Prince J.S. Atolagbe & Anor V. Alhaji Ahmadu Awuni & Ors (1997)
LAWGLOBAL HUB Lead Judgment Report
L. UWAIS, C.J.N.
In the High Court of Kwara State, the appellants herein were plaintiffs and the respondents herein and one other (The Commissioner for Chieftaincy Affairs, Kwara State) were defendants. The claim brought by the plaintiffs, which was based on chieftaincy dispute, was for the following declarations:-
“1. That the purported appointment of Alhaji Ahmadu Awuni as the Elese of Igbaja by the 3rd defendant is contrary to the native law and custom of Irese land relating to the appointment of an Elese, contrary to-the Elese of Irese (Confirmation of Declaration) Edict, 1987 and contrary to all known laws relating to the selection and appointment of an Elese of Irese land and is therefore null and void.
- That the 1st plaintiff is the proper and rightful person to be appointed the Elese of Ireseland having been selected by the Abidolu Royal Families, the Irese Kingmakers and (in accordance with the Elese of Irese (Confirmation of Declaration) Edict, 1987.
- A perpetual injunction restraining the 1st defendant from parading himself as the Elese of Ireseland or performing any acts appertaining to the office of Elese of Ireseland, and an injunction restraining the 2nd and 3rd defendants from installing recognising or in any way dealing with the 1st defendant as the Elese of Igbaja (Irese land)”.
The 2nd, 3rd and 4th defendants brought a motion on notice in which they prayed for as follows:-
“(a) An order dismissing/or striking out this suit on the ground that the plaintiffs failed to deposit the sum of ten thousand naira (N10,000.00) prior to instituting and/or filing this suit as required and/or enjoined by the mandatory provisions of section 15(1) of the Chiefs (Appointment and Deposition)(Amendment) Edict, No.3 of 1988.
(b) And for such further order(s) as this honourable court might deem fit to make in the circumstances of this case.”
Paragraph 5 of the affidavit in support of the motion stated thus:
“5. That the said Mr. S.O. Otu, the Director of Civil Litigation, Ministry of Justice, Ilorin, told me and I verily believed him that the plaintiffs herein did not pay the sum of N10,000.00 to the Kwara State Government prior to instituting the suit before this honourable court.”
The plaintiffs did not file a counter-affidavit challenging the assertion in paragraph 5 of the affidavit in support of the motion, which came before Orilonise; J. for hearing on 20th November, 1990. In his ruling dismissing the application, the learned trial Judge adverted to the following:-
“In Gambari & Ors. v. Gambari (supra) (1990) 5 NWLR (pt 152) 572 the Court of Appeal has ruled in favour of the constitutionality of Section 15(1) of the Chiefs (Appointment and Deposition) (Amendment) Edict No.3 of 1988. The Edict creates a condition precedent, the non fulfilment of which ousts the jurisdiction of the court in any suit challenging the appointment of a chief by the Military Governor or any appointing authority in Kwara State. Even though the rulings of this Court in lfelodun/Ifelodun Traditional Council & Anor v. Alhaji Garba Idirisu & Anor. In Suit No.KWS/OM/2188 (judgment) delivered on 15th July, 1988 and in Atolagbe &Anor v. AhmaduAwuni &3 Ors. Suit No. KWS/OM/14/89 (judgment) delivered on 5th June, 1989 (both unreported) have not been set aside on appeal, I cannot remain indifferent to the decision of the Court of Appeal in Gambari v. Gambari (supra).
In that case, the Court of Appeal dismissed the appellants’ appeal to it and upheld the decision of the High Court in striking out the suit of the plaintiffs/appellants who had instituted a chieftaincy action without complying with section 15(1) of Edict, No.3 of 1988 which stipulates (sic) stipulates the deposit of N10,000.00 prior to the commencement of any such suit I am bound by that decision the effect of which is that the imposition of a compulsory non-refundable deposit of N10,000.00 is a condition precedent which must be fulfiled in an action of this nature before the action can be competent and before the court can be vested with jurisdiction to adjudicate same.”
