Chief S.C. Osagie Ii & Anor V. Chief Eugine C. Offor & Anor (1998)
LAWGLOBAL HUB Lead Judgment Report
KUTIGI, J.S.C.
This is an interlocutory appeal. It arose in the first instance from the ruling of Gbemudu, J. of the Agbor High Court, delivered on the 14th day of October, 1988.whereby he struck out the plaintiff’s action for alleged want of jurisdiction on the ground that being a chieftaincy matter, it was premature for the plaintiff to have to come to court without first seeking redress from the Prescribe Authority or the Executive Council by virtue of the provisions of Bendel State Chiefs Law No. 16 of 1979.
Dissatisfied with the said ruling, the plaintiff appealed to the Court of Appeal. Benin City. The Court of Appeal in its judgment of 23rd March. 1990, allowed the appeal, set aside the ruling of the High Court and remitted the case back to the High Court for trial on its merits by another Judge.
It is against the decision of the Court of Appeal that both the 1st and 2nd defendant have now jointly appealed to this court. The 1st and 2nd defendants will from henceforth he referred to as the appellants.
At the hearing of the appeal all the parties were absent. None of them was also represented by counsel. The parties, however, tiled and exchanged briefs of argument. The appeal was therefore taken as argued vide Order 6 rule R(6) Supreme Court Rules.
The appellants identified and formulated two issues for determination in their brief thus:-
“(1) Does the Traditional Rulers and Chiefs Edict No. 16 of 1979. Bendel State of Nigeria provide in its Section 22(2), (3)and (6) any condition precedent to the assumption or jurisdiction by the courts over suits relating to Traditional Ruler and Chieftaincy Title disputes, or in particular, the Eje of Ekuoma Chieftaincy dispute
(2)Does Section 22(2). (3) and (6) of the Traditional Rulers and Chiefs Edict No. 16 of 1979, Bendel State of Nigeria derogate from the powers of the High Courts of entertain suits in view of Section 6(6) (b) and Section 236(1) of the Constitution of the Federal Republic of Nigeria 1979”
It is thus clear from the above two issues which will he considered together, that what we are actually being asked to do is to interpret the provisions of section 22 subsections 2. 3 and 6 of the Traditional Rulers and Chiefs Edict No. 16 of 1979, Bendel State of Nigeria the entire section 22 reads thus:
Bendel State of Nigeria. The entire section 22 reads thus:-
“22.(1) The conferment of a Traditional Chieftaincy Title shall be in accordance with the customary law and shall be subject to the approval of the Prescribed Authority or where the provisions of Section 23 have been applied, to the approval of the Executive Council.
(2) Where a Traditional Chieftaincy Title is conferred on a person by those entitled by Customary Law so to do and in accordance with Customary Law, the Prescribed Authority or the Executive Council as the case may be, may approve the appointment.
(3) Where there is a dispute as to whether a Traditional Chieftaincy Title has been conferred on a person in accordance with customary Law or as to whether a Traditional Chieftaincy Title has been conferred on the right person, the prescribed authority or the Executive Council as the case may be, may determine the dispute.
(4) The decision of the Prescribed Authority or the Executive Council, as the case may he:-
(a) To approve or not to approve the conferment of a Traditional Chieftaincy Title on a person; or
(b) Determining a dispute in accordance with sub-section (3) of this section, shall not he questioned in any Court.
(5) The Prescribed Authority shall not withhold approval of the conferment of a Traditional Chieftaincy Title on a person if such conferment is made in accordance with the Customary Law regulating the conferment of the Chieftaincy Title.
(6) The Executive Council may, Oil the application of an aggrieved party:-
(a) Review the decision of a Prescribed authority made under sub-section (6) of this section and substitute its own decision therefore; or
(b) Approve the conferment of a Traditional Chieftaincy Title on a person if such approval was withheld by the Prescribed Authority contrary to sub-section (5) of this section.
(7) Before exercising the power vested in it by sub-section (6) of this section, the Executive council may cause such enquiries as appear to it to be necessary or desirable to be in accordance with Section 27 of this Edict.”
The thrust of argument of the appellants is that the above provisions of the law read together would appear to mean that the law intended to, and did create a domestic forum wherein chieftaincy disputes between aggrieved parties could he settled. And that the dispute in this case being a chieftaincy dispute, it was premature for the plaintiff to come to court without first appealing to the Prescribed Authority or the Executive Council as provided for under the law. That it is only lifter the plaintiff has so complied with the condition precedent as laid down by the
law above and thereafter feels dissatisfied with the decision of the Prescribed Authority or the Executive Council, that he can properly file an action in court.
