Dokun Ajayi Labiyi Vs Alhaji Mustapha Moberuagba Anretiola & Ors (1990)

LawGlobal-Hub Lead Judgment Report

KARIBI-WHYTE, J.S.C

 The point of law involved in this appeal is a very short one. It is not new. It is, however, a point of law of immense constitutional importance.  

The point of law we are called upon to decide is whether the High Court can exercise jurisdiction to rule upon the effect of the provision of an Edict which is inconsistent with a provision of the constitution of the Federal Republic. Appellant before us has contended that a court has no jurisdiction to declare on the status of an Edict.

The respondent holds the contrary view that the court is vested with jurisdiction to declare on the validity vel non of an Edict whose provision is inconsistent with the provision of the Constitution.  Although the background facts leading to these contentions are not crucial to the determination of the issues involved and the construction of the provisions, it will be some what helpful to state them in the elucidation of the issues.   The litigation arose from the dispute as to the number of branches constituting the Anretiola Ruling House of Ilero Anretiola was the great grandfather of the plaintiff.

He was also the first Elero of Ilero. Elero is a village in the Kajola local Government Area of Oyo State. On the death of Anretiola, Falodun his half brother succeeded him as the Elero of Ilero. The defendants are the descendants of Falodun. The Anretiola and Falodun families constitute the Ruling Houses of the Ilero Chieftaincy.   Under the Declaration made in 1957 under Section 9 of the Chiefs Law, the Abere, Labiyi, Akintayo and Ige houses were the only Ruling Houses named in respect of the Elero of Ilero Chieftaincy. In 1976 the Oyo State Government set up a commission of inquiry to report on the Chieftaincy Declaration following petitions by Plaintiff’s family.

The findings of the inquiry increased the Ruling Houses by the addition of Anretiola. This recommendation was approved by the Oyo State Government in 1981. Plaintiffs were still not satisfied since the measure, in their view, did not meet with the tradition and yearnings of the majority of the Ilero community. They then brought an action against the Defendants seeking the Declaration stated therein to set aside the Declaration of 1957, and a Declaration that llero customary Law recognised only the Anretiola and Falodun Ruling Houses: They also sought an injunction to restrain the defendants from implementing the said purported declaration of 1981.   In the statement of Defence of the 1st defendant, the issue of the jurisdiction of the trial court to entertain the claim was raised for the 3rd Defendant. It was also argued in addition that the statement of claim did not disclose any cause of action.

In paragraph 7 of the affidavit in support of the Motion to dismiss the action, it was averred as follows-   “That the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, 1985, precludes this Honourable Court from entertaining any civil cause or matter pertaining to Chieftaincy matters.”   On his part, 6th Defendant pleaded in paragraph 14 of his statement of defence the ouster of the jurisdiction of the courts in chieftaincy matters by the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, 1985.  

In his ruling on this objection, the learned trial judge held, “The Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict supra bars the Court from entertaining suit regarding chieftaincy matters as well as Decree No. 13 supra.”   Plaintiff appealed to the Court of Appeal. The Court reversed the decision of the High Court and held that the High Court has jurisdiction to declare the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict inconsistent with the provisions of the Constitution 1979 and therefore void.  

Defendants have appealed to this court against the decision of the Court of Appeal, seeking to restore the decision of the High Court. The two grounds of appeal filed against the judgment read: “(i) The learned Justices of the Court of Appeal erred in law when they, in their lead judgment, said;   (i) ‘As stated at the beginning of this judgment the main issue calling for determination in this appeal is as to whether a court can pronounce on the validity or otherwise of the provisions of an Edict-in this case, the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, No. 3 of 1985 of Oyo State notwithstanding the provisions of the Constitution (Suspension and Modification) Decrees No. 1 of 1984 and the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984.’ (ii) It is my view and I so held, that as section 2(c) of Edict No 1 of 1985 of Oyo State is inconsistent with sections 6(6)(b), 33(1) of the 1979 Constitution, it is void and of no effect.   and they thereby came to a wrong decision.

