Jabin Onesa Ogaga V. Thomas E. Umukoro & Ors (2011)
LAWGLOBAL HUB Lead Judgment Report
MARY UKAEGO PETER-ODILI, J.S.C.
This appeal is against the judgment of the Court of Appeal sitting in the Benin Division of the court which judgment was delivered on the 11th of April, 2003
The appeal to the Court of Appeal Benin was from a ruling of the High Court of Delta holden at Otu-Jeremi which suit was in respect respect of a dispute arising from successorship to the Kingship stool of Ovie of Ewu (or Eghwu) a community in Ughelli South Local Government Area of Delta state. Both the Defendant/Appellant and Plaintiff/Respondent came from the Ruling House (Okpor Ruling House) whose turn it is to produce the King of Ewu Kingdom.
For clarity, I shall recast the Plaintiff’s Statement of claim at the trial High court specifically the claim in paragraph 29 thereof:-
- A declaration that the 1st Defendant was never appointed as the Ovie of Ewu or Ovie-elect of Ewu within the jurisdiction of this Honourable Court.
- A declaration that the 1st Defendant was never selected and/or appointed as the Ovie of Ewu by the Ahavwa Kingmaker or any relevant body in Ewu as Ewu customs demand.
- A declaration that the 1st Defendant is not the Ovie by the customs of Ewu the Ovie of Ewu.
- A declaration that the purported approval of 1st Defendant as Ovie of Ewu by the Delta State Government headed by the 2nd Defendant as announced in December, 1995 while an inquiry on the same Ovieship set up by the 2nd Defendant has not sat to hear evidence and submit report is against natural justice and the constitutional requirement of fair hearing, a breach of the 1979 constitution of Nigeria and therefore null and void and against the constitutions of Inquiry Law 1976 applicable to Delta state.
- An order of perpetual injunction restraining the 2nd and 3rd Defendants from further recognizing the 1st Defendant as Ovie of Ewu and/or from granting a staff of office or any insignia of office to the 1st Defendant as such Ovie.
- An order of perpetual injunction restraining the 1st Defendant from parading himself as Ovie of Ewu and/or from presenting himself to anyone, anybody and/or authority as the Ovie of Ewu or Ovie – elect of Ewu for any purpose whatsoever especially for the purpose of being presented with the staff, certificate and/or any insignia of office as Ovie of Ewu.
- A declaration that the Plaintiff is the Ovie of Ewu.
In his Amended statement of Defence, the Defendant/Appellant raised a question of jurisdiction contending that the Supremacy and Enforcement of Powers Decree No. 12 of 1994 coupled with Section 32 of the Traditional Rulers and Chief Edict, 1979 of the defunct Bendel State applicable to Delta State ousted the jurisdiction of the trial court. The issue was heard as a preliminary point of Law.
The trial High court ruled that it had no jurisdiction to hear the case. On appeal by the plaintiff who was dissatisfied, the court below held that section 32 of the Traditional Rulers and Chief’s Edict, 1979 was unconstitutional; having regard to the 1979 constitution and that Decree 12 of 1994 did not oust the jurisdiction of the trial High court. The Court of Appeal then remitted the case to the High Court for trial on the merits. It is against the appeal that the Defendant/Applicant has appealed to this Court.
At the hearing, Mr. Ajineh adopted the Brief of the Appellant and a Reply Brief and on behalf of the Appellant formulated a single issue viz:-
“Whether by the combined effect of the provisions of Section 19 (1) of the Traditional Rulers and Chiefs Edict 1979 applicable to Delta state and section 1 (2)(b) (i) of Supremacy and Enforcement of powers) Decree No.12 of 1994, the Court of Appeal was right when it held that the High court sitting at Otu-Jenemi has jurisdiction to hear and determine the substantive suit by remitting same to the said court for hearing on the merit.”
Learned counsel for the Respondent, Mr. Odjessa adopted the Brief of the Respondent in which was also crafted a sole issue follows:-
Was the Court of Appeal right when it held that the High Court of Justice, Delta state has jurisdiction to hear and determine the substantive case despite section 19 (1) of the Traditional Rulers and Chiefs Edict 1979 and the Supremacy and Enforcement of Powers Decree No. 12 of 1994
The two issues, each differently couched by each side are in the main the same in substance and so, what is left is to answer the question posed.
