Chief Joseph Odetoye Oyeyemi V. Commissioner For Local Govt., Kwara State & Ors. (1992)
LawGlobal-Hub Lead Judgment Report
NNAEMEKA-AGU, J.S.C.
This is an appeal by the plaintiff against the judgment of the Court of Appeal, Kaduna Division, which had allowed an appeal by the defendants against the judgment of Orilonise, J. sitting in an Ilorin High Court. The Court of Appeal had also made a consequential order of non-suit against the plaintiff.
The plaintiff had in the High Court claimed for a declaration that he was recognized as the Bale of Oro by the 1st, 2nd and 3rd defendants, that their purported withdrawal of the recognition and subsequent recognition of the 5th defendant was null and void. He also claimed an order of injunction restraining the 5th defendant from parading himself as the Bale of Oro Town.
Plaintiffs case in a nutshell was that he was duly nominated by Bale Egin Orunmila ruling house, presented to the kingmakers of Oro by the Asanlu of Oro and Aro of Oro and was duly installed as the Bale of Oro on the 1st of August, 1980. He was duly recognized by the 1st to 4th defendants. He acted in that capacity and defendant’s functionaries addressed correspondences to him as such until 14th June, 1982, when the defendants purported to withdraw his recognition as Bale without a hearing. The 3rd defendant by Exhibit D, dated 7th December, 1982, conveyed the recognition of the 5th defendant by the local government.
I should mention at this stage that the 5th defendant died before this appeal came up for hearing. An attempt in a motion filed by his brother, one Alhaji Mustapha Atoyebi to be substituted for the 5th defendant as a respondent in this appeal was refused by the Court on the ground that claims numbered 5 and 6 in the suit were personal actions against the 5th defendant. The applicant had no interest in the subject matter of the suit. The rule for substitution in such cases is governed by the application of the maxim: actio personalis moritur cum persona – a personal right of action dies with the person. It postulates that an action based on the personal rights of a deceased person dies with the person. Examples of such actions are those not being ex contractu for breach, debt, covenant or other similar duty to be performed which can be maintained or continued by or against the deceased person’s personal representatives, or actions brought by or against the deceased person as sale or one of the representatives of a group of people where the cause of action survives the death of the deceased. The maxim applied to an action by or against a deceased person which were founded on malfeasance or misfeasance to the person or property of the deceased as well as to his person or personal right, such actions died with the deceased. Although, in England, the rule has been substantially modified by the Law Reform (Miscellaneous Provisions) Act of 1934, that Act does not apply in Nigeria, and we have not been referred to any law applicable in Kwara State which has similar provisions as the Act of 1934 in England. On the principle, we held the view that the right, if any of the 5th defendant to the Chieftaincy stool died with him. I shall, therefore, consider this appeal on the basis of the right of the plaintiff (appellant) as against the remaining defendants (1st to 4th respondents).
So, I need to refer only to those findings of fact by the learned trial judge which relate to the 1st to 4th respondents, the learned trial judge found, inter alia, as follows:
(i) That there are two ruling houses in Oro town, and that the plaintiff belongs to one of them;
(ii That the plaintiff was installed as the Bale of Oro on the 1st of August, 1980;
(iii) That the Kwara State Government recognized the appointment of the plaintiff as the Bale and that he continued to receive his salary as Bale from the 2nd of August, 1980, till the 14th of June, 1982. It is useful to refer to the evidence of D.W.3, the Oloro of Oro on this question of recognition of the plaintiff as the Bale. He testified as follows:
“I know Alhaji Adamu Atta one time Governor of Kwara State. After the recognition of the plaintiff by the 3rd defendant as the Bale of Oro and before I installed the 5th defendant in accordance with Ekumosan Oro native law and custom I protested to the Governor that the appointment of the plaintiff was not proper and he agreed that I should install another Bale.
I can remember the 17th June, 1982, That was the day the 5th defendant was installed as Bale of Oro by me”.
Under cross-examination the Oloro of Oro went further to say:
“I am aware that the plaintiff was recognized on 4th December, 1980 as the Bale of Oro by the Irepodun Local Government (3rd defendant). I went and complained to the then Governor of Kwara State about the recognition accorded the plaintiff as Bale of Oro in June, 1982. My complaint to the Governor was verbal.”