PARTICULARS OF ERROR (a) Constitutionality of Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, No 2 of 1985 was not raised in either of the two grounds of appeal filed by the plaintiff/appellant. (b) The issues for determination in an appeal must be related to the complaints raised in the grounds of appeal. (c) What the learned justices of the Court of Appeal observed to be the issue calling for determination in the appeal before them did not flow or arise from the grounds of appeal filed by the plaintiff/appellant.   A Court of Appeal can only hear and decide an issue raised in the grounds of appeal and it is not entitled to make any pronouncement on an issue not placed before it in the grounds of appeal. (e) The submissions which the plaintiff/appellant made in his brief were not covered by the grounds of appeal filed by him.   2. The learned Justices of the Court of Appeal erred in law in holding that Decree No. 28 of 1979 is not in pari materia with Decree No. 13 of 1984 and in thereupon concluding that the cases of (1) CHIEF ADEBIYI ADEJUMO V. H. E. COL. MOBOLAJI O. JOHNSON, MILITARY GOVERNOR OF LAGOS STATE (1972)3 S.C. 45 and (2) Adenrele ADEJUMO & ANOR. V. H.E. COLONEL MOBOLAJI O. JOHNSON, MILITARY GOVERNOR OF LAGOS STATE (1974)5 S.C. 101 are in applicable to this case and they consequently came to a wrong decision.   PARTICUARS OF ERROR (a) Both Decree 28 of 1970 and Decree 13 of 1984 provide that one can only attack an Edict if it is inconsistent with a Decree.

(b) In interpreting Decree No. 13 of 1984, the Court of Appeal was bound to follow the Supreme Court’s construction of Decree 28 of 1970 in the above mentioned cases of Adejumo. (c) Decree No. 13 of 1984 was promulgated to protect Edicts as the Court of Appeal held in KANADA V. THE GOVERNOR OF KADUNA STATE & ANOR. (1986)4 N.W. L.R. (PART 35) 361 at 375. (d) Edict No. 3 of 1985 was not found to be inconstant with any Decree.” Learned counsel to the parties filed and exchanged their briefs of argument. They both adopted the briefs of argument and relied on them in argument before us.   Learned counsel to the appellant formulated the following two issues for determination. “2.1 Whether the Court of Appeal was correct to have held that the complaint in Ground 1 of the Plaintiff’s Ground of Appeal in the Court of Appeal was clear and could not have misled the defendants who were the respondents in the Court of Appeal.

 2.2 Whether the Court of Appeal was correct to have said that the issues calling for determination before it was whether a court could pronounce on the validity or otherwise of the provisions of an Edict, the Oyo State’s Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, No. 3 of 1984 and the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984.’   Learned counsel to the Respondent has also formulated two issues as follows- “0.1. Whether or not provisions of the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict Oyo State are consistent with the provisions of the unsuspended provisions of the Constitution of the Federal Republic of Nigeria and if not Whether or not the State High Court can declare any inconsistency found in an Edict against a Decree or the unsuspended pan of the Constitution notwithstanding the provisions of Decree No. 13 of 1984? 0.2.

Whether if the provision of an Edict are inconsistent with the provisions of an unsuspended part of the Constitution the Court can so declare.”   Learned counsel to the 6th Defendant/Respondent has formulated only one issue for determination which reads- “Whether a Court can pronounce on the validity or otherwise of the provisions of an Edict, in this case, the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, No. 3 of 1985, of Oyo State, notwithstanding the provisions of Constitution (Suspension and Modification) Decree No. 1 of 1984 and the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984.”  

The first of the issues formulated by learned counsel to the Appellant is not supported by any of the grounds of appeal filed. It is therefore not an issue for determination before this Court. See Modupe v. State (1988) 4 N.W.L.R. (Pt.87)130. The only issues before this Court, has been well expressed in the formulation of the Plaintiff/Respondent.

I intend to adopt that formulation in my judgment in this appeal.   Learned Counsel to the Appellant has argued in his brief of argument that the learned trial Judge never held that “the provisions of an Edict are subordinate to unsuspended part of the 1979 Federal Constitution of the Federal Republic of Nigeria 1979.” He then stated what he claimed the learned trial Judge said as follows –   “From the above what one can observe from the intendment of the legislature of both Decree and Edict mentioned is that the following are orders importance of our fundamental laws or groundnorms (sic) (groundnorm). (a) The latest Decree if it is no conflict with any existing decrees   PAGE| 6   (b) Any other Decrees (c) Decree No. 1 (d) Edicts (e) Unsuspended part of the Constitution.”  

