Lucky Obukohwo Reporting
Not well pleased with the May 8, 2023 judgment of the Chief Judge of Edo State, Justice Daniel Okungbowa which struck out the suit between the different sub-ruling houses of Ikelebe Family of Auchi, Edo State, the claimants have headed to the Appeal Court, Benin to challenge the decision of the Benin High Court.
The appellants who listed seven grounds of appeal want the Benin appellate court to set aside the judgment of the Benin High Court in suit No.B/329/2018 between the claimants Mamudu Ikharo, Yahaya Ikharo against the Attorney General, Edo State; Permanent Secretary, Ministry of Local Government Affairs; and the Otaru of Auchi, His Royal Majesty, Alhaji Haliru Momoh.
Faulting Justice Okungbowa, counsel to the claimants, Mr. Dan Okoh (SAN) argued that the trial judge erred when he relied on the case of the Secretary Local Government V. Oyinloye (2020) when in dismissing the action, he held: “In the circumstances and on the authority of the Court of Appeal case cited above, this Court is obliged to hold that this action of the claimants is statute barred except there is either a latter Court of Appeal decision or a Supreme Court decision to the contrary.”
Mr. Okoh said that the Secretary’s case neither had anything to do with the Native Law and Custom of the claimants nor with the inheritance and entitlement to the throne, noting that the case is materially distinct from the Claimants’ case which is insisting on their inheritance to the throne of Otaru of Auchi and prayed the Court for strict compliance with the Traditional Rulers and Chiefs Law 1979.
While maintaining that the claimants’ claim is not challenging the installation of the present Otaru of Auchi, His Royal Majesty, Alhaji Haliru Momoh, he insisted that they (claimants) are demanding for the striking down of a Legal Notice that violated the Customary Law of Auchi people as contained in Exhibit D which all the parties agreed codified the Native Laws and Customs of Auchi Sacred Kingdom.
Again, he pointed out that the chief judge erred in law when he relied on Ibrahim V. Lawal (2015) 17 NWLR (PT.1489) 490 to dismiss the claim on the ground of statute of limitation it being a chieftaincy matter, noting that the facts in Ibrahim v. Lawal dealt directly with a declaration of the appointment of the claimant as the King of Okene.
He explained that their major claim deals with how the next monarch is to be produced and never in anyway challenged the appointment and installation of the third defendant as the traditional ruler and there is no relief praying for his removal therefrom.
Besides, he argued that the chief judge made a mistake when he held that an action to enable other sub-ruling houses to produce the next Otaru of Auchi when there is a reigning royal father as futuristic and therefore hypothetical and academic which the court has no jurisdiction to entertain.
Counsel to the claimant contended: “This finding failed to take cognizance of the other main reliefs claimed by the claimants. There is nothing academic in praying that a Legal Notice issued in breach of the parent Law is illegal, null and void.”
Okoh said that the judgment was not supported by available facts and relevant principles of law as the judge misapprehended the entire issues for adjudication, adding that there was lack of proper evaluation of both oral and documentary evidence as principles of law were wrongly applied.
He insisted that the judge also erred when he held thus: “In the circumstances and the authority of the Court of Appeal case cited above, this court is obliged to hold that the action is statute barred.”
Okoh explained that the principal relief sought by the claimants is for the court to decide Article 2 and 4 of Bendel State Legal Notice 133 of 1979 relating to the throne, non-consistent with the traditional rulers and Chief Edict 1979 as the said legal Notice being inconsistent with the Chiefs Edict 1979 is null and void and can be set aside at any time.
He added: “An Act that is null and void can be set aside at any time. Lapse of time cannot validate an instrument or an order that is void. The court applied wrong principle of law and legal authority in arriving at the decision.”
He countered: “Those that are affected by the said legal notice at present and in future are within their right to seek redress from court to avoid a future. Failure to challenge the legal notice by those it will affect in future will amount to acquiescence. The issue canvassed is not academic.”
No date has yet been fixed for the hearing.
