died. We raised the effect of that death on the sustenance of this appeal, that is to say, whether the death of 1st plaintiff has not put an end to this matter, the matter being seemingly in personam. Kayode Sofola, Esq., for the appellants submitted that the matter subsists in that the action was in a representative capacity and that the issue of which house was to produce the next Civic of Onto is action in rem, not in personam He cited Adizua v. Isubua (1993) 5 NWLR (Pt. 295) 604; Adigun and Ors. Attorney -General of Oyo State (1987) 1 NWLR (Pt.53) 678; Oyeyemi v. Commissioner for Local Government, Kwara State (1992) 2 NWLR (Pt. 226) 661; and Poroho v. Aigbo (1990) 2 NWLR (Pt. 134) 566, 574. For the defendants/respondents, Chief Esemokhai, of counsel, insists the matter was dead since the demise of the 1st appellant and also relied on Adigun and Ors v. Attorney General of Oyo State (supra). We reserved our ruling to this judgment.

 

Looking at the claim, as in the statement of claim in paragraph 75, quoted earlier in this judgment, the pertinent sub-paragraph to the 1st plaintiff now deceased, is sub-paragraph 3 thereof which I quote again:-

 

“I A declaration that the 17th December, 1973 appointments of the

 

then incoming Onto Traditional Ruler and Traditional Chiefs whereby the first plaintiff was appointed the Ovie-elect (Ororoso) of Onto by Otuo Kingmakers presided over by the out-going Ovie of Own, Chief Igbauma Idehia, are correct, proper, valid and in accordance with Otuo customary Law regulating the succession to the Traditional Ruler Title of the Ovie (Ororosc,) of Otuo and that the First plaintiff be declared the lawful holder and validly appointed Ovie (Ororoso) of Onto being the one duly appointed by those entitled and empowered under Otuo Customary Law to appoint an Ovie (Ororoso) of Otuo.”

 

The other sub-paragraphs, for the purpose of this appeal are very much alive. The effect of the customary method of succession to the stool of Ovie of Otuo vis-à-vis the declaration of 1964 and that of 1979, and the relevant enabling law i.e. Chiefs Law, must still be considered. The question of whether the 1st plaintiff was to succeed to the stool died with him. I therefore find that the appeal is properly subsisting. Claim 3 quoted above is not the main claim, it is at best ancillary to the main claim and finally died with the 1st plaintiff/appellant.

 

Where there is a statutory provision for making an order or declaration, and the making of the same is reposed in a named office, whether Minister or Commissioner, or indeed whether President of the Republic or Governor of a State, such function cannot be usurped by the Court. The furthest a Court of Law can go is to declare as to validity or otherwise of that order or declaration of a public officer; but the court has not got the jurisdiction to take over the functions of such public officer by making its own order or declaration as against the statutory provisions. Learned trial Judge could nullify the declaration but no law permits him to make the alternative declaration; he was therefore in error to have substituted his own notion of how the declaration ought to be for that a public officer only could make under the Chiefs Law. (Adigun and Ors v. Attorney General of Ovo State (1987) 1 NWLR (Pt.53) 678. The Chief’s Law of Bendel State (No. 16 of 1979) clearly lays down the procedure for making a chieftaincy declaration and who is to make it. The Court is not to make such a declaration. Of great interest is that nowhere in the claim did the parties ask the trial Court to formulate for them a declaration. The function of the Court is to look into the areas of dispute between the parties and find where the law supports the facts as pleaded by the parties and then give judgment. It is not the function of a Judge to award remedy not asked for, he must confine himself to what the parties have put before him. Adii~un and Ors v. Attorne – v-General of Qvo State (supra).

 

Exhibits 15 and 18 are not declarations for the purpose of Chiefs La,” (supra) as they were never before the public officer statutorily empowered to make declarations. All these, in short, mean that trial Judge overlooked a fundamental principle of our adjudication process that a Court hears no prayers than those put before it. (Obionia v. 01omu (1978) 3 S.C. 1; Elumeze v. Elunie:e (1969) 1 All NLR 311; Chief Registrar v. Vamos (1971) 1 S.C. 33; Obayagbona v. Obazee (1972) 5 S.C. 247.

 

The appellate Court, it has been repeatedly held, must be wary of setting aside findings of fact by trial Judge. That principle subsists up to now in law. But not all such findings of fact can be found to stand to this principle. If findings are based on matters not pleaded or evidentially not admissible or are perverse the appellate court will do substantial justice to set them aside. Exhibits 15 and 18, documents of no substance to the case, form the basis for the findings of the trial Court on rotation of the stool of Ovie of Otuo. Court of Appeal was absolutely right to have set aside the findings. (Aladegbemii-.Fasanmade(1988)3NWLR(Pt.81I 129; Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt.70) 325; Ogbet hie v. Onochie (1986) 2 NWLR (Pt.23) 484; Oilfield Supply Centre Ltd. v. Johnson (1987) 2 NWLR (Pt.58) 625; Ekwunife v. Wayne (WA) Ltd (1989) 5 NWLR (Pt.122) 422.

