HIGH CHIEF EMMANUEL OJO FAGBEMI V. H.R.M OBA NOAH ADEJUMO OMONIGBEHIN & ORS
(2012)LCN/5600(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 26th day of September, 2012
CA/AE/47/2011
RATIO
CHIEFTAINCY MATTERS: POSITION OF THE LAW WHERE A PRESCRIBED AUTHORITY IS GIVEN THE POWER TO LOOK INTO COMPLAINTS FROM CHIEFTAINCY ISSUES AND CIRCUMSTANCES THE COURT CAN INTERFERE
This was made clear in the case of OGUNBAMBI V, BADAGRY L.G. (2009) (SUPRA) at PAGES 172 – 173, 35 – 25, where it was held that where there is a prescribed authority to look into complaints of candidates or contestants to the chieftaincy, nominations or elections to fill vacant chieftaincies in accordance with the customary law of the area regulating the chieftaincy the authority or person prescribed under the law or statute could conduct an inquiry or take decisions on such matters as has happened in this case where the committee of inquiry has taken its decisions and submitted their recommendations. It was held as per Adamu, J.C.A (as he then was) that where a party is aggrieved, the options are as follows:
“A party aggrieved by that enquiry or decision can then thereafter approach the High Court for a review or for the remedy under its supervisory jurisdiction. See, OLADOYE V. ADMINISTRATORS OSUN STATE (1996) 10 NWLR (Pt.475) 38 at 53-54, LIPEDE V. SHONEKAN (1995) 1 SCNJ 184; 1995 1 NWLR (PT.374) 668 and EDEWOR V. UWEGBA (1937) 1 NWLR (PT.50) 313.” PER CHIDI NWAOMA UWA, J.C.A.
JUDICIAL REVIEW: PURPOSE OF JUDICIAL REVIEW
In respect of a judicial review, it is usually for the purpose of quashing any illegal acts or erroneous decisions, for instance, performed in excess of the jurisdiction of the inferior court or governmental body, see, NWANKWO V. SHITTA-BEY. PER CHIDI NWAOMA UWA, J.C.A.
JURISDICTION: HOW CAN THE JURISDICTION OF THE HIGH COURT TO GRANT DECLARATION BE TAKEN
No doubt, the law is that the jurisdiction of the High Court to grant a declaration is not to be taken away except by clear words. PER CHIDI NWAOMA UWA, J.C.A.
JURISDICTION: HOW CAN A PARTY EVOKE JURISDICTION OF THE COURT
Similarly, jurisdiction of the court cannot be exercised in vacuum. In other words, for a party to evoke the jurisdiction (whether original, appellate or supervisory) of the court, such a party must come with proper legal tools in a proper procedure and there should be nothing in the claim of such a party or any statutory provision capable of disrobing the court of jurisdiction. This means that where a statute provides for a procedure to be observed or followed before a matter can be instituted, such has to be observed or complied with in order not to divest the court of the competence to entertain same. PER SOTONYE DENTON-WEST, J.C.A.
JUSTICES
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
HIGH CHIEF EMMANUEL OJO FAGBEMI
The Elekota of Kota
(For himself and on behalf of Kota Ekiti Community) – Appellant(s)
AND
1. H.R.M OBA NOAH ADEJUMO OMONIGBEHIN
(The Olumo of Omuo Ekiti)
2. GOVERNOR EKITI STATE
3. SPEAKER EKITI STATE HOUSE OF ASSEMBLY
4. SPECIAL ADVISER ON CHIEFTAINCY MATTERS AND CULTURE
5. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE EKITI STATE
6. EKITI STATE COUNCIL OF TRADITIONAL RULERS – Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of A.S Daramola, J (now Chief Judge) of the Ekiti State High Court, Ado-Ekiti Judicial Division delivered on the 13th day of December, 2010 in which the preliminary objection challenging the jurisdiction of the lower court to entertain the 1st respondent’s suit was overruled.