Learned counsel for the Appellant, Mr. Ajineh contended that it is the Plaintiff’s claim that determines the jurisdiction of any court whether the court has jurisdiction to hear and determine a claim before it. He cited Yalaju Amaye v. A.R.E.C. Ltd. (1990) 4 NWLR (pt.145) 422 at 441 para C; Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 at 549 para B; Magaji v. Matari (2000) FWLR (Pt.18) 237 at 252 para H; Okulate v. Awosanya (2000) FWLR (Pt.25) 1666 at 1696 paras A – B.
That the appointment or approval of the Appellant as the Ovie of Ewu was an act of the Delta state Government and the further recognition accorded the Appellant by the 2nd Respondent by so gazetting the said approval/appointment was also an act of the Delta state Government done pursuant to Section 19 (1) of the Traditional Rulers and Chiefs Edict of 1979 of the defunct Bendel State now applicable to Delta state. That reliefs 4, 5, and 6 of the Plaintiff/Respondent in the Statement of Claim are a direct challenge of the acts of the Delta State Executive council represented by 2nd and 3rd Defendants/Respondents.
Mr. Ajineh of counsel for the Appellant called the attention of the Court to Section 21 (2) (b) (i) of the Supremacy and Enforcement of Powers) Decree No. 12 of 1994.
Mr. Ajineh for the Appellant said the Court below did not address the provisions of the Edict thoroughly especially with regard to the provision of Section 19 (1) thereof under which the acts that the Plaintiff/Respondent seeks to upturn through the judicial process were carried out. That the Court below addressed the issue of the jurisdiction of the trial court rather too narrowly by focusing only on Section 32 of the Edict which learned counsel for the Appellant concedes is in conflict with the provisions of the then Section 6(6)(b) and section 236 of the 1979 Constitution. That the proper thing is for the Court below to have situated the acts complained of in a broader and better perspective by narrowing the Plaintiff’s claims or reliefs through the said provisions of the Edict and Decree respectively and a holistic approach. That the approach adopted by the Court below was fatal to its own judgment. He cited Nigeria Engineering Works Ltd v. Denap Ltd. (2002) FWLR (pt.89) 1062 at 1090 paras A – B.
Learned counsel for the Appellant stated on that the issue of the conflict is only incidental to the larger issue of the effect of the claim of the Plaintiff/Respondent in the light of the acts of the 2nd and 3rd Defendants/Respondents with particular focus on the relevant provisions of the Edict and Decree No. 12 of 1994. That the provisions of section 19 (1) of the Edict are unambiguous and also not unambiguous are the provisions of section 1 (2) (b) (i) of Decree 12 of 1994. That they ought to have been given their literal and/or plain/clear interpretations. That the Court of Appeal should have followed the principle of stare decisis and gone along the decisions of this court in the cases of:
Attorney General Federation v. Sode (1990) 1 NWLR (Pt.128) 537 paragraph F; Osadebey v. Attorney General State (1991) 1 NWLR (pt. 169) 525 at 574 paras G – H.
Mr. Ajineh of counsel went on to say that though the original source of jurisdiction of the High Court is the 1979 Constitution itself, but at the material time, where a Decree promulgated had ousted the jurisdiction of all courts or tribunals in any subject matter inconsistent with the provisions of the 1979 Constitution, the Decree such as Decree No.12 of 1994 prevailed and must be followed. He referred to Attorney General Federation v. Sode (supra) 518-519 Paras H-A; Attorney General of Lagos State v. Dosunmu (1989) 3 NWLR (pt.111) 552 at 581 para D; Attorney General Federation v. Guardian Newspapers Ltd. (2001) FWLR (Pt.32) 87 at 167 paras C – E; Miscellaneous Offences Tribunal v. Okoroafor (2001) FWLR (Pt.81) 1730 at 1748 & 1749.
For the Appellant it was further contended that where the jurisdiction of a court has been clearly ousted by a Decree or statute as under Decree No.12 of 1994, the court is bound or obliged to uphold the ouster of their jurisdiction. He cited the following cases:
Labiyi v. Aretiola (1992) 8 NWLR (pt. 258) 13; Adejumo v. Military Government Lagos State (1972) All NLR; Obada v. Military Governor Kwara State (1990) 6 NWLR (Pt.157) 482 at 497 – 498 paras G – A.
Mr. Ajineh for the Appellant conceded that section 32 of the Edict are inconsistent with the provisions of the unsuspended parts of the 1979 constitution and so the section has been declared null and void and in addition has been declared impliedly repeated or modified by section 274 of the 1979 constitution. He cited the case of Ikine v. Edjerode & ors (2002) FWLR (Pt.92) 1775 at 1799 – 1720 paragraphs A – B. That in the matter of section 19 of the Edict under which the acts complained of happened that provision still remained extant and so claim of the 1st respondent should have been viewed in the light of section 19(1) of the Edict and section 32 of the Edict together or conjunctively and not disjunctively.
