The State & Ors. V. Oba Alaiyeluwa Ogunoye (The Olowo Of Owo) & Ors (1985)
LawGlobal-Hub Lead Judgment Report
NNAMANI, J.S.C.
The facts of this suit are that the appellants were traditional office holders having been appointed by the Ex-Olowo of Owo, Sir Olateru Olagbegi. The 1st Respondent, Oba Ogunoye, on his installation in 1968 still accepted the Appellants as traditional office holders. Relationships appeared cordial for some time, indeed the 1st appellant, Joseph Ajidasile Olakunrin, appears to have played a dominant role in the installation of the 1st Respondent.
Matters soon deteriorated however and the appellants on 5th April, 1980, addressed a joint letter to the Governor of Ondo State praying for the removal of the 1st Respondent and for an enquiry into the deposition of Sir Olateru-Olagbegi. On the 11th April, 1980, the 1st Respondent, obviously reacting to the letter of 5th April, sent to the appellants a letter of warning charging them of disloyalty and of dereliction of duties. That letter was tendered in these proceedings as Exhibit “A”.
The appellants caused their Solicitor, Chief Afe Babalola, to react to the 1st Respondent’s letter by his own letter dated 29th April, 1980. That letter was accepted in evidence as Exhibit “Y”. Whereupon the Olowo of Owo on the 15th May, 1980, addressed a letter to each of the 7 appellants deposing them as Chiefs and traditional office holders. Some of these letters were tendered in evidence as Exhibits “B” – “B6”. It is pertinent to add that soon after the deposition of the appellants, the 1st Respondent appointed other Chiefs and traditional office holders in their place and they are the 2nd – 7th Respondents in this appeal.
The appellants thereupon started proceedings in the Ondo State High Court. The Suit AK/N7/80 was in these terms –
“IN THE MATTER OF APPLICATION FOR
CERTIORARI AND PROHIBITION
IN THE MATTER OF DEPOSITION
OF THE APPLICANTS BY
THE OBA ALAIYELUWA OGUNOYE,
THE OLOWO OF OWO
In the matter of Application of (1) Chief Joseph Ajidasile Olakunri, Osere of Elunogbe-Owo (2) Chief Adafin Daramola Akowa of Iloro-Owo (3) Chief Abraham Ojo, Elerewo of Igboroko-Owo (4) Chief Julius Baleyinu Okoro, Aragwagbaiye of Igboroko-Owo (5) Chief Amodu Egbewa, Aragwagbaiye of Igboroko Owo (6) Chief H. A. Ashara, Argwaragbaiye of Ijebu Owo (7) Chief Sule Omama, Imara of Isaegbe-Owo for an Order for leave to apply for ORDERS OF CERTIORARI AND PROHIBITION TO ISSUE –
BETWEEN:
THE STATE
AND
(1) Oba Alaiyeluwa Ogunoye
The Olowo of Owo
(2) Titilayo Aragwagbaiye
(3) Ologo Aragwagbaiye
(4) Aladugbo Adebayo Aragwagbaiye
(5) Olanipekun Osere
(6) Olanrewaju Elerewe
(7) Olatudun Ijalumoye Imaran
MOTION EX PARTE
Under Sections 2(2) and 5(2)
Administration of Justice
Crown Proceeding Law 1960
TAKE NOTICE that this Honourable Court will be moved on Thursday the 5th day of June 1980 at the hour of 9 O’Clock in the forenoon or so soon thereafter as Counsel for the applicants can be heard for an order for leave to apply for order of certiorari directed against Oba Alaiyeluwa Ogunoye, the Olowo of Owo, for the purpose of quashing his order purporting to depose the applicants as (1) Osare of Elunogbe Owo (2) Akowa of Uoro Owo (3) Elerewe of Igboroko-Owo (4) Aragwagbaiye of Igboroko-Owo (5) Aragwagbaiye of Igboroko-Owo (6) Aragwagbaiye of fjebu-Owo (7) Imara of Isaegbe-Owo respectively under Section 22 of the Chiefs Law Cap 19 and for order of prohibition restraining……..(the 7 respondents) jointly and severally parading themselves as……..respectively and for such further and other orders as this Honourable Court may deem fit to make in the circumstances.”
