Alh. Wahab Odeyale & Anr. V. Alh. Hammed Olapade Babatunde & 3 Ors. (2009)
LawGlobal-Hub Lead Judgment Report
ISTIFANUS THOMAS, J.C.A.
The appeal is against the ruling of Ibadan High Court of Justice, delivered by M. L. Abimbola, Judge, on 9th February, 2005 striking out the appellant’s suit upon the hearing of the preliminary objection, raised by the 1st & 2nd Respondents respectively, challenging the jurisdiction of the lower court to entertain the suit.
The Appellants claimed at the lower court as follows:-
- Declaration that Odeyale the great ancestor of the plaintiffs was, under native law and custom of the Yoruba, the founder of Odeyale Village usually called Inu Odi Odeyale via Akanran Ona Ara Local Government Ibadan.
- Declaration that the Plaintiffs are the descendants of Odeyale the founder of Odeyale Village usually known as Inu Odi Odeyale Akanran Road, Ona Ara Local Government Ibadan.
- Declaration that under Yoruba native law and custom the Odeyale’s descendants are to be appointed the Baale of Inu Odi Odeyale Akanran Road, Ona Ara Local Government Ibadan to the exclusion of any person or group of person.
- Declaration that the first and second Defendants are not descendants of Odeyale the founder of Odeyale village known and called Inu Odi Odeyale Akanran Road Ona Ara Local Government Ibadan and its environs and consequently they are not entitled under Yoruba native law and custom to be appointed Baale of Inu Odi Odeyale and its environs as intended by the 3rd and 4th Defendants during Baale Inu Odi Odeyale dispute referred to the 3rd and 4th Defendants for arbitration.
- Perpetual injunction restraining the 3rd and 4th Defendants from appointing and installing none of the 1st and 2nd Defendants as Baale Inu Odi Odeyale and its environs Akanran Road, Ona Ara Local Government, Ibadan.
- A mandatory order of the court directing the 3rd and 4th Defendants to appoint and install the 2nd Plaintiff Baale Odeyale Village.
At the lower court, when the Defendants but now Respondents were served with the writ, 1st and 2nd Respondents filed their preliminary objections separately that read as follows:-
1st Defendant/Respondent
(i) The Plaintiffs action is premature.
(ii) The Plaintiffs have failed to follow due process of law in bringing this suit.
(iii) The court lacks jurisdiction to entertain Plaintiffs suit.
2nd Defendant/Respondent
(i) The court lacks the jurisdiction to entertain the claims of the Plaintiffs.
(ii) This action is premature and constitutes abuse of court process.
(iii) This action discloses no cause of action.
(iv) The 3rd and 4th Defendant/Respondent are not juristic entities and cannot sue or be sued.
At this stage it is apt to give the facts between the parties before filing of the suit at the lower court. As a result of the vacancy that existed in the stool of a minor chieftaincy title of BAALE ODEYALE in Ona Ara Local Government Area of Oyo State, the 2nd Appellant Mr. Raufu Idowu Olayiwola Odeyale, the 1st and 2nd Respondents namely, Alhaji Hammed Olapade Babatunde and Mr. Amos Adedokun respectively, were variously presented to the 3rd and 4th Respondents for consideration and appointment by their respective families. This gave rise to a chieftaincy dispute between the contestants. The 3rd and 4th Respondents as the Yoruba traditionally prescribed authority for chieftaincy, invited the three contestants and their respective families to resolve the disputes. Based on the parties’ invitation, the contestants and their families submitted to the arbitration of the 3rd and 4th Respondents that is to say His Royal Highness, the Olubadan and Advisory Council, and both parties attended their sittings where each contestant then submitted his representation for his eligibility to fill the vacant stool of BAALESHIP OF ODEYALE. While the arbitration was still in progress, and there was no decision, the appellants, left and instituted their writ of summons before the Lower High Court seeking the reliefs reproduced above. It was on this basis that the 1st and 2nd Respondent filed their respective preliminary objections in which they urged the lower court to strike out the Appellant’s suit. The preliminary objection was sustained and the suit was struck out, hence the Appellants have appealed on six grounds of appeal which was filed on 11th February, 2005.