In responding, learned counsel for the respondent stated that the Constitution (Suspension And Modification Decree 1993 left unsuspended and unmodified Sections 6 (6) and 236 (1) of the 1979 Constitution, and that Counsel for the Appellant concedes is in conflict with the provisions of the then Section 6 (6) (b) and Section 236 (1) of the 1979 Constitution. That the proper thing is for the Court below to have situated the acts complained of in a broader and better perspective by narrowing the Plaintiff’s claims or reliefs through the said provisions of the Edict and Decree respectively and with a whollistic approach. That the approach adopted by the Court below was fatal to its own judgment. He cited Nigeria Engineering Works Ltd v. Denap Ltd. (2002) FWLR (pt. 89) 1062 at 1090 paras A – B.
Learned counsel for the Appellant stated of that the issue of the conflict is only incidental to the larger issue of the of the claim of the Plaintiff/Respondent in the light of the acts of the 2nd and 3rd Defendants/Respondents with particular focus on the relevant provisions of the Edict and Decree No. 12 of 1994.
That the provisions of Section 19(1) of the Edict and unambiguous and also not unambiguous are the provisions of Section (1) (2) (b) (i) of Decree No.12 of 1994. That they ought to have been given their literal and/or plain/clear interpretations. That the Court of Appeal should have followed the principle of stare decisis and gone along the decisions of this court in the cases of: A. G. Bendel State (1991) 1 NWLR (pt.169) 525 at 574 paras G – H.
Mr. Ajineh of counsel went on to say that though the original source of jurisdiction of the High court is the 1979 constitution itself, but at the material title, where a Decree promulgated had ousted the jurisdiction of all courts or tribunals in any subject matter inconsistent with the provisions of the 1979 Constitution, the Decree such as Decree No.12 of 1994 prevailed and must be followed. He referred to A.G. Federation v. Sode (supra) 518 – 519 paras H – A; A – G. Lagos State v. Dosunmu (1989) 3 NWLR (pt.111) 552 at 581 para D; A. G. Federation v. Guardian Newspapers Ltd. (2001) FWLR (pt.32) 87 at 167 paras C – E; Miscellaneous Offences Tribunal v. Okoroafor (2001) FWLR (Pt.81) 1730 at 1748 & 1749.
For the Appellant it was further contended that where the jurisdiction of a court has been clearly ousted by a Decree or statute as under Decree No. 12 of 1994, the courts are bound or obliged to uphold the ouster of their jurisdiction. He cited the following cases: Labiyi v. Aretiola (1992) 8 NWLR (Pt.258) 13; Adejumo v. Military Government Lagos State (1972) All NLR; Obada v. Military Governor, Kwara State (1990) 6 NWLR (Pt.157) 482 at 497 – 498 paras G -A.
Mr. Ajineh for the Appellant conceded that Section 32 of the Edict that are inconsistent with the provisions of the unsuspended parts of the 1979 constitution and so the section has been declared null and void and in addition had been declared impliedly repeated or modified by section 274 0f the 1979 constitution. He cited the case of Ikine v. Edierode & ors.(2002) FWLR (Pt.92) 1775 at 1799-1720 paragraphs A -B.
Learned counsel for the Respondent stated that the ample powers given to the High court of Delta state to determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claims is in issue were extant in 1995 when the cause of action arose in this case. That under the applicable Traditional Rulers And chiefs Edict, 1979 Bendel state, the Government does not select nor appoint a traditional ruler for the communities. That under section 19 (1) of the said Edict, the relevant Executive council can only approve or set aside the selection of a traditional which selection is done at the community level in accordance with custom and traditions. He cited Adeyeri v. Atanda (1995) 5 NWLR (Pt.397) 512 at 533 para B.
Mr. Odjessa for the Respondent said the severance of role between the selectors, appointers on the one hand and the approving authorities was profoundly brought out in Eze v. Okechukwu (1998) 5 NWLR (Pt.548) 43 at 68 paras E – G in respect of a similar Decree 13 of 1984 and that judgment of the Court of Appeal was affirmed by the Supreme Court in Eze v. Okechukwu (2002) 18 NWLR(Pt.799) 348.