The appellants filed a 36 paragraph affidavit, a 35 paragraph further affidavit and several other further affidavits in support of their application as well as a statement in which they stated their grounds of Relief as –
“(1) That Oba Ogunoye the Olowo of Owo acted without jurisdiction illegally and in excess of his powers as a prescribed authority by purporting to depose the 1st to 6th applicants who are recognized chiefs under Part II of the Chiefs Law Cap 19 of the Western Region of Nigeria applicable in Ondo State when such powers could only be exercised by the Governor in Council.
(2) That in the alternative, Oba Ogunoye violated the rules of Natural Justice and the conditions precedent to the exercise of the powers of deposition under Section 22 of the Chiefs Law Cap 19 of the Western State applicable in Ondo State which by the composite effect of Sections 21 and 22 of the said law necessarily imposes a duty of conducting an inquiry and or acting judicially.
(3) That Oba Ogunoye the Olowo of Owo acted ultra vires his powers under the Chieftaincy Law by failing to comply with the conditions stipulated by Sections 21 and 22 of the Chieftaincy Law.”
On the 5th June, 1980 Dr. S. A. Akintan, Judge granted leave to the applicants to apply for an order of certiorari directed against Oba Ogunoye the Olowo of Owo and leave to apply for an order of prohibition restraining the other 8 respondents herein from parading themselves as holders of various chieftaincy titles. Pursuant to this leave, the appellants on 9th June 1980, filed a motion praying for orders of Court for Certiorari directed to the 1st respondent and for an order of prohibition restraining the rest of the respondents. This application was also supported by an affidavit. The 1st respondent filed a 42 paragraph counter-affidavit as well as several other counter-affidavits by other Chiefs of Owo. At the hearing of the application, the applicants did not lead any oral evidence while the respondents called a witness from the office of the Secretary to the State Government to tender documents.
After taking this evidence and addresses of Counsel, the learned trial Judge refused the application. In his ruling he concluded in these terms-
“I am satisfied that by the letters of warning, the 1st respondent gave notice of his displeasure of the acts of the applicants and requested them to mend their ways. Instead of changing their attitude, they wrote Exhibit “Y” through their Solicitors in which they did not only admit the charges made against them in the letters of warning regarding their acts of disrespect to the 1st respondent but went further by repeating that the 1st respondent was not entitled to hold the office of Olowo of Owo. In other words, they manifestly told him that the question of displaying their loyalties to him (1st respondent) was out of the matter. With these facts well established. I do not know what else the 1st Respondent, as prescribed authority or any authority for that matter. would want to establish by holding any further enquiries. I believe therefore that the applicants had been given the opportunity of being heard and have in fact been heard.”
The appellants appealed to the Court of Appeal which in a unanimous judgment (Omo-Eboh, Okagbue and Pepple, JJ. CA.) dismissed the appeal. The appellants have now come to this Court.
Although the appellants filed 7 grounds of appeal, only grounds 2,3,4 and 6 were accepted as proper grounds of appeal before this Court. In any case in his brief of argument, learned Counsel to the appellants, Chief Afe Babalola, identified the questions for determination as these –
“(1) In view of the fact that the 1st Respondent was the person aggrieved by the call of the appellants for his removal and the fact that he was the one alleging that the appellants did not perform their traditional duties was the 1st respondent not disqualified by the rule against bias from sitting in judgment in a disciplinary capacity over the appellants
“(2) If the answer to that first question is in the affirmative was the 1st Respondent not obliged to hold a judicial inquiry having regard to Sections 21 of the Chiefs Law and Section 33 of the Constitution of the Federal Republic of NIGERIA before exercising his disciplinary powers over the appellants
(3) If there is no need for a judicial inquiry, are the appellants not entitled to be accorded fair hearing before the 1st Respondent could exercise his disciplinary power of deposition under Section 22 of the Chief’s Law
(4) Can it be said that in the circumstances of this case, there was fair hearing particularly when:
(a) By the fact of warning as contained in the letter Exhibit “A” the Olowo had already found the appellants guilty without hearing them;
(b) by the letter of deposition Exhibit “B1”-“B3” and paragraph 27 of Olowo’s affidavit the matter of disloyalty did not form part of the reason for the deposition of the appellants.