(iv) Importantly, the learned trial judge after listening to the evidence found as a fact that contrary to the provision of section 3 (2) of the Chiefs (Appointment and Deposition) Law, 1963, when the Governor received complaints about the allegedly wrongful appointment and installation of the plaintiff as the Bale of Oro, he did not hold any inquiry before he withdrew the recognition.
Based on the above findings, among others, the learned trial judge gave judgment for the plaintiff. On appeal to the Court of Appeal, that Court held that Exh. J. evidenced an inquiry. In the lead judgment of Ogundere, J.C.A., to which Aikawa and Achike, J.C.A., concurred, he held as follows:
“Wole Olanipekun Esq. learned counsel for the respondent finally, submitted that the Governor could only act in the case of a chieftaincy dispute after holding due enquiries under section 3(2) of the Chiefs (Appointment and Deposition) Law. In this case, granted there is a dispute between the 5th appellant and the respondent on the Bale of Oro Chieftaincy, can the meetings cited in Exhibit J, a letter under the hand of the Permanent Secretary, Ministry of Local Government to the Irepodun Local Government aimed at resolving the chieftaincy dispute be characterized as an enquiry, and an Act’ of the Governor under Section 3 Cap 20 An inquiry means no more and no less than an investigation whether by setting up a board or committee with terms of reference and a Secretary, or at meetings at which the parties are present or represented as indicated in Exhibit J. I therefore hold that the Governor conducted an inquiry and acted rightly in issuing a declaration that no person has been recognized as the Bale of Oro. One may ask, why was this exercise of power not notified by Government. Were I to be held wrong in this reasoning, the result will be the same as neither of the two candidates was duly appointed, and installed as Bale of Oro under the relevant native law and custom.
In the circumstances and in exercise of the powers conferred on this Court under Section 16, Court of Appeal Act 1976, and of all other powers enabling it in that behalf, this appeal succeeds. The judgment of the lower court is set aside, an order of non-suit is substituted therefore with N350 costs in favour of each appellant.”
The plaintiff has appealed to this Court. For the appeal, the following issues have been formulated for determination by the learned counsel for the plaintiff (appellant):’
“4.1 Whether or not the appellant was afforded a fair hearing or any hearing at all before withdrawing the recognition of the appellant as the Bale of Oro Town.
ALTERNATIVELY
4.2. Whether or not the appellant was afforded a fair hearing or any hearing at all before 2nd respondent withdrew the recognition accorded him as the Bale of Oro Town.
4.3. Did the Governor of Kwara State ever recognise the appellant as the Bale of Oro Town
4.4. If the answer to issue 4.3, supra is in the negative, can the said Governor withdraw a recognition which he never gave
4.5. Whether the Court of Appeal was right in holding that the appellant’s appointment as the Bale of Oro was inchoate.
4.6. Based upon credible evidence adduced before the learned trial judge and the thorough and well-considered judgment of the same judge, whether the Court of Appeal was right in setting aside the said judgment.
The four issues formulated by the respondents are not materially different from those of the appellant.
I shall first consider the question whether the 2nd respondent conducted any inquiry before withdrawing the recognition of the appellant as the Bale of Oro Town. Then I shall consider other issues including whether the appellant was given a hearing before the 2nd respondent withdrew his recognition as the Bale of Oro Town.
Learned counsel for the appellant submitted that on the evidence, the appellant was duly installed as the Bale of Oro Town and was so recognized by the respondents. He acted in that office for about two years before his recognition as such was withdrawn by the 2nd respondent without his being heard. Even if, as the respondents contend, his selection and appointment turned out to be defective or inchoate, which the appellant does not concede, he was still entitled to be heard before his recognition could be withdrawn. He had acquired an accrued or vested right or at least an interest. In support, the cited the following cases, namely:
Edewor v. Uwegba (1987) 1 NWLR (Pt.50) 313;
Ademola II v. Thomas (1946) 12 WACA 81; and
Ojo v. Governor of Oyo State (1989) 1 NWLR (Pt.95) 1
He pointed out that when he was first appointed and recognized as the Bale he was taken to Court along with the Govemor of Kwara State, as shown by Exhibit F. The Governor defended the action on oath as per Exh. G, he pointed out. He cannot now be allowed to resile from that position.
