In The Supreme Court of Nigeria
On Friday, the 14th day of July, 2006
S.C. 171/2004
Before Their Lordships
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Idris LegboKutigi |
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Justice, Supreme Court |
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Niki Tobi |
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Justice, Supreme Court |
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George Adesola Oguntade |
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Justice, Supreme Court |
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Mahmud Mohammed |
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Justice, Supreme Court |
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Walter Samuel NkanuOnnoghen |
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Justice, Supreme Court |
Between
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Festus IbidapoAdesanoye |
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Appellants |
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High Chief Akingbule |
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Attorney-General, Ondo State |
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And
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Prince Francis GbadeboAdewole |
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Respondent |
Judgement of the Court
Delivered by
Niki Tobi, J.S.C.
The Osemawe of Ondo Chieftaincy Stool is the centre of this appeal. Sometimes in August 1991, the stool became vacant following the death of the occupant, His Royal Highness Oba Itiade Ade Kolurejo. The common Nigerianexpression is that he has gone to join his ancestors, and so let me use that expression too, although I do not know where the ancestral home is. It looks to me like a bandwagon expression as in paragraph 5 of the Amended Statement ofClaim and so I join the bandwagon. Nobody wants to say that an Oba is dead, just like that. To some, it is a taboo to say that.
That brought about the litigation. It is a common occurrence in Nigeria, in contemporary times. We fight for Chieftaincy Stools, at times when we know as a matter of fact and tradition that we had not the fortune to be born into royalty. Nigerians have a way of pushing themselves to things that have some reputation and fame and these days, one green area, if I may, use that expression, for wantof a better one, is the Chieftaincy Stool. This is one of such fights. It started in 1991, some fifteen years ago.
Let me tell the story surrounding this litigation. Following the vacancy, theSecretary of Ondo Local Government wrote to the Leyo Ruling House which, the appellants claimed, was Ale Ruling House entitled to present a candidate to fill the vacant stool, to select candidates for presentation to the Kingmakers who would appoint the next Osemawe. Three candidates were presented by the Leyo Ruling House. They were Festus IbidapoAdesanoye, 1st appellant, Francis GbadeboAdewole, 1st respondent and Eric Adewole, now deceased TheKingmakers at a special meeting convened for that purpose on 11th October 1991, elected Festus IbidapoAdesanoye, 1st appellant, out of the three nominees of the Leyo Ruling House and presented his name to the then Military Governor of Ondo State for approval.
Following the approval of the 1st appellant for appointment as the Osemawe of Ondo, the 1st respondent filed an action claiming two declaratory reliefs and one order restraining the 1st appellant as 1st defendant from parading himself as Osemawe elect.
The case put forward by the 1st respondent is that the 1st appellant was, a great grandson/member of the Leyo Ruling House and that being so, he was not qualified to be appointed Osemawe and that his appointment was not in accordance with prevailing custom in respect of the Chieftaincy and section 8(e) of the Chiefs Edict No 11 of 1984.
The 1st appellant, on his part, contended that his appointment as Osemawe of Ondo was in accordance with the prevailing custom in respect of the Osemawe Chieftaincy, section 8(e) of the Chiefs Edict No 11 of 1984 and the Osemawe of Ondo (Chieftaincy Declaration) Order, 1991.
The learned trial Judge, Obaremo J, gave judgment against the 1st respondent as plaintiff. He dismissed the action. The learned trial Judge heldthat the Osemawe of Ondo (Chieftaincy Declaration) Order, 1991 had repealed the Osemawe of Ondo Chieftaincy Declaration of 1958 and that under the 1991 Declaration, the persons qualified to be proposed as candidates to fill a vacancy in the Osemawe Chieftaincy are members of the Ruling House of the male line only.
Dissatisfied, the 1st respondent appealed to the Court of Appeal. That Court allowed the appeal, holding inter alia that the Osemawe of Ondo Chieftaincy Declaration 1991 could not possibly repeal the 1958 Declaration.
The appellants have appealed to this Court.
The appellants formulated the following issues in their brief:
3.1. Whether the Court of Appeal was right in law in holding that the Osemawe of Ondo Chieftaincy Declaration 1958 was still applicable to the appointment of the 1st appellant.
3.2. Whether assuming that the Osemawe of Ondo Chieftaincy Declaration 1958 was applicable, the 1st Respondent has any locus standi to take the point or file this action.
3.3. Whether the 1st Respondent's pleading relied on the 1958 Declaration as contemplated by the Court of Appeal or his right had become vested under the Declaration before the 1991 Declaration took effect.
