The Queen V. Governor-in-council, Western Region (1962)

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ADEMOLA, CJF

This is an appeal against a judgment of Charles, J., in the Western Region High Court re-fusing an application for an order absolute for an order of certiorari to quash the approval by the Governor-in-Council of the appointment of Sikiru Deltona as the Awujale of Ijebuland. There is also a cross-appeal by the respondent on the issue of costs: the complaint is that costs were not awarded to the respondent by the Judge.

The facts which led to the application and upon which an order nisi was made on the 12th February, 1960, are shortly these. In 1959 it would appear the stool of the Awujale of Ijebuland became vacant. On 2nd November, 1959, the Secretary to the Ijebu Divisional Council notified, as he is deemed to do, the appropriate Minister that the King Makers had selected and recommended for the approval of the Governor-in-Council Mr. Sikiru Adetona as the Awujale to fill the vacant stool.

On 9th November, 1959, the applicant/appellant through his Solicitor protested against this recommendation, and as he was entitled by law to do, communicated his protest by letter of that date to the Governor-in-Council stating nine grounds against the validity of the appointment. The protest was considered by the Governor-in-Council which presumably rejected it, and without sending a formal reply, published in the Gazette of the 21st January, 1960, an announcement approving of the recommendation made in favour of Mr. Sikiru Adetona in pursuance of the powers conferred upon the Governor-in-Council by Section 16(1) of the Chiefs Law, 1957.

The applicant/appellant was dissatisfied with the method the approval was given without a reply to his letter, which his Counsel maintained should contain specific reply to each of the nine points of objections raised. The core of the argument, therefore, before the High Court was that the Governor-in-Council when deciding whether to approve or set aside the recommendation made to it, had not acted judicially as it ought to do under the Chiefs Law, 1957, in the case of a disputed appointment because it did not inform parties to the dispute of its reply or findings to each of the nine points of the dispute. Failing to do so, it was argued, was fatal to the approval given and rendered it void.

The learned Judge found against the applicant on the issue and this is an appeal against that judgment. Five grounds of appeal were filed. At the hearing leave was sought to include two additional grounds marked 6 and 7 and attached to the notice of Motion. Ground 6 appeared to the Court to be a means of bringing up an appeal against an interlocutory order made earlier in the proceedings (at the hearing of the Motion for order nisi) which resulted in the exclusion of two of the three grounds upon which the writ was sought. No appeal was made when the order was made excluding these two grounds. After hearing arguments from Counsel on both sides, we ruled against Mr. Ayoola for the appellant and refused to hear argument on ground 6 of the additional grounds of appeal. Thus, there were grounds 1 to 7 original grounds of appeal, to argue and ground 7, additional grounds.

Of these six grounds, only two namely 5 and 7, were argued. They read as follows:-

“5. The decision is against the weight of evidence.

7. The learned trial Judge misdirected himself as to the issues before him, when he stated “No Court in the strict sense, is bound as a condition precedent to announce its preliminary findings of fact before giving its ultimate decision or to give any reasons at all for that decision” whereas the real issue before him in this proceedings was whether or not the making of specific findings on material points in issue raised by parties before any body statutorily charged with judicial or quasi–judicial functions is a condition of the valid exercise of the judicial or quasi judicial duty imposed on that body.”

I propose to deal with ground 7 first as Mr. Ayoola himself did. In arguing this ground of appeal, Mr. Ayoola submitted that due regard must be paid to the whole of Section 16 of the Chiefs Law 1957. Section 16(2) enjoins the Governor-in-Council to receive representations from an unsuccessful candidate if one is submitted. This must be sent in a prescribed manner and was so done in this case.

The next sub-section, namely, sub-section (3), Counsel argued is important for the purposes of this case, as it defines what the Governor in-Council is to do after receiving representations from an unsuccessful candidate. The sub-section reads: –

“(3) In determining whether to approve or set aside an appointment under this section the Governor-in-Council may have regard to-(a) whether the provisions of Section 11 or Section 12 have been complied with;

(b) Whether any candidate was qualified or disqualified in accordance with the provisions of section 10;

(c) Whether the customary law relating to the appointment has been complied with;

(d) Whether the Kingmakers, in the case of a ruling house chieftaincy, has due regard to the ability, character or popular support of any candidate; or

(e) Whether the appointment was obtained corruptly or by the undue influence of any person;

and may, notwithstanding that it appears to him the appointment has been made in accordance with the provisions of this Law, set aside an appointment if he is satisfied that it is in the interests of peace, order and good government to do so.”

Mr. Ayoola argued that although the word “may” is used in the sub-section, it is obligatory on the part of the Governor-in-Council to have regard to the four points (a)-(d) mentioned in the subsection. I do not doubt that the word “may” in the sub-section is to be construed as “shall”. Then, Counsel went further to compare the jurisdiction and exercise of that jurisdiction by the Governor-in-Council in this instance with the jurisdiction and exercise of the jurisdiction by the Governor under Section 2(2) of the old Appointment and Deposition of Chiefs Ordinance, which reads: –

“In the case of any dispute the Governor, after due enquiry and consultations 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.”

