Chief P. D. Inoma-biriya & Ors. V. Chief C.A.B. Omoni & Anor (1989)
LawGlobal-Hub Lead Judgment Report
KOLAWOLE, J.C.A.
The appellants who were the plaintiffs at the Rivers State High Court in the Degema Judicial Division instituted this action against the defendants, the respondents in this appeal on November 12th,1985.
They claimed jointly and severally for:
(1) A declaration that the first defendant has ceased to be Amadabo of Ke with effect from March, 1980 and the Amadabo stool of Ke is now vacant.
(2) A perpetual injunction restraining the first defendant from parading himself, or performing any function as the Amadabo of Ke.
(3) A perpetual injunction restraining the Government of the Rivers State from continued recognition of the first defendant as the Amadabo of Ke.
The plaintiffs and the second defendant filed their respective pleadings.
In paragraph 4 of the statement of defence of the second defendant, the Attorney-General of Rivers State of Nigeria, it was averred that:
“4. The 2nd defendant in further answer to all the claims of the plaintiffs will at or before the hearing of this suit raise by way of preliminary objection on a point of law the issue that the court has no jurisdiction to entertain this suit by virtue of the provisions of the Chieftaincy Edict No.5 of 1978 particularly Section 18.”
Learned counsel for the first defendant, Chief Ruskin Jamabo, filed a motion under Order 29 rule 1 of the High Court Rules of Eastern Nigeria then applicable in the Rivers State on 5 May, 1985 praying that the suit be struck out for want of jurisdiction. Order 29 rule 1 provides that-
“Where a defendant conceives that he has a good legal or equitable defence to the suit, so that even if the allegations of the plaintiff were admitted or established, yet the plaintiff would not be entitled to any decree against the defendant, he may raise this defence by a motion that the suit be dismissed without any answer upon questions of fact being required from him.”
The objection and reply of Chief Jamabo and Mr. Peter-Kio respectively were taken on October 29, 1986. At the end of the arguments, the learned trial Judge, OPENE, J., adjourned to enable the office of the Attorney-General appear to address the court on the very important legal point on the ouster of the jurisdiction of the High Court by virtue of the provisions of section 18 of the Chieftaincy Edict No.5 of 1978.
Mr. Dick-Harry, a state counsel from the Ministry of Justice in the Rivers State, duly appeared at the invitation of the learned Judge on November 17th, 1986. He, like Chief Jamabo, submitted that the High Court lacked jurisdiction to hear the case pursuant to section 18 of the Chieftaincy Edict No.5 of 1978 because the cause of action arose in 1978 when Government recognized the first defendant.
The first defendant tendered Exhibit “A” the certificate of recognition of the first defendant by the Rivers State Government dated April 15th, 1979 to support his contention that the cause of action arose before the 1979 Constitution. Mr. Peter-Kio, learned counsel for the plaintiffs, contended however that the cause of action related to the misdeeds of the first defendant which arose between February 1980 and February 1982.
The learned trial Judge held at page 67 of the record of appeal that:
“The affidavit evidence before me shows that the 1st defendant was recognised by the Government of Rivers State as shown in the certificate of Recognition dated 25th April, 1979 and it appears to me that by the (sic) virtue of Section 18 of Edict No.5 of 1978 that ‘no court can entertain or determine a suit pertaining to his deposition by his community or his recognition by the Rivers State Government”
He dismissed the plaintiffs’ action on the ground that the court lacked jurisdiction to entertain the suit. The plaintiffs have appealed.
All the parties filed their respective briefs. Dr. Mudiaga Odje, S.A.N., learned counsel for the appellants relied on the appellants’ brief and made oral submissions before us. Of the four grounds filed he amplified particularly grounds 2 and 4 of the grounds of appeal.
It seems quite clear to me that the crux of this appeal is whether the cause of action arose before the 1st October 1979 in which case Section 236 would not save the action or whether the cause of action arose between February 1980 and February 1982.