The learned trial Judge referred to the decision of this court in Bakare v. Attorney General of the Federation (1990) 9 SCNJ 43; (1990) 5 NWLR (Pt. 152) 516,which considered the constitutionality of the provisions of Petition of Rights Act Cap. 149 Laws of the Federation of Nigeria, and Lagos, 1958 vis-a-vis the provisions of Section 6 subsection (6)(b) of the Constitution of the Federal Republic of Nigeria, 1979. Disregarding the binding effect on him of the decision of the Court of Appeal in Gambari’s case. the learned trial Judge stated thus in following the decision of this Court in Bakare’ s case:-
“In the same vein, I respectfully hold the view that Section 15(1) of Edict, No. 3 of 1988 which requires a non-refundable N10,000.00 to the Government of Kwara State before that government can be challenged in a chieftaincy dispute in which the government has approved an appointment places an unnecessary embargo on a person’s right of access to the court….. Any legislation that abridges the right of any person of access to court is not in consonance with the provisions of the 1979 Constitution. Section 15(1) of Edict No. 3 of 1988….. is a legislation which abridges the access to court by a person whose civil rights and obligations are for determination in a chieftaincy dispute.”
The learned trial Judge concluded his ruling by holding that the application had no merit and, therefore, dismissed it. It is quite clear to me that the learned trial Judge did not obviously agree with the decision of the Court of Appeal in Gambari’s case (supra), and, therefore, did not allow the doctrine of stare decisis to guide him since he preferred the decision in Bakare’s case. Consequently, the 1st, 2nd and 3rd defendants decided to appeal against the ruling.
In allowing the appeal the Court below (Okunola, Oduwole and Mahmud Mohammed, JJ.C.A.) was unhappy, per Oduwole, J.C.A., who wrote its leading judgment, with the failure of the learned trial Judge to adhere to the doctrine of stare decisis in not following the court’s decision in Gambari’s case, It stated thus:
“It is apposite to say here that the whole theory of our system of judicial precedent is that the decision of a superior court is binding on an inferior court per Oputa, J.C.A. in UTC Nigeria Ltd. v. Chief J.P. Patomei & 4 Ors. (1989) 2 NWLR (Pt. 103) at 244-292 See also Usman v. Umaru (1992) 7 NWLR (pt.254) at p. 377.
Bearing in mind the sacrosanct principle in our courts of stare decisis (binding judicial precedent) which left the learned Judge with no choice other than to acknowledge it and with reverence learn to live well with it, it only remains to be seen whether the reasons given I for deviating, or back -sliding from the decision in Gambari’s case which is on all fours with the case under review is sound or not ……
Now concerning the reasons proferred by the learned trial Judge for not following the decision in Gambari’s case, I would concede and infact elementary (sic) that both the High Court and the Court of Appeal should be bound by any decision of the Supreme Court, this notwithstanding the deviation from Gambari’s case as regards the case in hand cannot on the same hypothesis be defended since the facts, issues and circumstances in Bakare’ s case that was used as a lever to by-pass Gambari’s case are miles apart and are not just the same. They are certainly not on all fours.
Both decisions in Gambari as well as Bakare are not in conflict and therefore still good law…..
Put in another way, Gambari’s case concerns the condition precedent to the competence of a court.”