 

On the appeal itself the declaration of 1964 as well as that of 1979 was validly made after an inquiry as demanded by Chiefs Law (the enabling statute) and was made by the public officer empowered so to make the declaration. There was ample evidence before the trial court, which Court of Appeal highlighted that there were always disputes in the appointment of the Ovie of Otuo; and from paragraph 13 of Exhibit 16, a colonial District Officer’s Report, the rotational system was set and not in dispute, but there was no particular order of rotation among the villages or quarters from 1870 to 1901 and it was after 1901 that a pattern of rotation emerged which found favour in the declarations of 1964 and 1979. There were dissents and petitions on 1964 declaration, but for that period up to 1979 that was the law. By the 1979 declaration the matter was settled once and for all. As Ogundare, J.C.A. (as he then was ) said in his lead judgment, to wit.

 

“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 Otuo 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 Conflinission and I am of the view that the government’s 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 I aw of Oruo 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 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 appellant’s appointment being in accord with the existing declaration and the law – The Traditional Ruler and Chiefs Law, 1979, the appointment was valid and the trial Judge was wrong to declare it invalid.”

 

There was nothing in law to fault in 1979 declaration and it is valid. This appeal therefore lacks merit and it is in its entirety dismissed. lawardNI,000.00 costs against the appellants in favour of each set of respondents.

 

BELLO, C.J.N: I have read the lead judgment of my learned brother, Belgore, J.S.C. I agree with his reasoning and conclusion that the appeal should be dismissed.

 

I shall only add that the declaration under section 8 of the Traditional Rulers and Chiefs Law 1979 of Bendel State was the law at the material time regulating succession to the title of Ovie of Otuo. The declaration had the force of law and a court of law had a duty to give effect to it and enforce it. It could only be invalidated or declared void, if it was inconsistent with the provisions of any Law or with any of the provisions of the Constitution. The trial Judge declared it void when there was no such inconsistency. The Court of Appeal quite rightly set aside his decision.

 

KUTIGI, J.S.C.: I have had the opportunity of reading in advance the judgment just delivered by my learned brother BeIgme, J.S.C. I agree with his reasoning and conclusions. The appeal is dismissed with costs as assessed.

 

ONU, J.S.C.: Having had the privilege of reading in draft the judgment of my learned brother Belgore, J.S.C. just delivered, I agree with it that the appeal lacks merit and ought to fail.

 

I wish to add byway of emphasis the following contribution of mine. The two plaintiffs, herein applicants, sued five defendants, two of whom (i.e. 4th and 5th are now respondents – the 1st, 2nd and 3rd defendants having declined to take any further part in the proceedings after the judgment of the High Court of the then Bendel State holden at Auchi – claiming, among other reliefs, what I regard as a most prolix statement of claim abridged herein as follows:

 

“(1)   A declaration that the order of rotation of Otuo Ruling Houses as contained in the draft Chieftaincy declaration of 23/1/1957 and as amended in the 15/9/1979 draft Otuo Chieftaincy declaration which makes the rotation of Otuo Ruling Houses to be in accordance with the descending order of the traditional order of seniority of the Onto 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 Otuo and that the said 15th September, 1979 draft Otuo Chieftaincy Declaration be declared and registrable 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.

 

(2)     A Declaration that:

(a)     The registered Otuo 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 Ovic 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.

 

(3)     A Declaration that the 17th December, 1973 appointments of the then incoming Otuo Traditional Ruler and Traditional Chiefs whereby first plaintiff was appointed the Ovie-elect (Ororoso) of OtuQ by Otuo Kingmakers presided over by the out-going Ovie of Otuo, Chief Igbaurna 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 Otuo and that the first plaintiff be declared the lawful holder and validly appointed Ovie (Ororoso) of Otuo being the one duly appointed by those entitled to and empowered under Otuo Customary Law to appoint an Ovic (Ororoso) of Otuo.

 

(4)     A Declaration that the appointment and approval of the Fifth defendant as the Ovie of Onto 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.

 

(5) X X X X X X

 

(6)     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 Onto qualified to head the next Kingmakers in the appointment of the succeedingOvie (Ororoso) of Otuo with his Traditional Chiefs.” The. facts of the case have been so comprehensively and admirably set out in the lead judgment of my learned brother BeIgore, J.S.C. that l do not in any way intend to repeat them.