The basic principle of law is that an application made by the defendants under Order 29 rule 1 of the High Court Rules of Eastern Nigeria which were then applicable to Rivers State being in its nature a demurrer must accept all the plaintiffs’ averments of facts and say that in spite of that, no cause of action is shown or there is no jurisdiction.
The Chieftaincy Edict 1978 (Edict No.5 of 1978) came into operation on the 16th day of May, 1978. Section 18(1) provides as follows:-
“(1) On the coming into effect of this Edict no court shall have or continue to have jurisdiction (whether original, appellate or by way of transfer) to entertain or determine a civil cause or matter (including an application) for, or issue an order to the Military Governor, the Commissioner or any other person pertaining to –
(a) the recognition by Government of a Chieftaincy stool in any town or community in “the State.”
The issues formulated as arising for determination in the appeal by the appellants are –
“1. Whether by virtue of Section 6(6)(d) of the Constitution of the Federal Republic of Nigeria 1979, the court is precluded from hearing any action affected by an existing law made after 15th January, 1966, even when the action does not challenge the competence of any authority or person to make the law.
- Whether Section 18(1) of the Rivers State of Nigeria Chieftaincy Edict, 1978 (No.5 of 1978) is an existing law when the cause of action in this suit arose in February, 1980.
- Whether the courts have power to declare invalid the provisions of any existing law which are inconsistent with the unsuspended provisions of the Constitution of the Federal Republic of Nigeria 1979, an Act of the National Assembly or a Decree.
IN THE ALTERNATIVE, whether (assuming but without admitting) that the ruling was correct that the court has no jurisdiction to hear the case, the costs of N600.00 awarded to the 1st defendant was not excessive.”
The first defendant for his part formulated three issues as arising for determination in the appeal namely –
“1. Whether the learned trial Judge was right to hold that Section 236 of 1979 Constitution gave the courts unlimited jurisdiction but this is to be read with Section 6(6)(d) of the same Constitution and the combined effect of this is that Section 6(6)(d) has to an extent limited the provisions of Section 236 of the Constitution.
- Whether Section 18 (1) of the Chieftaincy Edict, 1978 which ousts the jurisdiction of the court is inconsistent with the provisions of Section 236 or any other provisions of the 1979 Constitution.
- Whether there can be an appeal against an order of cost, and if so whether a cost of N600.00 awarded against the plaintiffs/appellants is excessive.”
I think that the issues formulated by the appellants cover and subsume the issues formulated by the first respondent. The second respondent also formulated three issues which can be treated within the confines of the issues formulated by the appellants. For purposes of a clear understanding of the arguments proffered by the second respondent, I believe it will be prudent to set out the issues as formulated by learned counsel for the Honourable Attorney-General of Rivers State. Those issues are:-
“1. Whether or not by virtue of the Rivers State Chieftaincy Edict, No.5 of 1978 and Section 161(3), Constitution of the Federal Republic of Nigeria 1963 No. 20 the High Court Degema had the competence and jurisdiction to entertain the subject matter of the claim as endorsed in the writ of summons it being a Chieftaincy matter.
- Whether or not the cause of action in this matter arose between 1980 and 1982 as alleged by the appellants or before 1st October, 1979 or whether or not there is a cause of action before the court.
- If the cause of action arose before 1st October, 1979 whether or not Section 6(6)(d) of the Constitution of the Federal Republic of Nigeria 1979 saved Section 18 of Edict No.5 of 1978 as being inconsistent with Section 236 and Section 6(6)(a) and (b) of the Constitution of the Federal Republic of Nigeria, 1979”.
From the briefs of arguments of the parties, it seems clear to me that what has to be decided first is to discover when the cause of action arose. If the cause of action arose on or after the 1st October, 1979, is the Chieftaincy Edict, No.5 of 1978 an existing law and if it is an existing law are the provisions of the Edict not inconsistent with Section 236 and Section 6(a) and (b) of the Constitution of the Federal Republic of Nigeria, 1979?
The question which is very fundamental to the determination of these various issues is this: What is the complaint of the appellants against the first respondent? To get to the root cause of the controversy, it is, in my view, appropriate to look at the first limb of the three claims as well as the statement of claim. It reads thus:-
“A declaration that the first defendant has ceased to be the Amadabo of Ke with effect from March 1980 and that the Amadabo stool of Ke is now vacant.”