The respondent formulated the following issues in his brief:
3.1. Whether the 1st Appellant was qualified to be appointed Osemawe of Ondo under the Native Law and Custom pertaining to the Osemawe of Ondo Chieftaincy.
3.2. Whether the Respondent was competent to institute the action challenging the appointment of the 1st Appellant as Osemawe of Ondo.
The respondent filed a cross-appeal and formulated the following issues for determination:
a) Whether or not the provision in Section 26(1)(a) of the Chiefs Law O.D.S. No 11 of 1984 could have been invoked by the Court of Appeal in nullifying the appointment of the 1st Cross-Respondent as Osemawe of Ondo.
b) Whether or not the 1st Cross-Respondent would have been qualified to be appointed Osemawe of Ondo even if the Ondo Chieftaincy Declaration 1991 Exhibit O had been found to be applicable to the selection process.
The following issue was formulated in the 1st and 2nd Respondents' brief to the cross-appeal:
Whether or not the provision in Section 26(1)(a) of the Chiefs Law O.D.S. No 11 of 1984 could have been invoked by the Court of Appeal in nullifying the appointment of the 1st Cross-Respondent as Osemawe of Ondo.
On Issue No 1, learned Senior Advocate for the appellant, Mr. F. O. Akinrele did not submit in clear language that the Osemawe of Ondo Chieftaincy Declaration 1958 was not applicable to the appointment of the 1st appellant; the fulcrum of Issue No 1. He dealt in some detail with the Ondo Chieftaincy Declaration, 1991. He traced the history of the 1991 Declaration to the Military Government of Ondo State where the Military Governor of Ondo State in the exercise of his power under section 6A of the Chiefs Edict, 1984, made the Declaration. He examined the retroactive nature of the Declaration and the issue of registration and came to the conclusion that the 1st appellant being a member of Leyo Ruling House of the male line was qualified to be appointed Osemawe of Ondo. He cited Olatunbosun v. NISER Council (1985) 3 NWLR (Pt. 80) 25; Afolabi v. Governor of Oyo State (1985) 2 NWLR (Pt. 9) 734 at 764; Adesanoye v. Adewole (2002) 9 NWLR (Pt. 671) 127; Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377 at 392 andIfezue v. Mbadugha (1984) 1 SCNLR 427 at 447. He also cited seven other cases on interpretation of statutes.
On Issue No 2, learned Senior Advocate submitted that the 1st respondent, being a grandson of Aromorayi was not qualified to be appointed Osemawe of Ondo under the 1958 Declaration as the Declaration excluded grandson from the throne. To learned Senior Advocate, the 1st respondent lacked the locus standi in the matter as he failed to show or establish a direct interest in the throne. He cited Momoh v. Olotu (1970) 1 All NLR 117 at 123; Adewunmi v. Attorney-General of Ekiti State (2002) 2 NWLR (Pt. 751) 174 and Oloriode v. Oyebi (1984) 15 NSCC 286 at 292.
On Issue No 3, learned Senior Advocate pointed out that the 1st respondent did not plead the 1958 Declaration as the applicable Chieftaincy Declaration, which he intended to rely upon. Contending that parties are bound by their pleadings, learned Senior Advocate cited NIPC v. Thompson Organisation (1969) 1 All NLR 138 at 142 and 143; Peenok Ltd. v. Hotel Presidential Ltd. (1982) 12 SC 1; Adeyemi v. Yori (1976) 9-10 SC 31; and MobilOil Ltd. V. Coker (1976) 3 SC 176.
On the decision of the Court of Appeal in respect of vested right, learnedSenior Advocate submitted that the 1st respondent had no legal right that can vest in him under the 1958 Declaration. He cited Wilson v. Oshin (2000) 9 NWLR (Pt. 673) 442. He urged the Court to allow the appeal.
Learned Counsel for the 1st respondent, Mr. Adegboyega Thompson, submitted on Issue No 1 that the customary law applicable is the customary law in existence at the time the cause of action arose and that customary law was the 1958 Chieftaincy Declaration which was in existence when the cause of action arose on 21St August, 1991 on the death of the previous holder of the title. He cited Afolabi v. Governor of Oyo State (1985) 2 NWLR (Pt. 9) 734 and 764 andLipede v. Sonekan (1995) 1 NWLR (Pt. 374) 668 at 690.
