Odumuyiwa Ashekoya V. Ganiyu Jaieola Olawunmi (1962)

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ADEMOLA, CJF 

This matter originated in the Magistrate Court, Ijebu Ode where the present appellant was the complainant in a chieftaincy matter an at his instance the defendant/respondent was prosecuted for an offence under Section 17(1) of the chiefs Law 1957 (Western Region) in that he, not being a person approved as a successor by the Governor-in-Council to the recognised vacant Chieftaincy of the Elepe of Epe in Epe Quarter, Offin in Shagamu Local Council area, permitted himself to be installed as the Elepe.

The learned Senior Magistrate on a submission of no prima facie case made by Counsel for the defendant after the close of the case for the complainant ruled, without giving any reason or reasons for such a ruling, that there was no case made out against the defendant; he therefore discharged him.

The appellant appealed to the High Court, Abeokuta. The learned Judge of appeal after hearing arguments on both sides, dismissed the appeal and gave his reasons for so doing.

The question before the learned Judge of appeal, and indeed before this Court for decision, is merely the interpretation to be put to Section 17(1) of the Chiefs Law (Cap. 19 of the Western Region) 1957. It reads:

‘When a vacancy has occurred in a recognised chieftaincy and no person has been approve as successor thereto by the Governor in Council in accordance with this part, any person who installs or purports to install a person as such Chief or any person who permits himself to be installed as such Chief shall be guilty of an offence and shall be liable on conviction to imprisonment for two years.’

The view taken by the learned Judge of appeal of this Section is that a man who carries out or performs an installation or purports to carry out an installation without authority offends against the Section; but whilst the person who permits himself to be installed commits an offence, the Section he observed does not cover such an installed person if the installation was not properly carried out or it was not performed in accordance with Native Law and Custom. Further, that in the present case, as the installation was not performed in accordance with the rites observed by Native Law and Custom, it was not a proper installation. The installation not being in accordance with custom and invalid, the person who allowed such ceremony to be carried out on him, according to the learned Judge, could not be said to have committed an offence under Section 17(1) of the Chiefs Law.

Arguing the point before us, learned Counsel for the appellant submitted that the view taken by the learned Judge of appeal that a purported installation is no offence as far as the person installed is concerned cannot be correct. He further submitted that the offence of permitting oneself to be installed is committed whether or not the installation was valid or invalid, and that it must have been the intention of the legislature to make it an offence in any case for the installer and the installed no matter how the ceremony was performed so long as the Governor in Council had not approved a successor to the vacant recognised Chieftaincy.

The learned Judge of appeal, when this argument was tendered to him, held the view that since it was not denied in evidence in the case that he ceremony performed was not a valid installation according to local Law and Custom, no valid installation took place. It was therefore, he said, a purported installation. Section 17(1), he emphasised, does not cover the case of a person who permits himself ‘purportedly’ (using his own expression) to be installed. The learned Judge concluded as follows:-

‘The legislature must be taken to have intended that the offence of permitting oneself to be installed to be of permitting oneself to be installed by a ceremony which, but for Section 17(1), would be valid according to local Law and Custom. To construe the provision otherwise would be contrary to principle and would be to act only on speculation or suspicion that the legislature had expressed itself badly.’

With the greatest respect to the learned trial Judge, I do not think Section 17 (l) was drafted with the intention of creating any distinction whatever between the person who installs and the person who permits himself to be installed. The wording of the Section includes a person who purports to install, but did not include any person who ‘purportedly’ permits himself to be installed (again to use the expression of the learned trial Judge), because, in the first place, one does not expect to see in legislation a word which is not in recognised use. The word ‘purportedly’ is not given in the Shorter Oxford Dictionary, which is a standard dictionary.

Secondly, one must have regard to the realities of the case, which are that a person who wishes to be installed as the successor to the vacant chieftaincy agrees with someone to perform the ceremony, and permits himself to be installed by that other person who installs or purports-namely, intends or professes-to install him. The mischief aimed at by Section 17( 1) is the performance of a ceremony which the parties thereto intend to be regarded by the public as an installation and it makes no difference whether or not the rites were carried out perfectly in accordance with the local law and custom.

The Section, therefore, deems it an offence by both the installer and the installed whether or not the ceremony performed was perfect, if the installation or the ‘purported’ installation took place before the Governor-in-Council approved a successor to the vacant stool. It was in my view never intended by the legislature that there should be a difference; that the installer, if the ceremony was imperfect, be guilty of an offence whilst the person installed, should the ceremony be proved imperfect by reason of the fact that it was not in accordance with the local custom, should go unpunished, was certainly not intended. The object was to await the approval of the Governor-in-Council before any installation takes place.

On the above reasoning the learned Senior Magistrate was wrong when he held that ‘a prima facie’ case was not made out by the complainant and that the defendant had no case to answer. The proper thing to do was to have called upon the defendant for his defence.

This appeal will, therefore, be allowed. The case will be sent back to the learned Senior Magistrate with direction that the defendant should be called upon for his defence and the verdict be resolved by the learned Magistrate.

Cost of 25 guineas awarded against the appellant in the Magistrates Court is already paid is to be refunded. The appellant is entitled to costs in the High Court as well as costs of this appeal. Costs in the High Court are assessed at 17 guineas and costs amounting to 27 guineas in this Court .

Other Citation: (1962) LCN/0975(SC)