This claim implies that the first defendant had been once the Amadabo of Ke prior to March 1980 and his community recognised and accepted him as the Amadabo of Ke as evidenced by Exhibit “A.” Exhibit “A” the Certificate of recognition as a Chief states as follows:-
“Whereas it has appeared to me necessary in the interest of good government and welfare of the people of the area mentioned below to recognize the person whose name appears below as the Chief occupying the Chieftaincy stool of the town or community concerned.
NOW THEREFORE, pursuant to subsection (i) of Section 9 of the Chieftaincy Edict 1978 (1978 No.5).
I, COMMANDER SULEIMAN SA’IDU MILITARY ADMINISTRATOR of the Rivers State of Nigeria, hereby recognize CHIEF COOKEY A. B. OMONI as the AMADABO KE, 3rd class of KE in DEGEMA District of the DEGEMA Local Government Area of the Rivers State of Nigeria.
GIVEN under my hand and the Public Seal of the Rivers State of Nigeria at Port Harcourt this 25th day of APRIL in the year of our Lord One Thousand Nine hundred and seventy-nine.
(Sgd) Commander
Suleiman SA’IDU
Military Administrator.
Rivers State.”
The statement of claim accepts that the first defendant was the Amadabo of Ke until his acts of misdeeds contrary to the customary law of the Ke Community. Although unless it is absolutely necessary, I do not make it a habit of setting down pleadings in the judgment but paragraphs 2, 3, 4, 5 and 6 of the statement of claim are of particular interest. They read as follows:
“2. The first defendant was until April, 1980 the Amadabo of Ke and was so recognised by the Government of the Rivers State.
- Ke is a traditional community whose traditional Head is the Amadabo. Once selected and installed the Amadabo becomes the father of the whole town and the principal custodian of the community’s native laws and custom. It becomes his primary duty to seek the welfare and progress of the community and to carry out the wishes of the people. He never stands in the way of the people but always to carry out their wishes. Immediately he decides to go against the community and flouts its decisions, he ceases to be the Amadabo.
- It is the duty of the Amadabo to see to it that all the traditional sacrifices are performed annually and the shrines maintained. For the 15 years the 1st defendant was the Amadabo of Ke he failed to perform some of his traditional functions with disastrous consequences to the health of the community. Some of his failures in traditional functions include:
(a) Failure to perform the Kura-Ada Festival for three years resulting in outbreak of epidemics and many deaths.
(b) Failure to bring Akaso to Ke when she was possessed by a young boy at Buguma and failure to take part in the building of the Akaso Shrine at Buguma.
(c) Failure to perform the Toru Oki (Swimming) Festival, a festival that is celebrated every 7th year and failure to pay a penalty by sacrificing to all the gods to avert their wrath Burugbe
(d) Failure to ascertain the wishes of the gods and ancestors of Ke and to take directives from the patron deity Keni Opuso.
Other misdeeds of the 1st defendant as the Amadabo of Ke include:
(a) His failure to render accounts to the community for rents collected from communal lands.
(b) He allocated to individuals a piece of land the community set aside for the building of Police Post, Ke, and collected N60.00 from each of those individuals.
The Ke Council of Chiefs and the people of Ke introduced the 1st defendant to the Kalabari Council of Chiefs (Se Kobiri) and he was admitted into the Kalabari Council of Chiefs and recognised as the Amadabo of Ke.
By 6th December, 1975 the Committee appointed under the Chairmanship of Professor T. N. Tamuno to enquire into the Classification of Chiefs and Identification of Clans submitted its Report to the Rivers State Government. Conclusions of the Government on the Report was published. At paragraph 14 (viii) of the Conclusions, the Amadabo of Ke Stool was recognised as a third class chieftaincy stool.