To stress the point further reference was made to the pronouncements in the case of Attorney-General of Ogun State & Anor v. Egenti (1986) 3 NWLR (Pt.28) 265 at pp. 75; Nwonuma Ndiribe & Ors. v. Ogbogu & Ors. (1989) 5 NWLR (Pt. 123) 599 at pp. 618 and 622 and R .E.A.N. Ltd. v. Aswani iles Ltd. (1991) 2 NWLR (Pt. 176) 639 at p. 672. After considering the rationes decidendi in the cases of Gambari and Bakare respectively, the Court of Appeal came to the conclusion that the plaintiff’s suit in the High Court was incompetent. It stated thus, as per the lead judgment-
“I therefore hold that Suit No. KWAS/OM/14/87 the subject matter of this appeal is incompetent. The respondents having failed and/or neglected to deposit the sum of ten thousand naira (N10,000.00) prior to instituting or filing their suit as stipulated in Section 15(1) of the Chiefs (Appointments and Depositions) (Amendment) Edict, No.3 of 1988 of Kwara State.”
The plaintiffs now feel aggrieved and have appealed before us on two grounds of appeal. The parties filed briefs. Three sets of briefs have been filed. Apart from the appellants’ brief of argument, the 1st respondent filed his brief separate from the joint brief of the 2nd and 3rd respondents. Only one issue for determination is contained in the appellant’s brief and it reads:-
“Whether Edict No.3 of 1988 Kwara State making payment of N10,000.00 deposit a condition precedent for an aggrieved person in chieftaincy matters to challenge the government appointing authorities is not an infraction of Section 6(6)(b) of 1979 Constitution of Federal Republic of Nigeria in that it creates an impediment to free access in court.”
For his part the 1st respondent adopts as its own the issue stated by the appellants, while the 2nd and 3rd respondents jointly raised two questions for determination, viz:-
“1. Whether Section 15 of Edict No.3 of 1988 abridges the right of a person in a chieftaincy matter considering the provision of section 6(6)(b) of 1979 Constitution.
- Whether the decision in Bakare v. Attorney-General of the Federation (1990) 9 SCNJ 43 is relevant and/or applicable to this case at all.”
In addressing us, learned counsel for the appellants, Chief Olorunnisola, Senior Advocate of Nigeria, referred to the authorities relied upon by the Court of Appeal to set aside the ruling of the High Court These are Madukolu v. Nkemdilim (1962) 1 All NLR (Pt. 11) 587; (1962) 2 SCNLR 341; Adegboyega v. Awu (1992) 7 NWLR (Pt.255) 576; Nigerian Cement Co. Ltd. v. Nigerian Railway Corporation & Anor (1992) 1 NWLR (Pt.220) 747; Katsina Local Authority v. Makudawa (1971) NMLR 100. Learned Senior Advocate submitted that the case of Madukolu laid down general principles of law on the jurisdiction of a court and was decided before the 1979 Constitution, in particular section 6 subsection (6)(b) thereof, came into force. Therefore the principles do not apply to the provisions of Section 6 subsection (6)(b) of the 1979 Constitution.
He argued that the cases of Katsina Local Authority v. Makudawa and Nigerian Cement Co. Ltd. v. Nigerian Railway Corporation& Anor apply to the giving of notice within a specified period to a prospective defendant before a suit can be instituted by a plaintiff. He submitted that the laws on which the decisions in them were given pre-dated the 1979 Constitution, therefore the decisions did not take into focus the provisions of Section6 subsection (6)(b). If they had, he argued, the conditions precedent in the cases would have been overriden by the provisions of the 1979 Constitution.
With regard to Adegboyega’s case, learned counsel contended that the receiver/manager that intended to sue was doing so not as the owner of the shares and was therefore not an aggrieved party whose civil right was infringed. He supported this contention with the case of Intercontractors v. U.A.C (1988) 2 NWLR (pt 76) 303 at p. 323. Furthermore, he argued, the receiver/manager was not denied access to court by a pre-condition even though he was required to obtain the leave of court as antecedent to suing. He cited the case of Adediran v. Interland Transport Ltd.(1991)9 NWLR (Pt.214) 155 at p. 180 to contend that any law which imposes conditions for the determination of rights and obligation of a person is inconsistent with the free and unrestricted exercise of that right and therefore it is void to the extent of the inconsistency. He finally urged upon us to hold that the decision in Gambari’s case is wrong and so also the decision of the Court of Appeal in the present case and that we should hold that our decision in Bakare’ s case applies to this case.