(4) In view of paragraph 27 of the affidavit of Olowo and the letter of deposition Exhibit “B”-“B3″ was it proper for the Court of Appeal to uphold the judgment on a matter which did not operate on the mind of the Olowo,,”
In his oral argument before this Court, Chief Babalola reduced the questions to two crucial issues: Firstly, whether the, 1st Respondent who was the subject of the attack in the letter of 5/4/80 and who wrote Exhibit “A” alleging disloyalty to him can sit in judgment over the appellants, and secondly whether the conditions precedent to the deposition of a Chief under the Chiefs Law have been satisfied. Dealing with these issues. Chief Babalola referred to Sections 21 and 22 of the Chiefs Law, Cap.19 Laws of Western Nigeria applicable to Ondo State. He also referred to the power granted to the 1st Respondent to depose a chief by the Prescribed Authorities (Delegation of Powers) NO.1 Notice 1967 (W.S. L.N. 63 of 1967).
In his further submission. Chief Babalola contended that the power so conferred on the prescribed authority was delegated power and that if this delegated power was read together with the substantive law i.e. Section 22 of the Chiefs Law. it could not empower the 1st Respondent to exercise more powers than the Governor who delegated could exercise. The Governor he submitted had to satisfy 3 conditions before exercising the power of deposition. These were (a) he must give notice of the misconduct complained of (b) he must furnish particulars of the misconduct and (c) he must give the Chief opportunity to defend himself. He contended that the 1st Respondent had done none of these – that Exh. A was a warning letter and that it presupposed that the appellants were guilty. He further said that if Exh. A was requesting for explanation it should have contained particulars of the misconduct alleged against the appellants. He referred to Furnell vs Whegarel Schools Board (1974) 2 W.L.R. 92.
As regards the second issue, Chief Babalola submitted that the 1st Respondent was prosecutor and judge and that he violated the principles of Natural Justice. There was clear bias having regard to the facts of the case. He referred to State Civil Service Commission vs. Buzugbe (1984) 7 S.C. 19 at pages 25, 26 and 27. Finally, he submitted that the law which gave the 1st Respondent the power with which he acted was inconsistent with Section 33(1) of the Constitution of the Federal Republic of NIGERIA.
In reply, Mr. Olutunfese learned counsel to the Respondents, referred to Section 33(2) (a) and (b) of the Constitution as well as Sections 18(5) and (6) and 22 (3) (c) of the Chiefs Law. This is as regards the contention that the 1st Respondent was a person aggrieved and yet took a decision in the matter of deposition. He drew attention to the fact that the law allowed the appellants opportunity to make representations to the Governor-in-Council against their deposition. Rather than use it, they instructed their Solicitor to write Exhibit Y. As regards the issue of bias he referred to De Smith: “Judicial Review of Administrative Action” 4th Edition Chapter 5 p.248 at p.251. He also submitted that disqualification on grounds of bias was removed by the Chiefs Law which delegated power to the Prescribed Authority. Exhibit A he contended gave the appellants adequate notice of the complaints against them. In response the appellants never asked for further and better particulars but rather caused Exhibit Y to be written. In his view the three conditions referred to by Chief Babalola were complied with on fair hearing he referred to the case of Memudu Lagunju vs. Olubadan in Council 12 W.A.C.A. 406, 410.
The facts of this case are not really in dispute. They were set down in the judgment of the learned trial judge and have been repeated in argument before us. It would be cumbersome in the extreme to set down the affidavits, further affidavits, counter affidavits and further counter affidavits of the parties on which this suit was fought. I shall merely use material in them which I consider useful in the course of my consideration of the issues raised before this Court. I however consider it useful, at least for immediate understanding of the case, to set down the three most important letters between the parties – that is the letter of warning written by the 1st Respondent to each of the appellants and tendered in evidence as Exhibit A; the reply of the Appellants through their Solicitor tendered in evidence as Exh. Y and the letter of deposition written by the 1st Respondent to each of the appellants tendered in evidence as Exhibit 8-82 and 83-B6. I intend also to set down the relevant legislation to which reference has been made. Exhibit A was in these terms:
“Ondo State of Nigeria
11th April, 1980
Chief ………………
u.f.s. The Secretary.