The plaintiff/respondent on the other hand contended that by virtue of the provision of section6 (6) and 236(1) of the I979 Constitution, even if the action herein is a chieftaincy matter, the High court has jurisdiction to entertain it without any precondition. That a resort to the Prescribed Authority or the Executive Council is an exercise in futility because under section 22(4) of the Edict above, the decision of the Prescribed Authority or the Executive Council is final. That there is no domestic forum or a condition precedent which must be exhausted by the plaintiff before going to Court in this case.
As stated earlier in this ruling, the learned trial Judge relying on section 22 sub sections 2, 3 and 6 above, decided that the action being a chieftaincy matter, the plaintiff as the aggrieved party ought to have had prior recourse to the Prescribed Authority or the Executives Council before coming to court as the last resort. Failure to take the prior step meant that the suit before him was premature. He then struck out the case with costs against the plaintiff.
On appeal to the Court or Appeal, the appeal was allowed. The ruling of the High Court was set aside and case remitted to the High Court for trial on merit by another Judge.
Delivering the lead judgment which was concurred by the other .Justices, Uche Omo, JCA., after making reference to sections 6 and 236 of the 1979 Constitution and to the cases of:
Bronik Motors Ltd v. WEMA Bank (1983) 6 SC.158:(1983) 1 SCNLR 296
Savannah Bank v. Pan Atlantic (1987) 1 NWLR (Pt. 49) 212:
Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 337:
Western Steel Workers Ltd. v. Iron Steel Workers union of Nigeria (1987) 1 NWLR (Pt. 49) 284: and
Kanada v. Governor of Koduna State (1986) 4 NWLR (Pt. 35) 361 observed as follows:-
“In the light of the constitutional provision and the decisions of the Supreme Court thereon, what will be the justification for preventing an aggrieved citizen from recourse to the High Court or for the High Court to refuse to entertain any matter so brought before it……………….
In my view section 22(2). (3) and (6)of the Bendel State Chieftaincy Law 1979 cannot in any way seek to derogate or circumscribe the provisions of section 236 (1) of the 1979 Constitution. Any attempt to so do would make it inconsistent with that constitutional provision and therefore to that extent void. A decision that it delay, the right of an aggrieved party to come to court, or that it is a condition precedent to the exercise of a right to file an action to be entertained by the High Court, seeks to circumscribe the powers of the High Court under section 236(1) of the Constitution and to that extent it is void and of no effect. It is entitled to the same fate as the provision of section 22(4) which respondent’s counsel has conceded to be unconstitutional. The decision of the learned trial judge that the action of the appellant is premature and striking same out is therefore wrong, and the appellant is entitled to succeed on this issue.”
I agree entirely with what is said above.
He continued thus:-
“Before I conclude I will comment briefly on the cases of Military Governor of Ondo State & Ors. V. Adewunmi (1985) 3 NWLR. (Pt.13) 493 and Edewor v. Uwegba (1987) 1 NWLR. (Pt. 50) page 313 (315) which were relied on by the parties. Very briefly, Adewunmi’s case, is more apposite to a consideration of section 22(4) of the Bendel Chieftaincy Law 1979. A brazen attempt by the Governor of Ondo State to outs the jurisdiction of the High Court of that State on chieftaincy matters was declared invalid, unconstitutional and void.
Although the decision in Uwegba’s case did note of the procedure set out by section 22 of the Bendel State Chieftaincy, it did not any where decide that the steps set out thereunder are a condition precedent to a recourse to an action in the High Court by an aggrieved party. The real importance of that case is that it decided that before coming to a decision under section 22(6) (b) of the chieftaincy law, the Governor is obliged to set up an inquiry to examine the dispute and that his failure to do so was a gross irregularity which cannot be allowed to stand.
Accordingly this appeal will be and is hereby allowed.”
Again I say I agree.
Being an interlocutory appeal, one must be brief and avoid making any observation in the judgment which might appear to prejudge the main issue yet to he tried (see for example Ojukwu v. Governor of Lagos State (1986) 3 NWLR (Pt. 26) 39; Egbe v. Onogun (1972) 1 ANLR (pt. 1) 95. And having agreed with the views and conclusions of the Court of Appeal above, the issues herein for resolution must be decided against the appellants. Edict No. 16 of 1979 in section 22 sub-section (2), (3) and (6) prescribed no condition precedent to the exercise of jurisdiction by High Court. I am also not in doubt whatsoever that these subsections derogate from the powers of the High Court to entertain -suits in view of sub section 4 which stated that the decision of a Prescribed authority or the Executive Council “shall not be questioned in any court.” While I do not quarrel with the existence or a domestic forum for settlement of chieftaincy disputes, an aggrieved person should he 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.
The appeal therefore fails. It is accordingly dismissed with costs of N10,000.00 (Ten thousand naira) to the plaintiff/respondent. The judgement of the court of appeal is confirmed together with its order remitting the case to the High Court for trial before another Judge.
SC.182/1991
