MICHAEL EKUNDARE (PLAINTIFF)
GOVERNOR IN COUNCIL
THE MINISTER OF LOCAL GOVERNMENT, WESTERN REGION OF NIGERIA (DEFENDANTS)
Division: High Court of Justice (West)
Date of Judgment: 6th March, 1961
Case Number: Ibadan Suit No. I/195/60
Before: Quashie-Idun, C. J.
The plaintiff was a member of the Ilesha Urban District Council which was established under the Local Government Law, 1957. At one of its meetings the Council passed a resolution calling on the Owa of Ijeshaland to abdicate. The Owa is, under the Instrument establishing the Council, the President of the Council. The Minister of Local Government on becoming aware of the resolution pointed out to the Council that it had acted in excess of its authority and requested that the resolution be rescinded but the request was not heeded consequently the Council was dissolved by the Governor in Council under section 87 of the Local Government Law, 1957.
The plaintiff then brought this action for a Declaration that the resolution demanding the abdication of the Owa was within the competence of the Council and therefore a lawful one and that the dissolution of the Council by the Governor in Council was ultra vires.
(1) That the plaintiff cannot bring the action in his private capacity to enforce a public right.
(2) That in an action to restrain interference with a public right, whether committed or threatened, or to compel the performance of a public duty, the Attorney-General is a necessary party except where the interference with the public right is at the same time an interference with some private right, or where the special damage suffered is over and above that suffered by the general public though so special private right is also interfered with.
(3) That chieftaincy matters could only be dealt with under the Chiefs Law, Cap. 19 and therefore not within the competence of the District Council.
(4) That the action of the Governor in Council in dissolving the Ilesha Uban District Council is an executive act and not a judicial one and therefore cannot be questioned in any court.
Cases referred to:-
Dyson v. Attorney-General (1912) 1, Ch. 158; 81 L.J.K.B. 217; 105 L.T. 753; 28 T.L.R. 72.
Thornhill v. Weeks (1913) 1 Ch.D. 438. 82 L.J. Ch. 299; 108 L.T. 892; 77 J.P. 231; 57 Sol. Jo. 477.
Clark v. Epsom Rural Council (1929) 1, Ch. 287; 98 L.J. Ch. 88; 140 L.T. 246; 93 J.P. 67; 45 T.L.R. 106.
London Passenger Transport v. Moscrop (1942) A.C. 332; (1942) 1. A.E.R. 97; 111 L.J. Ch. 50; 166 L.T. 202; 106 J.P. 97; 58 T.L.R. 120.
Queen v. Commissioners for Special Purposes of the Income Tax (1888), 21 Q.B.D. 313; 53 J.P. 84; 36 W.R. 776; 57 L.J.Q.B. 513; 59 L.T. 455; 4 T.L.R. 636.
Rex v. Bloomsbury Income Tax Commissioners (1915) 3 K.B.D. 768; 85 L.J.K.B. 129.
Rex v. Ministry of Health Ex Parte Hack (1937) 3 A.E.R. 176; 157 L.T. 118; 101 J.P. 430; 81 Sol. Jo. 401.
Liversidge v. Sir John Anderson and Anor (1942) A.C. 206; (1941) 3 A.E.R. 338. 113 L.T. 1015; 31 T.L.R. 565.
Ex Parte Walsh and Johnson, 37 C.L.R. 36.
Falmouth Clearance Orders, 1936, (1937) 3 A.E.R. 308; 157 L.T. 140; 101 J.P. 490; 53 T.L.R. 853; 81 Sol. Jo. 590.
Re: The London County Council Orders, 1938 (1945) 2 A.E.R. 484; 173 L.T. 253; 43 L.G.R. 292.
Sir Frank Soskice Q.C. (with him Olowofoyeku and Ogunbiyi) for Plaintiff.
Chief Rotimi Williams Q.C. (with him Eboh, Senior Crown Counsel) for Defendants.
Quashie-Idun, C.J.:-The plaintiff who was a Councillor of the Ilesha Urban District Council which was dissolved on the 31st August, 1960 by Order of the Governor in Council has instituted this action claiming by his amended Statement of Claim a declaration:-
(a) That a resolution of the Ilesha Urban District Council passed on the 15th August, 1960 calling on its President Oba Adelupo Ogunmokun to vacate his office as the Owa of Ijesha so that he would no longer be the President of the Council was a lawful one.