Owo Local Government,
Owo.
LETTER OF WARNING
You will remember that in March, 1976 you were deposed following your persistent failure to perform the traditional duties attaching to your office as Chief Elerewe even though you have regularly received your monthly stipend as a traditional Chief. Your Deposition Order was subsequently revoked in October that year when you promised to repent and to perform the traditional functions of your office as Chief Elerewa. I regret to observe that since that time you have failed to fulfil your promise and you have failed to perform your traditional duties.
- The matter of your continued failure to honour your obligations as Chief Elerewa reached the point when the Special Adviser on Chieftaincy Matters, Chief S. A. Okeya came to Owo to reason with you on Thursday, 29th January. 1980. It is unfortunate that his appeal fell on deaf ears and you continued to defy and breach Owo custom and tradition.
- To crown this long and persistent act of dereliction of traditional duties, you joined in sending an Open Letter to the Governor of Ondo State calling for my removal as the Olowo of Owo. This letter was published in the Daily Times Issue of Saturday, 5th April. 1980. I consider this an act of disloyalty to me as your paramount traditional ruler.
- By this letter, I hereby give you a final warning to desist from acts of disloyalty to me and dereliction of your traditional duties. I am willing to give you up to a month from the date of this letter to mend your ways, failing which I may be compelled to exercise the powers conferred on me as Prescribed Authority and to impose upon you appropriate disciplinary measures as may be deemed necessary for peace, order and good government in the Owo community.
Sgd. Oba Ogunove II J.P.
The Olowo of Owo
Prescribed Authority”
Exhibit Y was worded thus:
“His Highness.
Oba Adekola Ogunoye.
The Olowo of Owo.
Olowo’s Palace.
Owo.
Kabiyesi.
Letter of Warning to Chiefs Osere, Akowa, Elerewe,
Aragwagbaiye Okoro, Aragwagbaiye Erhowa. Aragwagbaiye Anhara and Imara, all of Owo
We are Solicitors to the above-named Traditional Chiefs and Kingmakers of Owo who have passed on to us for our action your respective letters dated 11th of April, 1980 addressed to them and warning them to desist from acts of disloyalty to you and dereliction of their traditional duties.
Our instruction is that your letters of warning to the said Chiefs was a reaction to a recent press release by our clients, which was published in the Daily Times of 5th April, 1980 in which they called for an Inquiry to the Olowo of Owo Chieftaincy with a view to restoring to the throne the former Olowo of Owo, Sir Olateru Olagbegi who in their view, was illegally, wrongfully, and unconstitutionally removed from office by the former Military Administration of the defunct Western State of Nigeria, which, in their contention, also installed you into office contrary to the Customs and Traditions of Owo. There can be no doubt that in the circumstances, your letters of warning, giving our clients ultimatum to mend their ways is infact a blackmail, aimed at coercing and oppressing them with a view to silencing them and ensuring that they no longer exercise their constitutional right to freely express their views on a matter of public interest in which they are particularly interested and concerning Traditional Chiefs and Kingmakers in Owo.
It is the contention of our clients that the former Olowo, Sir Olateru Olagbegi was removed from office for no just cause and on the flimsy excuse that an infinitely (sic) number of political antagonists in Owo demonstrated their opposition to him and engaged the service of thugs to cause confusion in Owo. It is also their contention that Sir Olateru Olagbegi was not given opportunity to know the allegation levied against him and given facility to defend them. This undoubtedly was in violation of the well known principle of audi alteram partem (let no one be condemned unheard). As a follow-up of the last point I am sure that you would agree that if the deposition of Sir Olateru Olagbegi was irregular, null and void, your installation would obviously be wrong in law and fact, apart from the irregularities which infact characterised your selection which our clients consider to be a rape of the customs and traditions of Owo which our clients hold dearly and feel obliged to protect.
In the view of our clients, your allegations that our clients have failed to perform their traditional duties is a ruse to divert the attention of the Government and the generality of the people from the real issues which are those of the legality or otherwise of the deposition of Sir Olateru Olagbegi and the legality or otherwise of your installation.