On the decision in the case of Obaba v. Military Governor of Kwara State (1994) 4 NWLR (Pt.336) 26 cited in both the respondents’ briefs of argument, learned Senior Advocate submitted that this Court did not decide that the condition stipulated by Section 15 of the Chiefs (Appointment and Deposition) Edict No.3 of 1988constitutionally valid.
In his reply, Chief Olanipekun, learned Senior Advocate of Nigeria for the 1st respondent, relied heavily on our decision in Obaba’ s case (supra). He argued that this Court held in that case that the provisions of Section 15 of the 1988 Edict merely laid a condition precedent for the institution of a suit in respect of a category of disputes; and that it is only when the condition precedent is dully complied with that the court gets conferred with the jurisdiction to hear the suit. He referred specifically to the dictum of Belgore, J.S.C. at p. 43 thereof and that of Iguh, J.S.C. at p. 47. Learned Senior Advocate argued further that the provisions of Section 15 of the 1988 Edict did not in any way conflict with the provisions of Section 6 subsection (6)(b) of the 1979 Constitution. He stressed that the Edict is not saying that the court does not have the jurisdiction to hear chieftaincy disputes but rather that before a litigant can challenge the validity of any appointment made under the Chiefs (Appointment and Deposition) Law, as amended, he has to deposit with the State Accountant-General a non-refundable sum of N10,000.00. He referred to the cases of Ajanaku v. C.O.P. (1979) 3-4 SC 28; Katsina Local Authority v. Makudawa (supra) Adegboyega v. Awu (supra) and Nigerian Cement Co Ltd. v. Nigerian Railway Corporation (supra) and submitted that the provisions of section 6 subsection (6) do not in anyway preclude legislative bodies from inserting conditions precedent in any statute or law; nor does the section remove all the established or known conditions precedent before a suit is brought under common law. Learned Senior Advocate stated that the provisions of the 1988 Edict are merely procedural and not the same as those of Chiefs Edict No. 11of 1984 of Ondo State which ousted the jurisdiction of Court as was interpreted in the case of Governor of Ondo State v. Adewunmi (1985) 3 NWLR (Pt. 13) 493. He referred to the provisions of Section 125(1) of the Electoral Act, Cap. 105 of the Laws of the Federation of Nigeria, 1990 and Section 410(2) of the Companies and Allied Matters Act, Cap. 59 of the Laws of the Federation of Nigeria, 1990 both of which state that security for costs must be given by a prospective petitioner before he can validly bring a petition. He cited cases decided by this Court since the 1979 Constitution came into operation which laid down that appropriate statutory notice must be given by a landlord to a tenant before he can recover his premises from the tenant. These include Sule v. Nigeria Cotton Board (1985) 2 NWLR (Pt.5) 17 at pp. 36-37 and Eleja v. Bangudu (1994) 3 NWLR (pt.334) 534 at p. 542. He submitted that the cases of Adediran (supra) and Bakare (supra) have no application to this case. He urged us to uphold the decision of the Court of Appeal in Gambari’s case and the present case.