Government also published Guidelines and Criteria to be satisfied by Communities seeking Recognition of Incumbents to Recognised Chieftaincy stools. In seeking recognition for the 1st defendant, the Ke Council of Chiefs and the people by letter dated 23rd September, 1977 satisfied the Guidelines required and introduced the 1st defendant to the Government as Chief C.A.B. Omoni, King Omoniye IX. The 1st defendant was the first signatory to the said letter. In June, 1978 the Rivers State Government recognised the 1st defendant as the Amadabo of Ke (3rd Class Chief).”
Rule 2 of Order 29 of the High Court Rules which I have earlier referred to provides that –
“2. For the purposes of such application (i.e. under rule 1 quoted earlier), the defendants shall be taken as admitting the truth of the plaintiff’s allegations, and no evidence respecting matters of fact, and no discussion of questions of fact, shall be allowed.”
Demurrer is defined in Black’s Law Dictionary, fifth edition (1979) to mean
“An allegation of a defendant, which admitting the matters of fact alleged by complaint or bill (equity action) to be true, shows that as they are there set forth they are insufficient for the plaintiff to proceed upon or to oblige the defendant to answer.
The formal mode of disputing the sufficiency in law of the pleading of the other side.
In effect it is an allegation that, even if the facts as stated in the pleading to which objection is taken be true, yet their legal consequences are not such as to put the demurring party to the necessity of answering them or proceeding further with the cause.”
The effect of all this is that the defendants admit that –
(1) The first defendant was until April 1980 the Amadabo of Ke.
(2) Immediately the Amadabo of Ke decides to go against the community and flouts its decisions, he ceases to be the Amadabo.
(3) The first defendant failed for about 15 years since he became the Amadabo to perform his traditional functions with disastrous consequences.
(4) The other misdeeds of the 1st defendant as the Amadabo of Ke include:
(a) His failure to render accounts to the community for rents collected from communal lands
(b) He allocated to individuals a piece of land the community set aside for the building of Police Post, Ke, and collected N60.00 from each of these individuals.
What is in controversy at the moment is not the merit of the plaintiffs’ case. The question is whether the court lacks jurisdiction by virtue of the provisions of Edict No.5 of 1978. Before proceeding any further, it is obvious that Edict No.5 of 1978 is an existing law. Section 274 of the Constitution of 1979 provides as follows:-
“(1) Subject to the provisions of this Constitution an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be –
(a) an Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws; and
(b) a law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.
(2) ……………………………………
(3) Nothing in this Constitution shall be construed as affecting the power of a court of law or any tribunal established by law to declare invalid any provision of an existing law on the ground of inconsistency with the provision of any other law, that is to say –
(a)
(b)
(c)
(d) any provision of this Constitution.
(4) In this section, the following expressions have the meanings assigned to them, respectively-
(a)(i)
(ii)
(iii)
(b) “existing law” means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date comes into force after that date.”
Learned counsel for the second defendant contended in the Brief that the claim before the court is incompetent since the subject matter is a Chieftaincy matter within the purview of the Rivers State Chieftaincy Edict No.5 of 1978, and Section 161(3) of the 1963 Constitution. He submitted that the declaration sought by the plaintiffs is based on a non-existing customary law.
As a preliminary issue, at the stage when the defendants raised the preliminary objection, the defendants are deemed to have admitted upon a demurrer the existence of a customary law which the 1st defendant had breached. It is not open to the defendants to contend that the claim of the plaintiffs is based on a non-existing customary law. That stage has not been reached; the defendants must answer the issues raised in the plaintiffs’ statement of claim if they intend to contest that the claim is based on a non-existing customary law. When the objection was raised to the jurisdiction of the court, the defendants are deemed to have admitted all the averments in the plaintiffs’ statement of claim. Whether there is an existing customary law or not is a question of fact and as the defendants have not controverted the averments in the statement of claim that there is such a customary law, for the purpose of this appeal no issue arises whether or not there is an existing customary law.