Our clients believe that it is now necessary for the government to look into the matter and settle it once and for all. They believe that a Judicial Commission of Enquiry to look into the matter in all its ramification is the most appropriate measure for the government to take. They have consistently called for justice from the various Governments from the time of the deposition of Sir Olateru Olagbegi. Now that there is an elected government which is responsive to the feelings and aspirations of the people, they consider it opportune to review their plea with the hope that something will be done to resolve the issue, hence their call to the Executive Governor to institute a Judicial Commission of Enquiry to look into the matter.
Our clients are strenghtened in their hope by the recent action of the Ondo State Government in instituting Judicial Commission of Enquiry into the Owa of Idanre Chieftaincy the facts of which are similar in all respects to that of Olowo of Owo. We believe that you are as concerned as our clients that the matter be resolved once and for all and that you would support their call for an enquiry to go into the root of the matter. We are sure that after receiving this letter, you would realise that joining our clients in making spirited efforts to get the government to intervene and resolve the issue would be more advisable than coercing our clients and intimidating them into changing their stand.
We are directing our call to the Governor of Ondo State to take prompt steps to institute a Judicial Commission of Enquiry into the matter and henceforth, we hope that we can count on your co-operation and support. Meanwhile, we believe that you would refrain from any acts of harassment, operation (sic) and victimization directed against our clients and calculated to coerce and intimidate them into compromising their stand. We may however add that if any steps are taken which are detrimental to their interests and attempt to deprive them to their constitutional or customary or other rights and privileges as traditional chiefs and individual citizens, we shall be forced to seek the aid of the law in protecting their legal rights and privileges. Of course we are sure that you would not allow this situation to arise.
We look forward to your co-operation in this matter.
Yours faithfully,
(Sgd.) Chief Ate Babalola & Co.”
Exhs. 8-86 read
“THE AFIN-OBA-OLOWO
OWO
Ondo State of NIGERIA
15th May 1980
Chief …..
u.f.s. The Secretary,
Owo Local Government,
Owo.
THE LETTER OF DEPOSITION AS
CHIEF ARAGWARAIYE OF……….
Please refer to my letter of warning No.OL.336/120 of 11th April, 1980 in respect of which there has been no change of attitude as regards the performance of your traditional duties.
- Therefore, in the exercise of the powers conferred on me by the Prescribed Authorities (Delegation of Powers) No.1 Notice 1967, and by virtue of all other powers enabling me in that behalf, I OBA ALAIYELUWA OGUNOYE II THE OLOWO OF OWO hereby depose you…….from the Chieftaincy of………in Owo Local Government Area.
- Dated this 15th day of May, 1980.
- Copies of this letter are being endorsed to the Secretary Ondo State Government and the Secretary, Owo Local Government for their information and necessary action.
(Sgd.) OBA ALAIYELUWA
OGUNOYE II J.P.
The Olowo of Owo
Prescribed Authority”
“The Governor in Council may appoint in respect of the area, (which expression shall in this Part and Part IV be deemed to include a reference to part of an area) of any local government councilor group of council an authority (in this part referred to as the prescribed authority) consisting of one person or of more persons than one, who may be chairman and other members of a committee 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.”
B. 18(5) of Chiefs Law as amended by Seclion3 of Chiefs (Amendment) Edict No.1 of 1976 i.e. Ondo State.” “Any person aggrieved by the decision of the prescribed authority in exercise of the powers conferred on the prescribed authority by subsections (2), (3) and (4) of this section may, within 21 days from the date of the decision of the prescribed authority make representations to the Commissioner to whom responsibility for chieftaincy affairs is assigned that the decision be set aside and the Commissioner may, after considering the representation confirm or set aside the decision.”
(this relates to appointment of minor chiefs)
C. Section 22
“(1) The Governor in Council may suspend or depose any chief whether appointed before or after the commencement of this Law, if he is satisfied that such suspension or deposition is required according to customary law or is necessary in the interest of peace, order or good government.
……………………………………..
………………………………………
(3) (a) Where a prescribed authority is appointed in accordance with Section 18, the Governor in Council may by notice in the Gazette delegate to that authority the powers conferred by subsections (1) and (2) of this section with respect to minor chiefs whose chieftaincy titles are associated with a native community in the area for which the prescribed authority is appointed.
