Busari Ojogbede V. Oba Yinusa Ogundipe & Anor. (2007)
LawGlobal-Hub Lead Judgment Report
JOHN AFOLABI FABIYI, J.C.A.
This is an appeal against the ruling delivered by Bolaji-Yusuff, J. while sitting at the High Court of Justice, Ibadan in Oyo State of Nigeria on 30th January, 2003. The learned trial judge found the appellant’s action premature and incompetent. The suit was struck out.
As plaintiff at the trial court, the appellant herein, claimed in paragraph 32 of the statement of claim as follows:
“(i) Declaration that the plaintiff is the person entitled to be appointed as the Baale of Atan Village.
(ii) Declaration that the appointment of the second defendant by the first defendant as Baale of Atan Community is wrong, unlawful, null and void in so far as the appointment was contrary to customary law, practice and usage and against the custom of Atan Community.
(iii) Declaration that the appointment of the 2nd defendant is wrong unlawful and it is also null and void as it was made when Suit No. I/411/98 ALABI ADEEYO WINSOLA v. BUSARI OJOGBEDE instituted by the 2nd defendant against the plaintiff was pending by the time 2nd defendant was appointed Baale of (sic) by the 1st Defendant.
(iv) Declaration that the appointment of the 2nd defendant by the first as Baale of Atan Community is illegal, wrong, null and void for the failure of the 2nd defendant to disclose to the 1st defendant that suit no. 1/411/98 ALABI ADEEYO WINSOLA v. BUSARI OJOGBEDE was pending at the time the first defendant appointed him as Baale of Atan.
(v) An order of perpetual injunction restraining the 1st defendant and or Olubadan in Council from further recognizing the second defendant as Baale of Atan Community in Akinyele Local Government.
(vi) An order of perpetual injunction restraining the second defendant from parading himself as Baale of Atan Community in Akinyele Local Government Area and or performing the duties of Baale of Atan Community in Akinyele Local Government.
(vii) An order quashing the appointment of the second defendant as Baale of Atan Community made on 17th day of April, 2000 by the first defendant as it is contrary to native law and custom including customary law of Atan Community.”
Parties filed and exchanged their pleadings at the trial court. From the statement of claim, it is extant that the plaintiff claimed that his father was the first settler at Atan Village and was administering same. He asserted that Winsola had no land or building at Atan Village and as such, the 2nd respondent has no claim whatsoever to the Baaleship of Atan Village. He maintained that after the inhabitants of Atan village requested for the appointment of a Baale, he was chosen and his name was forwarded to the 1st Respondent, the prescribed authority for his approval. He asserted that while waiting for the 1st respondent’s approval and confirmation of his appointment as Baale of Atan village, the 2nd respondent instituted Suit No. I/411/98 against him. He claimed that it was during the pendency of the suit that the 1st respondent approved the appointment of the 2nd respondent.
On his own part, the 2nd defendant, a descendant of Winsola, maintained that he is the current Baale of Atan village in Akinyele Local Government of Oyo State. The plaintiff is challenging his nomination and appointment by the 1st defendant. The 2nd defendant claimed that Winsola, his ancestor settled at Atan village a long time ago. Some people later joined him and he allocated land to them as his tenants. Later the ancestor of the plaintiff, one Ojogbede, who came from Ilesha was brought to Winsola by one Pa Oloyede. The 2nd defendant claimed that on 6-12-99, the entire members of Winsola Family nominated him for the post of Baale of Atan Village. The 1st defendant later gave his consent to the nomination.
Before then, the plaintiff had been parading himself as the Baale of Atan village. The 2nd defendant filed Suit I/411/98 against the plaintiff. He was reported to the Olubadan of Ibadan and he denied parading himself as the Baale. The 2nd defendant then discontinued his action on 25-7-2000 by filing a notice of discontinuance.
The plaintiff later filed this action challenging the nomination and approval of his appointment by the 1st respondent, the prescribed authority.
On behalf of both defendants, a Notice of preliminary objection dated 21st October 2002 was filed at the trial court on 23rd October, 2002. The grounds upon which same was based are as follows:
“(1) That this matter is a Minor Chieftaincy recognized by the Oyo State Law of 1978 which empowers the Olubadan as the prescribed authority to appoint anybody to fill a vacancy according to the Native Law and Custom associated with the people of Ibadan and that if there is a dispute to any appointment made by him, an appeal should be brought within 21 days to the Commissioner.
(2) That until all the remedies in the domestic forum are exhausted the plaintiff cannot bring this case in this Honourable Court.