Does Section 161(3) of 1963 Constitution apply to the present case? The section provides that –
“(3) Notwithstanding anything in any other provision of this Constitution (including in particular Sections 32 and 53 of this Constitution) but without prejudice to the proviso to subsection (1) of Section 22 and subsection (4) of Section 27 of this Constitution, no chieftaincy question shall be entertained by any court of law in Nigeria, and a certificate which is executed by an authority authorised in that behalf by a law coming into force in a territory on or after the date of the commencement of this Constitution (including a law passed before that date) and which states-
(a) that a particular person is or was, by reference to that territory or a part of it, a chief of a specified grade at a specified time or during a specified period; or
(b) that the provisions of a law in force in that territory relating to the removal or exclusion of chiefs or former chiefs from areas within the territory have been complied with in the case of a particular person, shall be conclusive evidence as to the matters set out in that statement.”
That question must be answered in the light of all the surrounding circumstances of this particular case. The 1979 Constitution does not specifically repeal the 1963 Constitution, so technically the 1963 Constitution can, by virtue of Section 274( 4)(b) of the 1979 Constitution, be regarded as an existing law. However, the intention is clear from the generality of the provisions of the 1979 Constitution that the promulgation of the 1979 Constitution automatically repealed that of 1963.
It is quite obvious as submitted in the appellants’ brief that the applicable law to any suit is the law in force when the cause of action arose. In F. S. Uwaifo v. A-G., Bendel State & Ors. (1982) 7 S.C. 124, the Supreme Court observed at pages 213/214 as follows:-
“It seems to me that, while the Constitution empowers the courts to inquire into the validity of any existing law, it clearly intends, that the courts should not inquire into proceedings which seek to determine issues or questions as to the competence of any authority or person to make existing law promulgated between 15th January, 1966, and 1st October, 1979; in other words, courts are precluded from inquiring into the validity of any such laws ….. There is, of course, the subsidiary issue which is whether, although valid, such a law can have effect 00 or after the 1st day of October, 1979? Clearly, by virtue of Sections 6(6)(a),6(6)(b) and 4(8) of the Constitution aforesaid, the courts have jurisdiction to determine issues or questions as to whether any law, including those unrepealed laws which were made between 15th January, 1966, and 1st October, 1979 (or the provision thereof) is consistent with the provisions of the 1979 Constitution for the purpose of giving effect to it under the existing Constitution; and for this purpose, but to this extent only, the courts can declare such a law or portions thereof invalid”
At page 286 the Supreme Court further observed that-
“But it is necessary to explain that if in respect of a cause of action which arises after 1st October, 1979 the question is that the provision of any Decree or Edict which is an existing law under the Constitution is inconsistent with the provisions of the Constitution of 1979, courts would have jurisdiction to declare such Edict or Decree void for inconsistency.”
As I have stated earlier, it is of very great importance to find out what is the cause of action in this matter. In Egbe v. Adefarasin (1987) 1 N.W.L.R. (Part 47) page 1, Oputa, J.S.C., attempted a definition of a cause of action.
His Lordship stated at page 20 thus –
“But it can safely be defined as the fact or facts which establish or give rise to a right of action – it is the factual situation which gives a person a right to judicial relief. A cause of action is to be distinguished from a right of action. A right of action is the right to enforce presently a cause of action.”
In this case in order to oust the jurisdiction of the High Court the onus is on the defendants who rely on the defence that the action is caught by the Chieftaincy Edict No.5 of 1978to establish when the cause of action arose.
(See Savannah Bank of Nigeria Ltd. v. Pan Atlantic Shipping & Transport Agencies Ltd. & Anor. (1987) 1 N.W.L.R. (Part 49) 212.
The complaint of the plaintiff in this matter is not a challenge of the competence of the Government to recognise the Amadabo of Ke nor is it a challenge as to the competence of the Military authority to promulgate the Chieftaincy Edict of 1978. The plaintiffs in fact had recognised the Amadabo of Ke for about 15 years or so before he was presented to Government for recognition under Edict No.5 as their chief. The plaintiffs are therefore not challenging the recognition by Government which they themselves promoted. They have lived with the first defendant as their Amadabo of Ke for such a long time that even without the formality of Government recognition they accepted him as such.