Appellants distilled and raised three issues for determination as follows:-
“1. Was the learned Presiding Judge right in striking out the Plaintiffs/Appellants action on preliminary objection raised by the 1st and 2nd Defendants/Respondents after the 1st Defendant had filed his statement of defence to the action and joined issues with the Plaintiffs?
- Was the learned Presiding Judge right in holding that the action was premature and that the Plaintiffs/Appellants could not withdraw from arbitration proceedings which they entered into contrary to the sections 6(6) and 272(i) of 1999 Constitution of Federal Republic of Nigeria.
- Was the learned Presiding Judge right in not allowing him to be bound by the decision of the Supreme Court?”
The 1st Respondent raised two issues for determination and they read as follows:-
“1. Whether the Plaintiff can activate the jurisdiction of the lower court to entertain their claims without satisfying the preconditions stipulated under section 22(3) – (6) of the Chiefs Laws Cap 21 Laws of Oyo State, 1978?
- Whether the Plaintiffs having submitted to native arbitration of the dispute by the 3rd and 4th Defendants/Respondents can abandon the arbitration to claim the relief sought?”
The 3rd and 4th Respondents raised verbatim identical two issues of the 1st Respondent and there is no need to repeat the same here.
In his argument on 1st issue, learned counsel for the Appellant has submitted that the trial judge erred in law by striking the suit on the basis of preliminary objection when infact, the 1st Respondent had filed his statement of defence and thus joined issues with the appellants. That the case was to be heard and determined on merit and not on preliminary objection because issues were joined and the trial judge should have prevailed over the objection at that stage, Counsel referred to and relied on the authority of CASIMIR ODIVE VS. NWEKE OSOR (1974) 2 SC 25 at 39; AKPAN VS. UFIN (1996) 6 SCNJ 253, 256; ALEX OLADELE OLUFIOYE VS. HALILU (1993) 7 SCNJ 347; LADEJOBI VS. OGUNTAYO (2004) 19 NSCQ 1, 22; OKAFOR VS. ATTORNEY GENERAL ANAMBRA STATE, 22 NSCQR (pt.1) 439, 442 – 447,
On issue 2, Appellant’s have submitted that the trial judge erred by holding that the suit was premature because the Appellants could not withdraw from the arbitration proceedings which they entered into which is contrary to their constitutional right, under sections 6(6) and 272(1) of the 1999 Constitution. That the said sections of the Constitution had given the trial court the jurisdiction to hear the suit. That the trial judge failed to understand the distinction between Certiorari and Declaration of right. That the Appellants suit was declaratory rights enshrined under the constitution in section 6(6), while the trial court had jurisdiction under section 272(1) of the same constitution, Counsel relied on the case of CHIEF ALIU ABU VS. CHIEF ABUBAKAR ZIBIRI ODUGBO 7 NSCQR 624; AVONG VS. KADUNA REFINERY, 3 Federation Reports 181. Appellants have further submitted that under section 6(6) of the Constitution 1999, chieftaincy dispute is a matter within the jurisdiction of the State High court under which they instituted the suit without waiting for the outcome of the arbitration proceedings, and relied on the case of CHIEF ALIU ABU VS. CHIEF ABUBAKAR ZIBIRI ODUGBO (supra) at page 673. Counsel still submitted that the trial judge was wrong in law when he ruled that the Appellants could not withdraw from the arbitration proceedings which was before the 3rd and 4th Respondents, when in law they (appellants) has the right to resile from the arbitration once they had felt that the arbitrators will not give them fair hearing as guaranteed by section 36(1) of the 1999 Constitution. That it was wrong therefore when the arbitration panel refused to admit in evidence, the sketch-map attached to a judgment delivered in 1906. That this was the reason that made the appellants to go to the High Court where they believed the fair hearing would not be denied. They referred to the cases of OKEREKE VS. NWANKO 14 (1) NSCQR 96, 108; ABU IDAKWO VS. LEO EJIGA 11 NSCQR 232, 238; NDUKAUBA VS. KOLOYO 21 NSCQR 147, 167; EXPETO VS. WANOGHO 20 NSCQR 333 and OPARAJI VS. CHAMU (1999) 6 SCNJ 27.