Learned Attorney-General of Kwara State, for the 2nd and 3rd respondents, argued that the High Court was wrong in holding that Edict No.3 of 1988 had shortened the right of a person to sue and submitted that the Edict had merely stipulated a condition to be met before an action can be instituted in court. He referred to a number of laws which stipulate conditions for instituting action. These include the three months limitation within which a person suing a public officer must bring the action; obtaining leave of court before a receiver/manager of a company can institute or defend an action Adegboyega v. Awu (supra); the giving of a month’s notice before a Local Government Authority can be sued Katsina Local Authority v. Makudawa (supra) and the giving of a written notice of three months before the commencement of or institution of any court process against the Nigerian Rly. Corporation Nigerian Cement C. Ltd. v. Nigerian Rly Corporation (supra). He likened the payment of N10,000.00 under the 1988 Edict to the payment of process fees before the filing of an action ordinarily. He then submitted, citing the cases of Madukolu v. Nkedilim (supra) and Skenconsult Nig. Ltd. v. Ukey (1981) 12 NSCC 1 at p.3 that a court can only be competent if among other things all the conditions precedent for its having jurisdiction are fulfilled. He contended that though courts are open to every person who feels aggrieved, some form of restraints are necessary to be introduced so that the courts may not be ridiculed. In this direction, he argued, Kwara State Government has the power to decide on the policy applicable by legislating accordingly. Once the policy is formulated, he submitted, it is not the business of court to pass value judgment on the policy. He cited in support the case of A-G of Lagos State v. Dosumu (1989) 6 SCNJ 134; (1989) 3 NWLR (Pt. 111) 552 With regard to the provisions of Section 6 subsection (6)(b) of the 1979 Constitution, learned Attorney-General contended that Section 15 of the 1988 Edict does not contravene it, citing the case of Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 (1990) 4 SCNJ 97 at P. 122 where it was stated thus:-
“Indeed, no court had the power to inquire why its jurisdiction had been ousted. All it could inquire into was, as I have stated, whether or not its jurisdiction had in fact been ousted.”
He referred to the case of Obaba v. Military Governor of Kwara State & Ors. (1994) 4 NWLR (Pt 336) 26; (1994) 4 SCNJ 121 at pp. 129 where Belgore, J.S.C. observed as follows:-
“All that the payment of fee of N10,000.00 is for is to have access to court to be heard. No action can be filed without payment of a fee…The Edict to my mind, was properly made by the Military Governor of Kwara State as by doing so he has not contravened any part of the Constitution.”
and urged us to hold accordingly.
On the second issue for determination which he formulated in the joint brief of argument of the 2nd and 3rd respondents, which is: “whether the decision in Bakare v. A-G of the Federation (1990) 5 NWLR (Pt. 152) 516; (1990) 9 SCNJ 43 is relevant and/or applicable to this case at all” learned Attorney-General argued that the decision of the Court of Appeal in Gambari’s case (supra) is not in conflict with the decision of this Court in Bakare’s case (supra). He submitted that the issue in Gambari’s case concerned simply the interpretation and applicability of the provisions of Edict No.3 of 1988 as regards the payment of non-refundable deposit of N10,000.00 while the contention in Bakare’ s case (supra) is as to whether the word “may” in Section 3 of the Petitions of Right Act, Cap. 149 of the Laws of Federation and Lagos, 1958, gives a plaintiff the option whether to proceed under the Act or to initiate an action by a writ of summons without seeking the consent f the Attorney-General. To illustrate these he referred to my observation on p.54 of Bakare’s case (supra) and the dictum of Achike, J.C.A. on p. 587 of Gambari’s case (supra) and further submitted that a condition precedent in the con of the 1988 Edict is not the same as the granting of a fiat by the Attorney-General which depends on the whim and caprice of the Attorney-General.
Now section 15 of the 1988 Edict No.3 provides:
“15(1) Where the Military Governor or the appointing authority has approved the appointment of a person as a chief, any person who intends to challenge the validity of such appointment shall first deposit with the State Accountant-General a non-refundable sum of ten thousand naira.
(2) Where the Military Governor or the appointing authority has not approved any appointment to a vacant chieftaincy stool, any aggrieved person who institutes any court action in connection with the vacant chieftaincy stool and join the State Government or any of its agencies as a party to any such court action shall first deposit with the State Accountant-General a non-refundable fee of ten thousand naira”
The first point to be determined here is whether the law-maker, that is the Military Governor, had the power to make the enactment in question. This is not in issue, in this case. In any event this court (Belgore, Wali, Kutigi, Onu and Iguh, J.J.S.C.) had decided in Obaba’s case (supra) that the 1988 Edict was lawfully enacted and therefore that decision is binding on us.