In the respondents’ brief which was adopted in argument, it was contended that the issue of breach of natural justice was not specifically raised on the pleadings, and so does not arise in this appeal. Reliance was placed on the case of Federal Capital Development Authority v. Naibi (1990) 3 NWLR (Pt. 138) 270, (1990) 5 SCNJ 186 at 196. So, it was submitted that the Court of Appeal was wrong to have gone into the point at all.
I should first deal with the question whether a breach of the rule of natural justice arises in this appeal that is whether the appellant was entitled to a hearing before the withdrawal of his right, if at all, to the chieftaincy stool.
Now the principle has been for long incorporated in our jurisprudence that a man cannot be condemned without his being heard. As Fortesque, J., put it in Dr. Bentley’s Case (R. v. Chancellor of Cambridge) (1923) SI.557) at 567.
“The laws of God and man both gave the man the opportunity to make his defence if he has any.”
This principle, which obliges us to hear a man before his right or interest can be taken away in any judicial or quasi-judicial proceedings or even in purely administrative proceedings in which the right of the person is to be taken away or his interest interfered with, has been reiterated in numerous cases. See. e.g. Cooper v. Wandsworth Board of Works, 14 C.B.N.S. 180, at 194; also Broadbent v. Rotherham Corporation (1917) 2 Ch. 31. Indeed, God heard Adam before he found him guilty and sentenced him. This principle, often expressed by the Latin maxim; audi alteram partem (hear the other side) is applicable in all cases in which a decision is to be taken in any matter involving a person’s interest in a property, right or personal liberty. It has been applied in numerous Nigerian cases, and even includes all those oases which for want of appropriate explanation are explained away by the well-known judicial acronym: ex debito justitia See for these; Deduwa & Ors. v. Okorodudu & Ors. (1976) 10 SC.329 at 347; Adigun & Ors. v. Attorney-General of Oyo State (1987) 1 NWLR (Pt.53) 678 and so many other cases.
Learned counsel for the appellant, however, took the matter too far when he implied that the appellant was entitled to a fair hearing in the con of section 33 of the Constitution of 1979. Section 33 of the Constitution applies to determination of one’s civil rights and obligations by a court or tribunal. On the other hand, an administrative body acting judicially such as the one inquiring into a chieftaincy dispute is obliged to hear both sides before deciding.
No doubt, breach of either the rules of natural justice involving either of the twin pillars of justice: audi alteram partem or nemo judex in causa sua – could be raised substantively and formally, particularly in circumstances in which such a breach impinges on the constitutional right to fair hearing enshrined in section 33 of the Constitution of 1979 (now section 35 of the Constitution of 1989). But, sometimes, the breach could arise incidentally in the course of the proceedings. For example, part of a proceeding could be vitiated by want of hearing, even though a good part thereof is properly conducted. When such is the case, a court of justice cannot shut its eyes to the breach of the rule or fail to give effect to its implications simply because it has not been raised on the pleadings. Rather, being a fundamental vice, the court will yet go into the matter though it has arisen incidentally, provided that, if in an appeal, there is sufficient material upon which it can reach a fair decision in the matter without any need for further evidence and that both parties to the conflict have had due notice of the material facts from which the alleged breach has arisen.
On the above principles, even if the contention of learned counsel on behalf of the respondents that the issue of want of hearing has not been raised on the pleadings is correct, I should still go into it if I am satisfied that it has now arisen incidentally in the proceedings. But I very much doubt whether that contention is correct. For it is pleaded in paragraphs 17 and 18 of the statement of claim, thus:
“17. The plaintiff avers that he still enjoys the support of all the kingmakers of Oro Town and all the traditional chiefs and also the support of the people of Oro Town and has never committed any chieftaincy offence/or any offence at all since his appointment and recognition as Bale of Oro Town.
- The plaintiff was surprised when on or about the 16th June, 1982, he received from the 3rd defendant a letter reference No.IRLG/CA/S/13/92 dated 16th June, 1982 together with an endorsed letter reference No MLG/S/LGA/242/S.1/733 dated 14th June, 1982 from the 1st defendant wherein the 1st, 2nd and 3rd defendants wrongfully and unlawfully withdrew the recognition of the plaintiff as the Bale or Oro Town and stopped paying him the salary attached to the office of Bale when the plaintiff had not committed any offence and no offence had been levied against him by the 1st, 2nd and 3rd defendants. The plaintiff had not been paid his salary since March, 1982 and shall rely on these letters at the trial.
