PRINCE YAHYA ADIGUN AND 2 ORS (APPELLANT)
v.
ATTORNEY-GENERAL OF OYO STATE AND 18 ORS (RESPONDENT)
(1987) All N.L.R. 111
Division: Supreme Court of Nigeria Bello
Date of Judgment: 20th March,1987
Case Number: (SC.98/1986)
Before: Obaseki, Eso, Nnamani, Coker, Karibi-Whyte, Kawu, Oputa; JJSC
The plaintiffs claim against the defendants jointly and severally a declaration that under the customary law prevailing in Iwo, the Ogunmakinde Ande Ruling House is the only Ruling House from which appointment to Oluwo of Iwo Chieftaincy is to be made, a declaration that the instrument dated the 28th day of July, 1981 is in so far as it purports to declare the customary law prevailing in Iwo with respect to the Oluwo of Iwo Chieftaincy is wrong and accordingly illegal and void, and an injunction restraining all servants officers and agents of the government of Oyo state or of the Iwo Central Local Government from acting pursuant to or taking any steps to implement the aforesaid declaration registered on 29th day of July 1981.
The matter has its genesis in the steps taken by the government of Oyo State to ascertain the customary law governing the appointment of the Oluwo of Iwo. In the continuing search one declaration made by chieftaincy Committee of the Iwo Local Government area on the 4th day of January, 1979 approved on the 17th day of July, 1979. It was admitted in the High Court as Exhibit D. In that declaration, only one Ruling House that is Ogunmakinde Ande was identified and declared as being in existence. This evoked a spate of protest and petitions poured into the office of the Governor of the State. This led the Government to appoint Dr Agiri as sole Commissioner to carry out discreet investigation into the chieftaincy and provide a report for the consideration of the Government.
The assignment was carried out. The investigation was conducted and a report on the investigation and findings submitted to government. Oyo State Government duly considered the other report and came out with a new declaration of the customary law regulating the selection to the Oluwo of Iwo Chieftaincy, Exhibit K. It was signed by the Governor of Oyo State on 28th day of July, 1981. In the Declaration, three ruling Houses were identified and declared as (1) Alawusa, (2) Adagunodo, (3) Gbase. Ogunmakinde Ande was dropped as a ruling House on the ground that Ogunmakinde Ande is a branch of Alawusa Ruling House. The plaintiffs/appellants who are members of Ogunmakinde Ande decided to go to court and on 3rd day of March, 1982 commenced this action.
Pleading on the order of the court were filed and delivered and at the close of pleading, the matter went for trial. After hearing evidence and addresses of counsel, the trial Judge delivered a considered judgment dismissing the appellants claim in its entirety including the issue of fair hearing raised by the appellant. Being dissatisfied, the plaintiffs appealed to the court of Appeal which dismissed the appeal. Against the decision of the Court of Appeal, the plaintiffs further appealed to the Supreme Court.
HELD:
(1) It is true that the trial Judge made copious references to the provisions of the Chiefs Law particularly to the provisions of the sections 4, 9 and 10. It is also true that he distinguished the powers exercisable under the Chiefs Law from the powers exercisable by the court in exercise of its jurisdiction. I do not gather or form the impression that he declined jurisdiction in respect of claim (1) to wit: a declaration that by the customary law prevailing in Iwo, the Ogunmakinde Ande Ruling House is the only Ruling house from which appointment to the Oluwo of Iwo Chieftaincy is made.
(2) Having failed to give an oral hearing to the elders and representatives of Ogunmakinde Ande Ruling House, Dr Agiri did not complete his investigation before writing his Report. The right to fair hearing being a fundamental constitutional right guaranteed by the constitution, the breach of it in any trial or investigation or inquiry nullifies the trial investigation or inquiry and any action taken on them is also nullity. In the instant case, the basis of satisfaction before Exhibit K was made is no longer there.
The APPEAL succeeds on the dismissal of Claim No.2.
Chief F.R.A. Williams SAN for Appellants with him Chief Sobo Sowemimo, SAN
Dr L.O. Aremu, Mr G.O. Sofunde,C.J. Aremu (Mrs), Dr Ahmed Kusamotu and Mr M. Oyetunde.
O.A. Boade Esq (Senior State Counsel, Oyo State Ministry of Justice) for 1st, 6th to 19th Respondents.
Chief J.O. Fawole for 3rd, 4th and 5th with him O. Ojikutu Esq. Respondents.