(b) That the Council was under no obligation to rescind the said resolution.
(c) That the dissolution of the said Council was unlawful and invalid on the ground that it was in excess of the power of the 1st defendant and was ultra vires.
(d) That the Council is still in being and the members are still entitled to function as members thereof.
(e) That the dissolution is wrongful for bias.
The plaintiff also claims an injunction restraining the defendants or each of them from preventing or taking steps to prevent the members of the Council from discharging their function as members thereof.
The incidents which led to the dissolution of the Council and the institution of this action are stated at length in the amended Statement of Claim filed by the plaintiff. The material averments as to the facts in issue have not been denied by the defendants in their Statement of Defence. It is unnecessary to quote in this Judgment the whole averments contained in the pleadings filed by the parties. I must say, however, that the allegations of the plaintiff in paragraph 31 of the Statement of Claim that other Councils controlled by the Action Group, the party in power in this Region, have passed similar adverse resolutions on Chiefs and Presidents of their Councils and that they have been actively supported by the defendants and also the averment in paragraph 32 that the first and second defendants and the members of the Action Group in Ilesha had for 2 years been seeking opportunity to dissolve the Council and to bring the area under Action Group control by the back door have not been substantiated. The following are the facts which are not in dispute:-
The Ilesha Urban District Council which was N.C.N.C. controlled had as its President appointed by Law the Owa of Ijesha who is the Traditional and Natural Ruler of Ijeshaland. On the 15th August, 1960 the Council passed a resolution calling on its President to vacate his official post as the Owa of Ijesha. According to the plaintiff the resolution was passed in order that the Owa would no longer be the President of the Council. After the resolution had been published, the Premier of Western Nigeria issued a release pointing out that the resolution was ultra vires. Mr J. O. Fadahunsi one of the Councillors issued a rejoinder to the release by the Premier. The rejoinder was published in the issue of the Daily Times of the 19th August, 1960 which was tendered in evidence by the plaintiff as exhibit 'C'. According to exhibit 'C' Chief Fadahunsi described as the Chairman of the Ilesha Divisional Council, accused the Western Nigerian Government of making it difficult for the Owa of Ilesha to be reconciled with his people, that the Council was competent to recommend changes by reflecting the wishes of the people, that the Owa did not enjoy the people's confidence because of the criticism of his role as the spiritual and temporal head of his people, that the Owa had made the local Chieftaincy Committee ineffective by alleged threats and that the Government would do well to declare its wish to restore the indirect rule making it impossible to criticise any Oba. On the 19th August, 1960 the Minister of Local Government (second defendant) caused a letter to be addressed to the Secretary of the Ilesha Urban District Council. The letter which was tendered in evidence as exhibit 'D' reads as follows:-
Ministry of Local Government
19th August, 1960.
Our Ref. No. CE. 697/51.
Ilesha Urban District Council, Ilesha.
Resolution Concerning The Abdication Of The Owa Of Ijesha
I am directed by the Honourable the Minister of Local Government to say that he has been most disturbed by the reports broadcast by the Nigeria Broadcasting Corporation and published in the Press of a resolution passed by your Council calling upon the Owa of Ijesha to abdicate.
2. Under the terms of the Chiefs Law, 1957, and the Council of Obas and Chiefs Law, 1959, disciplinary action against any Oba or Chief to whom the terms of the former Law apply can only be taken by the Governor in Council who is statutorily bound to consult the Council of Obas and Chiefs before taking such action. Your Council has no statutory or traditional authority under the terms of its Instrument or under the provisions of the Local Government Law to interfere in chieftaincy matters or to institute disciplinary proceedings against any Oba or Chief. The Minister considers that in attempting to do so your Council is not only exceeding its powers but has acted irresponsibly and in a manner which cannot be considered to be conducive to the peace and good government of the area.
3. The Minister had hoped that the statement made by the Honourable the Premier on this issue on the 18th August would be salutary and that those responsible for this offensive resolution would have the good sense to realise that in so doing, they had jeopardised the reputation of the Council and would accordingly withdraw it. The Minister, therefore, views with considerable misgiving the comments made by Chief Fadahunsi published in the Press of to-day's date in reply to the statement made by the Honourable the Premier. The right of any citizen to criticise the acts done by any Oba or Chief is not denied but the Minister wishes to make it clear that he most strongly deprecates any such action on the part of a local government Council or of the Chairman of a local government Council acting in that capacity.
