Chief Mark Olugbemi Obada & Ors. V. Military Governor Of Kwara State & Ors. (1994)

LawGlobal-Hub Lead Judgment Report

BELGORE, J.S.C.

The plaintiffs in the trial court are the appellants here as they were in the Court of Appeal, Kaduna branch. They all come from a village called Ponyan, then in Kwara State but now in Kogi State. Their complaint is that they have three ruling house who in rotation supply the Chief (Oba) of the town.

The ruling houses, according to them, are ILARO, OTUN AND ODO-OJA. The first two had supplied the last two Chiefs and it was then the turn of Odo-Oja to nominate a Chief and that the kingmakers, who the then appellants claim to be, nominated one D. L. Obasa as Oba of Ponyan. This name, as a formality was forwarded to kwara State Government for approval. But contrary to this advice to Government, the “first and second defendants” appointed the third respondent.

Chief Ezekiel Omoboye Omopariola as Oba of Ponyan by Edict No 2 of 1988, an Edict the plaintiffs claim to be aware of only in Court at Lokoja on 23rd March, 1988. As a result the plaintiffs/appellants had to amend their Statement of Claim, It appears that there was a previous ruling in the same matter against the appellants at the same Lokoja High Court on this subject matter which they never appealed. The present appeal therefore arose out of a new cause whose claims are as follows:

“Whereof the plaintiffs claim against the defendants jointly or severally as follows:

“1. A declaration that under Kwara State Edict No. 3 of 1988 the plaintiffs having paid N10,000 are entitled to challenge the validity of the appointment of the 3rd defendant as Oba of Ponyan by the 1st and 2nd defendants.

2. A declaration that the appointment of the 3rd defendant as Oba of Ponyan by the 1st and 2nd defendants is null and void and of no effect.
3. A declaration that the appointment of Mr. D. L. Obasa as Oba of Ponyan by the kingmakers of Ponyan village is valid and subsisting.
4. A declaration that the three Ruling Houses in Ponyan are ILARO, OTUN AND ADO-OJA and not Omo-Agbon, Omo-oga and Ishima.
5. An injunction restraining the 3rd defendant from parading or presenting himself as the Oba of Pony an village in Oyi local Government Area of Kwara State or from performing any functions relating to or connected with the Oba of Ponyan stool.”

Against this the defendants/respondents raised preliminary objections in their statement of defence that

“1. the High Courts Jurisdiction has been ousted by virtue of S.5 Decree No. 1 of 1984 and Ss. 1, 2(b) (1) of Decree No. 13 of 1984.

2. the High Court of Kwara State, sitting at Lokoja judicial Division, had on 3rd May, 1988, ruled that it had no jurisdiction in a similar matter by the appellants and that they have not appealed against that decision. A similar ruling on identical points of law by the Kwara High Court was upheld by Court of Appeal in appeal No CA/K/150/86 on 7th June, 1988.”

Learned trial Judge decided that he had no jurisdiction to entertain the suit and relied on the Decree No.1 of 1984. An appeal was lodged at Court of Appeal, Kaduna branch which dismissed the appeal and affirmed the decision of High Court of Kwara State. For clarity, the following grounds of appeal were filed:

“GROUNDS OF APPEAL

1. The learned Justices of the Court of Appeal erred in law by affirming the trial court’s decision that the court lacked jurisdiction to entertain the appellants’ claims.

Particulars

(i) The appellants have legal right under Kwara State Edict No.3 of 1988 to challenge the validity of the appointment of the 3rd respondent after complying with the conditions thereunder.

(ii) Kwara State Edict No. 3 of 1988 is not inconsistent with any Decree or the unsuspended provisions of the 1979 constitution.

(iii) The respondent cannot challenged the validity of Kwara State Edict No. 3 1988 which conferred legal right on the citizens of Kwara State by virtue of Decree No. 1 of 1984.

(iv) Under Decree No. 1 of 1984 the 1st respondent has power only to make amend, or repeal an Edict but not to challenge its validity.

(v) Under Decree 1 & 13 of 1984 the Kwara State Edict No 2 of 1988 can be challenged if the appellants can pin-point its inconsistencies with the Decree or the unsuspended provisions of the 1979 constitution of Nigeria and the court has jurisdiction to look into such inconsistencies.

(vi) It is the plaintiffs’ claim which determines the jurisdiction of the court without recourse to the defendants answer.

(vii) The Court of Appeal misconstrued Decree No. 13 of 1984.

2. The learned Justices of the Court of Appeal erred in law when they held that the trial court was right by not making a ruling on the payment of non-refundable N10,000 made by the appellants.

Particulars

A court must resolve and make findings on all the issues that arise for determination before it.

4. RELIEFS SOUGHT FROM SUPREME COURT

To allow the appeal and order the High Court to hear the case on its merits.”