It seems clear from the submission of Chief Jamabo, learned counsel for the first defendant, that he concedes that the cause of action in the present case arose after March 1980. Learned counsel contended in the first respondent’s brief at page 3 part of paragraph 4.2 thus-
“The cause of action in this case therefore arises immediately after the date of the said purported destoolment which the plaintiffs/appellants allege was in March 1980. The pertinent question therefore will be that as at March 1980 which are the applicable laws to the above set of facts?
The simple answer to this pertinent question will be found in the proper interpretation to Section 236(1), Section 274, Section 6(6)(d) of the Constitution and Section 18(1) of the Rivers State Chieftaincy Edict No.5 of 1978.”
Learned counsel for the second respondent predicated his submission in the brief of argument upon the premise of the substance of the action, which, as I have earlier indicated was still far to come. The question upon which the learned trial Judge was called upon to present a decision was whether the cause of action arose after the first of October 1979 and whether if the cause of action arose after the coming into effect of the 1979 Constitution Section 18(1) of Edict No.5 of 1978 and Section 161(3) of the 1963Constitution are not inconsistent with Sections 6(6)(a), 6(6)(b) and 236 of the 1979 Constitution.
I think that on this subject matter whether the writ of summons and the statement of claim disclose a cause of action, I can do no better than adopt, with respect, the reasoning and views of Karibi-Whyte, J.S.C., in Alhaji Aminu Ibrahim v. Felix Osim (1988) 3 N.W.L.R. (Part 82) 257 at page 276-
“The expression (i.e. “cause of action”) has been defined in Brummond-Jackson v. British Medical Association (1970) 1 W.L.R. 688 to mean a cause of action with some chance of success when only the allegations in the pleadings are considered. The question is not whether it discloses a good cause of action but whether it (i.e. the statement of claim,) discloses a reasonable one. Mr. Mbanefo’s particular complaint was that the pleading was not related to any special category of contract, and therefore disclosed no evident cause of action…..we have endeavoured to follow Lord Atkin’s wise counsel in United Australia v. Barclays Bank (1941) A.C. 1 at p. 29 that “when these ghosts of the past …. stand in the path of justice clanking their medieval chains, the proper cause for the Judge is to pass them undeterred”
“I think the misconception of Mr. Mbanefo set in when he ignored the fact that he was bound to rely on the statement of claim and was deemed to have accepted the allegations of fact in the averment in the plaintiffs statement of claim in respect of his application.
Thus regarded what do we have? The lucid analysis of the facts resulting from the transaction in respondent’s brief of argument contains all the essential elements of a contract Mr. Mbanefo is assuming that the case of the respondent is weak or that it is not likely to succeed. But these are not sufficient reasons to stop the respondent from coming before the court to determine the infraction of his civil rights and obligations arising from the transactions alleged in the statement of claim. Respondent has a cause of action. Appellant should wait and take advantage of the weakness, if any, of the case of the respondent when the action goes to trial. ”
Learned counsel for the first and second respondents have argued in the respondent’s brief as if the case of the appellants has been heard and they have come to the conclusion that the claim cannot succeed. The misconception of both of them seems to me to be their lack of appreciation of what I have referred to as the basic principle of law that they, the defendants, are deemed to have accepted all the averments in the plaintiffs’ statement of claim that the cause of action arose in April 1980. In that wise, the applicable law is not Section 161(3) of the 1963 Constitution which had been repealed by the 1979 Constitution. If the cause of action arose in April 1980 is Section 18(1) of Edict No.5 of 1978 not inconsistent with Sections 236, 6(6)(a) and 6(6)(b) of the 1979 Constitution? It is, in my view, settled that the law applicable to these proceedings was the law at the time the jurisdiction of the court was invoked.
(See G. K. Mustapha v. Governor of Lagos State & 3 Ors. (1987) 2 N.W.L.R. (Part 58) 539 at page 549.
I have indicated earlier on in this judgment that the Chieftaincy Edict No.5 of 1978 is an existing law. The Supreme Court held in the Uwaifo case that while the 1979 Constitution empowers the courts to inquire into the validity of an existing law, it clearly intends that the courts should not inquire into proceedings which seek to determine issues or questions as to the competence of any authority to make any existing law promulgated between 15th January 1966 and 1st October 1979; in other words the courts are precluded from inquiring into the validity of any such laws. (See Uwaifo’s case p.213).