Cases referred to
(1) Adedeji v Police Service Commission (1968) NMLR 102
(2) Annamuthodo v Olfields Workers Trade Union (1961) AC 945 at 954
(3) Bull v Attorney General for N.S.W. (1916) 2 AC. 564
(4) Carltona Ltd v Commissioner of Works (1954) 1 ALL ER 560 at 564
(5) Durayappan v Fernando (1967) 2, AC 337 at P348
(6) General Medical Council v S. Packman (1943) AC. 627
(7) Goldberg v Kelly 397VS 254 at 268-269
(8) Governor of Kaduna State & ors v Kagoma (1982) 6 SC 87
(9) Hart v Military Governor Rivers Public Service Commission & Attorney General (1976) 11 SC 211.
(10) Mohammed v Kano NA (1968) 1 ALL NLR 422
(11) Obadana & ors v COP (1967) NMLR.39
(12) Queen v Director of Audit (WR)-ors (1961) ALL NLR 659 at 660
(13) Ridge v Baldwin (1964) AC. 40
(14) Reg v Birmingham Justices (DC) (1970) 1 WLR 1428 at 1433
(15) Wednesbury Corporation v Ministry of Housing and Local Government (NO2) (1966) 2 Q.B. 275 at 298
Statutes referred to:-
(1) The Constitution of the Federal Republic of Nigeria (1979)
(2) Chiefs Law, Chapter 21, Laws of Oyo State, 1978.
(3) Chiefs (Amendment) Edict 1975.
(4) Chiefs Law, Chapter 19, Laws of Western Nigeria, 1959.
Obaseki, J.S.C. This appeal has raised the important question of FAIR HEARING in its widest context in a Chieftaincy matter. The matter has its genesis in the steps taken by the Government of Oyo State to ascertain the customary law governing the appointment of the Oluwo of Iwo in Iwo. In the continuing search one Declaration made by the chieftaincy Committee of the Iwo Local Government area of the 4th day of January, 1979 approved on the 17th day of July, 1979 by the Military Administrator was registered on the 19th day of July, 1979. It was admitted in evidence at the High Court as Exhibit D. In that Declaration, only one Ruling House that is Ogunmakinde Ande was identified and declared as being in existence. This evoked a spate of protest and protest petitions poured into the office of the governor of the State. This led the Government to appoint Dr Agiri as sole Commissioner to carry out discreet investigation into the chieftaincy and produce a report for the consideration of the government. The assignment was carried out. The investigation was conducted and a Report on the investigation and findings submitted to government. Oyo State Government duly considered the Report and came out with a new Declaration of the customary law regulating the selection to the Oluwo of Iwo chieftaincy, Exhibit K. It was signed by the Governor of Oyo State on the 28th day of July, 1981 and registered on the following day, the 29th day of July, 1981. In the declaration, three Ruling House were identified and declared as
(1) Alawusa
(2) Adagunodo, and
(3) Gbaase
Ogunmakinde Ande was dropped as a Ruling House on the ground that Ogunmakinde Ande family is a branch of Alawusa Ruling House. The plaintiffs/appellants who are members of Ogunmakinde Ande decided to go to court and on the 3rd day of March, 1982 commenced this action in Oshogbo Judicial division of the High Court of Justice of Oyo State of Nigeria. The claims endorsed on the writ of summons are straight-forward and simple and read:
"The plaintiffs claim against the defendants jointly and severally:
"(1) a declaration that [under] the customary law prevailing in Iwo, the Ogunmakinde Ande Ruling House is the only Ruling House from which appointment to the Oluwo of Iwo Chieftaincy is to be made (word in bracket supplied)
(2) a declaration that the instrument dated the 28th day of July, 1981 is in so far as it purports to declare the customary law prevailing in Iwo with respect to the Oluwo of Iwo chieftaincy, is wrong and accordingly illegal and void.
(3) an injunction restraining all servants officers and agents of the Government of Oyo State or of the Iwo Central Local Government from acting pursuant to or taking any steps to implement the aforesaid declaration registered on 29th day of July, 1981."
Pleadings on the order of the court were filed and delivered and at the close of pleadings, the matter went to trial before Oloko J. After hearing evidence and addresses of counsel, the learned trial Judge delivered a considered judgment dismissing the appellant's claim in its entirety.