On these grounds of appeal the appellants formulated the following issues for determination:

“ISSUES FOR DETERMINATION

The issues for determination are respectfully formulated as follows:

Whether the Court of Appeal Kaduna was right in holding that the trial court was right by not making any finding on the payment of non-refundable N10.000 made by the appellants.

2.(a) Without even canvassing issue of inconsistencies whether the appellants cannot succeed on a lone ground that having paid nonrefundable sum of N10.000 under Kwara State Edict No.3 of 1988 they are entitled to challenge the appointment of the 3rd respondent as Oba of Ponyan. And also, whether a Governor can challenge in a Court of Law the validity of an Edict promulgated by him.

IN THE ALTERNATIVE

(b) Whether the simpliciter rule that an Edict cannot be challenge applies to this case having regard to the pleadings and inconsistencies of Edict No.2 of 1988 with Decree No.1 of 1984 and unsuspended provisions of the 1979 Nigerian Constitution raised by the appellants.”

On the issues, one has to have a look at what has been the effect of Chiefs (Appointment and Deposition) (Amendment) Edict 1988 of Kwara State amending an Edict No.8 of 1985 by inserting a new section 15 reading as follows:

“15.(1)Where the Military Governor or the appointing authority has approved the appointment of a person as a Chief, any person who intends to challenge the validity of such appointment shall first deposit with the State Accountant-General a non-refundable sum often ten thousand Naira.

(2) Where the Military Governor or the appointing authority has not approved any appointment to a vacant chieftaincy stool, any aggrieved person who institutes any court action in connection with the vacant chieftaincy stool and join the State Government or any of its agency as a party to any such court action shall first deposit with the State Accountant-General a non-refundable fee of ten thousand Naira.”

The argument of the appellants is that having paid a non-refundable fee of ten thousand Naira to the State Accountant-General. it was in law entitled to be heard on its action in court. The contention is that once the deposit is made, the parties action must be heard irrespective of any law or even the constitution. This to my mind, is stating too wide the intendment of the Section 15 Chiefs (Appointment and Deposition) Law as amended (Supra). All laws in this country flow from the Constitution and any law inconsistent in any part with the Constitution is void to the extent of such inconsistency. Military Governor, Ondo State & Anor. v. Victor Adegoke Adewunmi (1985) 3 NWLR (Pt.13) 493: (1988) 6 SCNJ 151. 163 (1988) 3 NWLR (Pt.82) 280; Garba v. Governor of Kaduna State & Anor. (1986) 4 NWLR (Pt.373). That is the position normally in a democratic form of Government whereby the constitution is supreme. In the abnormal situation of a military regime a different situation arises where the Constitution itself is subordinate to the Decree of Federal Military Government and in some cases even to the Edict of a State Government. The Constitution (Suspension and Modification) Decree (No.1 of 1984) in section 5 thereof provides:

“5. No question as to the validity of this or any other Decree or of any Edict shall be entertained by any court in Nigeria’”

The provision of this section may sound wide considering the supremacy given to an Edict of a State Government. But it is not so wide as provisions of the same Decree No. 1 say:

“2 (2) The Military Governor of a State-

(a) shall not have power to make laws with respect to any matter included in the Exclusive legislative List: and

(b) except with prior consent of Federal Military Government shall not make any law with respect to any matter in the Concurrent Legislative List relating to Federal Legislative Powers set out in the second column of part II of the second schedule of the Constitution.

(3) Subject to subsection (2) above and to the Constitution of the Federal Republic of Nigeria 1979, the Military governor of a state shall have power to make laws for the peace, order and good government of that state.

(4) If any law-

(a) ……………………..

(b) made after that date (i.e. 31st December, 1983) by the Military Governor of a State is inconsistent with any law –

(i) Validly made by the National Assembly before that date or having effect as if so made, or

(ii) Made by the Federal Military Government on or after that date, the law made as mentioned in sub-paragraph (i) and (ii) above shall prevail and the State law shall, to the extent of inconsistency, be void.”

It is upon the foregoing that the Court of Appeal held in Governor of Ondo State & Anor v. Adewunmi (supra) that the Edict No 11 of Ondo State 1984 in section (117) thereof pointedly violated the Constitution a decision the Supreme Court upheld in 1988 and reported in (1988) 3 NWLR. Part 82. at page 280, a decision of the full court. Chief Adebiyi Adejumo v. H.E. Col Mobolaji Johnson (1972) 3 SC. 47. In the instant appeal, what was challenged is not ouster clause by virtue of first issue for determination, but the fact that the court ought to have assumed jurisdiction to try the matter as if the payment of a prescribed fee bought off instantly the lack of jurisdiction. Section 15 of Chiefs (Appointment and Deposition) Law of Kwara State is a condition precedent for litigation on chieftaincy matters in Kwara State and it relates only to fees to be paid. The courts below (High Court of Kwara and Court of Appeal) have had occasions to pronounce on the validity of this section. What is before this court is that the Court of Appeal ought to have pronounced on: this with great respect is not a ground of appeal but a mere speculative adventure. The belief by the appellants that by merely fulfiling the conditions in Edict No.2 of 1988 they automatically must be heard is erroneous.

