CHIEF S.C. OSAGIE II & ANOR V. CHIEF EUGINE C. OFFOR & ANOR

CHIEF S.C. OSAGIE II & ANOR V. CHIEF EUGINE C. OFFOR & ANOR

final 
In The Supreme Court of Nigeria
On Friday, the 30th day of January, 1998
Suit No: SC.182/1991
 
Before Their Lordships
 
          
ABUBAKAR BASHIR WALI    ……. Justice of the Supreme Court
IDRIS LEGBO KUTIGI    ……. Justice of the Supreme Court
UTHMAN MOHAMMED    ……. Justice of the Supreme Court
SYLVESTER UMARU ONU    ……. Justice of the Supreme Court
ANTHONY IKECHUKWU IGUH    ……. Justice of the Supreme Court
    
 
 Between
    
1. CHIEF S.C. OSAGIE II
The Obi of Akumazi)
2. JACOB OFFOR   
            
 
      And                   
    
1. CHIEF EUGINE C. OFFOR
(The Ajeh of Ekuoma)

2. IKA LOCAL GOVERNMENT COUNCIL   

 

 


        
 
         
          

COUNSEL:
Parties absent and Unrepresented.    For the Appelants

Parties absent and Unrepresented.    For the Respondents

        
 JUDGMENT:      
KUTIGI, J.S.C.: (Delivering the Leading Judgment ): This is an interlocutory appeal. It arose in the first instance from the ruling of Gbemudu, J. of the Agbor High Court, delivered on the 14th day of October, 1988.whereby he struck out the plaintiff's action for alleged want of jurisdiction on the ground that being a chieftaincy matter, it was premature for the plaintiff to have to come to court without first seeking redress from the Prescribe Authority or the Executive Council by virtue of the provisions of Bendel State Chiefs Law No. 16 of 1979.

Dissatisfied with the said ruling, the plaintiff appealed to the Court of Appeal. Benin City. The Court of Appeal in its judgment of 23rd March. 1990, allowed the appeal, set aside the ruling of the High Court and remitted the case back to the High Court for trial on its merits by another Judge.

It is against the decision of the Court of Appeal that both the 1st and 2nd defendant have now jointly appealed to this court. The 1st and 2nd defendants will from henceforth he referred to as the appellants.

At the hearing of the appeal all the parties were absent. None of them was also represented by counsel. The parties, however, tiled and exchanged briefs of argument. The appeal was therefore taken as argued vide Order 6 rule R(6) Supreme Court Rules.

The appellants identified and formulated two issues for determination in their brief thus:-

"(1) Does the Traditional Rulers and Chiefs Edict No. 16 of 1979. Bendel State of Nigeria provide in its Section 22(2), (3)and (6) any condition precedent to the assumption or jurisdiction by the courts over suits relating to Traditional Ruler and Chieftaincy Title disputes, or in particular, the Eje of Ekuoma Chieftaincy dispute?

(2)Does Section 22(2). (3) and (6) of the Traditional Rulers and Chiefs Edict No. 16 of 1979, Bendel State of Nigeria derogate from the powers of the High Courts of entertain suits in view of Section 6(6) (b) and Section 236(1) of the Constitution of the Federal Republic of Nigeria 1979?"

It is thus clear from the above two issues which will he considered together, that what we are actually being asked to do is to interpret the provisions of section 22 subsections 2. 3 and 6 of the Traditional Rulers and Chiefs Edict No. 16 of 1979, Bendel State of Nigeria the entire section 22 reads thus:

Bendel State of Nigeria. The entire section 22 reads thus:-

"22.(1) The conferment of a Traditional Chieftaincy Title shall be in accordance with the customary law and shall be subject to the approval of the Prescribed Authority or where the provisions of Section 23 have been applied, to the approval of the Executive Council.

(2) Where a Traditional Chieftaincy Title is conferred on a person by those entitled by Customary Law so to do and in accordance with Customary Law, the Prescribed Authority or the Executive Council as the case may be, may approve the appointment.

(3) Where there is a dispute as to whether a Traditional Chieftaincy Title has  been conferred on a person in accordance with customary Law or as to whether a Traditional Chieftaincy Title has been conferred on the right person, the prescribed authority or the Executive Council as the case may be, may determine the dispute.  

(4) The decision of the Prescribed Authority or the Executive Council, as the case may he:-

(a) To approve or not to approve the conferment of a Traditional Chieftaincy Title on a person; or

(b) Determining a dispute in accordance with sub-section (3) of this section, shall not he questioned in any Court.