Learned Counsel submitted that the repeal of the Osemawe of Ondo Chieftaincy Declaration 1958 by the Osemawe of Ondo (Chieftaincy Declaration) Order, 1991 did not have any effect on the law applicable at the time the cause of action arose. He cited Adesanoye v. Adewole (2000) 9 NWLR (Pt. 671) 127 at 150 andUwaifo v. Attorney-General of Bendel State (1982) 7 SC 124. The Osemawe of Ondo (Chieftaincy Declaration) Order 1991 could not have applied in the matter because by the date it was published, i.e. 24th October 1991, the respondent's action at the High Court had been filed. Since the Osemawe of Ondo (Chieftaincy Declaration) Order, 1991 is a Statutory Order, it could only have taken effect from the date of its publication, Counsel further submitted. He cited Popoola v. Adeyemo (1992) 8 NWLR (Pt. 257) 1 at 25-26.
Counsel argued that having filed the action on 14th October 1991, the respondent already acquired a vested right with regard to the action of the Osemawe of Ondo (Chieftaincy Declaration) Order 1991 even though passed with retrospective effect; could not have affected the respondent's accrued right in the action. He cited OHMB v. Garba (2002) 14 NWLR (Pt. 788) 538 at 567. To learned Counsel, as far as the matter is concerned, the Osemawe of Ondo Chieftaincy Declaration 1958 was not affected by any provision in the Osemawe of Ondo (Chieftaincy Declaration) Order, 1991.
Learned Counsel submitted that the Court of Appeal was right to have relied on the Osemawe of Ondo Chieftaincy Declaration, 1958. Citing Jokanola v Military Governor of Oyo State (1996) 5 NWLR (Pt. 446) at 14, learned Counselsubmitted that once there is a registered Chieftaincy Declaration in place, it is tobe regarded as the customary law. On the issue of pleadings, Counsel relied onwhat the Court of Appeal said and it is that the 1958 Ondo ChieftaincyDeclaration need not be specifically pleaded if the plaintiff pleads that the 1stdefendant was not qualified in accordance with the custom.
On the 1991 (Chieftaincy Declaration) Order, learned Counsel submitted that the Order does not apply in the case. He pointed out that the Order was not duly registered, a situation which was contrary to the provision of section 6(2) of the Chiefs (Amendment) Edict) 1991. Counsel contended that it is unnecessary to repeal the provision of section 6(2) of the Chiefs Law 1984 in the Chiefs (Amendment) Edict 1991 because the latter forms part of the former. On whether section 6(2) of the Chiefs Law, 1984 was repealed, Counsel contended that it was not; arguing that a statute cannot be repealed by implication but must do so specifically and clearly. He cited Asimi Nig. Ltd. v. LBRD Authority (2002) 8 NWLR (Pt. 769) 349 at 364.
Taking the issue of retroactivity of the Osemawe of Ondo Chieftaincy Declaration Order 1991, learned Counsel argued that as the 1991 Order is a subsidiary legislation, which derives its validity and authority from the Chiefs Law, 1984, as amended by the Chiefs (Amendment) Edict 1991, the 1991 Order does not have the capacity to extend such authority. He cited Secretary Iwo Central Local Government v. Adio (2000) 8 NWLR (Pt. 667) 115 at 131. Accordingly, the 1991 Order cannot have retrospective operation in that the Chiefs Law, 1984 which gives it validity clearly states in section 6(2) that a Chieftaincy Declaration made under it will come into force only after it has been registered. Conceding that some provisions of the 1991 Order provide for retroactivity where vested rights are not affected, he argued that others in the same statute may be prospective. He cited Ibrahim v. Barde (1996) 9 NWLR (Pt. 474) 513 at 577.
Learned Counsel submitted that as Exhibit O, the Osemawe of Ondo (Chieftaincy Declaration) Order 1991, is inexhaustive of the customary law, it is the requirement of the law that oral evidence of custom be given to fill the lacuna in the Declaration. He cited Edewor v. Uwegba (1987) 1 NWLR (Pt. 50) 313 at 345 and Lipede v. Sonekan (1995) 1 NWLR (Pt. 374) 668.
On Issue No 2, learned Counsel submitted that the 1st respondent, having taken part as one of the candidates in the contest in which the 1st appellant was appointed Osemawe of Ondo, had locus standi to institute an action challenging the decision of the Kingmakers on the ground that the 1st appellant was not qualified by custom to be so appointed. He relied on the Statement of Claim and the decision of Owodunni v. Reg. Trustees of CCC (2000) 10 NWLR (Pt. 675) 315 at 335. He submitted that the issue of locus standi should be decided on consideration of the plaintiff's pleadings only. Relying on Thomas v. Qlufosoye (1985) 3 NWLR (Pt. 13) 523 at 536, learned Counsel pointed out that the issue of disqualification of the respondent under any law or custom was not raised in theStatement of Claim. He urged the Court to dismiss the appeal.