All that the payment of fee N10,000.00 is for is to have access to the court to be heard. It is a different thing if once the access is thus procured for the court to have jurisdiction to look into the cause of action. No action could be filed without payment of a fee and it is after an action is filed that the preliminary issue of jurisdiction can be raised. Being a fundamental matter, issue of jurisdiction must be addressed at the earliest opportunity, for any hearing proceeded upon without jurisdiction is a wasteful exercise. It is however possible that issue of jurisdiction may in certain matters, not be clear, but once it arises it must be addressed by either or all the parties and by the court suo motu and in the process hearing the parties on it before proceeding further. Oredoyin v. Arowolo (1989) 4 NWLR (Pt.114) 172. Oloba v. Akereja (1988) 3 NWLR (Pt.84) 508. The issue is so important that to fail to address it at the earliest stage may, if court has not got the jurisdiction, render the entire proceedings null and void. It is a substantive matter that must be addressed promptly, Ojokolobo v. Alamu (1987) 3 NWLR (Pt.61) 377: Chacharos v. Ekimpex Ltd. (1988) 1 NWLR (Pt.68) 88.

To return to the Edict No.2 of 1988 by the Governor of Kwara State, is the Governor competent to make the Edict The Constitution (Suspension and Modification) Decree, No.1 of 1984. provides in section 2(3) as follows:

“2(3) Subject to subsection (2) above and to the Constitution of the Federal Republic of Nigeria the Military governor of a State shall have power to make laws for the peace, order and good government of that state,”

The Section 2 of the Decree No. 1 of 1984 has earlier been quoted in full in this judgment. What is the effect of Edict No.2 of 1988. It is pertinent to be quoted in full:

‘The Military Governor of the KWARA STATE OF NIGERIA HEREBY MAKES THE FOLLOWING Edict:-

Whereas the Oyi Traditional Council has after consultation with the leaders of the Ponyan Ruling Houses recorded in writing a declaration of what in its opinion is the customary law relating to the selection of the Oba of Ponyan and has submitted such declaration to the Military Governor, together with recommendation regarding the selection of a new Oba of Ponyan.

AND WHEREAS the military Governor is satisfied that the recommendation and the declaration relating to the selection of the Oba Ponyan from one of the three Ruling Houses (Ebis) are neither repugnant to natural justice, equity and good conscience nor incompatible in its terms or by necessary implication, with any enactment.

NOW THEREFORE, in exercise of the powers conferred on me by Section 75 of the Local Government Edict, 1976 and section 3 of the Chiefs Appointment and Deposition Law and of all other powers enabling me in that behalf, I Group Captain Ibrahim Alkali, Military Governor, Kwara State of Nigeria hereby make the following Edict:-

1. This Edict may be cited as the Oba of Ponyan (Chief E.O. Omopariola) (Appointment etc.) Edict, 1988 and shall deemed to have come into force on the 3rd day of January, 1988.
2. Chief Ezekiel Omoboye Omopariola, is hereby appointed the Oba of Ponyan with effect from 16th December, 1987.
3. The declaration of Customary Law contained in the Schedule to this Edict shall be the Customary Law relating to the selection of the Oba of Ponyan where such selection is to be made from anyone of the three Ruling Houses (Ebis).

SCHEDULE

There are three Ruling houses (Ebis). namely-

(i) the omo Agbon (Jakan):

(ii) the Omo Oga (Lagun) current Ruling House:

and

(iii) the Ishima (Were-oba).

and the appointment of the Oba of Ponyan shall continue to be made in rotation from these three Ruling Houses (Ebis).

(2) When the post of Oba of Ponyan becomes vacant, such vacancy shall be declared by the Shaba who under normal circumstances would be the Oba’ s successor.

(3) The Shaba shall thereafter assume the responsibility for the administration of the town until he is formally confirmed or otherwise as the Oba of Ponyan by the Ponyan Kingmakers.

(4) The Council of Princes which consists of members drawn from the following ruling Houses (Ebis), namely-

(i) Omo Agbon (Jakan);

(ii) Omo Oga (Lagun); and

(iii) Ishima (Were-Oba).

shall invite, collate and screen nominations from the royal household including the incumbent Shaba and forward particulars of same to the kingmakers

5. (1) The Kingmakers shall consist of-

(i) Chief Olukotun from Omo-Agbon (Jakan)

(ii) Chief Okohi from Omo-Oga (Lagun); and

(iii) Chief Akogun from Ishima (Were-Oba)

6. It shall be the duty of the Kingmakers-

(i) to screen the nominated candidates in order to ascertain their suitability or otherwise:

(ii) Consult other Senior Chiefs and Elders from the three Ruling Families and formally present the nominated candidate:

perform all the necessary traditional rituals:

(iii) forward the recommendations with authenticated minutes.