In the case of Lagunju V Olubadan-in-Council 12 W.A.C.A. 406 at pp.410 and 411 the words “after due enquiry and consultation ……….” in the sub-section have been interpreted to mean that if the Governor came to a decision without having made due enquiry and consultation, in an appropriate action, it would be competent for the Court to set aside the Governor’s decision. “Due enquiry” it was said by Lord Normand in his judgment (at p.110) “is not necessarily public enquiry, but it does imply that the parties to the dispute should be given an opportunity of being heard by the Governor as Judge between them, and therefore that the date on which the enquiry is to take place should be intimated to them and they should be invited to attend and state their case………..” It is unnecessary here to deal with the matter of “due enquiry” which was fully considered in the Judgment of this Court on the 30th March, 1962 in FSC 173/1961, Ex parte Uzoka and 4 others [ 1962] 1 SCNLR 324. I will quote a portion of the judgment by Unsworth, F.J.

…..but no special procedure for the holding of the enquiry is laid down in the law. The principles of natural Justice must be observed, but, subject to this, I can see no reason why the Minister should not himself direct an enquiry and submit the matter for the consideration of the Governor-in-Council when all necessary information has been obtained. It would be open to the Governor-in-Council to decide whether the enquiry has been adequate and the matter could be referred back for further enquiry if the Governor-in-Council considered that there has not been such an enquiry as he thought fit. In expressing this view I have not been unmindful of the case of Lagunju V Olubadan-in-Council (12 W.A.C.A. 406) but I do not construe the comments of the Judicial Committee in that case as meaning that the actual enquiry must necessarily be either directed or held personally by the Governor or other recognising Authority.”

Section 16(3) of the Chiefs law (Western Region) does not contemplate an enquiry; no enquiry is needed by the Governor-in-Council. On a written protest being submitted, the Governor-in-Council is enjoined to consider the representation so submitted and in so doing, regard should be made to the four points already mentioned. How he arrives at this decision and means of communicating it appears to be the sole business of the Governor-in-Council as it is not provided for under the Chiefs law. In this respect it appears to me that it is inept seeking aid from the decision in Lagunju V Olubadan-in-Council as the appellant’s Counsel tried to do. The Chiefs Law, to my mind clothes the Governor-in-Council with absolute discretion as to how it arrives at its decision as long as it cannot be established that it was arrived at “mala fide”.

It seems to me, therefore, that it is difficult to find support for the submission made by Counsel for the Appellant that a record of the decision must be made and must contain findings of the Governor-in-Council on each point submitted for its consideration. It was submitted that Section 16(3) of the Chiefs Law presupposes that proceedings should be taken by the Governor-in-Council and its findings should be specifically set out and shown, otherwise it cannot be presumed that all the points submitted in the representation have been considered.

I have gone through every section of the Chiefs Law and I cannot find any provision, nor did the appellant’s Counsel direct our attention to any provision showing that the Governor-in-Council must give reasons for rejecting a petition, or that it must announce its findings for rejecting it. In the absence of any provision made to the contrary, the Governor-in -Council, in my view, need not state reasons upon which it rejects the petition, and cannot be queried for not stating its reasons. On the contrary, once it gives a reason or reasons, for rejecting the representations made to it, it opens itself wide and objectors have a right to attack any of the reasons so given.

Counsel argued that by not setting out its findings, it is not possible to say that the Governor-in-Council considered the representations made. In this respect, the Court must have regard to the evidence of Dr Biobaku (his affidavit) which clearly states that the representation was considered by the Executive Council, and the Governor-in-Council is defined in the Interpretation Act as amended by Western Region Law No. 49 of 1959 as the Executive Council. To my mind, the onus is on the appellant, if he contests that his representation was not considered, to prove that it was so.

There is another point. It was stated that the decision of the Governor-in-Council- was not communicated to the appellant who made a representation until he saw in the Gazette that Mr. Sikiru Adetona’s recommendation has been approved. Non-communication of the result of the decision taken by the Governor-in-Council certainly is not enough to ground this application and although it is nowhere stated that such decision must be communicated, I think it is a matter of convenience that all objectors be told what decisions have been arrived at, or in the announcement in the Gazette it may be convenient to state that after consideration of all the representations made to it, the Governor-in Council approved the appointment of Mr. X.

I now turn to ground 5 of the appeal-weight of evidence. Mr. Ayoola for the appellant makes no substantial argument on this point as he had covered it in his argument on ground 7.

There being no other grounds of appeal to consider, 1 would dismiss the appeal with costs.

With regard to the cross-appeal the learned Judge gave no reason why costs were not awarded to the successful party. Costs must follow events. The respondent was entitled to its costs in the Court below. The cross-appeal will be allowed.

In the event the appeal will be dismissed with costs assessed at thirty-five guineas. Costs in the Court below in favour of the respondent is assessed at 25 twenty-five guineas.

Other Citation: (1962) LCN/0990(SC)