Learned Counsel for the cross-appellant, Mr. Adegboyega Thompson, submitted on Issue No 1 of the Cross-appellant's brief that even if the 1958 Chieftaincy Declaration is inapplicable for any reason whatsoever, what should be applied in determining the qualification of candidates to the Chieftaincy is evidence of custom as stipulated by section 26(1)(a) of the Chiefs Law on the ground that at the time the vacancy occurred, i.e. on 21st August 1991, Exhibit O had not yet become operative.
Taking Issue No. 2, learned Counsel submitted that the oral evidence before the Court, which was not challenged, was that the 1st appellant was not qualified by custom, he being a great grandson of a previous title holder. He urged the Court to allow the cross-appeal.
Chief Akinrele, SAN, submitted on Issue No. 1 that the Court of Appeal could not have invoked section 26(1)(a) of the Chiefs Law to nullify the appointment of the 1st appellant in view of the provisions of section 24(1)(a) and (2)(a) of the Chiefs Law. He pointed out that as at the date of the death of the former Osemawe on 21st August 1991, the 1958 Declaration ought to have been submitted by the Secretary to the Chieftaincy Committee to the Commissioner for approval and registration before it could regain its efficacy. Accordingly, by the operation of section 24(2)(a) of the Chiefs Law, the 1958 Declaration ceased to have effect, thus became inoperative.
An existing Declaration submitted for re-approval and re-registration does not automatically gain such re-approval and re-registration because section 24(2)(b) of the Law makes the provision of section 3 of the Law applicable to such application and the section invests upon the Executive Council with a discretion as to whether or not such Declaration should be approved, learned Senior Advocate submitted.
On the evidence of custom, learned Senior Advocate submitted that the best evidence of custom as at the date of the death of the former Osemawe was the Morgan Chieftaincy Report, Exhibit L, on the issue. Counsel pointed out that it was Exhibit L that eventually crystallized into Exhibit D, the 1991 Declaration, hence the latter was given a retrospective effect.
On Issue No. 2, learned Senior Advocate submitted that the argument of Counsel for the respondent in the cross-appeal, regarding the qualification for appointment as Osemawe, failed to draw a distinction between the word, "suitability" used in Paragraph (V)(f) of the Schedule to the 1991 Declaration and the word "qualification" under Paragraph 111 of the same Schedule. He examined the difference in the brief.
Disagreeing with Counsel for the cross-appellant that there is a lacuna in Paragraph 111 of the Schedule to the 1991 Declaration, learned Senior Advocate contended that the Court only need to invoke its interpretative jurisdiction to arrive at the meaning of the words used in the paragraph. He urged the Court to apply the NosciturSociisrule of interpretation. He referred to Garba v. FCSC (1988) 1 NWLR (Pt. 71) 449; Stone v. Yeovil Corporation (1896) 1 CPD 691 at 701; Bronik Motors Ltd, v. Wema Bank Ltd. (1983) 1 SCNLR 296 at 316 and FCSC v. Laoye (1989) 2 NWLR (Pt. 106) 652 at 723. He urged the Court to dismiss the appeal.
The first issue I should take is the applicable Declaration in this matter. Is the applicable Declaration the Osamawe of Ondo (Chieftaincy Declaration) 1958 or the Osamawe of Ondo (Chieftaincy Declaration) Order 1991? Let me take the first principle of law and it is that the applicable law is the law in existence at the time the cause of action arose and not the law in force at the time the jurisdiction of the Court was invoked. See Prince Mustapha v. Governor, Lagos State (1987) 2 NWLR (Pt. 58) 539; Uwaifo v. Attorney-General of Bendel State (1982) 7 SC 124; Adeyeye v. Ajiboye (1987) 3 NWLR (Pt. 61) 432; Alao y. Akano (1988) 1 NWLR (Pt. 71) 431; Ojokolo v. Alamu (1987) 3 NWLR (Pt. 61) 377.