4. I am to say that the Minister considers that your Council should confine its activities to those matters which are within its competence, and in the circumstances stated above should forthwith rescind the resolution concerning the abdication of the Owa and dissociate itself with the statement made by Chief Fadahunsi. Should the Council fail or refuse to take such actions the Minister reserves the right to impose such sanctions as are prescribed under the terms of the Local Government Law, 1957.
5. I should be grateful if this letter may be brought to the notice of your Council forthwith and if its receipt may be acknowledged.
(Sgd.) A. Bower,
for Permanent Secretary,
Ministry of Local Government
In reply to exhibit 'D' the Secretary and Treasurer of the Council wrote as follows:-
Urban District Council Office,
24th August, 1960.
The Permanent Secretary,
Ministry of Local Government,
Resolution Concerning The Abdication Of The Owa Of Ijeshaland
With reference to your letter No. CE.697/51 of the 19th August, 1960 I am directed by the Ilesha Urban District Council to inform you that the above topic was discussed at the meeting of the Council which was held at the Obokungbusi Hall, Ilesha yesterday.
"Moved by Councillor section A. Famuyide, seconded by Councillor L.O. Amokeodo, it was resolved: That a delegation be sent to the Ministry of Local Government, Western Region, Ibadan to wait on the Honourable the Minister of Local Government and discuss the methods of bringing before the appropriate authority the dissatisfaction of the Ijesha people with the activities of Oba Adelupo Ogunmokun, Biladu III, the Owa of Ijeshaland."
2. The delegation would wish to discuss all the points raised in your letter with the Minister before the Council can take a decision on it. The Council also referred to the statement purported to have been made by Chief Fadahunsi. The Council has asked Chief Fadahunsi to submit a copy of the statement for its careful study and comments. The Council has found it difficult to agree or dissociate itself with the statement until the person who made it shall have submitted a copy of the statement to the Council.
3. I am further directed to say that the Council is very anxious to dispose of this very important matter as early as possible, therefore, it requests an early appointment with the Honourable the Minister of Local Government.
(Sgd.) S.O. Bewaji,
Ilesha Urban District Council
On the 31st August, 1960 a letter exhibit `G' was addressed to the Secretary of the Council informing the Council of its dissolution and of the appointment of a Committee of Management.
Apart from the plaintiff who gave evidence Counsel for the parties have relied on their pleadings and have argued in Law. The plaintiff's Counsel, Sir Frank Soskice, has contended:-
(1) That the Ilesha Urban District Council had a right to pass the resolution which was only an invitation to the Owa of Ijesha to abdicate.
(2) That if it was held that the Council had no power to pass the resolution, as long as the Council had properly discharged its functions laid down by Law, the Governor in Council had no right to dissolve the Council.
(3) That the Governor in Council was not satisfied on the facts before deciding to dissolve the Council and that therefore the Governor in Council did not act in accordance with section 87 subsection (1)(b) of the Local Government Law, Cap. 68, in dissolving the Council.
Chief Rotimi Williams has contended:-
(1) That no power was vested in the Ilesha Urban District Council to pass a resolution urging the abdication of the Oba as the Owa of Ijeshaland, who can only be removed in accordance with Native Law and Custom and subject to the provisions of the Chiefs Law Cap. 19 and that the resolution passed by the Council was ultra vires and therefore unlawful.
(2) That as the plaintiff has led no evidence to support the allegation of bias against the Governor-in-Council, the presumption is in favour of the defendants that the Governor-in-Council was satisfied that the Council was not discharging its duties under the Law before it decided to dissolve the Council.
(3) That as the decision to dissolve the Council was an executive as distinct from a Judicial action, the question whether there were grounds upon which the Governor-in-Council was so satisfied or whether the Governor-in-Council ought to have been satisfied is not one which can be subject of litigation in court.
(4) That the plaintiff has no locus standi to institute the proceedings.
Arising out of the submissions made by both Counsel, the following are the issues to be decided by the court, namely:-
(1) Whether or not the Ilesha Urban District Council acted ultra vires in passing the resolution calling on the Owa of Ijesha to abdicate.