Thereafter, he pleaded in paragraph 23 of the statement of claim that the withdrawal of the recognition was wrongful, null and void and of no effect. The defence which did not ask for particulars of the grounds why the withdrawal was said to be wrongful, null and void and of no effect merely denied the averments in the above paragraphs of the statement of claim. At the trial the question whether the Governor of Kwara State held an inquiry as required by the Chieftaincy Law was very much in issue. The learned trial judge on the evidence before him found as follows:
“I hold that the then Governor Alhaji Adamu Attah exceeded his powers by ordering that a new Bale be installed by the Oloro without holding any inquiry into the selection, appointment and installation of the plaintiff and that it amounted to an executive misdirection to write Exhibit J”.
Later he continued:
“There was no evidence of who summoned or not the meeting and worst still none of the important dignitaries who attended the meeting gave evidence. There was no evidence either that the plaintiff was invited or notified of the meeting. See Ademola II &Ors v. Akinwale Thomas & Ors. (1946) 12 WACA 81.”
The Court of Appeal went into the issue and reversed the learned trial judge. It concluded that there was an inquiry in view of Exhibit J. I have already fully set out their Lordships view on the point. On the above state of the facts, it appears to me rather untenable to suggest that there was no proper issue of whether or not the plaintiff had a hearing before his recognition as the Bale of Oro was withdrawn. The proper questions should in my view, be whether the Court of Appeal was right to have held that there was an inquiry and what, if their Lordships were wrong, is the effect of want of hearing.
I cannot but agree with the learned counsel for the appellant that the fact that the appellant had been selected, appointed and ostensibly recognized as the Bale of Oro and earned a salary therefore for a period of nearly two years gave him sufficient interest for which he was entitled to be heard before his recognition or appointment could be withdrawn. Having dealt with the appellant as the Bale of Oro and written letters such as those dated 1/12/80, 29/9/81, 5/4/82 and 1/6/82 to the appellant which had to be withdrawn by Exhibit E dated 4th December, 1980, which also conveyed to him his annual salary, the non-recognition of the appellant as the Bale of Oro became a non-issue. Quite apart from the fact that there is a presumption of regularity, which is howbeit rebuttable, of his appointment, the above letters and dealings between the appellant and the respondents raise an estoppel in his favour. As this Court observed in Joe Iga and Others v. Ezekiel Amakiri and Others (1976) 11 SC. 1 at l2-13.
“If a man by his own words or conduct willfully endeavours to cause another to believe in a certain state of things which the first knows to be false and if the second believes in such state of things and acts upon the belief, he who knowingly made the false statement is estopped from averring afterwards that such a state of things does not exist at the time; again: if a man either in express terms or by conduct, makes representations to another of the existence of a state of facts which he intends to be acted upon in a certain way, in the belief of the existence of such a state of facts, to the damage of him who so believes and acts, the first is estopped from denying the existence of such a state of facts. Thirdly, if a man whatever his real meaning may be, so conducts himself that a reasonable man would take his conduct to mean certain representation of facts and that it was a true representation, and that the latter was intended to act upon it and in a particular way, and he with such belief, does act in that way to his damage, the first is estopped from denying the facts as represented.”
See also Rowrafric & Far Eastern Limited v. John Chief Avbenake & Others (1958) WRNLR 92.
Indeed it has never been disputed by the respondents that he was entitled to a hearing at any inquiry. Their case which was upheld by the Court of Appeal is that an inquiry was in fact held and that, in any event the appointment of the appellant as the Bale of Oro was not in accordance with the custom of the people and was inchoate. In my respectful opinion, these are matters which could have been duly established at any inquiry, if one was held. It is enough to refer to the provisions of section 3(2) of the Chiefs (Appointment and Deposition) Law of Northern Nigeria, applicable in Kwara State, which provides as follows:-
“2. In the case of any dispute the Governor after due inquiry and consultation with 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. “(Italics mine).
The intendment of these provisions is clear. They contemplate that the Governor ought to hold an inquiry and hold consultation with the persons concerned with the selection before he can judge whether or not the appointment of any particular Chief was made in accordance with custom. If, without an inquiry, he jumped into the conclusion that it was not, such a decision would be contrary to the letters of the Law and therefore invalid. This view is in accordance with decided cases. See, for an example, Chief Edewor v. Chief M. Uwegba (1987) 1 NWLR (Pt.50) 313.