(3) That this Honourable Court has no jurisdiction to entertain this action since the plaintiff has not challenged the validity of any decision of the prescribed authority either by appeal to the Executive Council for review or by certiorari removing such a decision to be quashed by this court.
(4) That in view of grounds 1, 2 and 3 above this case is incompetent and brought in excess of the jurisdiction of this Honourable Court.”
On 30th January, 2003, the learned trial judge was addressed by learned counsel on both sides of the divide. In the considered reserved ruling handed out on 28th February, 2003, the preliminary objection raised by the defendants was sustained. The lower court found the action to be premature and incompetent and that as the court lacked jurisdiction to adjudicate on it, the case was struck out.
The plaintiff felt unhappy with the stance of the learned trial judge and has appealed to this court. The Notice of Appeal dated 7-5-03 was accompanied by four (4) grounds of appeal, which, without their particulars, read as follows:
“Grounds of Appeal:
- The learned trial judge erred in law when he held that the court had no jurisdiction because the plaintiff’s action is premature by virtue of section 22 of the Chiefs Law of Oyo State.
- The learned trial judge erred in law and therefore came to a wrong conclusion which occasioned a miscarriage of justice when he held that where there are two conflicting decisions of the Supreme Court, the lower court is duty bond (sic) bound to follow the later in time.
- The lower court erred in law and thereby came to a wrong conclusion which occasioned a miscarriage of justice when he held that the provision of section 22 was not in abeyance as a result of the court action instituted by the defendant/respondent against the plaintiff/appellant.
- The learned trial judge erred in law and therefore came to a wrong conclusion which caused a miscarriage of justice when he held that the facts of this present case are not distinguishable from the facts in Adesola v. Abidoye.”
The relief sought by the appellant from this Court is:-
“That the ruling of the High Court of Justice, Ibadan dated 30th day of January, 2003 be set aside.”
When this appeal fell due for hearing on 3rd May, 2007, learned counsel for the appellant adopted and relied on the brief of argument filed on 2-11-04 and urged that the appeal be allowed.
In the same manner, learned counsel for the respondent adopted and relied on the respondents’ brief of argument filed on 22-12-04 and urged that the appeal be dismissed.
On behalf of the appellant, the three issues formulated for the determination of this appeal read as follows:
“3.01 Whether the provision of section 22(2)-(5) of the Chiefs Law of Oyo State 1978 is not subject to the Constitution of the Federal Republic of Nigeria, 1999 particularly sections 1(3), 26(6), 46(1) & (2) 272(1) and Chapter IV of the said Constitution.
3.02 Whether the facts of this present case are not distinguishable from the facts in the case of Adesola v. Abidoye (1999) 14 NWLR (Part 637).
3.03 Whether where there are two conflicting decisions of the Supreme Court a lower court is duty bound to follow the later in time.”
On behalf of the respondents, the lone issue distilled with adequate precision reads as follows:
“Whether the lower court was right to have struck out the suit on lack of jurisdiction because of the provisions of S.22 Chiefs Law Cap. 21 Laws of Oyo State, 1978.”
Arguing issue 1 couched on behalf of the appellant, learned counsel observed that the provision of section 22(5) of the Chiefs Law, Cap 21, Laws of Oyo State 1978 should be construed subject to the provisions of sections 6(6), 46(1) & (2) and 272(1) of the 1999 Constitution. He cited the case of Offor v. Osagie II (1998) 1 SCNJ 122.
Learned counsel submitted that a statute that tend to abridge the right of a party in approaching the court for redress must be construed strictly and narrowly against any person benefiting therefrom. He cited Abacha v. Fawehinmi (2000) 2 SCNQR 489 at 586; Olu of Warri v. Kperegbeyi (1994) 4 NWLR (Pt. 339) 416 at 439; Oladoye v. Administrator of Osun State (1996) 10 NWLR (Pt. 476) 38 at 61; Yahaya Adigun & ors v. A.G. Oyo State & ors (1987) 3 SC 250 at 275-276; 289; Rosek v. ACB Ltd. (1993) 8 NWLR (Pt. 312) 382.