 

Pleadings having been ordered and filed, the parties amended their statements of claim and defence, the latter in which the 4th and 5th defendants made certain admissions pertaining to the rotational nature of the appointment of Otuo, to wit: that the custom of Otuo was that the Ovie should reign for a single term of ten years and any individual so appointed shall not be installed for a second term. In other words, that the Ovieship of Otuo is not monarchical or hereditary but an office held for a single term of ten years albeit that the differential in what name to call it – OrorosoOTOViC, the fact that its term is for ten years makes for abdication instead of for life and that being agreed to by all, ensures its enduring features.

The two plaintiffs/appellants testified and called five witnesses in support of their case while seven witnesses in all including 5th defendant/respondent gave evidence for the defence. In a reserved judgment, Akpovi,J (as he then was) found for the plaintiffs/appellants, and ordering in conclusion –

 

3. That the following are hereby declared null and void as being inconsistent with the procedure of the Chieftaincy Customary Law of Otuo: (a) The registered Otuo Chieftaincy declaration of Otuo of 1964 Exhibit 1. (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 M 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 Onto

 

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

 

5. That the appointment of the 5th defendant as the Ovie of Otuo was also null and void.” As the 5th defendant had already left office by the time of this 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 outgoing or retiring Ovie or Ormoso of Otuo and from regarding himself as head of the next set of kingmakers for the appointment of the next Ovie or Ororoso of Otuo and his traditional Chiefs ………………….

 

Aggrieved by the trial court’s decision the defendants/respondents successfully appealed to the Court below, which set aside the decision obtained by the plaintiffs/appellants with costs. As earlier pointed out, the 1st to 3rd defendants/ respondents took no further part in the proceedings after the judgment of the trial court, while 1st plaintiffs/appellant was shown to have died, leaving 2nd plaintiff/ appellant. It was also subsequently shown that 4th defendant/respondent also died. However, in their appeal from the court below to this Court in the following four issues were submitted on the plaintiffs/appellants’ behalf for our determination, to wit:

 

1. Whether the court below was in error when it held that the 1964 Chieftaincy declaration, Exhibit I in this case, was properly made, and that it therefore had 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 1979 were null and void.

 

4. Whether the court below was not in error when it overruled 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. The defendants/respondents also submitted four issues which overlapped plaintiffs/appellants and I do not consider it necessary to set them out herein.

 

I propose to deal only with issues I and 2 briefly hereunder as they form the kernel of arguments canvassed before Lis and represent what I consider the most crucial of the issues for our determination of the appeal herein.

 

ISSUE I –

 

In considering the argument put forward by the appellants with regard to this issue, it is pertinent first to cast one’s mind back to the declarations sought by them in the trial Court. The declarations they were seeking as regards the 1964 Otuo Chieftaincy declaration and the Bendel State Legal Notice (BSLN 141 of 1979) i.e. declaration of the Customary Law Regulating Succession to the Traditional Ruler Tide of Ovie of Otuo as contained in paragraph 2 of the Statement of Claim, were not as to whether they were validly made or registered but the challenge was on the ground that they were contrary to the customary law regulating the order of rotation and the succession to the Traditional Ruler Title of the Ovie of Otuo. Indeed, there the appellants averred that the 1964 and the 1979 declarations were not registered. As a matter of fact to prove their registration, the appellants called P.W. 1, a Government Official to tender the two Registered Declarations as Exhibits I and 2respectively. It is noteworthy that as appellants’ witness, P.W.1 was not asked by them whether Exhibits I and 2 were indeed properly registered. The case put forward by the appellants was that they had no knowledge of the contents of Exhibit

 

I when it was made and that it was surreptitiously made. In that regard, they have argued that Exhibit I does not indicate the date it was made, the name of the Chairman and Secretary, suggest that those two officials signed the document, indicate the name of the person who was supposed to have signed for the Permanent Secretary to the Ministry of Chieftaincy Affairs and whether, indeed, such a person ever signed the document. Since there was never a time in the trial court that there was a challenge to the validity of Exhibits I and 2 but rather that the 5rderof rotation did not follow the order of seniority, the learned trial Judge was wrong when he declared unsolicited and suo motu that:

 

“The following are hereby declared null and void as being inconsistent with procedure of the Chieftaincy Law and Chieftaincy Customary Law of Otuo:

 

(a)     The Registered Otuo Chieftaincy Declaration of Otuo of 1964 Exhibit 1.