For the Respondent it was also put forward that all the reliefs except one sought by the Plaintiff/Respondent pose questions about nomination, selection and/or appointment of either of the two combatants within the Ewu traditional, customary law. That the exceptional refief which is No.4 is saved by section 1 (2) (b) (ii) of Decree 12 of 1994 as it is based on chapter IV (Fundamental Rights) of the 1979 constitution. That the intention of the lawmaker was to restrict the ouster of the jurisdiction of a court in respect of matters under chapter IV of the 1979 constitution to when Decrees are challenged and not acts done or purportedly done under Edicts. That to enable the purport of a statute to emerge, all the sections of the statute should be read as a whole. That adopting a whollistic approach to the interpretation of Decree 12 of 1994, that the Edict could not oust the jurisdiction of a court in a claim touching on Fundamental Rights.
Learned counsel for the Respondent said Reliefs 5 and 6 were ancillary to the main claims of the plaintiff/Respondent and cannot be used to determine the jurisdiction of the trial court. He referred to Daily Times (Nig.) Plc. v. Akindiji (1998) 13 NWLR (pt.580) 22 at 32 – 33.
He contended for the Respondent that in the case at hand no one had challenged the validity of any Edict. That what is in focus are the customs and traditions as accepted by the traditions as accepted by the people of Ewu and indeed that of Respondent and Appellant which this Court answered effectively in Eze v. Okechukwu (supra) and Omokhafe v. Military Administrator Edo State of Nigeria (2005) All FWLR (Pt.243) 629 at 642 – 643 paras G – B.
That the two cases above referred to are not dissimilar to the one in hand.
Mr. Odjessa for the Respondent went on to say that the commencement date of the Federal Military Government (supremacy And Enforcement of Powers) Decree 1994 (Decree No.12 of 1994) was 18th November, 1993. The Traditional Rulers and Chiefs Edict 1979 came into force on 24th August, 1979.
That assuming though not conceding that this case at the trial court was a challenge to an act of the Military Government in Delta State an act done pursuant to the Traditional Rulers And chiefs Edict 1979 Decree 12 of 1994 cannot operate retrospectively to protect both the act and the Edict from the amplitude of judicial powers granted the High court of Justice of Delta state under sections 6 (6), 236(1), 274 (2) and 274 (3) of the 1979 Constitution in force when the cause of action arose. He cited Nigerian Engineering Works Ltd. v. Densap Ltd (2002) FWLR 1062; Kanada v. The Governor Kaduna State (1986) NWLR (pt.35) 361 at 373 – 376 paras H – B; Commissioner for Local Government Anambra State v. Ezenuokwe (1991) 3 NWLR (pt.181) 615 at 628 para C.
In reply on points of law, Mr. Ajineh learned counsel for the Appellant said where the resolution of the main claims or reliefs in a suit cannot be done without a resolution of the ancillary reliefs as in the case in hand, the court cannot assume jurisdiction. He cited Akinola v. Vice-Chancellor Unilorin (2005) All FWLR (Pt.259) 1934 at 1955 paras C – E; Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 at 567 para E, P.568 paras A – B.
Having stated the submissions of counsel on either side, it seems to me that the relevant portion of the judgment of the court below needs be restated for a better appreciation of the issues at stake including the findings of the trial High court and its consideration by the Court below. It is as follows at pages 465 – 468 of the Record:-
“The learned trial Judge considered the provisions of Decree No.12 and held that it was not counsel’s contention that the appointment of 1st Defendant was made under Decree No.12 of 1994. He however considered reliefs 4 and 5 in paragraph 29 of the statement of claim vis-a-vis section 32 of the Traditional Rulers and chiefs Edict, 1979 and held that the court’s jurisdiction was ousted.
In my view the submission made by learned counsel for the Appellant on the second issue settles the point. The Traditional Rulers and Chiefs Edict, 1979 was enacted before the coming into force of the 1979 constitution. The 1979 constitution swept away all laws which ousted the jurisdiction of courts over chieftaincy questions in sections 6 and 236 (1) of that constitution because it was provided in section 236 (1)……… The tenor of section 32 of the Traditional Rulers and chiefs Edict is the same as section 28 of the chiefs Law (Ondo State 1978). This provision is clearly in conflict with the 1979 constitution and consequently became void to the extent of the inconsistency. And since the said Edict was an existing law, it was deemed modified by virtue of section 274(1) of 1979 constitution so as to bring it in line with the said 1979 constitution. At the time the learned trial judge interpreted and applied the said provisions of the Edict, it was no longer the law. Notwithstanding that Decree No. 12 of 1994 had been promulgated at the time the matter went to court, section 236 (1) of the 1979 constitution had not been abrogated and so it took precedence over the Traditional Rulers and Chiefs Edict, 1979 since the Edict ranks below the unsuspended and modified section of the 1979 Constitution.
