The Resident & Anor V. Memudu Lagunju

LawGlobal Hub Judgment Report – West African Court of Appeal

Appointment and Deposition of Chiefs Ordinance (Cap. 12), section 2 (2).
Chieftaincy Disputes (Preclusion of Courts) Ordinance, 1948, section 3.
Chieftaincy Disputes—Failure to make due inquiry.
Jurisdiction—Proceedings to compel due inquiry in chieftaincy dispute—Certiorari permissible.
Certiorari—Form of proceedings—Supreme Court Ordinance (Cap. 211), section 14.

Facts

Section 2 (2) of Cap. 12 provides that “ In the case of any dispute the Governor, after due inquiry and consultation with the persons concerned in the selection, shall be the sole judge as to whether any appointment of a chief has been made in accordance with native law and custom”.

The above respondent at first sued the Olubadan-in-Council and the above second appellant, claiming that the selection of the second appellant as Timi of Ede had been contrary to native law and custom, and that it was he, the plaintiff, who had been selected in accordance with native law and custom.

He won in the Supreme Court (on 7th February, 1948), but the Court of, Appeal (on 4th December, 1948), held that the Courts, in view of section 2 (2) of Cap. 12, had no jurisdiction to entertain such a claim. He appealed to the Privy Council, from whose judgment (delivered the 5th May, 1952), the following passage is cited:

“The requirement (in section 2 (2) of Cap. 12) that there shall be due inquiry and consultation with the persons concerned in the selection is not a condition precedent to the Governor’s jurisdiction, but it is a condition of the Governor’s valid exercise of his function of sole judge.

If he comes to a decision without having made due inquiry or without having consulted with the persons concerned in the selection there can be no doubt that in an appropriate action it would be competent for the Courts to set his decision aside.

But in no circumstances can the Courts assume to themselves jurisdiction to decide that an appointment has or has not been made in accordance with native law or custom, and an action framed in order to submit that question to the Courts’ decision is incompetent.”

As the above respondent’s first suit was asking the Courts to say that native law and custom had been violated, his suit could not be entertained. But that suit brought to light the fact that no inquiry into the dispute had been made (by the Resident as the Governor’s delegate).

Having lost in the Privy Council, the respondent next applied for leave to apply for an order of Certiorari out of time to remove into the Supreme Court a letter of the Resident dated 7th December, 1946 (which he wrongly described as an “order ” instead of as an approval), approving the appointment of the above second appellant as Timi of Ede; the respondent complained that there was a dispute on whether that appointment had been made in accordance with native law and custom but the ” due inquiry ” required by section 2 (2) of Cap. 12 (first set out above) was not held before the approval of the appointment was signified; and the Supreme Court made an order requiring the appellants to show cause why an order of Certiorari should not issue (which is the form of procedure introduced in England some years ago, after 1900).

It was objected in the Supreme Court that the proper procedure was to apply for an order nisi to show cause why a writ of Certiorari should not issue (in view of section 14 of the Supreme Court Ordinance which provides that ” Subject to the terms of this or any other Ordinance or any Law, the common law, the doctrines of equity, and the Statutes of general application which were in force in England on the 1st January, 1900, shall be in force within the jurisdiction of the Court”); and it was argued that the failure so to apply vitiated the proceedings.

The learned Judge gave leave to amend and directed the issue of a writ of Certiorari. At the hearing before him the three judgments in the previous suit were put in by consent.

In the appeal the appellants raised the point of procedure; they also referred to the misdescription of the Resident’s letter of approval of the appointment as an order; for the Resident it was argued that he had not been a party to the previous suit and there was nothing to prove want of “ due inquiry ” on his part; that an undue hardship would be caused to the second appellant by Certiorari years afterwards (namely in 1953 in regard to a letter approving appointment in December, 1946); finally that the jurisdiction of the Courts was excluded by section 3 of the Chieftaincy Disputes (Preclusion of Courts) Ordinance, 1948, which provides that: ”

Notwithstanding anything in any written law contained whereby or whereunder jurisdiction is conferred upon a Court, whether such jurisdiction is original, appellate or by way of transfer, a Court shall not have jurisdiction to entertain any Civil Cause or matter instituted
for:—
“(a) the determination of any question relating to the selection, appointment, installation, deposition or abdication of a Chief.”

Held

(1) The error in applying for an order of Certiorari did not prejudice the appellants, and the Judge rightly amended it to writ.

(2) The misdescription of the Resident’s letter as an order did not mislead the appellants as to the identity of the document involved.

(3) The Resident gave evidence in the previous suit admitting that he had not held an inquiry into the dispute, and that was stated in the judgments put in evidence and proved thereby.

(4) The Judge below exercised his discretion judicially in granting Certiorari, it being of the highest importance that a due inquiry should be held and interested persons heard, otherwise it would be a denial of justice to them.

(5) Certiorari proceedings did not determine any question of selection or appointment but were merely a means of compelling the performance of the statutory duty to hold a due inquiry, and the Ordinance of 1948 did not deprive the subject of this common law right.

(Editor’s Note: The Ordinance of 1948 (for reasons which it is no longer useful to state) did not affect the appeal in the first suit (questioning the selection of the second appellant as Timi of Ede) either from the Supreme Court to the West African Court of Appeal or from the Court of Appeal to the Privy Council.)

Appeal dismissed.