ONASILE V. SAMI & ANOR.

• Pages: 196-200

196

NIGERIAN SUPREME COURT CASES

[1962] N.S.C.C.

son to bring an action; that the application should have been made by his brother

who was to succeed to the father's title. We were referred to the cases

R. v. Wim-

bledon Urban District Council, Ex Parte Hattori,

(1897), 77 L.T. 599, and

R.

v.

Hampstead Borough Council, Ex Parte Woodward,

(1917), 116 L.T. 213.

I am of the view that these cases do not apply in the present case. There is

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clear evidence, not controverted, that the custom is that the title devolves on the

eldest son of the deceased Chief. If he is already an Ibo Chief, the title must be

conferred on him and then he would give it to a junior brother. In the circumstan-

ces, it cannot be said that the respondent made the application for the writ on be-

half of a third party who could have made it himself.

10

It seems to me that the

gravamen

of the whole matter is, will the appellant as

Head of all the Ibo Chiefs in Sobe be performing a public duty by carrying out the

traditional ceremonies, the subject matter of the application for the writ? It is set-

tled law that on an application for a writ of

Mandamus,

the Court must be satisfied

first that the respondent has a duty of a public nature to perform.

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The evidence in this case is that about twenty Ibo Chiefs in Sobe are involved,

and without due performance of this traditional right, there will be no succession

to the respective Chieftaincy, and the Chieftaincy system will break down. The

learned Judge was right, in my view, to hold that there was a public duty to per-

form in this case.

20

This Court held in

Layanju v. Araoye,

4 F.S.C. 154, at p.157, that

Mandamus

will lie to enforce a duty arising under Native Law and Custom. This is not a mat-

ter in which the respondent has a discretion; the appointment of a Chief is an act

of public nature in which the public is interested. There was evidence, which was

not denied, that the appellant has refused consistently to perform the duty devolved

25

upon him by virtue of his office as the Head Ibo Chief.

This first ground of appeal also fails.

I will dismiss this appeal with costs to the respondent assessed at 45 guineas.

Unsworth, F.J.

I concur.

Taylor, F.J.

I concur.

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Appeal dismissed.

ONASILE V. SAMI & ANOR.

35

EMMANUEL OGUNSANYA ONASILE

APPELLANT

V

40

DANIEL ADETAYO SAMI AND ANOR.

RESPONDENTS

SUIT NO. FSC 477/1961

FEDERAL SUPREME COURT

ADEMOLA, C.J.F.

UNSWORTH, F.J.

45

BAIRAMIAN, F.J.

30th April, 1962.

Criminal Law - Charge - Mistake or Defect.

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