(5) The Prescribed Authority shall not withhold approval of the conferment of a Traditional Chieftaincy Title on a person if such conferment is made in accordance with the  Customary Law regulating the conferment of the Chieftaincy Title.

(6) The Executive Council may, Oil the application of an aggrieved party:-

(a) Review the decision of a Prescribed authority made under sub-section (6) of this section and substitute its own decision therefore; or

(b) Approve the conferment of a Traditional Chieftaincy Title on a person if such approval was withheld by the Prescribed Authority contrary to sub-section (5) of this section.

(7) Before exercising the power vested in it by sub-section (6) of this section, the Executive council may cause such enquiries as appear to it to be necessary or desirable to be in accordance with Section 27 of this Edict."

The thrust of argument of the appellants is that the above provisions of the law read together would appear to mean that the law intended to, and did create a  domestic forum wherein chieftaincy disputes between aggrieved parties could he settled. And that the dispute in this case being a chieftaincy dispute, it was premature for the plaintiff to come to court without first appealing to the Prescribed Authority or the Executive Council as provided for under the law. That it is only lifter the plaintiff has so complied with the condition precedent as laid down by the

law above and thereafter feels dissatisfied with the decision of the Prescribed Authority or the Executive Council, that he can properly file an action in court.

The plaintiff/respondent on the other hand contended that by virtue of the provision of section6 (6) and 236(1) of the I979 Constitution, even if the action herein is a chieftaincy matter, the High court has jurisdiction to entertain it without any precondition. That a resort to the Prescribed Authority or the Executive Council is an exercise in futility because under section 22(4) of the Edict above, the decision of the Prescribed Authority or the Executive Council is final. That there is no domestic forum or a condition precedent which must be exhausted by the plaintiff before going to Court in this case.

As stated earlier in this ruling, the learned trial Judge relying on section 22 sub sections 2, 3 and 6 above, decided that the action being a chieftaincy matter, the plaintiff as the aggrieved party ought to have had prior recourse to the Prescribed Authority or the Executives Council before coming to court as the last resort. Failure to take the prior step meant that the suit before him was premature. He then struck out the case with costs against the plaintiff.

On appeal to the Court or Appeal, the appeal was allowed. The ruling of the High Court  was set aside and case remitted to the High Court for trial on merit by another Judge.

Delivering the lead judgment which was concurred by the other .Justices, Uche Omo, JCA., after making reference to sections 6 and 236 of the 1979 Constitution and to the cases of:

Bronik Motors Ltd v. WEMA Bank (1983) 6 SC.158:(1983) 1 SCNLR 296

Savannah Bank v. Pan Atlantic (1987) 1 NWLR (Pt. 49) 212:

Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 337:

Western Steel Workers Ltd. v. Iron Steel Workers union of Nigeria (1987) 1 NWLR (Pt. 49) 284: and

Kanada v. Governor of Koduna State (1986) 4 NWLR (Pt. 35) 361 observed as follows:-

"In the light of the constitutional provision and the decisions of the Supreme Court thereon, what will be the justification for preventing an aggrieved citizen from recourse to the High Court or for the High Court to refuse to entertain any matter so brought before it?……………….

In my view section 22(2). (3) and (6)of the Bendel State Chieftaincy Law 1979 cannot in any way seek to derogate or circumscribe the provisions of section 236 (1) of the 1979 Constitution. Any attempt to so do would make it inconsistent with that constitutional provision and therefore to that extent void. A decision that it delay, the right of an aggrieved party to come to court, or that it is a condition precedent to the exercise of a right to file an action to be entertained by the High Court, seeks to circumscribe the powers of the High Court under section 236(1) of the Constitution and to that extent it is void and of no effect. It is entitled to the same fate as the provision of section 22(4) which respondent's counsel has conceded to be unconstitutional. The decision of the learned trial judge that the action of the appellant is premature and striking same out is therefore wrong, and the appellant is entitled to succeed on this issue."

I agree entirely with what is said above.

He continued thus:-

"Before I conclude I will comment briefly on the cases of Military Governor of Ondo State & Ors. V. Adewunmi (1985) 3 NWLR. (Pt.13) 493 and Edewor v. Uwegba (1987) 1 NWLR. (Pt. 50) page 313 (315) which were relied on by the parties. Very briefly, Adewunmi's case, is more apposite to a consideration of section 22(4) of the Bendel Chieftaincy Law 1979. A brazen  attempt by the Governor of Ondo State to outs the jurisdiction of the High Court of that  State on chieftaincy matters  was declared invalid, unconstitutional and void. Although the decision in Uwegba's  case did note of the procedure set out by section 22 of the Bendel State Chieftaincy, it did not any where decide that the steps set out thereunder are a condition precedent to a recourse to an action in the High Court by an aggrieved party. The real importance of that case is that it   decided that before coming to a decision under section 22(6) (b) of the chieftaincy law, the Governor is obliged to set up an inquiry to examine the dispute and that his failure to do so was a gross irregularity which cannot be allowed to stand.