(iv) to the Traditional Council.

When the Oyi Traditional Council receives a nomination from the Kingmakers and the candidate is in all respects considered suitable and therefore recommendable, the Oyi Traditional Council shall then take steps to inform the Local Government Area in writing. The Oyi local Government Area shall thereafter issue the appointment papers and announce the appointment in the news-media.”

The Edict is a sort of double barrel proclamation of the Native Law and Custom of Ponyan on appointment of their Chief after necessary investigations have been made and the acceptance of traditional Council of Oyi’s recommendation approved the appointment of a new Chief. The Edict, to my mind, was properly made by the Military Governor of Kwara State as by doing so he has not contravened any part of the Constitution, Chieftaincy matters are with in the powers of State government and unless the exercise of the powers is inconsistent with the Constitution as it is now, it cannot be challenged. The Constitution (Suspension and Modification) Decree No.1 of 1984 provides in Section 5 as follows:

“5. No question as to the validity of this or any other Decree or any Edict shall be entertained by any Court of law in Nigeria”

This is part of the Military Governor’s power to make laws for the peace, order and good government with the state he rules. Unless the exercise of the power is inconsistent with a Federal military Government Decree and Constitution (Suspension and Modification) Decree 1984, there shall he no question a, to the validity of a Military Governor’s Edict in any court of law, That is the purport of Federal Military Government (Supremacy and Enforcement of Powers) Decree (No.13) of 1984;

“WHEREAS the military revolution which took place on 31st December 1983 effectively abrogated the whole pre-existing legal order in Nigeria except what has been preserved under the Constitution (Suspension and Modification) Decree 1984;

AND WHEREAS the military revolution aforesaid involved an abrupt political change which was not within the contemplation of the Constitution of the Federal Republic of Nigeria 1979 (thereafter in this Decree referred to as the Constitution”);

AND WHEREAS by the Constitution suspension (Suspension and Modification) Decree 1984 aforesaid there was established a new government known as the “Federal military Government”‘ with absolute power, to make laws for the peace, order and good government of Nigeria or any part thereof with respect to any matter whatsoever and, in exercise or the said powers, the said Federal Military Government permitted certain provisions of the said Constitution to remain in operation:

AND WHEREAS by section 5 or the said Constitution (Suspension and Modification) Decree 1984, no question as to the validity or any Decree (in so far as by section 2(4) thereof the provisions of the Edict are not inconsistent with the provisions of a Decree) shall be entertained by any court of law in Nigeria:

AND WHEREAS by section 1(2) of the said Constitution and Modification) Decree 1984 provisions of a Decree shall prevail over those of the unsuspended provisions of the said Constitution:

Now, THEREFORE, THE FEDERAL MILITARY GOVERNMENT hereby decrees as follows:-

1(1) The preamble hereto is hereby affirmed and declared as forming part of this Decree.

(2) It is hereby declared also that-

(a) for the efficacy and stability of the government of the Federal Republic of Nigeria and

(b) with a view to assuring the effective maintenance of the territorial integrity of Nigeria and the peace, order and good government of the Federal Republic of Nigeria-

(i) no civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act, matter or thing done or purported to be done under or pursuant to any Decree or Edict and if any such proceedings are instituted before, or on after the commencement of this Decree the proceeding, shall be discharged and made void.

(ii) the question whether any provision of Chapter IV of the Constitution has been, is being or would be contravened by anything done or proposed to be done in pursuance of any Decree or an Edict shall not be inquired into in any court of law and. Accordingly, no provision of the Constitution shall apply in respect of any such question.

2. This Decree may he cited as the Federal Military Government (Suspension and Enforcement of Powers) Decree 1984″.

Even though the Edict No.2 (supra) have not got ouster provisions, by the nature of the exercise of his powers therein, just as in Edict No. 3 (supra), the Edicts are within the ambit of law, order and good government that the Military Governor can make laws for Governor of Ondo State and Anor v. Adewunmi (supra) is not on all fours with this. Chiefs Edict (Ondo State) No. 11 of 1984 is a completely different type of legislation and in S.11 (5) & (7) thereof it blatantly ousted the jurisdiction of any court. The Edict No.11 was declared unconstitutional and rightly so. Much care and prudence went into Kwara State Edicts No.2 and No.3 of 1988.

I find no reason whatsoever to interfere with the decision of the lower courts and this appeal is accordingly dismissed. I award N1,000.00 as costs against the appellants.

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SC.131/1990