The background facts are that the 1st respondent a paramount ruler of Omuo Ekiti in Ekiti East Local Government Council, Ekiti State instituted the suit at the lower court originally against the 2nd-6th respondents. The Appellant on becoming aware of the pendency of the suit applied to be joined and the prayer was granted by the trial court. The 1st respondent thereafter amended his writ of summons and statement of claim with the leave of court, in which the following reliefs were sought:
“i. A declaration that the Olomuo of Omuo Ekiti is the paramount ruler of Omuo Kingdom.
ii. A declaration that by the custom and tradition of Omuo kingdom, there is only one Oba in Omuo Kingdom.
iii. A declaration that the Elekota of Kota is a member of the kingmakers to Olomuo who is the only recognized Oba of the entire Omuo Kingdom.
iv. A declaration that it is not the custom and tradition of Yoruba land and Omuo Ekiti in particular to elevate a kingmaker to the status of an Oba.
v. An order that the Olumuo of Omuo Ekiti is the only recognized paramount ruler in Omuo kingdom and over all areas traditionally associated with Omuo.
vi. An order that Olomuo of Omuo Kingdom is the only prescribed authority over minor chieftaincies in Omuo and all areas traditionally associated with it including Kota.
vii. An order that Elekota of Kota remains a quarter head chief under the paramountcy of Olomuo according to custom and tradition and relevant chieftaincy declaration.
viii. An order of injunction restraining the defendants, their agents, servants or privies from recognizing or having anything to do with Elekota Chieftaincy in Omuo kingdom pending the final determination of this suit.”
Before the hearing of the substantive suit, the 2nd-6th Respondents filed an application challenging the jurisdiction of the lower court to entertain the suit. The said application was anchored on seven (7) grounds. The Appellant was in support of the application brought by the 2nd – 6th Respondents and filed an affidavit in support to that effect.
The appellant contended that he and the 1st Respondent submitted themselves to the Committee of Inquiry set up to look at the agitation for autonomy by the appellant, both were said to have presented memorandum to the committee of inquiry and gave evidence. At the end of the proceedings the committee of inquiry was said to have made recommendations to the Governor, in summary, to the effect that the appellant be recognized as a crowned Oba and an autonomous entity. The Governor was yet to accept the recommendations when the 1st Respondent instituted this action.
On the part of the 2nd – 6th respondents, they contended that the 1st respondent ought to have approached the lower court for a judicial review of the recommendations of the committee of inquiry, relying on Sections 1, 3 and 16 of the Chiefs Law of Ondo State 1991 as amended, as applicable in Ekiti State.
The learned counsel to the 1st Respondent on his part argued that the 1st respondent has the right to seek declaratory reliefs as he did in the lower court and that there was no provision in the Chiefs Law that ousted the jurisdiction of the lower court to entertain the 1st respondent’s claim.
In his ruling, the learned trial judge dismissed the application of the 2nd – 6th respondents and assumed jurisdiction over the suit.
The appellant was dissatisfied with the Ruling and appealed against same. From his three grounds of appeal, pages 474 – 477 of the records, a sole issue was formulated for the determination of this appeal. That is:
“Whether the lower court has original jurisdiction to entertain and grant the declaratory reliefs claimed by the 1st respondent when it was obvious that both the 1st respondent and appellant have submitted themselves before a chieftaincy Committee of Inquiry and awaiting the final decision of the Governor on same”
The 1st Respondent on his part also formulated a sole issue for determination of this appeal, as follows: –
‘Whether the original jurisdiction of the lower court to entertain and grant the declaratory reliefs being sought by the 1st Respondent’s suit commenced by way of writ of summons and statement of claim is expressly excluded by the Chiefs Law of Ondo State as amended (applicable in Ekiti State) despite the recommendations of the Chieftaincy Committee Inquiry.”
The 2nd – 6th Respondents did not file any brief of argument.
On the 21st day of May, 2012 this court granted the appellant’s application that this appeal be heard in default of the 2nd – 6th Respondents’ brief of argument. Therefore, this appeal was determined on the appellant and 1st Respondent’s briefs alone.