It seems to me that the Uwaifo case has not been properly understood by the learned trial Judge and the learned counsel for the respondents in this case. In that case, Idigbe, J.S.C., went further to observe that by virtue of Sections 6(6)(a),6(6)(b) and 4(8) of the Constitution, the courts have jurisdiction to determine issues or questions as to whether any law including those unrepealed laws which were made between 15th January 1966 and 1st October 1979 (or the provision thereof) is consistent with the provisions of the 1979 Constitution.
What the Uwaifo case decided in my view are the following:
(a) The 1979 Constitution empowers the courts to inquire into the validity of any existing law
(b) The courts have no jurisdiction to inquire into proceedings which seek to determine issues or questions as to the competence of any authority or person to make existing laws promulgated between 15/1/66 and 1110/79 (Section 6(6)(d) of the Constitution)
(c) by virtue of Sections 6(6)(a); 6(6)(b) of the Constitution the courts have jurisdiction to determine issues or questions as to whether any law, including those unrepealed laws which were made between 15/1/66 and 1/10/79 (or the provision thereof), is consistent with the provisions of the 1979 Constitution.
(d) courts have jurisdiction in respect of causes of action which arise after 1st October 1979 to declare the provisions of any Decree or Edict which is an existing law void for being inconsistent with the provisions of the Constitution.
In the light of the above the judicial power vested in accordance with Section 6(6)(a) and (b) shall not as from 1st October 1979 extend to an existing law made on or after 15th January 1966 for determining any issue or question as to the competence of any authority or person to make any such law. In other words, if the plaintiffs’ action were questioning the competence of the Military Administration to make the Chieftaincy Edict No.5 of 1978 or the issuance of Exhibit ‘A’ the Certificate of Recognition of Amadabo of Ke, the court would have had no jurisdiction to entertain the action. Consequently the courts declined jurisdiction in the Uwaifo case where the plaintiff questioned the competence of the Military Authority to promulgate Decrees, Edicts and Instruments forfeiting the assets of the plaintiff. Similarly, the Court of Appeal and the Supreme Court held that the High Court of Lagos State had no jurisdiction in Mustafa v. Governor of Lagos State (supra) by virtue of Section 6(6)(d) of the Constitution to entertain an action questioning the competence of the Military Administrator of Lagos State to make the Instrument of appointment and the approval of appointment of the 3rd respondent as the Oloja of Igbogbo in Lagos State both instruments being existing laws.
The plaintiffs submitted very lucidly in the appellants’ brief of argument at page 3 paragraph 1.2 thus:
“In this case the plaintiffs have nowhere challenged the competence of the Military Government of the Rivers State of Nigeria to recognise the 1st respondent as the Amadabo of Ke. In fact in paragraph 2 of the Statement of Claim, the plaintiffs aver that the first respondent was the Amadabo of Ke until April 1980. The plaintiffs were instrumental to this recognition and therefore they do not challenge it.”
Learned counsel for the appellants contended at page 4 paragraph 1.3 of the appellants’ brief that the learned trial Judge was wrong in law to have held at page 64 lines 11-17 of the records thus –
“The Edict (i.e. Edict No.5 of 1978) being an existing law had limited to that extent the provisions of Section 236 of the Constitution. That is to say that Section 236 of the Constitution is applicable subject to any statute or law which had expressly excluded the jurisdiction of the court on matters so referred to in that statute or constitution.”
This is a complete misunderstanding of Section 6(6)(d) and Section 236 of the Constitution. First, Section 274(1) of the Constitution provides that subject to the provisions of the Constitution an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of the Constitution.
Section 6(6)(d) of the Constitution provides that-
“The judicial powers vested in accordance with the foregoing provisions of this section –
(d) shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law.”