Accordingly this appeal will be and is hereby allowed."

Again I say I agree.

Being an interlocutory appeal, one must be brief and avoid making any observation in the judgment which might appear to prejudge the main issue yet to he tried (see for example Ojukwu v. Governor of Lagos State (1986) 3 NWLR (Pt. 26) 39; Egbe v. Onogun (1972) 1 ANLR (pt. 1) 95. And having agreed with the views and conclusions of the Court of Appeal above, the issues herein for resolution must be decided against the appellants. Edict No. 16 of 1979 in section 22 sub-section (2), (3) and (6) prescribed no condition precedent to the exercise of jurisdiction by High Court. I am also not in doubt whatsoever that these subsections derogate from the powers  of the High Court to entertain -suits in view of sub section 4 which stated that the decision of a Prescribed authority or the Executive Council "shall not be questioned in any court." While I do not quarrel with the existence or a domestic forum for settlement of chieftaincy disputes, an aggrieved person should he free to decide if and when he should go there and it should not be to his detriment if he is dissatisfied with such a decision and wants to go to court on the same dispute.

The appeal therefore fails. It is accordingly dismissed with costs of N10,000.00 (Ten thousand naira) to the plaintiff/respondent. The judgement of the court of appeal is confirmed together with its order remitting the case to the High Court for trial before another Judge.

 

 

 

WALI , J.S.C.: I have had a preview of the lead judgment of my learned Brother Kutigi, J.S.C and I agree with his reasoning and conclusion for dismissing the appeal.

In so far as the provision of S.22 (2) (3) and (b) of the Traditional Rulers and Chiefs Edict No. 16 of 1979 of defunct Bendel State puts a clog on the constitution right of a litigant vide S. 236 (1) of the 1979 Constitution to resort to court, the section is unconstitutional as it derogates from the light conferred on the citizen by the said S. 236 (I) supra. The respondents in this appeal are not hound to follow the provision S. 22 of Edict No. 16 of 1979 (Supra) before filing their action in the High Court.

For this and the detailed reasons in the lead judgment I also dismiss the appeal and affirm the decision of the Court of Appeal, Benin Division.

I abide by the consequential orders in the lead judgment, that of costs inclusive.

 

 

 

MOHAMMED, J.S.C.: I will also affirm the judgment of the Court of Appeal and dismiss this appeal. I agree with my Lord, Kutigi JSC., in the judgment just read that this appeal has no merit at all. The trial High Court was wrong to strike out the action filed by the plaintiff/respondent (or alleged want of jurisdiction. If the intention of Bendel State in enacting section 22 of Traditional Rulers and Chiefs Edict No.16 is to oust the jurisdiction of the High Court it is void and unconstitutional.

Accordingly the appeal is dismissed, I abide by the order on costs made in the lead judgment.

 

 

 

ONU, J.S.C.: I have had a preview of the judgment just delivered by my learned brother Kutigi, JSC and with it I am in entire agreement that the appeal lacks merit and ought therefore to fail.

In my expatiation thereon I wish to add the following words of mine.

There is nowhere in the law applicable to the instant case, to wit: the Bendel (now Edo) State Traditional Rulers and Chiefs Edict, 1979 (an existing law vide Section 274) of the 1979 Constitution that makes it mandatory that unless in its section 22(3) and (6) thereof, the jurisdiction of courts as enshrined in sections 6(6) and 236 of the Constitution of the Federal Republic of Nigeria, 1979 (hereinafter referred to as the Constitution), is ousted.

The relevant section (Section 22) or the Bendel (Edo) State Traditional Rulers ad Chiefs Edict (supra) stipulates thus:-

"22(1)The Executive Council may appoint in respect of the area (which expression shall in this Pmt and Part 4 be deemed to include a reference to pan of an area) of any local government council or group of councils an authority (in this Part referred to as the prescribed authority) consisting of one person, or of more persons than one, who may be the chairman and other members of a committees established by section 5, to exercise the powers conferred by this section in respect of the office of any minor chief whose chieftaincy title is associated with a native community in that area.

(2) Where a person is appointed, whether before or after the commencement of this Law, to fill a vacancy in the office of a minor chief by those entitled by customary law, the prescribed authority may approve the appointment.