In arguing the appeal, the counsel to the appellant, Bamidele Omotoso Esq,, adopted and relied on the Appellant’s brief of argument dated 30th November, 2011 and filed on 1st December, 2011. In arguing his sole issue, it was submitted that the appellant and the 1st respondent submitted themselves to the jurisdiction of the Committee of Inquiry and that the latter having submitted its report or recommendation to the appropriate authority, neither of the parties is permitted to withdraw therefrom or institute an action to frustrate the report of the commission without any cogent reasons. Reference was made to Sections 1, 13 and 16 of the Chiefs Law (amended) 1999 of Ondo State as applicable to Ekiti State.
It was argued that the Governor (2nd Respondent) was yet to take decisions on the report of the committee when the 1st Respondent instituted this action. It was the contention of the learned counsel that the 1st respondent could only challenge the decision of the Governor on the recommendation or report of the Committee of Inquiry by way of judicial review. See, OGUNBAMBI V. BADAGRY LOCAL GOVERNMENT (2009) 9 W.R.N 156 at 172 – 173, lines 35 – 25. It was submitted that this action is premature, see, ADUGBO V. ABU (2005) 49 WRN 1 at 13. It was further argued that the lower court could only exercise appellate jurisdiction on the decision of the State Governor in respect of the recommendation or report of the Chieftaincy Committee, and that the decision of the State Governor could only be set aside by the lower court in an appropriate case in its supervisory or appellate jurisdiction, see, OKEAHIALAM V. NWAMARA (2003) 12 NWLR (PT.835) 597 at 597 PARAS D-H.
It was argued by the learned counsel that the lower court has only an appellate or supervisory jurisdiction over the proceedings of the Chieftaincy Committee of Inquiry, reliance was placed on the cases of SHYLLON V. UNIVERSITY OF IBADAN (2007) 1 NWLR (PT.1014) 1 AT 20 AND NWANKWO V. SHITTA-BEY (1999) 10 NWLR (PT.621) 75 NWLR (PT.1014) 1 at 20 and NWANKWO V. SHITTA-BEY (1999) 10 NWLR (PT.621) 75. Further, that the High Court is usually concerned with the legality of the decisions or proceedings of inferior courts or tribunals for the purpose of setting aside or quashing such illegality.
It was the contention of the learned counsel that the lower court could only exercise appellate or supervisory jurisdiction over the decision of the State Government on the recommendation of the Chieftaincy Committee and not original jurisdiction.
We were urged to set aside the ruling of the lower court, allow the appeal and strike out the 1st Respondent’s suit on the basis that the lower court lacks original jurisdiction to entertain same.
On behalf of the 1st Respondent, learned Counsel Oluwole Adeyemo Esq., adopted and relied on his brief of argument dated and filed on 5th January, 2012 in urging us to affirm the Ruling of the lower court. It was the submission of the learned counsel that the reliefs sought by the 1st Respondent in the lower court were declaratory in nature and that jurisdiction is always donated by the constitution or statute and not inferred or implied, reliance was placed on the case of EHUWA VS. ONDO STATE INEC & ORS (2007) VOL. 149 LRCN 1543 at 1579 EE. Therefore, that the jurisdiction of a trial court in any particular case is determined or decided by the claim in the writ of summons and the Statement of Claim. See, BALOGUN & ORS VS. ODE & ORS (2007) VOL 149 LRCN 1611 at 1622 JJ & 1623AF; CHIEF ADEYEMI & ORS VS. OPEYORI & ORS (1976) 9 – 10SC 31 at 50; CGG (NIG) LTD V. CHIEF LAWRENCE OGU (2005) 2 SCNJ 227 at 237, and CHIEF UTIH & 6 ORS V. ONOYINWE(1991) 1 SCNI 25 at P.63. Reference was also made to Sections 6 (6) b and 272(1) of the 1999 Constitution which set out the jurisdiction of the High Court to the effect that actions for declaratory reliefs, simpliciter, such as the present case fall within the original jurisdiction of the High Court. The learned counsel disagreed with the appellant’s contention that by virtue of Sections 1, 3, and 16 of the Chief’s Law (Supra) the 1st Respondent could only challenge the decision or report of the Chieftaincy Committee of Inquiry by way of judicial review.