(3)(b) Any such delegation shall be revocable by the Governor in Council and no delegation shall prevent the exercise by the Governor in Council of any powers. The Prescribed Authorities (Delegation of Powers) (No. 1) Notice 1967. W.S. L.N. 63 of 1967
“1. This Notice may be cited as the Prescribed authorities (Delegations of Powers (No.1) Notice 1967.
- The powers conferred by sub-sections (1) and (2) of Section 22 of the Chiefs Law are hereby delegated to the prescribed authorities specified in the second column of the Schedule hereto with respect to minor Chiefs whose chieftaincy titles are associated with the native communities in areas specified opposite such authorities respectively in the third column of the said schedule.
Serial
SCHEDULE
Serial Prescribed Area
Authority
The Olowo of The Owo
Owo District
…Iyere
Having set down some of the relevant documents and laws, it can be seen as previously stated that the facts in this matter are not in dispute. The seven undisputed facts urged on this court during argument by Chief Babalola agree substantially with those summarised by the learned trial judge in his judgment and upheld by the Court of Appeal. I think it is also beyond dispute that the 1st Respondent, the Olowo of Owo, had Legislative power to do what he did. The two main issues as earlier set down are whether he complied with the conditions precedent to the exercise of that power and whether in doing so he had violated the principles of natural justice.
As regards the first issue, I have no difficulty in accepting the submission of Chief Babalola that on a proper interpretation of Section 22 of the Chiefs Law the conditions precedent to which he made reference, and which I have set down earlier, ought to be fulfilled before the Governor in Council can depose a Chief. Those preconditions to me accord with fairness and more specifically with one of the principles of natural justice – that no man ought to be condemned without hearing his own account of the dispute or matter in issue. I would also agree that if the conditions precedent must be observed by the Governor, his delegate, the Prescribed Authority, cannot be in a stronger position. Those conditions precedent must be observed before the Prescribed authority deposes a minor Chief Opportunity to defend oneself is to my mind the same thing as opportunity of being heard.
Although learned counsel to the respondents had referred to the case of Lagunju in his submission before us, I did not find it necessary to discuss the issue of Inquiry as prescribed by Section 21(1) of the Chiefs Law as the point on inquiry was not specifically taken in argument before us. Chief Babalola in my view indirectly dealt with it since this third precondition before deposition is opportunity of being heard in defence of the allegations. If I have to deal with Section 21 of the Chief’s Law under which the Governor in Council “may cause such inquiries to be held at such times and in such places and by such persons as he may consider necessary or desirable for the purposes of C this law” I would say that what ever is its intendment is equally binding on the Prescribed Authority in the instant case. But having said that, I think it has to be pointed out that the inquiry postulated in Section 21 lies in the discretion of the Governor. More important, is that it is settled that the inquiry need not be a public one. It is sufficient in my view that the party has opportunity of being heard in defence of the allegations made against him. As Lord Normand said in Lagunju v. Olubadan-in-Council 12 W.A.C.A. 406, 410
“The enquiry is not necessarily public enquiry, but it does imply that the parties to the dispute should be given an opportunity of being heard by the Governor as Judge between them…..that they be invited to attend and state their case.”
I am however not persuaded that in the instant case the 1st Respondent, Oba Ogunoye the Olowo of Owo, did not comply with those conditions. In a suit such as this in which there were no pleadings and issues were joined in various affidavits and counter-affidavits one must wade carefully through all the documents in order to come to a just decision. In this part of the case, Chief Babalola has concentrated his fire power on Exhibit “A”. But a careful study of that exhibit shows it does much more than warn the appellants to mend their ways. It drew attention to their misconduct both in relation to their failure to discharge their traditional duties as Chiefs and their disloyalty to the Olowo. Admittedly, it did not specify the particulars of the dereliction of traditional duties, but I am satisfied from a calm appraisal of the circumstances of this case that the appellants were fully aware of the duties involved. That clearly explains why they did not deem it necessary to ask for particulars in order to make their defence. Anyone who was minded to reply to a charge of dereliction of traditional duties would have asked for the particular duties in respect of which his conduct was being impugned.