During the hearing of this appeal, learned counsel for the Appellants relied on the case of OFFOR VS. OSAGIE (1998) 55 LRCN 2978 as an additional authority to support their issue No. 3 that the lower court is bound to follow the decisions of the Supreme Court.
The 1st Respondent’s brief is similar to the brief of 2nd, 3rd and 4th Respondents and therefore I will simply refer to them as Respondents since it will amount to multiplicity if I will reproduce their separate arguments and submissions.
The Respondents raised two issues for determination as earlier reproduced above. In issue No.1, the Respondents have contended that the Appellants cannot activate the jurisdiction of the lower court to entertain their claims without first satisfying the preconditions laid down in section 22(3) – (6) of the Chiefs Law Cap 21 Laws of Oyo State 1978, and that even this appellate court has no jurisdiction to hear the appeal because the lower court who initially heard the matter, struck out the claim as it had no jurisdiction. The Respondents referred to the cases of FHA VS. JOHN INTERNATIONAL LTD. (2005) 1 NWLR (pt. 908) 637, 647; MADUKOLU VS. NKEMDILIM (1962) 2 SC NLR 241. Counsel further submitted that the claims having been initiated without satisfying the preconditions in the Chiefs Law (supra) this appellate court is not competent to entertain same. That the parties at the arbitration proceedings were at the preliminary stage of complying with the conditions in the Chiefs Law, and that therefore, the appellants claim at the lower court was not ripe for the court to entertain. Counsel relied on the case of LAWAL VS.OKE (2001) 2 NWLR (Pt.711) 88, 94. Respondents submitted that the appellants have no right to complain of fair hearing since the remedies prescribed in S. 22 of the Chiefs Law of Oyo State have not been exhausted and referred to the case of JALOYE VS. OSENI (2001) 9 NWLR (pt. 717) 190; IKIME VS. EDJEMODE (2001) 18 NWLR (pt. 745) 445; ADESOLA VS. ABIDOYE (1999) 73 LRCN 3250; EGUNWENSE VS. AMAGHIZENWEN (1993) NWLR (pt. 315) 1; OLU OF WARRI VS. KPEREGBAYI (1994) NWLR (pt. 339) 46; MILAD ONDO STATE VS. ADEWUMI (1985) 3 NWLR (pt. 13) 493, and the Respondents have urged this court to hold that the trial judge was right in striking out the appellants suit.
On issue two, the Respondents have argued that the Appellant’s suit at the lower court was premature because they had freely submitted themselves to the native arbitration under the power of the 3rd and 4th Respondents and that the Appellants would have waited for outcome before they rushed to the lower court. That if the Appellants had suspected likelihood of bias on the part of 3rd and 4th Respondents during the arbitration proceedings, the proper action would have been for judicial review by way of prohibition. They have further contended that once a party had submitted to an arbitration, such submission cannot be revoked without leave of court or a judge or by mutual consent and relied on the provision in Section 385 of the Arbitration Law Cap 9 Laws of Oyo State, 1978. In their final arguments, all the Respondents have urged this court to dismiss the appeal and affirm the decision of the lower court.
The parties issue No. 1 is whether the lower court had the jurisdictional power to hear the appellants’ suit initiated before that court. To determine the matter, there is need to critically look at the contents of section 22(3) – (6) of the Chiefs Law Cap 21 Laws of Oyo State, 1978.
For ease of reference it provides as follows:-
Section”22(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) determining a 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 twenty-one 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”,
“6, Before exercising the powers conferred by subsection (5) of this section, the commissioner may cause such inquiries to be held in accordance with sections 21 as may appear to him necessary or desirable.”
In my considered opinion, the Respondents first issue is the relevant matter that can determine the competence of the Appellants’ suit at the lower court. Section 22 (4) of the Chiefs Law quoted above has provided that the decision of prescribed authority (and in the instant appeal, the 3rd and 4th Respondents) shall be final and shall not be questioned in any court. By the phrase “shall not be questioned in any court” means that law has oust the jurisdiction of the High Court or any court for that matter.