The issue of fair hearing was raised, the learned trial Judge gave due consideration to the question and said:
"Learned counsel for the plaintiffs Mr B.O. Sofunde submitted that the plaintiffs were not given a hearing at the enquiry. Learned counsel further submitted that before the Governor-in-Council can exercise its powers under section 9(A)3 all parties likely to be affected by the exercise of that power must be given an opportunity of being heard.
Whilst I concede to the learned Counsel that the doctrine audi alteram partem must be involved in appropriate cases the absence of an oral hearing, or of an opportunity to be heard orally, before an administrative tribunal does not necessarily amount to a denial of the principles of natural justice.
A decision reached after a full inquiry without an oral hearing does not violate such principles. See case of the Queen v. Director of Audit (W.R.) & Ors (1961) All N.L.R. page 659 at page 660 ..........
..........
Referring to Exhibit 'F' it is clear that on its pages 2 and 3, Dr Agiri stated his source of information. Plaintiffs participated effectively in the proceedings of the minutes of meeting held by the Commissioner of Local Government and Chieftaincy Affairs on 19th day of July 1974 which is Exhibit 'W' in the proceedings and the Exhibit forms part of the material used by Dr Agiri in the assignment of the discreet research into Oluwo of Iwo Chieftaincy. I cannot by any stretch of imagination see how the plaintiffs was prejudiced in compiling the report Exhibit 'F'. I therefore reject the submission of learned Counsel for the plaintiffs and the requirements of natural justice were not met or that the doctrine of Audi Alteram partem was not involved in compiling Exhibit 'F'. From the evidence before me, I find myself unable to make the declaration sought in the first leg of the plaintiffs' claim ..........
Assuming I am wrong in the above conclusion, I am prepared to hold further that even on evidential requirement, the plaintiff must fail in the first leg ..........
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It is settled law that custom must be strictly proved. And it has also been held that in proving a custom, it is not enough that one who asserts the custom should be the only witness. In other words, for a custom to be acceptable, it must be proved by at least two witnesses, see the case of The Queen v. Chief Ideliaguahan Ozogula 11 ex-Paater Chief Lewis Epenga (1962) WNLR. 136 at 137 ..........
..........
The only witness who testified before me in favour of the plaintiffs is the second plaintiff. No other witness confirmed the custom that Ogunmakinde Ande should be the only recognised ruling house for the appointed to the stool of Oluwo of Iwo.
The learned trial Judge also considered the second leg of plaintiffs' claim and said:
"The instrument referred to above is Exhibit K in these proceedings. In my view, the plaintiffs have the onus of proving that Exhibit K was made in violation of the chiefs Law or rather Exhibit K was not made in accordance with the Chiefs' Law. Learned counsel for the second defendant, Mr M.L. Ladapo submitted that the government having considered the report of Dr Agiri, i.e. Exhibit F was of the view that Exhibit 'D' is faulty. Learned counsel further submitted that by making Exhibit K, Governor is acting according to section 9A of the Chiefs' Law.
On the other hand, learned Counsel for the plaintiffs, Mr E.O. Sofunde contended that that Exhibit K does not represent the customary law and referred the court to section 9A(3) of the Chiefs' Law. ..........
The learned trial Judge after referring to sections 9A and 9B of the Chiefs' Law said:
"I am satisfied from the above provisions of the Chiefs Law that Exhibit K is validly made and duly represents the customary law regulating the selection to the Oluwo of Iwo Chieftaincy. I therefore refuse the second leg of plaintiffs' claim."
Being dissatisfied with the decision the plaintiffs appealed to the Court of Appeal. Three grounds of appeal were filed along with the notice of appeal and as they are relevant to the consistency of the complaint of the plaintiffs/appellants, I set them out hereunder. They read:
"1. The learned trial Judge erred in law when he held that the declaration sought by the plaintiff that 'by the customary law prevailing in Iwo, the Ogunmakinde Ande Ruling House is the only ruling house from which appointment to the Oluwo of Iwo Chieftaincy is to be made' can only be obtained administratively and only under the Chiefs Law, when under the provisions of the Constitution the High Court has unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege interest, obligation or claim is in issue.
2. The learned trial Judge erred in law when he held that the plaintiffs were given a fair hearing before the Agiri Report was issued because there was evidence that Dr Agiri relied on minutes of a meeting in which the plaintiffs participated, as part of his sources of information, when in fact there was ample evidence that the plaintiffs were not given the opportunity of being heard by the said Dr Agiri but the 3rd-5th Defendants were called upon and were heard, before Dr Agiri wrote his report." (Italics mine.)