(b)     The decision contained in the Bendel State Government White Paper on the Report of the Offili Commission of Enquiry into the disturbances in Otuo, Exh. 3

 

(c)     The Bendel State Legal Notice No. 141 of 1979 as per Exh. 2, a declaration of the Customary Law relating to succession to the Traditional Ruler Title of the Ovie of Otuo.”

 

In coming to the above conclusion, erroneously though, the learned trial Judge had lost sight of the claim of the plaintiffs before him especially with regard to the declaration they sought -See under Declaration 2(a) (b) and (c) set out above. It ought to be home in mind that a court is to grant to a litigant what he claims and not to act like Father Christmas, doling out what has not been asked for. See Ekpenyong v. Nyong (1975) 2 S.C. 71 at 80; Obionza v. Olonut (1978) 3 S.C. I and Makanjuola v. Balogun (1989) 3 NWLR (Pt. 108) 192 at 206. Indeed, it is trite law that a litigant cannot be given a relief he did not ask for. See S.C.OA. (Motors) Onitsha v. Abumchukwu (1973) 4 S.C. 51 at 59-60; John Ezeigbo v. The Lion of AfficaIns. Co. Ltd. (1966-67) 10 ENLR. 180. It was never a dispute submitted for arbitration before the trial court that Exhibit I was fully registered as required by Section 8(l) of the Chiefs Law. With its registration, it is deemed to be the Customary Law regulating the selection of a person to be the Ovie of Otuo to the exclusion of any other customary usage or rule until repealed. The argument proffered by the appellants that they were not aware of Exhibit I is untenable as ignorance of the law is not excuse. The Court below (per Ogundare, J.C.A. as he then was) was therefore correct, in my view, when it held inter alia as follows:”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 Onto laying down the order, by seniority of groups of villages or quarters of rotation for 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 government’s decision ought not 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 superimpose 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 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 Civie had always ruled for 10 years and then replaced. To that extent the 1964 declaration was 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 appellant’s appointment being in accord with the existing declaration and the law, the Traditional Rulers and Chiefs Law, 1979, the appointment was valid and the trial Judge was wrong to declare it valid.”

Issue I is accordingly resolved against the appellants.

 

ISSUE 2

 

The answer to this issue must perforce unequivocally be in the negative. This is so as the court cannot under any guise exercise its jurisdiction outside the powers conferred expressly by the legislature on bodies other than courts outside the courts’ judicial authority as enacted in sections 6 and 236 of the 1979 Constitution of the Federal Republic of Nigeria, as amended. Now, Sections 3,4 and 5 of the Traditional Rulers and Chiefs Law, 1979 No. 16 of 1979 of the defunct Bendel (now Edo) State laid down the procedure for making a Chieftaincy declaration. This law gives to the various bodies of persons functions to perform and the courts cannot usurp such powers and functions and start on their own to draw up chieftaincy declarations based on their findings in open court as happened on this occasion.

 

What the learned trial Judge in the instant case had indeed done was to usurp the functions of the law making body – in this case, the lvbiosakon District Council – by drawing up a chieftaincy declaration for the people of Otuo. As Omololu Thomas, J. C.A. aptly put in the Adigun and Others v. Attorney-General, Oyo State, suit No. CA/1/154/84 of 5th December, 1985, a dictum approved by this Court in Adigun & Others v. Attorney-General, Oyo State (1987) 1 NWLR (Pt.53) 678 and recently re-stated also by this Court in Eguamwense v. Aniaghizenriven (1993) 9 NWLR (Pt. 315) I at page 4 1:

 

“It is not the business of the court to make declarations on Customary Law relating to the selection of Chiefs under that law, the exercise of such functions is not directly related to the general jurisdiction of the Courts under, Section 236 of the Federal Constitution of 1979 so long as the powers exercised under the law is within its four comers and is exercised in good faith as being a power lawfully conferred by the legislature ( Carltona Ltd v. Commissioners of Works (1943) 2 All ER 560 at 564 per Lord Green M.R. In the exercise of the courts judicial function under Section 236of the Constitution, orders, declaratory of the functions or powers under the law can be made for example with a view to determine the validity or otherwise of the existence of a particular custom, in contradistinction from the making of “DECLARATION’ as a form of sub-legislation under the law.”

 

The court below was therefore, in my firm view, right to have held that the learned trial Judge was in error to have drawn up a declaration for0tuo people. The learned Judge could, where appropriate and if moved, declare a Chieftaincy Customary declaration null and void. Aku v. Aneku (1991) 8 NWLR (Pt.209) 280.