Evidence on record shows that there was in fact no inquiry. P.W.3. the Aro of Oro Town testified as follows:-
“I do not know why the recognition of the plaintiff as Bale of Oro was withdrawn because the Ist-3rd defendants did not adduce any reason for the withdrawal.”
Evidence given by the appellant himself in support of his pleading that no accusation was levelled against him was positive that he was not heard at all. There was no evidence in rebuttal. The learned trial judge was therefore entitled to find that he was entitled to be heard but was not heard before the recognition was withdrawn.
But their Lordships of the Court of Appeal in reversing the learned trial judge held that Exhibit J, a letter written by the Permanent Secretary Ministry of Local Government and dated 14th day of June, 1982, shows that there was an inquiry. In coming to that conclusion, their Lordships, per Ogundere, J.C.A. stated:
“An inquiry means no more and no less than an investigation whether by setting up a board or committee with terms of reference and a Secretary, or at meetings at which the parties are present or represented as indicated in Exh. J.”
I wish to point out, with respects, that one serious flaw in this definition is that it defines the word “inquiry” in the abstract, that is without reference to the nature and meaning of the con in which it was used, to wit an inquiry in chieftaincy dispute. Deriving from the fact that most English words have different shades of meanings the courts have evolved an important principle of interpretation, to wit: that every word or clause in the enactment must be read and construed not in isolation but with reference to the con and other clauses in the statute in order as much as possible, not only to reach the proper legislative intention but also to make a consistent enactment of the whole statute. See on this: Canada Sugar Refining Co. Ltd. v. R. (1898) A.C. 735 at 741 also Mid/and Bank Ltd. v. Conway Corporation (1965) 1. WLR 1165; and Turquand v. Board of Trade (1886) 11 App. Cas. 286. This principle is of more material relevance in the instant case in which the main issue under discussion is whether or not there was in fact a hearing as contemplated by the Chieftaincy Law. For, as I observed in the case of Alhaji Abdullahi Baba v. Nigerian Civil Aviation Training Centre & Anor. (1991) 5 NWLR (Pt.192) 388 there are not some general forms and standards of hearing applicable in all cases. It is not necessary to insist that a standard or a form of hearing in a Court must be applied in an administrative inquiry even if it acts judicially in the sense that it determines the rights of the parties. It is, however, necessary in such a case that there be an identifiable person on or body of persons empowered and capable of going into the issues in disputation, that the person who is to be adversely affected by such an administrative decision, act, or proceedings be given adequate notice of what is proposed and any allegations against him so that he will be afforded the opportunity to know the case against him, to make representations by himself or through someone else on his behalf, to appear at the hearing or inquiry, if he likes, and to effectively prepare his defence and answer the case against him.
It is from these premises that I shall now consider whether the meeting evidenced by Exh. J. amounts to a hearing. Now Exh. J. runs thus:
“Ref: No. MLG/S/LGA/242/S.I/733
Ministry of Local Government,
P.M.B. 1407,
Ilorin,
Kwara State,
14th June, 1982.
The Secretary,
lrepodun Local Government,
Omu-Aran.DISPUTE OVER THE APPOINTMENT OF BALE ORO WITHDRAWAL OF LETTERS
You are aware that sometimes ago, some leaders within Oro Community approached His Excellency, Alhaji Adamu Atta the Executive Governor of Kwara State, to use one of his good offices to personally intervene in the Chieftaincy dispute which had led to the position of ‘stand still’ in the social and economic development of their community. Though it is not the responsibility of the respected office of the Governor to intervene in minor Chieftaincy disputes, yet His Excellency, Alhaji Adamu Atta did honour the above request by inviting some traditional rulers and important dignitaries of Oro Community to Government House for series of informal meetings. The resultant effects of such meetings were letters: Ref. No.MLG/S/LGA/242/S.I/575 of 1st December, 1980, MLG/S/LGA/242/S.I/VOL. IV/106 of 29th September, 1981, MLG/S/LGA/S.I/VOL.IV/730 of 5th April, 1982, and MLG./S/LGA/242/S.INOL.IV/730 of 1st June, 1982 which were addressed and dispatched to you by my Ministry for onward endorsement to the parties concerned.