The cause of action arose in August 1991 when his Royal Highness Oba Itiade Ade Kolurejo died. Learned Senior Advocate made submissions on the 1991 Declaration, all in his effort to say that it is the applicable Declaration. Let me take the arguments. Did the 1991 Declaration repeal the 1958 Declaration? And that touches on the issue of registration. The submission of learned Senior Advocate is in two parts. First, is that the Declaration was registered. Second is that registration is not a pre-condition for the effectiveness of Declarations made under section 6A(1) of the Chiefs Edict, 1984. Is the second submission made in the alternative? Learned Senior Advocate did not say so. Unless the second submission is made in the alternative, it can be superfluous. If the first submission is that the 1991 Declaration was registered, then the second submission should not arise as a complement to the first one. It can only arise as an alternative submission. It is only then it can make any meaning.
The above should not stop me from taking the merits of the submission. The first is the submission that the Declaration was registered. Learned Senior Advocate relied on the evidence of 2nd defence witness, Johnson Olabisi when he said:
"It was Chieftaincy Declaration of 1991 that led to the writing to Leyo Ruling House. I received: the Chieftaincy Declaration in my office. It was registered in the Local Government."
In accepting the above evidence, the learned trial Judge said at page 252 of the Record:
"I believe that Exhibit O was registered. See Section 150 of the Evidence Act."
Exhibit O is the 1991 Declaration.
The Court of Appeal did not find the above conclusion of the learned trial Judge that useful. That Court thought that a material particular, in respect of the date of registration was required in the evidence of Johnson Olabisi. The Court said at page 334 of the Record:
One thing is clear that the evidence before the lower Court does not provide the registration date. Up till today learned Counsel for the Respondents could not say, in so many words, the date the Osemawe of Ondo Chieftaincy Declaration was registered or re-registered. The lower Court and this Court were left in darkness as to that point.
I entirely agree with the Court of Appeal. Registration, a legal act, involves documentation. The documentation invariably includes a date. I say invariably because I cannot see how a document of registration will not include the date of registration. Johnson Olabisi did not give any evidence in respect of the date of registration.
As the issue of a trial Judge accepting parol evidence in respect of a document, without laying the necessary foundation to explain away the inability of tendering the document, is not canvassed, I shall not go into that area. But the issue before the Court is the absence of the date of registration in the determination of retrospectivity of the 1991 Declaration.
The second submission of learned Senior Advocate is in respect of the effect of failure to register an Order vide section 6A(2) of the Chiefs (Amended Edict) No 4 of 1991. Section 6A(1) and (2) provides in the following terms:
(1) Notwithstanding anything contained in this Edict the Military Governor, in the interest of peace, order and good government may, by order revoke or amend an existing declaration or make a new declaration in respect of any chieftaincy to which this part applies.
(2) Any declaration made in pursuance of this section shall be registered and kept in safe custody by such officer as the Military Governor may direct.
By section 6A(1), the Military Government has had the power to revoke or amend an existing declaration or make a new declaration in the interest of peace, order and good government. Section 6A(2) requires any declaration made pursuant to section 6A(1) to be registered. It is the submission of learned Senior Advocate that the sub-section does not impose the restriction as to non-effectiveness in the event of failure of registration. I am in some difficulty to go along with the submission. Where a statute clearly provides for a particular act to be performed, failure to perform the act on the part of the party will not only be interpreted as adelinquent conduct but will be interpreted as not complying with the statutory provision. In such asituation, the consequences of non-compliance with the statutory provision follow notwithstanding that the statute did not specifically provide for a sanction. The Court can, by the invocation of its interpretative jurisdiction, come to the conclusion that failure to comply with the statutory provision is against the party in default. Taking the above in the light of the specific provision of section 6A(2), and particularly with the peremptory shall conveying some command, the Court could not have waited for any other provision in the words of learned Senior Advocate, as to non-effectiveness in the event of failure of registration as contained in section 6..."
It is the submission of learned Senior Advocate that registration is not a pre-condition to the effectiveness of the 1991 Declaration having been made by the Governor under section 6A(1) of the Edict as amended. With respect, I do not agree with him. Section 6A(2) clearly makes registration a pre-condition and this becomes clear by a community reading of the two subsections. Section 6A(1) empowered the Governor by order to revoke or amend an existing declaration or make a new declaration. Section 6A(2) begins with the words "Any declaration". In my view, the word "declaration" vindicates existing declaration or new declaration, within the meaning of section 6A(1). It is not correct to say that registration is not a pre-condition to the effectiveness of the 1991 Declaration having been made by the Governor under section 6A(1) of the Edict, as amended.
