Memudu Lagunju V. Olubadan-in-council & Anor (1947)

LawGlobal Hub Judgment Report – West African Court of Appeal

Chieftaincy—Selection and installation of Chief by Native Authority—Juris-diction of Supreme Court in disputes as to Chieftaincies—Appointment and Deposition of Chiefs Ordinance, section 2 (2)—Proof of ” due enquiry and consultation ”.

There being no evidence of there having been ” due enquiry and consultation ” which is a condition precedent to the Governor being vested with the powers of ” sole judge ” under section 2 (2) of the Appointment and Deposition of Chiefs Ordinance, the jurisdiction of the Courts was not ousted.

Cases referred to:

1. Ohene Moore v. Akesseh Tayee, 2 W.A.C.A. 43.
2. General Medical Council v. Spackman (1943), A.C. 627; (1943), 2 A.E.R. 337; 112 L.J.K.B. 529; 169 L.T. 226; 59 T.L.R. 412; 87 Sol. Jo. 298.
3. Robinson 6^, Ors. v. Minister of Town and Country Planning (1947), K.B. 702; (1947), 1 A.E.R. 867; (1947), L.J.R. 1285; 177 L.T. 375; 111 J.P. 378; 63 T.L.R. 374; 91 Sol. Jo. 294.
4. Rex v. Staines Local Board, 69 L.T. 714; 62 L.J.Q.B. 540; 58 J.P. 182; 9 T.L.R. 587; 37 Sol. Jo. 683.
5. Liversedge v. Anderson (1942), A .0 . 206; (1941), 3 A .E.R. 338; 110 L.J.K.B. 724; 116 L.T. 1; 58 T.L.R. 35; 85 Sol. Jo. 439.
6. Franklin v. Minister of Town and Country Planning (1947), 1 A.E.R. 612 (C.A.); (1947), L.J.R. 1440; 111 J.P. 497; 63 T.L.R. 446; (1947), 2 A.E.R. 289 (H.L.); (1948), A.C. 87 (H.L.).
7. Local Government Board v. Arlidge (1915), A.C. 120; 111 L.T. 905; 84 L.J.K.B. 72; 79 J.P. 97; 30 T.L.R. 672.

Appeal from the Supreme Court of Nigeria.

Awolowo for Appellant (plaintiff below).

Briggs, Crown Counsel, for Respondents (defendants below).

The following joint judgment was delivered:

In this case the writ of the plaintiff-appellant reads as follows:—

” The plaintiff’s claim against the defendants is for an injunction to restrain the second defendant from performing the duties of the Timi of Ede, and from receiving the salary or stipend attached to the office of Timi of Ede.

” 2. The plaintiff also seeks as against the defendants a declaration:

1. that the Ibadan Native Authority otherwise known as Olubadan-inCouncil is not by native law and custom or by any other law qualified or entitled to override the choice or decision of the Ede kingmakers in the selection of the Timi of Ede.
2. that the selection of J. A. Laoye, Esq. (second defendant), and his subsequent installation, on the 13th November, 1946, as Timi of Ede, by • the Ibadan Native Authority otherwise known as Olubadan-inCouncil is contrary to native law and custom governing the selection of a Timi of Ede, is therefore null and void, and must be set aside;
3. that the plaintiff is the person qualified and entitled by native law custom to hold the post and enjoy the title of Timi of Ede which became vacant on 24th January, 1946;
4. that the plaintiff, sometime in April or May, 1946, was duly selected by the Ede Kingmakers as Timi of Ede and that that selection was in accordance with native law and custom.”
5. Pleadings were ordered and in the Statement of Claim the plaintiff-appellant averred that the first defendant-respondent had acted unfairly, contrary to native law and custom, and mala fide in selecting the second defendant-respondent as Timi of Ede and that the second defendant-respondent had unjustly and unlawfully usurped the plaintiff-appellant’s right of succession.
6. The Statement of Defence denied the allegations and raised the question of the jurisdiction of the Court to hear the action.
7. The question of jurisdiction was taken in /imine and the case was dismissed for want of jurisdiction. It is against this judgment that the appellant appeals to this Court.
8. Only one witness was called before the trial Court and his evidence reads as follows :—
9. ” FITZGERALD HADOKE, Male, Irish, sworn on the Bible, states in English language as follows :
10. ” I am the District Officer, Ibadan. I live at Ibadan. I know the district of Ede. There is a Head Chief at Ede, he is known as the Timi of Ede. Adetoyese Laoye is the present Titni of Ede. He was appointed Timi of Ede under the Native Authority Ordinance. His appointment has been approved by the Senior Resident of Oyo Province. I tender the letter of approval, marked Exhibit ‘ A ‘. The Timi of Ede is a member of Ede District Council and also of Ibadan Division Native Authority. The Councils were constituted under the Native Authority Ordinance.
11. ” I tender the Nigerian Gazette No. 2 of 2nd January, 1947, showing the Timi of Ede as a member of Ede District Council, marked Exhibit ` B
12. ” Cross-examined by Awolowo: I don’t know the plaintiff. I was not in charge of Ede district, probably that is why I don’t know him. I have read files about plaintiff. I was not in charge of Oshoglo district. My knowledge
13. of the chieftaincy disputes in Oshogbo is from the files of the district.
14. ” Exhibit ANo. 1179/361.
15. ” Provincial Office,
16. ” Oyo, Nigeria,
17. ” 7th December, 1946.
18. ” The Senior District Officer, Ibadan.”
19. “Timi of Ede: Appointment of
20. ” With reference to the special meeting of the Ibadan Inner Council on Thursday, December 5th, I am entirely satisfied that by native law and custom Mr. Adetoyese Laoye is eligible to succeed to the Stool of the Timi of Ede and that he is a fit and proper person by past record to assume the office of the Head of the Ede and Ede District Subordinate Native Authority and to take his seat on the bench of the Native Court. I am also entirely satisfied that the large majority of the chiefs of Ede eligible to take part in the selection of a Timi of Ede support the candidature of Mr. Adetoyese Laoye. That being so, I convey approval of the recommendation submitted by the Ibadan Inner Council that the selection of Mr. Adetoyese Laoye as the new Timi of Ede should be recognised.
21. ” (Sgd.) J. G. Pyke-Nott, SENIOR RESIDENT
22. 0Y0 PROVINCE.”

At the conclusion of this evidence Counsel addressed the Court quoting numerous authorities and at a later date the judgment appealed against was delivered by the learned Judge.

Stated very shortly the appellant alleges in his pleading that the second defendant-respondent has been elected as chief improperly contrary to native law and custom and mala fide by the first defendants-respondents and that the election was improperly confirmed by the Resident acting for and on behalf of the Governor. It should be noted that the Resident was not joined as a defendant in the case.

This case turns in the main on the interpretation of section 2 (2) of Ordinance No. 14/30 as amended by Ordinance 20/45. The sub-section originally read as follows:—

” The Governor shall be the sole Judge as to whether any appointment of a chief or head chief, as the case may be, has been made in accordance with native law and custom “

but in 1945 this sub-section was repealed and replaced by the following:—

” In the case of any dispute the Governor, after due enquiry and consultation with the 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.”

It is agreed that the Governor duly delegated his powers under this sub-section to (in this case) the Resident in charge of the Province.

The learned trial Judge has ruled that the effect of the amendment, in so far as the jurisdiction of the Court is concerned, is to leave the Governor as sole Judge in the matter and that in no circumstances can the matter be brought under the review of the Courts and quotes in support of this ruling the dictum of Lord Atkin in Ohene Moore v. Akesseh Tayee (1) which reads as follows:-

” It is quite true that their Lordships as every other Court, attempt to do substantial justice and to avoid technicalities; but their Lordships, as every other Court, are bound by the statute law, and if the statute law says there shall be no jurisdiction in a certain event, and that event has occurred, then it is impossible for their Lordships or for any other Court to have jurisdiction.”

With this statement of the law we respectfully agree and if there had been no amendment to the law as enacted in 1930 the matter might well have there ended, but in view of the amendment further consideration is necessary, for it would now appear that the Governor (or in this case his delegate), only becomes the sole arbiter in this matter after certain events have taken place. The appellant alleges that these events have not taken place. He alleges rightly or wrongly that there has been no due enquiry into the matter and that there has been no consultation with the people concerned in the selection. He further alleges that such enquiry and consultation if ever made was made Inala fide.

One of the first points, if not the sole point for consideration by this Court at this stage is, therefore, to decide whether the evidence of Hadoke furnishes the necessary proof of the enquiry and consultation, so as to oust the inherent jurisdiction of the Court.