Learned Counsel then submitted, following the above, that the Court of Appeal was wrong to have formulated the issue for determination before it as it did.   The Court of Appeal had formulated the issue as follows- “Whether a Court can pronounce on the validity or otherwise of the provisions of an Edict in this case, the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, No. 3 of 1985 of Oyo State- notwithstanding the provisions of the Constitution (Suspension and Modification) Decree No. 1 of 1984 and the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984.’  

It was submitted that the issue for determination so formulated was not covered by the grounds of appeal filed, and was therefore not relevant to the determination of the appeal. The decisions of this court in Okonkwo & Anor. v. Okolo (1988)2 NWLR (Pt .79)632, Oniah v. Onyia (1989) 1 NWLR (Pt.99) 514 and Okpala & Anor. v. Ibeme & ors. (1989) 2 NWLR. (Pt. 102) 208, were cited and relied upon for the submissions.  

Learned counsel citing and relying on Ejowhomu v.Edok- Eter Mandilas Ltd. (1986) 5 NWLR. (Pt.39) 1 finally submitted that the Court of Appeal was obliged and only decide the appeal before it. It was not entitled to correct any error in the ground of appeal filed by the Appellant. The decision of the Court of Appeal it was submitted, which was not based on arty ground of appeal properly before it, was therefore wrong in law. The findings of the trial Court therefore stand unchallenged, and the Court of Appeal was not entitled to disturb them.  

Appellant has adopted an entirely mistaken and erroneous view of this appeal. Learned Counsel is wrong in the submission that the issue for determination formulated by the Court of Appeal was not covered by the grounds of appeal filed. It is for this purpose necessary and relevant to reproduce the two grounds of appeal in the Court of Appeal from which the Court of Appeal formulated the issue for determination. They are as follows-   “1. The learned trial Judge erred in law and misdirected himself in the interpretation of S.1 and 1 (2) of the Federal Military Government (Supremacy and Enforcement of Powers) Decree No.13 1984 when he held.  

‘The intendment as positively stated in the decree is to oust the jurisdiction of the Court over any case challenging the validity of a decree or edict or probing into either of them.’ When the Court was not called upon to probe the competence or validity of the Edict but to determine whether S. 2 of the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, 1985 is inconsistent or otherwise with the provisions of unsuspended (sic) provisions of the 1979 Constitution of the Federal Republic of Nigeria.  

2. The learned trial Judge erred in law when he held that the provisions of an Edict are subordinate to unsuspended part of the Constitution of the Federal Republic of Nigeria 1979 when Federal Military Government (Supremacy and Enforcement of Powers) Decree 1984 does not state so nor could it but be interpreted so.”   In his brief of argument in the court below learned Counsel to the Appellant formulated the following three issues from his two grounds of appeal.  

“1. Whether the provisions of Oyo State Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, 1985 conflict with Sec. 6(6) and 236 of 1979 Constitution, if they do whether they prevail over the provisions of the unsuspended provisions of the Constitution. 2. Whether in the light of the provisions of Decree 1 of 1984 as to the powers of a Military Governor to promulgate Edicts, he can amend the unsuspended part of the Constitution of the state. 3 Whether the High Court can declare any inconsistency found in an Edict against a Decree or the unsuspended part of the Constitution notwithstanding the provisions of Decree No. 13 of 1984.”

This court has always frowned at and viewed with disfavour the proliferation of issues for determination formulated from grounds of appeal. The principles which govern the formulation of Issues for determination is that a number of grounds could where appropriate be formulated into a single Issue running through them. It is patently undesirable to split the Issue In a ground of appeal. In the instant case learned Counsel to the Appellant has formulated three issues from the two grounds of appeal. In their essence the grounds of appeal filed relate to the conflict between the provisions of section 2 of the Oyo State Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, 1985 and the exercise of the jurisdiction of the Courts in the application of unsuspended portions of the Constitution of the Federation 1979 in the light of the Federal Military Government (Supremacy and Enforcement of Powers) No. 13 of 1984.   The Court below was free either to adopt the Issues so formulated by learned Counsel or to formulate such Issues that are consistent with the grounds of appeal filed by the Appellant.

