Joseph Jideofor Enwezor V. Joseph Okwudili Onyejekwe & Anor (1964)

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ADEMOLA, C.J.N.

The appellant, who was the plaintiff in the High Court of the Onitsha Judicial Division, on the 21st March, 1963, brought an action against the respondents. His Writ of Summons reads as follows:

“(1) A declaration that the Plaintiff is the Obi of Onitsha duly appointed and installed in accordance with Native Law and Custom etc.

(2) As alternative to (1) above, a declaration that the first Defendant is not the Obi of Onitsha in accordance with Native Law and Custom and

(3) An Injunction restraining the first Defendant from acting as or otherwise holding himself out as the Obi of Onitsha.”

Earlier, the plaintiff/appellant had unsuccessfully contested the vacant stool of Obi of Onitsha; he lost to the first defendant/ respondent, who has now been recognised as the Obi of Onitsha by the Eastern Nigeria Government, after the Executive Council had considered the Report submitted by the Sole Commissioner who was appointed to enquire into the rights of the several claimants to the vacant stool.

The second defendant/respondent was sued as the Minister who was responsible for Chieftaincy Affairs. On the service of the Writ on this respondent, a Notice of Motion was filed on his behalf praying the High Court of Onitsha Division to strike out the case for want of jurisdiction. In this objection reliance was placed on Sec. 4(3) of the Chiefs Law, No. 9 of 1960. After hearing arguments on the issue, in a considered judgment on the 25th April, 1963, the learned Judge ruled that the Court is without jurisdiction to grant the declaration sought and struck out the case.

The plaintiff appealed to this Court on the Order made by the Judge striking out the case. There were nine grounds of appeal filed but it is unnecessary to set out any of them.

Against this appeal, the second respondent on the 28th October, 1963, filed a Notice of Objection to hearing of the appeal by this Court. It contains two grounds which are as follows:

“1. That the jurisdiction of this Honorable Court to hear the appeal has been expressly taken away by Section 158(4) of the Constitution of the Federation which came into force on the 1st of October, 1963.

2. That no useful purpose will be served by hearing the appeal in view of the fact that any ruling of this Honorable Court in favour of the appellant would be ineffective in view of the provision of Section 80 of the Constitution of Eastern Nigeria which came into effect on the 1st day of October, 1963. Judgment in favour of the appellant (if any) will not have the effect of conferring on the Court below the very jurisdiction which is denied it by the aforesaid Constitution of Eastern Nigeria.”

Arguing the objection, the learned Solicitor-General, Eastern Nigeria, for the second respondent, submitted that it is not competent for this Court to look into the matter as it is purely a chieftaincy matter, which has been excluded from the jurisdiction of courts by Sec. 158(4) of the Constitution of the Federation dated the 1st October, 1963, and Sec. 80 of the Constitution of Eastern Nigeria which came into effect on the same date, namely the 1st October, 1963.

Now, Sec. 158(4) of the Constitution of the Federation reads:

“(4) Where immediately before the date of the commencement of this Constitution any proceedings on appeal from a decision of the Federal Supreme Court are pending or any right to bring such proceedings has accrued, the proceedings or right shall abate on that date in so far as any question for determination in the relevant proceedings is

(a) a chieftaincy question; or

(b) a question as to the interpretation of a constitution or former constitution of the Federation or a Region or as to the validity of an enactment which amends or purports to amend such a constitution;

and where immediately before that date any proceedings are pending in any court in Nigeria or any right has accrued to bring proceedings on appeal to such a court, the proceedings or right shall abate on that date in so far as any question for determination in the relevant proceedings is a chieftaincy question.”

and Sec. 80 of the Constitution of Eastern Nigeria reads:

“Notwithstanding any other provisions of this Constitution including in particular Section 16 of this Constitution, no chieftaincy question shall be entertained by any court in the Region.”

