Status of Codified Customary Law Regulating Succession to a Throne

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 19th day of July, 2024

Before Their Lordships

Mohammed Lawal Garba

Emmanuel Akomaye Agim

Chioma Egondu Nwosu-Iheme

Haruna Simon Tsamani

Jamilu Yammama

Justices, Supreme Court

SC.147/2014

Between

PRINCE RASAK YESUFU OGIEFO         APPELLANT 

              And

1.  HIS ROYAL HIGHNESS JAFARU ISESELE 1

    ONOGIE OF EWU

2. THE PERMANENT SECRETARY, DIRECTORATE

     OF LOCAL GOVERNMENT AND CHIEFTAINCY AFFAIRS

3.  ATTORNEY-GENERAL & COMMISSIONER 

     FOR JUSTICE, EDO STATE

4.  PA IJIBOR ONI OJIEFO

5.  CHIEF OHUE INEGBE

6.   CHIEF IKHALEA EBARE    RESPONDENTS

(Lead Judgement delivered by Honourable Emmanuel Akomaye Agim, JSC)

Facts

Following the demise of His Royal Highness Isesele Ojiefo II, the then Onogie of Ewu, on 6th August, 1997, a dispute arose as to who should succeed the late Onogie between the Appellant who is the late Onogie’s grandson by his oldest male child who predeceased the late Onogie, and the 1st Respondent – the late Onogie’s oldest surviving male child. Consequently, the 1st Respondent filed an action at the High Court of Edo State by a writ of summons dated 5th June, 2000, seeking inter alia, a declaration that he is the legitimate successor of the late Onogie of Ewu. He claimed that as the eldest surviving male child of the late HRH Isesele Ojiefo II, he is entitled to succeed his father as the Onogie of Ewu based on Ewu customary law as codified in the Bendel State Legal Notice 1979 (“BSLN 1979”) which establishes that succession to the throne of Onogie of Ewu is by primogeniture. 

The Appellant and the 2nd and 3rd Respondent filed their joint statement of defence and together with the 4th -6th Respondent, they counter-claimed for a declaration that the Appellant is the legitimate successor of the late HRH Isesele Ojiefo II. The Appellant claimed that he is entitled to succeed his grandfather as the Onogie of Ewu because by Ewu customary law, succession to the throne of Onogie of Ewu is not strictly based on primogeniture, and all surviving adult males from the Ogiefo ruling house are eligible to ascend the throne if they perform all the necessary customary rites. 

After the conclusion of trial, the trial court delivered its judgement, in which it granted the 1st Respondent’s claims and dismissed the Appellant’s counter-claim. 

Dissatisfied, the Appellant and the 2nd and 3rd Respondent appealed to the Court of Appeal. The 1st Respondent cross-appealed against the failure of the trial court to nullify the Edo State Legal Notice No. 1 of 2004 (Declaration of Customary Law Regulating Succession to the Throne of Ewu) enacted during the pendency of the suit at the trial court. The 4th- 6th Respondent on their part, cross-appealed against the dismissal of their counter-claim

The Court of appeal dismissed the appeal and affirmed the judgement of the trial court; allowed the 1st Respondent’s cross-appeal and dismissed the cross-appeal of the 4th- 6th Respondent. Aggrieved, the Appellant appealed to the Supreme Court. The 4th- 6th Respondent also cross-appealed against the decision of the Court of Appeal allowing the 1st Respondent’s cross-appeal.

Issues for Determination in the  Main Appeal

In determining the main appeal, the Supreme Court adopted the following issues raised by the Appellant:

i. Whether the Court of Appeal was right in holding that the stool of the Onogie of Ewu could in the circumstances and facts of this case be subject only to the Rule of primogeniture and no other rule.

ii. Whether the Court of Appeal was right in affirming the decision of the Edo State High Court, particularly when it upheld the ‘inviolability’ of the Bendel State Legal Notice. No. 70 of 1979 made pursuant to the Traditional Rulers and Chiefs Law 1979 and utilised same to deflect the overwhelming evidence of Ewu Native Law and Custom.

iii. Whether the Court of Appeal was right in affirming the judgement of the Edo State High Court that the 1st Respondent is the legitimate successor to the throne of Onogie of Ewu, when traditional evidence on Ewu Native Law and Custom pointed otherwise in the direction of the Appellant and by so holding occasioned a grave miscarriage of justice.

Arguments

On the 1st and 2nd issue, Counsel for the Appellant argued that succession to the throne of Onogie of Ewu is not strictly based on primogeniture, but rather on a broader customary practice where all surviving adult males from the Ogiefo ruling house are eligible to ascend the throne, provided they fulfil the necessary customary rites. Counsel submitted that the Court of Appeal was wrong when it held that the stool of the Onogie of Ewu, could only be subject to the rule of primogeniture and no other mode of succession. Counsel further argued that the Court of Appeal was wrong when it affirmed the decision of the trial court upholding the inviolability of the Bendel State Legal Notice. No. 70 of 1979 (“BSLN 1979”),and applying the same to grant the 1st Respondent’s claim. 

Conversely, Counsel for the 1st Respondent submitted that the Court of Appeal was right to have upheld the finding of the trial court that, by Ewu native law and custom codified in the BSLN 1979, the only mode of succession to the throne of Onogie of Ewu is by primogeniture.