It is therefore crystal clear that section 32 of the Traditional Rulers and chiefs Edict 1979 is void since it conflicts with sections 6 (6) (b) and 236 (1) of 1979 constitution and the learned trial judge was in error when he held that section 1 (2) (b) (i) of Decree No.12 of 1994 applied because of the Traditional Rulers and chiefs Edict, 1979”.
Section 32 of the Traditional Rulers and chiefs Edict 1979 provides as follows:-
“32 – Notwithstanding anything in any written law whereby or whereunder jurisdiction is conferred upon any court, whether such jurisdiction is original, appellate, or by way of transfer, no court shall have jurisdiction to entertain any civil case or matter –
- Instituted for the determination of any question relating to the selection, appointment, installation, deposition, withdrawal of approval of appointment, abdication or suspension of a traditional ruler, regent or a chief as the case may be”.
Those are clear ouster clauses and no court could enter into any matter pertaining to the subject matter or related matters covered by that Edict.
However Section 236 (1) of the 1979 constitution came into being and provided thus:-
“236 – (1) Subject to the provisions of this constitution and in addition to such other jurisdiction may be conferred upon it by law, the High Court of a State shall have unlimited jurisdiction to hear and determine any civil proceeding 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”.
The above was the basis upon which this court voided the provisions of section 28 of the Chiefs Law of Western Region of Nigeria Cap.20 of the Laws of western Region 1963, which became on creation of Ondo State Cap .20 of the Laws of Ondo State 1978. That section had ousted the jurisdiction of all courts original or appellate.
Also that section and law are impari material to Section 32 of the Traditional Rulers and chiefs Edict 1979, the law relevant to today’s discourse. I refer to Military Governor of Ondo State v. Adewunmi (1988) 3 NWLR (Pt.82) 280.
I would like to cite and quote Igu JSC in Benin Rubber Producers Ltd. v. Ojo (1997) 9 NWLR (pt.521) 388. In that case the Appellant’s counsel had contended that the respondent’s failure to comply with or exhaust all the remedies prescribed by section 51 (1) (c) of the Cooperative Societies Law cap.45 Laws of Bendel state of Nigeria 1976 before filing his action against the appellant and its servant robbed the court of jurisdiction to entertain the suit. This court considered the combined effect of sections 6 (6) (b), 236 and 274 of the 1979 Constitution alongside the said Section 51 (1) (c) of the Co-operative Societies Law and held that the court’s jurisdiction was not ousted. Illuminating the position, Iguh JSC in the lead judgment at page 405 stated as follows:-
“The combined effect of these sections of the 1979 constitution is, subject to the other provisions of the said Constitution, to confer unlimited jurisdiction on the High court of a State and all existing Laws and/or any provision in a state Laws which are not in conformity with the provisions of the Constitution or tend to derogate from the powers of such courts shall to the extent of such inconsistency be void. State Laws which purports to oust the jurisdiction of the state High court is void as being inconsistent with the Constitution of the Federal Republic of Nigeria 1979. See Bronik Motors Ltd. & Anor v. Wema Bank Ltd. (1983) 6 SC. 158, Military Governor of Ondo State and Anor v. Victor Adewunmi (1988) 3 NWLR (pt. 82) 280. In my view therefore, the provisions of Section 51 (1) (a), 51 (1) (b) and 51 (6) inconsistent with of the Federal Republic of Nigeria 1979. See Bronik Motors Ltd. & Anor v. Wema Bank (1983) 6 SC 158, Military Governor of Ondo State and Anor. v. Victor Adewunmi (1988) 3 NWLR (pt.82) 280. In my view therefore, the provisions of section 51 (1) (a), 51 (1) (b) and 51 (6) of the Cooperative Societies Law, cap 45 Laws of the former Bendel state of Nigeria 1976 which are state enactments must be regarded as void in so far as they purport to limit or oust the jurisdiction of the High Courts as therein provided contrary to the express provisions of the 1979 Constitution.”
It is clear therefore that the court below was right in its application of the relevant laws, situated side by side the Constitutional provision related thereto. Therefore it is safe to say that the ouster clause and Edict of 1979 had ceased to exist and the constitution supreme, with the effect that the trial High court had its jurisdiction in tact to entertain the suit before it.In conclusion this appeal fails and is dismissed. The orders of the Court below setting aside the ruling of the High Court of Delta State and remitting the case back to the Chief Judge of Delta State for reassignment to another judge for hearing is upheld.
I award the sum of N50,000.00 to the Respondent to be paid by the Appellant.
SC.224/2003