And that takes me to the issue of retrospectivity. The learned trial Judge said at pages 262 and 263:
"The issue of retrospectivity raised by Mr. Thompson does not arise at all. There was no vested interest of the plaintiff that was retrospectively taken away from him... From the above proposition, it seems clear that the 1991 Declaration is a document to be treated prospectively and NOT retrospectively relative to the plaintiff's suit filed on 14lh October 1991. It is a pending suit to which the 1991 Declaration becomesapplicable."
The Court of Appeal said at pages 334 and 336 of the Record:
"The whole 1984 Declaration does not contemplate retrospectivity... Enough is said about the 1stissue, suffice it to say that any Chiefs Law or Chieftaincy Declaration cannot be valid and proper if it containsretrospectivity. Whenever there is proper amendment such amendment must be registered before it can be recognised by the law. I cannot see where the said Ondo State Chiefs Law of 1984 showed any intention to be retrospective."
Retrospectivity, the synonym of retroactivity, as it relates to statute, means when the date of commencement of the statute is earlier in point of time than the date of enactment. See Afolabi v. Governor of Oyo State (1985) 2 NWLR (Pt. 9) 734. In other words, where a statute extends its scope or effect to matters that have occurred in the past, such a statute is said to have retrospective effect. A statute having a retrospective effect takes care of past matters in the sense that it draws forward such matters to have legislative effect with all the currency of the new statute. While Courts of law frown upon retrospective legislation as they are not the best in the development of the rule of law and more particularly the concept of fair hearing, they are not unconstitutional and therefore part of our jurisprudence. This is because the Legislatures have the constitutional right to enact a statute and make it apply retrospectively. In so far as such n statute is donated by section 4 of the Constitution, Courts of law do not have the jurisdiction to question the vires of the statute. See Adesanoye v. Adewole (2002) 9 NWLR (Pt. 671) 127.
The Court of Appeal merely restricted itself to the 1984 Law on the issue of retrospectivity. That was where, with respect, the Court fell into some error. If the Court had examined the provisions of the 1991 Order closely, it could nothave arrived at the decision.
Perhaps the point I am making will become clear if I reproduce the Osemawe of Ondo (Chieftaincy Declaration) Order, 1991:
In exercise of the powers conferred upon me by Section 6A of the Chiefs Edict, 1984 and by virtue of all other powers enabling me in that behalf, I NAVY CAPTAIN ABIODUN OLUKOYA, Military Governor of Ondo State of Nigeria hereby make the following Order:
1. The declaration contained in the Schedule to this Order is hereby made in respect of the Osemawe of Ondo Chieftaincy in the Ondo Local Government Area.
2. The Osemawe of Ondo Chieftaincy Declaration of 1958 made under the Appointment and Recognition of Chiefs Law 1954 is hereby revoked.
3. This Order may be cited as the Osemawe of Ondo (Chieftaincy Declaration) Order, 1991 and shall be deemed to have come into force on 3rd day of January, 1984.
Paragraph 1 makes cross reference to the Schedule of the Order which provides for three ruling houses, the order of rotation in which the respective ruling houses are entitled to provide candidates to fill successive vacancies, the persons qualified to be proposed as candidates, and the Kingmakers. Paragraph 2 clearly and unequivocally revoked the Osemawe of Ondo Chieftaincy of 1958 made under the Appointment and Recognition of Chiefs Law 1954. Paragraph 3 contains the citation and date of commencement as 3rd day of January 1984.
The Court of Appeal held tenaciously to the 1958 Declaration. That Court did not see the Declaration revoked. The Court said at page 336:
The OsemaweChieftancy Declaration was therefore intact and was not affected by the amended Chieftaincy Declaration. The appointment of any Osemawe therefore must be made within the four corners of 1958 Ondo Chieftaincy Declaration. For the avoidance of any possible doubt, Osemawe of Ondo Chieftaincy Declaration of 1991 is not potent enough to take the position of the 1958 declaration, which is the applicable law in this matter.
With the greatest respect, I cannot go along with the Court of Appeal. Where a subsequent legislation or Order revokes an earlier legislation or Order, Courts of law do not have the jurisdiction to still rely on the revoked legislation or Order. It is trite law that a revoked legislation or Order has no more force of law from the date of the revocation and a Court cannot by its interpretative jurisdiction revive the revoked legislation because it is moribund or dead from the date of the revocation. By the doctrine of separation of powers, it is the constitutional function of the Legislature to make laws, including amendment and revocation and our duty in the Judiciary is to interpret the amendment or revocation toachieve the intention of the Legislature. Where the intention of the Legislature is clear and unambiguous, Courts of law must so interpret the provisions of the legislation. We c