- It is very sad to note that the good intentions of His Excellency, the Governor have now been misconstrued and or misinterpreted which has consequently led to the non-implementation of the major decisions reached at such meetings.
- I am, therefore, writing on the directives of His Excellency, Alhaji Adamu Atta, Executive Governor of Kwara State to withdraw all the letters connected with the Oro Baleship dispute. This means that as far as this Government is concerned, no person has been recognised for any position in the Oro Community Bales hip dispute. It would, however, be noted that any person or group interested in, or selected/appointed to any title or traditional position should adhere strictly to the customary procedure of ascending to such positions. Thereafter, the establishment administration process should be employed in processing your recommendation through your ‘Traditional Council’ to this Ministry for consideration and or approval.
- It is hoped that your Local Government would ensure that peace, order, and good government prevail within Oro Community in particular and your area of jurisdiction at large.
- You should immediately endorse a copy of this letter to all the parties concerned in the Oro Chieftaincy dispute.
- I am directed to emphasize that any individual or groups who flout any of the above directives will be severely dealt with.
- Grateful confirm that these directives have been complied with.
(SGD.) (SANI OGUPADE)
For: Permanent SecretaryRef No. IRLG/CA/S/13/96
Central Administration,
lrepodun Local Government,
Omu-Aran,
16th June, 1982.Copy to:-
The Oloro of Oro,
Oloro’s Palace,
Oro.
The Aro of Oro,
Aro’s Palace,
Oro.
Mr. Joseph Odetoye Oyeyerni,
Oro.
Mr. Raphael Afolayan Atoyebi,
Oro.
Overleaf and above for your noting and strict compliance please. Your attention is particularly drawn to paragraphs 4 and 6 of the endorsed circular letter. I wish to advise all of you to adhere strictly to the directives given. I would want also to advise you, in your own interest, that nobody should do anything that can cause public unrest or disorder.
(SGD.)
(J.O. OTITOJU)
SECRETARY
IREPODUN LOCAL GOVERNMENT’.
There is nothing to show that this letter was endorsed to the appellant. On the face of it, was not. Howbeit, mere endorsement, if at all, was clearly not enough. It is true that the letter itself does not pretend to say that there was any inquiry, It does not show that the appellant who was then occupying the chieftaincy stool was either invited to the meeting or was present or represented. This alone is enough to vitiate the proceeding. if there was any: see Fleet Mortgage & Investment Co, Ltd, v. Lower Maisonette 46 Eaton Place Ltd, & Anor, (1972) 1 WLR, 765; also Grimshaw v. Dunbar (1953) 1 Q.B, 408 at 416. Nor had he any opportunity of defending or countering the allegation that his installation and recognition were inchoate or in any way irregular. This is his right on general principles of fair hearing as well as alldi audi alteram partem. Also, it appears clear to me that there was not the type of hearing contemplated by the Chieftaincy Law in which every claimant must be given the opportunity of putting forward and pressing his claim to the stool. What had taken place, according to Exh. J., was merely an intervention by the Governor and a meeting with “some traditional rulers and important dignitaries of Oro Community”.
I agree with learned counsel for the appellant that a proper inquiry under sections 3(2) and 6 of the Chiefs (Appointment and Deposition) Law set out above contemplates not only that the appellant as a person who lays claim to the position of the Bale of Oro Town was entitled to be present and present his case at such inquiry but also that the Asanlu of Oro and the Am of Oro, two principal chiefs responsible under native law and custom for the appointment and installation of the Bale of Oro should be consulted by the Governor as required by section 6. But none was the case: indeed, the Asanlu and the Aro were merely copied with the content of Exhibit J. Therefore, there has been a non-compliance with the law. The law does not intend that mere representations to the Governor by some persons in the community, no matter how highly placed they might be, he should intervene and, without an inquiry, withdraw the recognition of a chief no matter how clear the case against him might appear to be. The Executive Governor of Kwara State was bound to act according to law; any act of his which was contrary to law, statutory or otherwise: could be declared invalid. In this case, the action of the Governor in removing appellant without a hearing was in breach of the principle of audi alteran partem. It was also in clear breach of the express provisions of the Chiefs (Appointment and Deposition) Law. The case of the appellant was stronger in that he had acquired a vested right to the Chieftaincy stool over which he had acted, been recognized and paid his salary by the 3rd respondent for about two years. Courts have a duty to protect vested rights, as otherwise lawlessness will reign. So, they have always taken the view that any attempt by a competent authority to take away a citizen’s vested rights must be done in strict compliance with the law and any laid down procedure therefore. See on this Ojo v. Governor of Oyo State (1989) 1 NWLR (Pt.5) 1; also Wilson v. Attorney-General of Bendel State (l985) 1 NWLR (Pt.4) 572. As Lord Macnaghten put it in the case of Mayor e.t.c. of Westminster v. London & North Western Railway Coy. (1905) AC. 426, at 430:
“…a public body invested with statutory power must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably.”