In my judgment the purpose of Section 6(6)(d) of the Constitution is to prevent any person from challenging the competence of the Military Administration to promulgate any Decree, Edict or Instrument during their regime from 15th January 1966 and 30th September 1979. The real intendment of Section 274(1) of the Constitution is that the Chieftaincy Edict No.5 of 1978 shall have effect as an existing law with such modifications as may be necessary to bring it into conformity with the provisions of the Constitution. Section 236 of the Constitution invests the High Court of a State with unlimited jurisdiction to hear and determine any civil or criminal proceedings.
The Chieftaincy Edict 1978 has not been modified to bring it into conformity with the provisions of Sections 6(6)(a) and (b) and 236 of the Constitution. To that extent Section 18(1) of the Edict which ousts the jurisdiction of the State High Court is inconsistent with the aforementioned provisions of the Constitution where in the present case the cause of action arose after the coming into effect of the Constitution.
Further the learned trial Judge misconstrued the provisions of Section 6(6)(d) when he stated at page 63 lines 26 to 31 of the record that –
Section 236 of 1979 Constitution gave the courts unlimited jurisdiction but this is to be read with Section 6(6)( d) of the same Constitution and the combined effect of this is that Section 6(6)(d) has to that extent limited the provisions of Section 236 of the Constitution.”
As far as the present case is concerned the conclusions of the learned trial Judge is erroneous. Section 6(6)(d) is directed at actions which are instituted “for determining any issue or questions as to the competence of any authority or person to make any such law.” If the action of the plaintiffs is for determining any issue or question as to the competence of the Military Administrator to make the Chieftaincy Edict No.5 of 1978, then the Rivers State High Court would not have jurisdiction.
Secondly, Section 274(3) of the Constitution empowers a court of law to declare as invalid any provision of an existing law on the ground of inconsistency with any provision of the Constitution. Section 18(1) of the Chieftaincy Edict No.5 of 1978 is inconsistent with the provisions of sections 6(6)(a) and (b) and 236 of the Constitution. To that extent that section is in-valid. It follows that the High Court possesses jurisdiction to entertain the plaintiffs’ claims for a declaration in a civil action. (See Osumah Adamu & Attor. v. Zenebu E. Ikharo (1988) 4 N.W.L.R. (Part 89) 474 at page 487).
In answer therefore to the various issues presented for determination by the appellants I have reached the conclusion
(1) That Section 6(6)(d) of the Constitution does not preclude the court from entertaining any action affected by an existing law made between 15th January, 1966 and 1st October, 1979 when such action does not challenge the competence of the Military Authority to make such law.
(2) Section 18(1) of the Rivers State of Nigeria Chieftaincy Edict is an existing law when the cause of action in this suit arose in April 1980.
(3) The courts have the power by virtue of Section 274(3) of the Constitution to declare invalid the provisions of the Chieftaincy Edict which are inconsistent with Sections 6(6)(a) and (b) and 236 of the Constitution.
From the contention of Mr. Tamunoala, both in the 2nd respondent’s brief of argument and his oral submission before us, it seems to me that he has delved into the merit of the plaintiffs’ case and has assumed that the plaintiffs are not likely to succeed in their claim. My advice will be, as Karibi-Whyte, J.S.C., did in Ibrahim v. Osim (supra), that once the plaintiffs have a cause of action, the defendants should wait and take advantage of the weakness, if any, of the case of the plaintiffs when the action goes to trial.
This appeal must therefore succeed. It will be unnecessary to consider the appeal on costs. Once I allow the appeal the award of costs in the court below goes. The appeal is allowed. I set aside the order of OPENE, J., dismissing the plaintiffs’ action for want of jurisdiction including his order as to costs.
It is hereby ordered that the High Court of Rivers State of Nigeria possesses the jurisdiction to entertain the plaintiffs’ claim. The suit is remitted to the High Court of Rivers State of Nigeria for hearing and determination before another Judge. The defendants shall be at liberty to file their statement of defence and the plaintiffs may file an amended statement of claim if they so desire. I award costs of N200.00 as costs in the court below and N350.00 as costs in this court against the defendants jointly and severally.
Other Citations: (1989) LCN/0071(CA)