3. The learned trial Judge erred in law in holding that the declaration dated the 28th of July, 1981 was validly made under Section 9(a)(3) of the Chiefs Law, in spite of the fact that the plaintiffs were not given an opportunity of being heard before the said declaration was made.
Particulars of Error
(i) Under the rules of natural justice and Section 33 of the Constitution, every person is entitled to a fair hearing in the determination of his civil rights and obligations;
(ii) The making of the declaration dated the 28th day of July, 1981 involved a determination of the plaintiff's civil rights and obligations;
(iii) In view of (i) and (ii) above, the learned trial Judge ought to have held that the said declaration was null and void."
After hearing the submissions of counsel both written and oral on the issues raised in the grounds of appeal, the Court of Appeal, by a unanimous decision of the three justices (Omololu-Thomas, Sulu Gambari and Onu, JJCA.) dismissed the Appeal.
On the issue of fair hearing, Omololu-Thomas, JCA, in his lead judgment (concurred in by Sulu-Gambari and Onu, JJCA) said:
"It has long been settled that natural justice does not necessarily require that the hearing should be oral (vide Local Government v. Arlidge (1915) AC 120). It can also in my view be said by way of general principle that there is no right to an oral hearing, unless the refusal of an oral hearing would prejudice the applicant. A statute may take away the right to provide expressly or by necessary implication for such right (vide for example Requires v. Birmingham City Justice, Ex
Parte Chris Foreign Foods (Wholesales) Ltd.) where it was held that a justice acting under a procedure of the U.K. Food and Drugs Act 1955 even though in an administrative or executive capacity was obliged to act fairly and impartially. In essence, he is obliged to do so ..........
This case however decided that notwithstanding that an inquiry is administrative, natural justice requires a fair hearing.
In the case in hand, it has not been shown by the appellants that the absence of an oral hearing had prejudiced the appellants ..........
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The evidence indeed was that Dr Agiri was to conduct a discreet research and he collected materials from all the families concerned including Alawusa and Ogunmakinde Ande families the latter of which as the evidence and findings disclosed, is a section of Alawusa family (refer to Exhibit 'F'). The three ruling houses recommended were Alawusa, Adagunodo and Gbaase and the case of the appellants appeared to have been considered under the umbrella of Alawusa family.
The position of the appellants, having been established already in Exhibit 'D', and considering the scope of the inquiry conducted by Dr Agiri was there really any further need for oral hearing of what has been established by a declaration? In view of the existing materials in favour of the appellants, the inquiry is not as though Dr Agiri was conducting a lis proceedings in view of the various claims, complaints, petitions, Reports and other inclusive inquiries before 1979.
The question is not that they were not heard but that they were not heard orally and it seems to me that in view of the representations which were taken into account, the appellants' case could not have been prejudiced. If they were, there is no evidence before the trial court. They cannot now complain.
I do not therefore for the foregoing reasons think that substantial justice requires the oral hearing of the appellants before an inquiry of the type instituted under Dr Agiri ..........
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In the evidence of 1st appellant, before the High Court which I find significant, he is reported to have said:
'Adagunodo was the 3rd Oluwo of Iwo ..........
Alawusa succeeded his father Gbaase ..........
At the death of Alawusa his son Ogunmakinde Ande succeeded him ..........
This clearly makes Ogunmakinde-Ande only a section of Alawusa family."
On the issue of the promulgation of the Declaration Exhibit K by the Governor-in-Council and the provision of the Chiefs Law, the learned justice said at P. 196:
"Counsel then in view of the foregoing reasons and submissions further submitted that any act of the Oyo State Governor tending to render Exhibit D invalid, as in this case the making of Exhibit K is a usurpation of the function of the State Legislature and as it does not fall within the permitted legislation, it is void.
Counsel's submission overlooks the point that there are two distinct modes of modification provided by Section 274 of the Constitution ..........
The operative words in Section 274(1) of the Constitution before any existing law is deemed to be the law of legislature of a state (as in this case on appeal, the Chiefs Law and in particular Section 9 thereof) the law shall have effect with such modifications as may be necessary to bring it into conformity with the Constitution. It is obligatory that the modifications must be made. My reading of the provision is that as at the time effect is given to it, such law must be read with the necessary modifications.
The next modification provision is under Section 274(2) enabling "the appropriate authority" in his discretion to make such textual amendments as he considers necessary or expedient. In the absence of any such textual amendments, the law retains its character as an existing law unless it is inconsistent with the provisions of the constitution. If the law is not thus inconsistent, its validity as an existing law cannot be questioned on the ground merely that it had not been textually amended.