In Exhibit A, the 1st Respondent also referred to the disloyalty of the appellants in sending an open letter to the Governor of Ondo State requesting for his deposition – a petition which was published in a national newspaper. I do not wish to make too much of this point but it ought to be appreciated that in the circumstances of the traditional chieftaincy institution in this country, there is a sense in which disloyalty by a minor chief to the traditional ruler can be regarded as a breach of his traditional duty as a chief. Further, in Exhibit A, the 1st Respondent gave the appellants one month within which to mend their ways. This in my view gave them ample opportunity to perform their traditional duties as chiefs or if it was their contention that there was no question of their not performing these duties, to defend themselves of the charge that they were not. The appellants in my judgment had adequate notice of the allegations of misconduct against them as well as ample opportunity to make a defence. Rather than take this opportunity they replied through their Solicitor in the terms of Exhibit Y. It can be said that they put up their own conception of a defence. In effect they not only dubbed the allegation that they are guilty of dereliction of their traditional duties as a ruse, but in challenging the legality of the Olowo’s installation, they in effect suggested that he had no right to expect the performance of traditional duties or loyalty to his person, Even at the risk of repetition the salient portion of Exhibit Y said –
“In the view of our clients your allegations that our clients have failed to perform their traditional duties is a ruse to divert the attention of the government and the generality of the people from the real issue which are those of the legality or otherwise of the deposition of Sir Olateru Olagbegi and the legality or otherwise of your installation”
I find no basis for upholding the first complaint of the appellants.
The second complaint which is that the 1st Respondent violated the principles of natural justice is clearly more serious and more substantial. The principles of natural justice are part of the pillars that support the concept of the Rule of Law. They are an indispensable part of the process of adjudication in any civilised society. The twin pillars on which they are built are – the principles that one must be heard in his own defence before being condemned and that, put shortly, no one should be a judge in his own cause. As Lord Denning put it in the Privy Council case of Kanda of Government of Malaya (1962) A.C. 322 at 336. 337
“… Much of the argument JUSTICES and indeed before the courts in Malaya proceeded on the footing that this depended on this further question: Was there a “real likelihood
of bias” that is “an operative prejudice, whether conscious or unconscious on the part of the adjudicating officer…………………….In the opinion of their Lordships. however, the proper approach is somewhat different. The rule against bias is one thing. The right to be heard is another. Those two rules are the essential characteristics of what is often called natural justice. They are the twin pillars supporting it. The Romans put them in the two maxims: Nemo judex in Causa Sua: and Audi alteram partem. They have recently been put in the two words, Impartiality and fairness. But they are separate concepts and are governed by separate considerations’
I have already dealt with the question of the appellants being given a hearing and hold that they had ample opportunity. As regards bias or likelihood of bias, the common law has disqualified an adjudicator from adjudicating whenever circumstances point to a real likelihood that he will have a bias, by which is meant an operative prejudice, whether conscious” R v Queen’s Country JJ (1908) 2 E.R. 285, 294. This matter was extensively considered by is Court in State Civil Service Commission and Anor. and A. I. BuzlIgbe (1984) 7 S.C. 19 at 42. -13 the circumstances of which are in some ways analogous to the present case. There Aniagolu, J.S.C. concluded”
“The Head of Service was clearly a judge in his cause. He had breached the rule of natural justice that a person may not be a judge in his own cause (nemo judex in causa sua). And being a judge in his cause there was, in this case, a real likelihood of bias. The laws of all civilized countries accept this to be true. In OBADARA AND OTHERS VS COMMISSIONER OF POLICE (1964) N.M.L.R. 39 at 44 Brett, Ag. C.J.N. delivering the judgment of the Supreme Court, stated that-
‘The principle that a judge must be impartial is accepted in the jurisprudence of any civilized country and there are no grounds for holding that in this respect the law of Nigeria differs from the law of England or for hesitating to follow English decisions. In determining the likelihood of bias the Court looks at the impression which would be given to other people. In the instant appeal there was no positive evidence of the Head of Service being biased. This however, is not necessary. The facts and circumstances of the instant case on appeal impel me to conclude that it would be super-humanly impossible for the Head of Service to be free from bias”
Most of the cases considered in that judgment admittedly related to the judicial type situation i.e. proceedings in Court, but there is no doubt that the principles equally apply to quasi-judicial type situations such as in the instant case as well as to administrative law situations. In the latter case, if the adjudicators can normally be expected to reserve a detached attitude towards the parties and issues before them then “a departure from the standard of even handed justice which the law requires from those who occupy judicial office or those who are commonly regarded as holding a quasi-judicial office such as an arbitrator” ought not to be and will not be countenanced.