Sec. 165 of the Constitution of the Federation defines ‘Chieftaincy question’ as follows:

“‘chieftaincy question’ means any question as to the validity of the selection, appointment, approval of appointment, recognition, installation, grading, deposition or abdication of a chief”

The question of chieftaincy, it was argued, is a matter within the competence of the Regional Legislature which has made laws for the appointment and recognition of chiefs-see Recognition of Chiefs Law, Eastern Nigeria, E.R. No. 9 of 1960; under this law the Executive Council of Eastern Nigeria is empowered to look into the matter of chieftaincy in Eastern Nigeria to the exclusion of the courts. See Secs. 6 and 7.

For the first defendant, who is more intimately concerned with the case, his Counsel associated himself with the submissions made by the learned Solicitor-General.

For the plaintiff/appellant it was not contended that the objection was improperly raised by Motion on Notice, but his Counsel contended that such matters are appropriately raised after pleadings had been filed, or at the earliest after the statement of claim had been delivered. It was submitted that there was nothing in the Summons which settled the question in issue, and the duty of the Court was to order pleadings and settle the issue to be tried. It is difficult, it was argued, for the Judge to say categorically what the questions were before him without pleadings and, in the instant case, there was nothing in the Writ to show that the Obi of Onitsha is a chief within the meaning of that word in the Constitution of the Federation. The ruling of the learned Judge that the matter was a chieftaincy matter, or that the Obi of Onitsha is a chief, it was submitted, should be regarded as offending against the rights to have pleadings in a case-Wright v. Prescot Urban Council 115 L.T. 772, and Electrical Development Company of Ontario v. Attorney-General of Ontario & Ano. [19191 A.C. 687.

The effect of the arguments put forward by the learned Solicitor General, in our view, is to preclude the Court from going into the question whether the matter before it is one of chieftaincy or not. If his arguments are understood as submitted to us, it seems that once it is asserted by the defendant that the issue before the Court is a chieftaincy matter, the Court must declare itself without jurisdiction to deal with the case. It is difficult for this Court to accept the view that the jurisdiction of the Court is ousted merely on an assertion made by one party that the matter before the Court concerns chieftaincy, without the Court satisfying itself that the matter before it, in fact, relates to a chieftaincy dispute.

Although Sec. 165 of the Constitution of the Federation defines “chieftaincy question”, the word “chief’ is nowhere defined in this Constitution. In Sec. 5(3) of the Constitution of Eastern Nigeria, however, “chief’ is defined as follows:

“(3) In this section-

‘Chief’ means any person who is for the time being recognized as a Chief under any law in force in the Region.”

This, in our view, is not a satisfactory definition; and as stated, it is narrow in the sense that it is limited to the context of the section of the Constitution to which it refers. A wider definition, however, is to be found in Sec. 3 of the Interpretation Ordinance, Cap. 89 of the 1958 Laws of the Federation, etc. which relates to Definitions. It is defined thus-

.Chief’ or ‘native chief’ means any native whose authority and control is recognized by a native community.”

We are not aware of any other definition of a “chief’, nor have we been referred to any. We are of the view, however, that the aforesaid definition given in the Interpretation Ordinance, Cap. 89, is the proper definition of a chief to apply to the Constitution of the Federation since the said definition is contained in a Law which is in force on the 1st October, 1963, when the Constitution takes effect. Sec. 156(1) of the Constitution of the Federation 1963, in our view, covers this.

It was argued that the Obi of Onitsha is not a chief but a traditional ruler and therefore not caught by the provisions of the law excluding chieftaincy matters from the purview of the Courts. We are unable to accept this submission, and it is our view that the definition of a chief in the Interpretation Ordinance, Cap. 89 already referred to, covers a natural ruler. The essence of a natural ruler to our mind is that his “authority and control” be recognized by the men in his community over whom he is accepted as a “ruler”.

It was further submitted that this is not a case in which the inherent jurisdiction of the Court in striking out a case can be appealed to since the Summons is not vexatious or frivolous; and therefore that the rights of pleadings must be adhered to. This is a golden rule we would like to see observed; but

Other Citation: (1964) LCN/1183(SC)