(3) Where there is a dispute whether a person has been appointed in accordance with customary law to a minor chieftaincy the prescribed authority may determine the dispute.

(4) The decision of the prescribe authority -

(a) to approve or not to approve an appointment to a minor chieftaincy; or

(h) determining a dispute in accordance with sub-section (3) of this section,

shall he final and shall not be questioned in any court.

(5) The Prescribed Authority shall not withhold approval of the conferment of a Traditional Chieftaincy Title on a person if such conferment is made in accordance with the Customary Law regulating the Chieftaincy Title.

(6) The Executive Council may, on the application of an aggrieved party:-

(a) Review the decision of a Prescribed Authority made under sub-section (3) of this section and substitute its own decision therefore or

(b) Approve the conferment of a Traditional Chieftaincy Title on a person if such approval was withheld by the Prescribed Authority contrary to sub-section (5) of this section.

(7) Before exercising the power vested in it by sub-section (6) of this section, the Executive Council may cause such enquiries as appear to it to be necessary or desirable to he held in accordance with Section 27 of this Edict."

Section (6) (b) of the Constitution (ibid) provides:

"(6) The judicial powers vested in accordance with the foregoing provisions of this section -

(b) shall extend to all matters between persons, or between government or authority and any person in Nigeria, and so all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person."

By the above there is, in my view no derogation from the provisions of Section 276 which states:-

"236(1)Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a State shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty liability, privilege,. Interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.

2. The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the court in the exercise of its appellate or supervisory jurisdiction."

Thus, when the learned Justices of the  Court of Appeal held that:

"It is to be noted from the above, particularly the provisions of subsection (3) thereof,  that there is no mandatory provision that the prescribed authority and the Executive Council have exclusive jurisdiction of determining an appeal. The only such provision which the respondent's counsel concedes is unconstitutional is subsection (4) which seeks to exclude the jurisdiction of the Courts by stating that the decision of these two bodies "shall not be questioned in any court." What is provided for by Section 22 is a procedure for settlement of a chieftaincy dispute. The question that arises therefore is whether this procedure prevents immediate recourse to the courts when a dispute arises. In other words, whether an aggrieved party must comply with the provisions of the relevant subsections before going to court as a last resort." (Italics is mine)  

The negative answer rendered by the learned Justices to the situation postulated above constitutes rightly, in my view, the correct position of the law as opposed to the stance adopted by the learned trial Judge who wrongly, in my opinion, arrived at the conclusion find so struck out the  action when he held that;

"In this case in hand the aggrieved party should apply to the Executive Council to review the decision of the prescribed authority before coming to the High Court."

Thus, in Eguanwense v. Amaghizenwen (1993) 9 NWLR (Pt. 315) 1, this court reversing the Court of Appeal and allowing the appeal on the issue or whether the jurisdiction of the High Court was expressly taken away, I had occasion to state the position of the law at pages 42-43 paragraphs C- B of the Report inter alia as follows:-

"The traditional Rulers and Chiefs Edict, 1979 No. 16 of Bendel (now Edo) State having by its sections 21 and 22 (ibid) expressly or by clear provisions excluded the jurisdiction of the courts in the form of declarations in respect of customary law relating to the selection of chiefs, such sub'97legislative function must perforce he vested in the prescribed authority and not a function exercisable by the court. See Adigun  v. Attorney-General of Oyo State (supra). It is in this wise that I hold that the High Court's jurisdiction in respect of such declaratory reliefs as sought by the respondent in the instant case was wrongly invoked……….. "

As in the instant case the jurisdiction or the High Court was neither ousted nor contemplated, the case of Amaghizenwen (supra) is clearly distinguishable.

There being no merit in this appeal and for the more detailed reasons given by my learned brother Kutigi, JSC with which I am in entire agreement, I too, dismiss this appeal and make similar consequential orders inclusive of those as to costs.

 

 

IGUH, .J.S.C.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, Kutigi J.S.C. and I agree that there is no merit in this appeal.

It cannot he over-emphasized that whatever a state Edict or Laws provides, they cannot override the provisions or the Constitution of Nigeria, 1979. In my view, an aggrieved party may at any stage in the selection process of a candidate in a chieftaincy matter properly challenge the same in a court of law. I can find no reason to fault the judgment of the court below in this appeal.

It is for the above and the more elaborate reasons contained in the leading judgment of my learned brother. Kutigi, J.S.C. that I too, dismiss this appeal. I abide by the order for costs  therein made.
Appeal dismissed.