An examination of this evidence discloses that the witness knows little or nothing of the facts in issue. In fact his evidence is entirely formal and amounts to no more than the production of Exhibit ” A “, a letter from the Senior Resident approving the appointment of second defendant-respondent. It is true that in this letter to the Senior District Officer the Resident states that he is ” entirely satisfied that the large majority of the Chiefs of Ede eligible to take part in the selection of a Timi of Ede support the candidature of Mr. Adetoyese Laoye “,

but does this sufficiently indicate a due enquiry and a consultation with the persons concerned ? It clearly does not. General Medical Council v. Spackman (2) and Robinson & Others v. Minister of Town and Country Planning (3).

The learned trial Judge has held that, ” since the Governor has been made the sole judge in chieftaincy cases in cases of chiefs coming within the provisions of section 5 of Ordinance 14/30 as amended by section 7 of Ordinance No. 20/45, his certificate showing approval of the appointment after due enquiry has been made precludes the Court from exercising jurisdiction in the matter and in my view the effect to be given to section 2 (2) of Ordinance 14 of 1930 as amended by Ordinance No. 20 of 1945 is not affected by the Town Planning cases . . . as the same effect should be given to the section when construed in its ordinary meaning as if it expressly stated that the Courts shall have no jurisdiction in such cases “.

If this is intended to mean that under no circumstances can the Court have jurisdiction we think that the learned Judge has overstated the case. Clearly if it could be shown that no due enquiry or consultation had taken place, then the condition precedent to the Governor being vested with the powers of ” sole judge has not been fulfilled and the Courts would certainly have the power to set aside the order.

At this point it might be convenient to dispose of the question of male fides which have been alleged in this case. The plaintiff-appellant alleges nsala fides against both respondents and a third party, the Resident, who is not before the Courts and with whose mala fides therefore we are not at the moment concerned.

Now if due enquiry has been held it is obvious that one of the first matters to be investigated would be the alleged ‘,gala fides of the first defendant-respondent and if the Governor’s delegate had decided against this allegation there the matter would end. It is obvious that one of the objects of directing that due enquiry be made must be to enable any such allegations to be investigated. It cannot be seriously suggested that any person aggrieved by the result of the enquiry has a right of appeal to the Courts.

Many authorities have been quoted before this Court, but in the main they are not relevant to the issue at this stage, for the matter for decision can be compressed into a very small compass, namely the proper interpretation of the above-mentioned sub-section of Ordinance 14/30 as amended.

We have already indicated that the learned Judge has placed too wide an interpretation upon it by holding that in no circumstances can the matter be adjudicated upon by the Courts. The jurisdiction of the Courts is only ousted after due enquiry has been made and consultation with the persons concerned in the selection has been held.

The Court is not concerned with the evidence given at the enquiry, the exact manner in which it was given, or the deductions therefrom (Rex. v. The Staines Local Board) (4) but there must be evidence that the enquiry has been held and there is no satisfactory evidence on this point. It may well be that these conditions have been observed and that the witness called could have given the necessary evidence but the fact remains that he did not and the trial Court assumed that, once the certificate had been given by the Resident, the matter was a closed book so far as the Courts were concerned.

This might well have been true had the law not been amended but in the words of Halsbury’s Laws of England, 2nd Edition, Vol. XXI, pages 501-2:—

” It may be presumed: (i) that words are not used in.a statute without a

meaning and so effect must be given, if possible, to all the words used, for

the legislature is deemed not to waste its words or say anything in vain.”

In 1945 the legislature laid down that there should be enquiry and consultation before the Governor assumed the role of ” sole judge ” and it is for the Courts to see that these conditions have not been laid down in vain.

Counsel for the appellant has addressed us at length on the meaning of the words ” due enquiry ” and the manner in which ministers should exercise an absolute discretion vested in them by the legislature and we have been invited to consider such authorities as Liversedge v. Anderson (5), General Medical Council v. Spackman (2), Maxwell on the Interpretation of Statutes, 8th Edition, pages 111, 113, Robinson & Ors. v. Minister of Town and Country Planning (3), Franklin v. Minister of Town and Country Planning (6), Halsbury, pages 501, 502; Local Government Board v. Arlidge (7).

In view, however, of our conclusion that the evidence so far does not disclose that due enquiry has taken place, it is unnecessary to consider the matter further.

The appeal is allowed and the case returned to the trial Court to determine the issues before it after hearing evidence tendered by both parties in the light of the interpretation placed by this Court upon section 2 (2) of Ordinance 14 of 1930 as amended by Ordinance 20 of 1945. The appellant is allowed the costs of this appeal assessed at 06 9s. 6d. and his costs in the Court below assessed at £10 10s. Od. Any costs already pad to the respondent to be refunded by them to the appellant.

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Appeal allowed and case remitted to Supreme Court.