In respect of issue 2, learned counsel for the appellant maintained that the case of Adesola v. Abidoye (1999) 4 NWLR (Pt. 637) 28 heavily relied upon by the learned trial judge is inapplicable to the surrounding circumstances and facts of this case in that constitutional validity of the Chiefs Law was not put to test. He also observed that the pendency of Suit No. I/411/98 instituted by the respondent against the appellant makes this instant case different in class and character from the facts in Adesola v. Abidoye. He felt that since parties were already in court in Suit No. I/411/98, the provision of section 22 of the Chiefs Law should not apply and could, at best be said to be in abeyance. Learned counsel submitted that the learned trial judge erred in law when he wholesomely held that he was duty bound to follow the decision in Adesola v. Abidoye, In respect of issue 3, he observed that the correct position of the law on what a lower court confronted with two conflicting decisions of a superior court should do had since been settled by the Supreme Court in Onuoha v. Okafor (1983) 2 SCNLR 244 at 263. He observed further that a lower court in such a position is at liberty to decide which of the two decisions to apply in a case before it. He further cited Unwukiru v. State (1995) 2 NWLR (pt. 377) 345 at 356; Adegoke Motors v. Adesanya (1988) 2 NWLR (Pt. 74) 108.
He finally urged that the appeal be allowed.
Arguing the lone issue formulated on behalf of the respondents, learned counsel observed that it is not in dispute that the subject matter of the suit is a minor chieftaincy. He maintained that after the decision of the 1st respondent confirming the nomination and appointment of the 2nd respondent, the appellant did not appeal to the Commissioner in charge of Chieftaincy Affairs. He felt that all the remedies provided in section 22 of the Chiefs Law were not exhausted before the appellant rushed to the trial court to commence the present action. The appellant did not approach the lower court in its supervisory jurisdiction as no certiorari was filed to remove the decision of the prescribed authority to the court for the purpose of quashing same. He submitted that such failure rendered the action incompetent and the learned trial judge was right in striking out the suit. He cited Sarumoh v. Asanike (1996) 7 NWLR (Pt. 460) 370 at 378; Eguamwense v. Amaghiemwen (1993) 9 NWLR (Pt. 315) 1 at 25.
Learned counsel submitted that the decision in Adesola’s case is binding on the lower court as therein, the provisions of s.22 of the Chiefs Law of Oyo State 1978 was considered. He felt that the appellant was challenging the appointment of the 2nd respondent as Baale of Atan Village.
Learned counsel for the respondents submitted that the appellant was not being denied access to court as he can always do so after exhausting the remedies provided under the Chiefs Law. He cited Adesola v. Abidoye (supra) at p. 56; Umaru v. Abdul Mutallabi (1998) 11 NWLR (Pt. 573) 247.
Learned counsel urged that the appeal be dismissed as lacking in merit. He felt that the learned trial judge was right in placing reliance on the case of Adesola v. Abidoye (supra).
It is of moment at this point to set out below the provision of section 22(2), (3), (4) and (5) of the Chiefs Law of Oyo State, 1978. The relevant law for the determination of this appeal reads as follows:-
“22(2) Where a person is appointed whether before or after the commencement of the law to fill a vacancy in the office of a minor chief by those entitled by customary law so to appoint and in accordance with 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 prescribed authority:
(a) to approve or not to approve an appointment to a minor chieftaincy; or
(b) determine the dispute in accordance with subsection (3) of this section shall be final and shall not be questioned in any court.
(5) 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 representations, confirm or set aside the decision.”
In considering the applicable law as reproduced above, I must wade through the case law more especially as determined by the apex court. My first port of call is the case of Sunday Eguamwense v. James I. Amaghizemwen (supra). Therein, the Supreme Court applied the provisions of sections 21 and 22(1)-(6) of Traditional Rulers and Chiefs Edict (No. 16) 1979, Bendel State in a suit touching on Minor chieftaincy.
The provisions of the stated Edict are similar to the above reproduced Chiefs Law of Oyo State, 1978. It was held that the High Court cannot grant a declaration in respect of the decision of an inferior tribunal because it will involve rehearing the case afresh.
In Eguamwense’s case, Belgore, JSC (as he then was) at page 25 pronounced thus:
“Where a statute prescribes a legal line of action for determination of an issue, be that issue an administrative matter, chieftaincy matter or a matter of taxation, the aggrieved party must exhaust all the remedies in the law before going to court. The provisions of section 21 and 22(1)-(6) of the Traditional Rulers and Chiefs Edict (No. 16) 1979 (Bendel State) are clear as to steps to take.
The plaintiff seemed to have jumped the stile as he avoided all avenues that availed him and went to the High Court. I am of the view that he did a wrong thing indeed…. The provisions of S.236 of the 1979 Constitution is not an open gate for all High Courts to assume jurisdiction in all subjects. All local remedies in the statute on every subject must be exhausted before embarking on actual litigation in court.”