(2) If the Ilesha Urban District Council had no authority in Law to pass the resolution, whether the Governor-in-Council acted properly under section 87 of the Local Government Law, Cap. 68, in dissolving the Council.
(3) Whether the plaintiff is entitled in Law to institute these proceedings.
(4) Whether the action of the Governor-in-Council in dissolving the Ilesha Urban District Council can be questioned in court if the Governor-in-Council was performing an executive function and not a judicial function.
Although Chief Rotimi Williams did not raise the third issue as a preliminary objection, I propose to deal with it before deciding on the other 3 issues. It is submitted that the plaintiff's claim is a personal one, as the action has not been instituted by him for and on behalf of the members of the dissolved Council and that the plaintiff should have sued as realtor of the Attorney-General. Learned Counsel has referred to the authorities citied by the learned Counsel for the plaintiff in support of the contention that the plaintiff is entitled to sue. The cases cited by Sir Frank Soskice are Dyson v. the Attorney-General, 1912 Law Reports, 1, Ch.D. at 158 and Thornhill v. Weeks, 1913 Law Reports, 1, Ch.D. at 438. The decisions in the two cases related to the private right of an individual. The decision in the first case dealt with the liability of the plaintiff in connection with Income Tax Forms which he was requested to fill and concerned the private right of the plaintiff. The decision in the case of Thornhill v. Weeks was to the effect that where a District Council asserted that there was a public right of way, over plaintiff's land and threatened to exercise that right by their servants or agents, an action by any person affected by the threat will be maintained against the agents or servants of the Council. The decisions in the two cases show that where a private right has been threatened by a corporate body purporting to act under any Law, a person whose private right has been threatened can sue. The question is whether the position of the plaintiff in the present action is analogous to the position of the plaintiff in the Thornhill and Weeks case. I think there is a difference in the two positions. In the case of Thornhill v. Weeks a private right of the plaintiff was threatened by the action of the Council. In the case of Dyson v The Attorney-General it was held that as the plaintiff had not been allowed the statutory period in which to make his returns in respect of his property, he was under no obligation to comply with the requisitions in the form. It seems to me that the decision reaffirmed the principle of Law that when a private right has been infringed by the wrongful application of the Law or statutory enactment an individual has the right to seek a declaration in court. In the present case the plaintiff is not seeking to establish a private right but a public right by virtue of being a former member of the dissolved Council. His evidence is that he has lost certain allowances paid to him for each sitting of the Council. It is my view that this does not confer any private right on him to sue as he has done. The nature of the plaintiff's claim clearly shows that he is seeking to establish a private right. I would refer to paragraph 34 of the amended Statement of Claim in which he claims inter alia that the Resolution passed was a lawful one and that the Council is still in being and the members are entitled to function. In support of the contention that the plaintiff has no locus standi, Chief Rotimi Williams has referred to the following authorities:-
Clark v. Epsom Rural Council 1929, 1 Ch. at 287; and London Passenger Transport v. Moscrop, 1942 Appeal Cases at 332. For convenience, I quote what Halsbury says on the issue at paragraph 570 at 310 of Volume 30 of the 3rd Edition of the Laws of England:-
In an action to restrain interference with a public right whether committed or threatened or to compel the performance of a public duty, the Attorney-General is a necessary party except:-
(1) Where the interference with the public right is at the same time an interference with some private right or is a breach of some statutory provision for the protection of the plaintiff and
(2) Where the special damage suffered is over and above that suffered by the general public though no special private right is also interfered with. Where the Attorney-General is a necessary party the action is generally brought by him at the relation of the person or body who seeks to enforce the performance of the public duty or to restrain the interference with the public right. Leave must be obtained from the Attorney-General before the action is taken.
In the case of Clark v Epsom Rural District Council (supra) where the plaintiff sought a declaration against the District Council that the Council was liable to maintain a drainage system it was held that the remedy of the plaintiff was to appeal on behalf of the whole of the persons in the district to the Ministry of Health. In his Judgment Maugham J. stated as follows:-
The right in question which the plaintiff seeks to have set up by a declaratory order is not a private right at all. The plaintiff has no personal right to have sewers kept in proper condition. It is a matter, as Lord Halsbury says, for the whole District.