But the first question that comes to mind is this; can a state law oust the jurisdiction of the courts? The clear answer is categorically no. Section 6(2), (3) and (6) (b) of the Constitution of Nigeria, 1999 is very clear. It provides as follows:-
“6(2) The judicial powers of a State shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution for a state.
(3) The court to which this section relates established by this Constitution for the Federation and for the States, specified in subsection 5(a) to (i) of this section shall be the only superior courts of record in Nigeria, and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each court shall have all the powers of a superior court of record.
(6) The judicial powers vested in accordance with the foregoing provisions of this section –
(a) …….
(b) shall extend to all matters between persons or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto for the determination of any question as to the civil rights and obligation of that person.”
In my considered view, the constitutional provisions is very clear and unambiguous, and there is need for the court to give its ordinary meaning without any sort of ambiguity. That jurisdiction given to the courts shall extend to all matters between persons or between government or authority and to any person in Nigeria and to all actions and proceedings relating thereto for the determination of any question as to the civil rights and obligations. In the instant matter, the Appellants sued the 1st and 2nd Respondents who are persons, while the 3rd and 4th Respondents are the government authorities prescribed to conduct the traditional arbitrators and therefore they are liable to be sued and can sue as provided by section 6(6) of the 1999 Constitution. The contention of the Respondents that 3rd and 4th Respondents cannot be sued is a misconception of the right to sue a government or government’s agencies for which the 3rd and 4th Respondents are arbitrators in the Chiefs Law Cap 21 Laws of Oyo State, 1978 as amended. In another words, the provision of section 22(3)-(6) quoted above has no right to prevent the Plaintiffs from instituting the suit against the Respondents. The provisions of Section 22(4) of the chief Law of Oyo State is completely unconstitutional and is therefore null and void. A State law made by the State House of Assembly has no power to override the Constitution which is the grund norm. It is applicable to all the states, and even the National Assembly of the Federation cannot make a valid Act to oust the jurisdiction of the courts of record unless the jurisdictional powers of the court in section 6 (1) – (6) is repealed or amended.
The Supreme Court of Nigeria considered the provisions of section 22(2), (3) and (6) of the Traditional Rulers and Chiefs (Edict) Law No. 16 of 1979, Bendel State now Edo State which is in pari materia with the Oyo State Chiefs Law (supra) in the case of OFFOR VS. OSAGIE (1998) 55 LRCN 2978 where Kutigi, JSC as he then was, forcefully declared at page 2988 as follows:-
“……I am also not in doubt whatsoever that these sub-sections derogate from the powers of the High Court to entertain suits in view of subsection 4 which stated that the decisions of a Prescribed Authority or the Executive council “shall not be questioned in any court.” While I do not quarrel with the existence 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.”
Based on the binding authority of the decision of the Supreme Court in OFFOR VS. OSAGIE (supra), I am bold to state that in so far as the provisions of section 22(3) and (4) of the Oyo State Chiefs Law Cap 21, 1978 puts a clog on the Constitutional rights of the Appellants vide sections 6 (6) (b) and 271(1) of the 1999 Constitution of Nigeria, the Oyo State’s section 22(3) and (4) are unconstitutional as they derogate from the right conferred on every citizen. The appellants in this appeal are not bound to follow the provisions in section 22 of the chiefs Law (supra) before filling their suit at the High Court of Justice, Oyo State. The lower court was therefore in serious error in striking out the Appellants suit on the ground that they had not complied with the provisions of section 22(3)-(6) of the chief Law.
I am also of the considered view that the Appellants had properly activated the jurisdiction of the lower court to hear and determine the suit between the parties. The suit was lawfully initiated by due process and the suit was not premature as the trial court and the Respondents would want this court to believe.
In the final analysis, the appeal is meritorious and I allow the appeal.
I will not delve into the substance of the suit which is yet to be heard. I therefore make an order that the suit be sent back to the Chief Judge of Oyo State who will assign the case to another judge for determination of the suit on merit.
Costs of N30,000.00 in favour of the Appellants and against the 1st, 2nd, 3rd and 4th Respondents respectively.
Other Citations: (2009)LCN/3376(CA)