In short it is the law that in respect of functions exercisable by the prescribed authority, an action for declaratory reliefs in the High Court is not proper. See Adigun v. Attorney General of Oyo State (1987) 1 NWLR (Pt. 53) 678,
The next authority on the point is the case of Chief S.C. Osagie II & anr v. Chief E.C. Offar & anr (1998) 3 NWLR (Pt. 541) 205. It is a case from Edo State of Nigeria which touched on a minor chieftaincy. At p. 212, Kutigi, JSC (as he then was) pronounced thus:
“Edict No. 16 of 1979 in section 22 sub-sections (2), (3) and (6) prescribed no condition precedent to the exercise of jurisdiction by the 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 Executive Council ‘shall not be questioned in any court’. While I do not quarrel with the exercise of a domestic forum for settlement of chieftaincy disputes, an aggrieved person should be 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.”
His Lordship, Onu, JSC who was also in the panel that heard the appeal in Eguamwense v. Amaghizemwen (supra) cleared the air. At page 216 in Osagie v. Offor he stated as follows:
“As in the instant case the jurisdiction of the High Court was neither ousted or contemplated, the case of Amaghizemwen (supra) is clearly distinguishable.”
The next authority on the point is the case of Mr. Oladiti Adesola v. Alhaji Raimi Abidoye & aor (surpa). The law considered therein is the same s. 22 of the Chiefs Law of Oyo State, 1978 which is being considered in this matter in hand. Karibi- Whyte, JSC who wrote the lead judgment like he did in Amaghizemwen’s case” pronounced at page 58 as follows:
“The essence of the provision of section 22(5) is to afford the person aggrieved by the decision of the prescribed authority to make representation to the Commissioner for Chieftaincy Affairs, The provision is not in violation of section 33(2)(a) of the Constitution and has not interfered with appellant’s access to the court. See Umaru v. Abdul-Mutallabi (1998) 11 NWLR (Pt. 573) 247.”
Their Lordships, Onu and Iguh JJ.SC agreed with the above pronouncement. Their Lordships Ogundare and Ayoola JJ.SC also agreed with same. Indeed, Iguh, JSC at p, 66 in support of the above pronouncement said:-
“My above view would appear to find support in the observation of Lord Herschell in the decision of the English House of Lords in Barraclough v. Brown & ors (1897) AC 615 at 620. In that case the noble Lord in circumstances which were not too dissimilar to the present case had cause to state as follows:-
‘…… But, apart from this, I think it would be very mischievous to hold that when a party is compelled by statute to resort to an inferior court, he can come first to the High Court to have his right to recover – the very matter relegated to the inferior court – determined.
Such a proposition was not supported by authority, and is I think, unsound in principle.”
Since his Lordship, Onu, JSC who took part in all the three appeals said the position of things in Osagie v. Offor is distinguishable from that in Eguamwense v. Amahgizemwen, I cannot be heard to say, like the learned trial judge, that there is conflict in the judgments.
The appellant in this appeal felt aggrieved with the decision of the 1st respondent, the Olubadan of Ibadan land, the prescribed authority in approving the appointment of the 2nd respondent as the Baale of Atan Village. The appellant did not make representation to the Commissioner for Chieftaincy Affairs as provided by the law. He did not file an action for certiorari in the High Court to quash the decision of the 1st respondent. It occurs to me that by filing an action at the High Court for declaratory reliefs, he jumped the gun. The decision of the 1st respondent remains valid and effective. The authorities in Eguamwense’s case and Adesola v. Abidoye (supra) are clearly in point.
The appellant had a duty to fulfil the statutory requirement of submitting his grievance to the prescribed authority for determination and if not satisfied, he should have approached the Commissioner for Chieftaincy Affairs for appropriate action. It is immaterial that suit No. 1/411/98 was earlier filed by the 2nd respondent and thereafter withdrawn.
In sum, I find that the learned trial judge was right when he held that the action was premature and incompetent. He was right in relying on the decision in Adesola v. Abidoye (supra) wherein it was pronounced that the law does not violate constitutional provisions. He was also right in finding that his court lacked jurisdiction. The suit was properly struck out. See Governor of Kogi State v. Hassan Yakubu & anr. (2001) FWLR (Pt. 43) 350 at 368.
I accordingly resolve the three issues formulated by the appellant against him and in favour of the respondent.
In conclusion, the appeal lacks merit and it is hereby dismissed. The ruling of the lower court dated 30-1-2003 is hereby affirmed. The appellant shall pay N5,000 costs to the respondents.
Other Citations: (2007)LCN/2452(CA)