The common ground in the submission of both sides is that it is the "Governor" and not the "executive council" upon which is vested all the executive powers under Section 5 of the Constitution. He is the repository of all the executive functions under the Chiefs' Law and as indeed decided in Kagoma's case. That being the case, the executive functions under Section 9 of the Chiefs' Law on the "Governor-in-Council" by the operation of Section 274(1) of the Constitution since 1st October, 1979 vested in the "Governor" in the absence of a textual modification under Section 274(2) of the Constitution. The law empowering the Governor to make the declaration under Section 9 of the Chiefs' Law is thus saved as an existing law ..........
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The section does not require express textual modifications to the effective as an existing law. This reading of the section will bring it into conformity with the constitution in order to give full effect to the provisions and so as to enable the exercise of the power conferred there under to continue (see Kagoma's case supra)."
On the issue of jurisdiction of the court to make the declaration of customary law regulating the appointment of Oluwo of Iwo in Iwo, the learned justice (Omololu-Thomas, JCA) said:
"The trial Judge was of course correct in holding in effect that the primary object of the section of the Chiefs' Law is, by setting out the procedure for the making of declarations on customary law, derived from that law, and it is not a function exercisable by the courts. To make the point clearer, "exercisable" should read "primarily exercisable."
It is not the business of the courts to make declarations of customary laws relating to the selection of Chiefs under that law. The exercise of such functions is not directly related to the general jurisdiction of the courts under Section 236(1) of the Constitution of 1979 so long as the power exercisable under or to be exercised under the law is within its four corners and is exercised in good faith as being a power lawfully conferred by the legislature. (Cartonal Ltd. v. Commissioner of Works (1943) 1 All ER. 560 per Lord Greene, M.R.) In the exercise of the court's judicial functions under Section 236 of the Constitution, orders declaratory of the functions or powers under the law can be made for example with a view to determining the validity or otherwise of the existence of a particular custom, in contradistinction from the making of "Declaration" as a form of sub-legislation under the law.
The jurisdiction of the courts in that respect is unfettered and unlimited in terms of the said Section 236 of the Constitution.
Indeed, the correct view as respects the courts' powers vis-a-vis those under the Chiefs' Law is as conceded by the learned Counsel, and the courts will not by themselves exercise, primarily, jurisdiction with respect to those powers conferred expressly by the legislature on bodies other than the courts-outside their judicial authority under Sections 6 and 236 of the Constitution. At any rate, the appellants' claim did not speak of a "declaratory order" as such, but just a declaration simpliciter, which may suggest to any reader the exercise of an administrative (or executive) or legislative functions under the law."
Against the decision of the Court of Appeal, the plaintiffs have further appealed to this Court. Six grounds of appeal were filed along with the notice of appeal. They are:
1. The learned Justices of the Court of Appeal erred in law in failing to hold that the learned trial Judge held that he had no jurisdiction to make a declaration that by the customary law prevailing in Iwo, the Ogunmakinde Ande ruling house from which appointment to the Oluwo of Iwo Chieftaincy is to be made.
Particulars Omitted
2. The learned Justices of the Court of Appeal erred in law in failing to hold that the learned trial Judge had original jurisdiction to make the declaration referred to in ground 1.
Particulars:
(a) Under the provisions of the Constitution of the Federal Republic of Nigeria 1979, the High Court has unlimited jurisdiction to hear and determine any civil proceedings in which the existence or intent of a legal right, power, duty, liability, privilege, interest obligation or claim is in issue.
(b) The fact of not claiming a "declaratory order" but a "declaration" as contended by the Court of Appeal is only a play on words and judging from the context in which the case was prosecuted and addresses made, the learned trial Judge ought to have known that what was sought from him was a declaratory order and not a document termed a "declaration" under the Chiefs' Law.
3. The learned Justices of the Court of Appeal erred in law in failing to hold that the appellants were not given a fair hearing before the Agiri inquiry and that such a lack of fair hearing vitiated the inquiry.
Particulars of Error
(a) The provisions of the Constitution, the Chiefs' Law and the rules of natural justice require a fair hearing to be given to a party whose rights are likely to be affected as a result of such an inquiry.
(b) The instructions to Dr Agiri by the Oyo State Government show that the respective claims of the appellants and other contesting parties were to be examined for a determination as to which of the competing claims was correct;
(c) In th