On the 3rd issue, Counsel for the Appellant argued that the Court of Appeal erred and occasioned a miscarriage of justice, when it affirmed the judgement of the trial court that the 1st Respondent is the legitimate successor to the throne of Onogie of Ewu. 

Responding, Counsel for the 1st Respondent submitted that the Court of Appeal rightly held that the 1st Respondent, being the eldest surviving male child of the late HRH Isesele Ojiefo II, is the heir apparent to succeed the late king as Onogie of Ewu.

Court’s Judgement and Rationale

In resolving the 1st and 2nd issues, the Supreme Court observed that that there was no ground of appeal that complained against the concurrent holding of the Court of Appeal and the trial court that, the BSLN 1979 having been made validly under Section 8 of the Traditional Rulers and Chiefs Law 1979 and so registered, and not being inconsistent with the Constitution, is the applicable codification for determining Ewu customary law on succession to the throne of Onogie of Ewu. The Supreme Court held that it is a well-established legal principle that any decision, holding, or finding not appealed in a challenge to a judgement —such as in the Appellant’s case—is deemed correct, conclusive, and binding on the Appellant. The Apex Court relied on its decision in CPC v INEC (2011) 18 NWLR (PT. 1279) 493.

The Supreme Court went further to hold that that it is settled law that a codified or enacted or registered declaration of customary law has statutory force and remains the exclusive determinant of what the relevant customary law is, and the existence of such codified or enacted customary law does not require proof by evidence. The Court referred to the provision of Section 11 of the Bendel State Traditional Rules and Chiefs law 1979 that “where a declaration in respect of a traditional ruler is registered or re-registered under this Edict, the matters therein stated (including any recommendation under paragraph (b) of subsection 2 of Section 3 of the Edict) shall be deemed to be the customary law regulating the selection of a person to be the holder of that traditional ruler title, to the exclusion of any other customary usage or rule”.

On the whole, the Supreme Court found that there being no ground of appeal complaining about the finding of the Court of Appeal upholding the exclusive applicability of the BSLN 1979 in determining Ewu Customary Law on succession to the throne of Onogie of Ewu; the Appellant’s 1st issue which contended that the Court of Appeal was wrong to have upheld the finding of the trial court that succession to the throne of Onogie of Ewu is governed by the rule of primogeniture and 2nd issue that contended that the Court of Appeal was wrong when it upheld the judgement of the trial court that the BSLN 1979 is consistent with Ewu customary law, are incompetent and invalid. 

On the 3rd issue, the Supreme Court held that under Ewu Customary Law as declared and enacted in BSLN 1979, succession to the throne of Onogie of Ewu is by primogeniture, and if an Onogie dies without a surviving male child, succession to the vacant stool passes to the eldest surviving brother and his heir. The Apex Court held that in the instant case, the late Onogie of Ewu was survived by the 1st Respondent as the eldest surviving male child, hence, he is the heir-apparent. The Court further held that assuming the late Onogie had no surviving male child; his grandsons cannot be in the line of succession, as the succession would pass to the surviving eldest brother as the heir apparent. Therefore, the only person entitled to succeed the late Onogie of Ewu is the 1st Respondent as his eldest surviving male child, and being the heir apparent, he is the only person entitled to step forward to perform the rites and ceremonies necessary for ascension to the throne of Onogie of Ewu as provided in Section 4 of the BSLN 1975. 

The Apex Court held that the Appellant who is a grandson of the late Onogie of Ewu is not, and cannot be the heir apparent to the throne of Onogie of Ewu, following the demise of his grandfather, HRH Isesele Ojiefo II. 

Resolution of the Cross-Appeal

In resolving the 4th, 5th and 6th Respondent’s cross-appeal, the Supreme Court held that the BSLN 1979 which had never been challenged since it was made, remains the prevailing and exclusive law that declares the Ewu customary law on succession to the throne of Onogie of Ewu, and determines the heir apparent to the throne. 

The Apex Court held that the enactment of the Declaration of the Customary Law Regulating Succession to the throne of Onogie of Ewu by the Edo State House of Assembly in 2004 during the pendency of the suit at the trial court, to amend the BSLN 1979 to include the grandson of a deceased Onogie as heir apparent to the throne is contrary to Esan Native Law and Custom applicable in Ewu and thus, of no legal effect. 

The Supreme Court approved the Court of Appeal’s finding and reliance on the decision of the Apex Court in GOVERNOR OF LAGOS STATE v OJUKWU (1986) 1 NWLR that once a dispute has arisen between a person and Government or authority and the dispute has been brought before the court, thereby involving the judicial powers of the State, it is the duty of the Government to allow the law to run its full course and not resort to self-help.

Ultimately, the Supreme Court held that the holding of the Court of Appeal concurring with the holding of the trial court was not challenged by any ground of the main appeal or the cross-appeal, hence, the parties are deemed to have accepted it as correct, conclusive and binding on them. 

Appeal Dismissed. Cross Appeal Dismissed.

Representation 

Adedayo Adedeji, SAN and others for the Appellants.

K. O. Obamogie, SAN and others for the 1st Respondent.

Prof Ambrose Ekpu and another the 4th to 6th Respondent.

Oluwole Osaze Uzzi, Attorney-General (AG) Edo State and another for the 2nd and 3rd Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)