The next point is whether the provisions of Section 15of the 1988 Edict is valid in the light of section 6 subsection (6)(b) of the 1979 Constitution of the Federal Republic of Nigeria, Cap. 62 of the Laws of the Federation, 1990, which provides:-
“(6) The judicial powers vested in accordance with the foregoing provisions of this section:-
(a) …..
(b) shall extend to all matters 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;”
It is common ground that by providing that a non-refundable sum of N10,000.00 should be deposited by a prospective plaintiff in a chieftaincy dispute in which the Government of Kwara State or any of its agencies is intended to be a party, the Edict has imposed a condition. All the parties in presenting their cases and also the courts below have regarded the condition as “condition precedent” which is a term of art. Both “condition” and “condition precedent” have been defined by Osborn’s Concise Law Dictionary, 7th Edition as follows:-
“Condition” – a provision which makes the existence of a right dependent on the happening of an event; the right is then conditional as opposed to an absolute right. A true condition is where the event on which the existence of the right depends is future and uncertain.” “A condition precedent” is one which delays the vesting of a right until the happening of an event”
From the foregoing it is clear that there is a difference between a “condition” and a “condition precedent” A careful reading of section 15 of the 1988 Edict convinces me that the provisions thereof are not saying that the right to sue does not exist because they talk of a person that “intends to challenge the validity of an appointment” and “a person that has been aggrieved” The import of the provisions of the section is that a right to sue exists but that the exercise of the right is dependent on the payment of a non-refundable deposit of N10,000.00. I will, therefore, refrain from referring to the condition imposed by the Edict as “condition precedent.”
It is settled that in instituting an action in court conditions are imposed either by the common law or a legislation. Such conditions include the giving of notice as in the case of bringing an action against government or government agency; the payment of security as in the case of filing an election petition; obtaining leave to sue as in the case of petition of right, relator action by the Attorney-General, receiver and manager in liquidation under Companies and Allied Matters Act and enforcement of fundamental rights under Fundamental Rights (Enforcement procedure) Rules, 1980. Some of the conditions under the common law came up for consideration under the 1979 Constitution with reference to the provisions of Section 6 subsection (6)(b) thereof. In Ransome Kuti v. A-G of the Federation &. Commissioner for Justice & Ors. (1985) 2 NWLR (Pt 6) 211.(1985) 2 NSCC 879 at p. 899 Eso, J .S.C. stated in the lead judgment, even though obiter, that by virtue of section 6(6)(b) of the 1979 Constitution, the common law rule that Government cannot be sued for the torts of its employees or servants as contained in the Petitions of Right Act, has been removed. The same point was decided in Bakare’s case (supra) with regard to a claim of rent on a property of the plaintiff occupied by government. Similarly, in Adediran v. Interland Transport Ltd. (1991) 9 NWLR (Pt.214) 155 it was held at P. 180E-F thereof that the restriction imposed at common law on the right of action in public nuisance is inconsistent with the provisions of section 6( 6)(b) of the 1979 Constitution.
It is significant that all the aforementioned decisions applied to common law rules or common law rule which had been embodied in a statute. I am unable to lay my hands on a similar decision based simply on a provision of a statute which charges fees for instituting a suit. Perhaps this is the first case of its kind.
Now in my view the provisions of Section 15 of the 1988 Edict do not constitute substantive law but are procedural or adjectival.
The law applicable to practice and procedure of a court is an adjectival law. The payment of fee to institute an action is procedural. Section 239 of the1979 as amended by Constitution (Suspension and Modification) Decree No. 1 of 1984, provides:
“239. The High Court of a State shall exercise jurisdiction vested in it by this Constitution or by any law in accordance with the practice and procedure (including the service and execution of all civil and criminal processes of the court) from time to time prescribed by the House of Assembly of a State or Decree.”