Franklin vs. Minister of Town and Country 1948 A.C. 87,103. To return to the facts of the instant case, there was clearly a real likelihood of bias. Indeed the Olowo would have been super human if he was not biased. From the facts of the case the appellants had been challenging even the legality of his installation. They wrote an open letter to the authorities praying for his deposition. When he wrote them a letter of warning, back came a devastating reply totally refusing to acknowledge his authority.
In ordinary circumstances all these would have been enough to hold that he could not properly act in this case. But the law which empowered him to act i.e. W.S.L.N. 63 of 1967 seems to have been fully aware of such an eventuality yet the delegation was made. It is accepted that the common law disqualification for interest and bias may be waived. They may also be removed by statute by express words or necessary intendment, although courts tend to uphold the common law tradition if the statute is open to another construction. See Rice vs Commissioner of Stamp Duties 1954 A.C. 216,234. It seems to me that we are here dealing with a disqualification removed by subsidiary legislation at least by necessary intendment and I see no room for a contrary construction. Besides, it is also settled that a person who is prima facie disqualified for interest or bias may be held on grounds of necessity, competent and obliged to adjudicate if no other duly qualified tribunal can be Constituted.
In this case although Section 22(3) (b) of the Chiefs Law recognised the right of the Governor in Council to act notwithstanding the delegation, the Governor appeared unwilling to act if one examines the reply sent to the appellants from his office on this Chieftaincy dispute dated 13th May 1980. Indeed in that letter the Governor wrote that –
This is purely a matter between a Prescribed Authority and his Chiefs over whom the Prescribed Authority exercises authority under the law.”
Finally, learned Counsel to the Appellants, Chief Babalola contended that the powers conferred on the Olowo of Owo by the Prescribed Authorities (Delegation of Powers) (No.1) NOTICE 1967 are contrary to the provisions of Section 33(1) of the Constitution of the Federal Republic of NIGERIA 1979 as amended by the Constitution (Modification and Suspension) Decree No. 1 of 1984. Section 33(1) of the Constitution provides as follows:-
“In the determination of his civil rights and obligations including any question or determination by or against any government or authority a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and I impartiality”. (Italics mine)
The argument is clearly that in adjudicating on the rights of the appellants in the instant case the 1st Respondent can hardly be said to be independent or impartial. It was therefore contended that the appellants have been denied fair hearing guaranteed by that provision of the Constitution.
The short answer to this complaint I am afraid can be found in Section 33(2)(a) of the Constitution. That subsection provides as follows:
“(2) Without prejudice to the foregoing provisions of this Section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may effect the civil rights and obligations of any person if such law-
(a) provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person”
There is hardly any need to repeat the decision I have read that such an opportunity was given to the appellants in the instance case.
It remains for me to add, purely for avoidance of any doubt, that this judgment is not concerned with the merit or otherwise of the case of the deposed Ex-Olowo of Owo, Sir Olateru Olagbegi, nor is my decision concerned with the intensity of feelings of the appellants in this matter. One is concerned with the peripheral question whether the appellants ought to remain in office as traditional Chiefs of Owo and yet refuse to acknowledge the authority of the 1st Respondent who at least for now is the Olowo of OND recognised by the appropriate authorities, and the main question whether the 1st Respondent has in accordance with the correct principles of law exercised the powers given him under W.S.L.N. 63 of 1967 such that orders of certiorari and Prohibition ought not to be granted.
Nothing that the appellants have urged before this Court has persuaded me that the Ondo State High Court and the Court of Appeal, Benin Judicial Division, were wrong in their decisions in this suit. In the result, this appeal must fail and it does fail. It is accordingly dismissed. I award N300 costs to the Respondents.
SC.98/1984