In the case of London Passenger Transport v. Moscrop (supra) it was held that where an employee who was not a member of a Union had been refused representations by an official who did not belong to the particular union, the employee was not entitled to a declaration that the condition laid down for representations was unlawful as there had been no interference with any private right of the employee who had suffered no damage peculiar to himself by reason of the alleged breach; and further that the declaration should not be granted to the employee when the persons really interested had not been joined as parties.
In the course of his Judgment, Maugham, J. stated as follows:-
I think it plain that there has been no interference with any private right of his, nor has he suffered special damage peculiar to himself from the alleged breach...he therefore, should not sue without joining the Attorney-General.... The persons really interested were not before the court.... The courts have always recognised that persons interested are or may be indirectly prejudiced by a declaration made by the court in their absence, and, that except in very special circumstances, all persons interested should be made parties whether by representation orders or otherwise before a declaration by its terms affecting their right is made.
The decisions in the authorities strengthens my view that the plaintiff in the present case has no locus standi to institute the action. But I do not propose to rest my Judgment on this issue alone, but will deal with the other issues on the assumption that the plaintiff has a right to institute the action. I now come to the first issue as to whether or not the Ilesha Urban District Council acted ultra vires in passing the resolution calling on the Owa to abdicate. It has been contended on behalf of the plaintiff that in passing the resolution the Council did not infringe any Law, that there is no evidence that what the Council did was not in the interest of the community concerned.
The Ilesha Urban District Council was created by Law and vested with specific powers and functions. I have not been shown any power or function vested in the Council and entitling the Council as such to be concerned either with the appointment or deposition of a chief or an Oba. I am satisfied that those functions and all matters affecting chieftaincy are vested by Law in a body quite distinct from the Ilesha Urban District Council and provided for in the Chiefs Law, Cap. 19. I think that I am entitled to take judicial notice of Native Law and Custom relating to the appointment and deposition of Chiefs and Obas. The ordinary citizen is entitled to express an opinion either in favour of or against a Traditional authority, but the persons who are vested with authority to create an Oba or Chief are well known in our society. They are the "Kingmakers" who can "create" and "uncreate." No other person or body of persons has that right whether it is a corporate body or not. Sir Frank Soskice has submitted that the resolution was only an invitation to the Oba to abdicate, because the members did not wish him to continue to be the President of the Council.
It is my view that an invitation expressed in a resolution of this kind infringes not only the provisions of the Local Government Law but also the Chieftaincy Law. It can have serious consequences in that it will create factions and intensify feelings in the community for or against the Oba-one faction supporting the Oba in his stand to remain as Oba and the other faction supporting the side which is agitating for the deposition or abdication of the Oba. This, in my view, cannot be described as a situation which will bring peace and harmony to the community concerned. The plaintiff, in his evidence stated that he knew Native Custom and said that the Kingmakers usually consulted political leaders before selecting an Oba. He said that the Owa of Ijesha was made Oba by the Kingmakers through the support of plaintiff's political party and that certain Kingmakers were consulted before the resolution was passed. I do not accept that evidence particularly as it was not pleaded. I believe that what took place was that the Council rightly or wrongfully felt they had grievances against the Oba and on the 15th August, 1960, made the accusations against the Oba contained in paragraph 15 of the amended Statement of Claim. There is no evidence that he was present at the meeting when the charges were made. There is also no evidence that the Council forwarded a copy of the charges to the Kingmakers. All it did was to pass a resolution that the Oba should abdicate his Traditional position and thereby cease to be the Oba as well as the Council's President. As I have stated earlier, this action is neither in accordance with Native Customary Law nor can it be calculated as having been performed in accordance with the provisions of the Local Government Law. I am not impressed by the argument that because the Local Government Law does not forbid a Council to pass such a resolution, the Ilesha Urban District Council has therefore not acted ultra vires. It is my view that by passing the resolution they have purported to acquire for the Council powers which the Legislature never intended that it should possess and that in doing so it was not functioning in accordance with the provisions of the Law which brought the Council into being. It is my view still further that in acting as it did the Council was offending the Law in a more serious sense than it could have done if it had tried to perform its statutory duties but had failed to achieve success or if it had failed to discharge any of its functions. The effect of the resolution would have been that the Oba would cease to be not only the Owa or the P