As at the material time of the promulgation of the 1988 Edict by the Military Governor of Kwara State there was no House of Assembly in the State, it was Section2 subsection (2) and Section 3 subsection (2) of the Constitution (Suspension and Modification) Decree No.1 of 1984 that vested the military Governor with the power to legislate on the practice and procedure of the High Court of Kwara State pursuant to section 239 of the 1979 Constitution.
Section 2 subsection (2) of the 1984 Decree states:-
“3 Subject to- subsection (2) above and to the Constitution of the Federal Republic of Nigeria, 1979 the Military Governor of a State shall have power: to make laws for the peace order- and good government of that State.”
while section 3.subsection (2) provides:-
“2. -The power of the military Governor of a State to make laws shall be exercised by means of Edicts signed by him.
In my View the provision for the payment of a non-refundable fee of N10,000.00 under the 1988 Edict before a :suit on. chieftaincy can be brought is constitutional since the legislation accords with the making of law for the peace, order and good government of Kwara State. I find support in the dictum of Iguh, J.S.C. in his concurring judgment in the case of Obaba v. Military Governor of Kwara State (1994) 4 NWLR (Pt.336) 26 at p. 46; even though it is obiter and therefore only persuasive. The learned Justice stated thus:-
“……… The payment of the said fee of N10,000.00 merely conferred the appellants with access to the court for the purpose of the determination of their claims in accordance with the laws of the land and no more …”
It has been contended that the payment of the fee is punitive and therefore constitute an infraction on the provisions of Section 6 subsection (6)(b) of the 1979 Constitution which provides unimpeded access to court. I am unable to accept this argument. In our system of court administration it is not possible for a litigant to walk into our courts to institute a suit Without paying fees. Such fees are being charged for the purpose of raising funds for public revenue.
They are not being charged to punish the litigants for deciding to take advantage of the provisions of section 6 subsection (6) of the 1979 Constitution. The fact that the fees payable are increased in certain categories of cases does not render the charging of the increased fees unconstitutional. It is not within the province of the courts to conjecture as to the reasons why the higher fees are being charged for as long as the 1988 Edict does not state the purpose for which the higher fees are being charged. The function of the courts is to interpret the law but not to bring to bear extrinsic reasons as to why the law is made. For the same reason it will be wrong, in my opinion, for the courts to consider whether prospective litigants are in a position to pay the fee prescribed or not in determining whether the charging of the fee is constitutional. See: Nwosu’s case (supra).
Finally, I hold the view that the provisions of Section 239 of the 1979 Constitution enabled the Military Governor of Kwara State to promulgate any law which applies to the practice and procedure of the High Court. As such the prescription of the fees to be paid in instituting any action based on chieftaincy dispute pertains to practice and procedure of the court and is, therefore, constitutional and valid.
With regard to the learned trial Judge’s refusal to follow the decision of the High Court in Gambari’ s case (supra) in preference of the decision of this Court in Bakare’s case (supra), I am of the view that the learned trial Judge’s insubordination calls for deprecation.
It is now well settled that under the common law doctrine of precedent or stare decisis, the decision of a higher court may be criticised by the judge of a lower court but notwithstanding the criticism the judge of the lower court is bound to follow and apply such decision in the case before him. He has no right to disregard the decision or side-attack it. What Orilonise, J. did in this case is to rely on the decision in Bakare’s case to reject the decision in Gambari’s case.
As has been shown, the former is a decision on the constitutional validity of Petitions of Right Act, while the latter is a decision directly on the constitutional validity of section 15 of the 1988 Edict. The cases are, therefore, at variance and are not at all on all fours. It was quite wrong for the learned trial Judge to prefer the decision in Bakare’s case to that in Gambari’ s case since the decision in Bakare’s case has no bearing on the facts of the case before him.
On the whole this appeal fails and it is hereby dismissed with N1,000.00 costs to each set of respondents.
SC.32/1994