See also Hart v. Military Governor of Rivers State & Ors, (1976) 2 FNLR 215 at {1992) 2 226-7. For what I have said above, I cannot say that the Governor did not exceed or abuse his powers or that he kept within the limits of the authority vested in him.
As the 5th respondent is dead, the above are enough to dispose of the appeal by the plaintiff. It is trite that the effect of breach of the rule of audi alteram partem or of fair hearing is to render the hearing liable to be set aside or declared invalid by the court: the court will look at the situation as if such a hearing never in fact took place, The issues in litigation will be set back to the situation before the decision was taken, in this case to the position of affairs before the Governor withdrew the recognition of the appellant as the Bale of Oro Town, It has been urged on behalf of the respondents that I should not make an order accordingly because the 1st, 2nd and 4th defendants never recognized appellant as such. I have already dealt with this at length. It is enough for me to refer to paragraph 13 of Exh. G with which the Governor, was defending a previous suit against him and the appellant on the chieftaincy issue. It was deposed on behalf of the Governor by the Secretary to the Local Government inter alia as follows:
“13. That His Excellency Alhaji Adamu Atta Governor of Kwara State (1st defendant) told me and I verily believe him that the appointment of Joseph Odetoye Oyeyemi as the Bale of Oro from Egin Orunmila family has satisfied the Chieftaincy Traditions practice, customs that should be met in the selection or appointment of Bale of Oro Town”.
The 3rd defendant paid him his salary for the whole period. So, the Governor, or indeed any of the defendants, cannot be heard to say that the appellant was not duly appointed or recognized as the Bale of Oro Town. The defendants will not be allowed to approbate and reprobate on the same issues at it suits their convenience, pay him the salary due to his office as Bale for about two years, make a solemn assertion on oath that he was duly selected and appointed according to custom and then, now that they are sued for improperly withdrawing his recognition as the Bale, be permitted to seek to set up a case that he was not duly appointed. As they, by words and conduct, willfully made the appellant to believe that he was duly appointed as the Bale of Oro Town and he believed them and acted as such, they cannot now be heard to deny the representation of facts which they had willfully made in the matter by words or conduct. The law will hold them to their own willful representation. See on this: Joe Iga & Ors. v. Ezekiel Amokiri & Ors. (1976) 11 S.C. 1 at 12-13; also Rowrafric & Far Eastern Ltd. v. John Chief Avbenake & Ors. (1958) WRNLR 92.
As no issue was raised on the Court of Appeal non-suiting the plaintiff without a hearing on the issue of non-suit, I should say nothing about it.
For all the reasons I have given above. I shall allow the appeal, set aside the judgment of the Court of Appeal and therefore restore the following declarations and orders, excluding those that affected the 5th defendant (now dead).
I hereby declare;
“(1) That the plaintiff is the recognised Bale (Village Head) of Oro and that the purported withdrawal of his recognition by the 1st, 2nd, and 3rd defendants as contained in the 1st defendant’s letter Exhibit J. and the 3rd defendant’s letter Exhibit E is wrongful,null and void and of no effect whatsoever.
X X X X X X X
(2) Consequentially, I order that the plaintiff shall forthwith be paid all outstanding arrears of his salary as the Bale of Oro by the 3rd defendant (Irepodun Local Government) from March, 1982 or the 14th June, 1982 to-date depending on when he was last paid a salary and shall continue to be so paid his monthly salary by the 3rd defendant as at when due.”
I award costs of N1 ,000.00 in favour of the plaintiff and against all the defendants jointly.
This shall be the judgment of the Court
SC.191/1990