 

It remains to consider the point we raised regarding what effect the reported death of the 1st plaintiff/appellant, Chief Peter Higo Ajakaiye, before the hearing of this appeal but after the appeal was filed, has upon its sustenance or its abatement moreso, that the case in hand is seemingly in per sonant. Generally, a dead person is no longer in the eyes of the law a person but in the eyes of the law, he is a person who ceased to have any legal personality from the date of his death and as such, can neither sue nor be sued personally or in representative capacity. The personality of a human being is extinguished by this death. The common law principle expressed in the maxim action personalis moritur cum persona presupposes a cause of action arising when both the plaintiff and the defendant are alive and will regard the cause of action as ceased upon the death of either the plaintiff or the defendant. See Kareent v. Wema Bank Ltd. (1991) 2 NWLR (Pt. 174) 485 C.A.; Akunmoju v. Mosadolorun (1991) 9 NWLR (Pt. 214) 236 C.A. and Hodge v. Marsh (1936) A.E.R. 484.

 

In the case in hand, learned counsel for the plaintiffs/appellants, Mr. Kayode Sofola, submitted that the case subsists in that the action was commenced in a representative capacity and that the issue of which house was to produce the next Ovie of Otuo, is an action in rem and not in Personam. He cited in support of his proposition the cases of Akezua v. Isubvit (1993) NWLR (Pt.295) 604, where the party asking for a declaration of customary rights died and the application by someone who wished to continue the suit but whose relationship to the deceased could not be shown, was refused; Oyeyemi v. Commissioner for Local Government, Kwara State (1992) 2 NWLR (Pt. 226) 747, where an application was made following the death of the 5th defendant in a case under Chief’s (Appointment and Deposition) Law of Northern Nigeria (applicable to Kwara State) and it was held, allowing the appeal, that personal action in that regard died with the person; and also in Porobo v. Ngbo (1990) 2 NWLR (Pt. 134) 566, 574 in which it was stated by the Court of Appeal, following the decision of this Court in Okonji v. Njokannia (1989) 4 NWLR (Pt.114) 161 at 166-7 that when an action is instituted in a representative capacity and or against persons in a representative capacity that action is not only by or against the named parties. They are also by and against those the named parties represent. And so, if all the named parties die the action still subsists on behalf of or against those they represent but who have not been stated nominees. For the defendants/respondents, Chief Esemokhai, submitted that the matter was dead since the death of 1st appellant. He relied on Adigun & ors. v. Attorney-General of Ova State (supra).

 

Now, sub-paragraph 3 or Declaration 3 in paragraph 75 of the plaintiffs/ appellants’ statement of claim states:

 

“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 Otuo, Chief Igbauma Idehia, are correct, proper, valid and in accordance with Otuo Customary Law regulating the succession to the Traditional Ruler Title of the Ovie (Ororoso) of Otuo and that the first plaintiff be declared the lawful holder and validly appointed Ovie (Ororoso) of Otuo being the one duly appointed by those entitled and empowered under Otuo Customary /am, to appoint an Ovie (Ororoso) of Otuo.”

 

The 1st plaintiff/appellant having died between the date of the decision by the court below and the hearing of this appeal on 28th June, 1994, that an application was not made for someone alive to be substituted in his (deceased’s) place, is not, in my respectful view, fatal to the case. The cause of action will therefore not cease upon 1st appellant’s death since it was commenced in a representative capacity, he “being the one duly appointed by those entitled and empowered under Otuo Customary Law to appoint an Ovie (Ororoso) of Otuo.” After the death of the 1st appellant not only has 2nd appellant survived him, but by the very nature of the action, the Ovie Community’s interest in it made it to subsist, albeit that where a situation had arisen that both plaintiffs/appellants had died, an application by mem6ers of the Ovie community, especially the Orhila-Orake Ruling House, if they applied to be substituted for them, would rightly and legally step into their shoes to prosecute the case or appeal. Moreover, 1st and 2ndplaintiffs/appellants had sued 5th defendant respondent jointly in his personal capacity. Since the appointment of 5th defendant/respondent as Ovie or Otuo (4th defendant having died) was the matter in contest and it was the amendment of the Ovie Chieftaincy Declaration that gave rise to the case in hand and the other claims were ancillary thereto, Claim 3 set out above did not abate with the demise of 1st plaintiff/ appellant.

 

The result of all I have been saying is that the decision of the court below not having been impugned or faulted, this appeal be and is also dismissed by me. I award N1,000 costs to the respondents.

 

IGUH, J.S.C.: I have had the opportunity of reading in draft the judgment just delivered by my learned brother, Belgore, J.S.C. and I agree entirely with the reasoning and conclusion therein.

 

This appeal lacks merit and I too, will dismiss it with N1000.00 costs to each set of respondents against the appellants.

 

Appeal dismissed.