It is in the observance of this principle in pursuit of the proper administration of justice that the Court below considered an appropriate formulation of the Issue consistent with the grounds of appeal filed when a was observed that although, the grounds of appeal were inelegantly drafted, the complaints therein were clear and not misleading. The Court went on to point out, correctly, that “the main issue calling for determination in this appeal is as to whether a court can pronounce on the validity or otherwise of the provisions of an Edict in this case, the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, No. 3 of 1985 of Oyo State – notwithstanding the provisions of the Constitution (Suspension and Modification) Decree No. 1 of 1984 and the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984.”  

I agree entirely with the formulation of the single issue as arising from the grounds of appeal filed, and as an issue appropriate for the determination of the appeal before the Court. Learned Counsel was therefore in error in his submission that the issue for determination was not based on any ground of appeal properly before the Court. The Court below did not correct any error in the grounds of appeal filed. It was perfectly entitled to do so. This appeal could be decided on this ground alone since learned Counsel to the Appellant did not in his brief put forward any arguments in contention of the issue formulated by the Court of Appeal. Appellant is deemed to have conceded.

On this ground alone, the appeal fails and is dismissed. It is however, important to consider the very important constitutional issues involved in the formulation.   The issue of the relationship between the Federal Military Government and the component state units in the exercise of legislative powers, and the exercise by Courts of jurisdiction to declare upon the validity vel non of the exercise of such powers has been with us from the early years of our Military democracy.   In the early decision of the Lakanmi v. A-G Western State (1974)4 ECSLR. 713 the Supreme Court attempted to assert its constitutional authority in declaring invalid the provisions of a decree which was inconsistent with the provisions of the Constitution.

The correct position has always been, and this was reasserted in Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970, that the Decrees of the Federal Military Government are superior to the surviving sections, of the Constitution, 1963. The Constitution 1963 is superior to the Edicts of Military Governors.

Although the Courts are vested with jurisdiction to determine the Issue where a provision of a decree or Edict is inconsistent with the surviving section of the Constitution 1963, It had no jurisdiction to pronounce on the validity of the making of the Decree or Edict.

These propositions have been clearly enunciated in the judgment of this court in Adamolekun v. The Council of the University of Ibadan (1968) NMLR. 253 where Ademola, C.J.N., construing the provisions of S. 6 of Decree No. I of 1966 in relation to the exercise by the Court of its jurisdiction to pronounce on the validity of an Edict, said,   “Reading the Decree as a whole we are in no doubt that section 6 does not preclude the courts from enquiring into any inconsistency that may arise, but merely bars the court from questioning the validity of the making of a Decree or an Edict on the ground that there is no valid legislative authority to make one. In other words the Court is not enquiring into whether the Military Governor of a Region could legislate by Edict, but only whether section 35 of the Edict is inconsistent with the Constitution of the Federation.”  

This view was followed in Onyiuke v. E.S.I.A.L.A (1974)1 All NLR (Pt. 11)151, Peenok Investment Ltd. v. Hotel Presidential Ltd.(1982) 12 SC. 1 Agip (Nig.) Ltd. v. A-G of Lagos State (1977)11-12 SC .33. The last mentioned case was decided under Decree No. 32 of 1975 which is in pari materia with Decree No. 1 of 1966, in respect of the legislative powers of the Federal Military Government, and State Governors.   In construing the provisions of section 4 of Decree No. 2 of 1975, this Court referred to section 1(2) of Decree No. 1 of 1966 as pari materia and held that Decree No. 32 of. 1975 continued and affirmed the unsuspended portions of the Constitution of the Federation 1963. A new Constitution came into force on the 1st October, 1979. Sections 1, 6(6)(b) and 236 of which provide as follows –

“1- (1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria” 6(6)(b) The judicial powers vested in accordance with the foregoing provisions of this section shall extend to all matters between persons, or between government or authority and 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 of that person.   236(1) Subject to the provisi

Other Citation: (1990) LCN/2419(SC)