Further, those superior courts of record are presumed to have jurisdiction until the contrary is proved. It was argued that reliefs (i) (viii) sought in the 1st respondent’s claim as set out in the lower court’s ruling, at pages 541 – 452 (sic) of the printed records had nothing to do with the report or recommendations of the Chieftaincy Committee of Inquiry set up by the 2nd Respondent herein. It was contended that the reliefs only sought for a declaration of the lower court to make a finding of what the applicable customary law is concerning the status of the Elekota of Kota as a quarter-head Chief and a Kingmaker under the paramountcy of 1st Respondent and according to the subsisting Olomuo Chieftaincy Declaration. It was submitted by the learned counsel that the lower court was in order to have ruled in favour of entertaining the 1st Respondent’s claim as the High Courts have jurisdiction to grant declaratory reliefs in Chieftaincy matters, see, OKOMALU V. AKINBODE (2006) 9 NWLR (PT.985) 339 at 355 B – D; IKINE VS. EDJERODE (2000) 18 NWLR (PT.745) and EGUAMWENSE VS. AMAGBIZENWEN (1993) 9 NWLR (PT.315) 1 at PAGE 200.
Further, that none of the provisions of Sections 1, 3 and 16 of the said Chiefs Law (Supra) precludes the honourable lower court from exercising its original jurisdiction over the declaratory and injunctive reliefs being claimed by the 1st Respondent. It was submitted that there is no procedural steps laid down by the Sections of the Chiefs Law relied upon by the Appellant for the filing of or prosecution of the reliefs being sought by the 1st Respondent. It was the submission of the learned counsel that the cases cited and relied upon by the learned appellant’s counsel are distinguishable. We were urged to dismiss the appeal and uphold the ruling of the lower court that it has original jurisdiction to determine questions relating to the existence of Chieftaincy disputes by way of declaration.
The learned counsel to the 2nd-6th Respondents, Gbenga Daramola Esq., informed this court when the appeal was argued, that he did not file any brief of argument and that by virtue of the provisions of Order 18 Rule 10 he could not proffer oral argument.
The lone issues formulated by the appellant and the 1st Respondent respectively are similar but differently couched, I would utilize the sole issue formulated by the appellant in determining this appeal as it encompasses the only issue as raised and argued by the Parties.
Both parties agree that the reliefs the 1st Respondent sought in the lower court are declaratory and injunctive in nature/ pages 327-328 of the printed records, It is on record that the 1st Respondent and the appellant submitted themselves to the Chieftaincy Committee of Inquiry set up by the State Government to look into the request of the appellant for recognition of Elekota of Kota as a crowned Oba. The memoranda of the Appellant and the 1st Respondent were submitted to the Chieftaincy Committee; Exhibits B – D, Pages 160 – 316 of the records.
The Report of the Chieftaincy Committee of the State Traditional Council of Traditional Rulers in their report, recommended that the appellant be recognized as an Oba and that Kota be granted autonomy, while the 1st Respondent should remain the paramount ruler of Omuo Kingdom, pages 317-324 of the records. The report was forwarded to the Governor of Ekiti State for consideration. Before the Governor’s consideration (one way or the other) the 1st respondent instituted this action claiming declaratory and injunctive reliefs.
The learned appellant’s counsel had submitted that the appellant and the 1st Respondent having submitted themselves to the jurisdiction of the Committee of Inquiry and its report/recommendations to the appropriate authority, neither of the parties could withdraw therefrom nor institute an action to frustrate the report of the Commission without cogent reasons, Sections 1, 3, and 16 of the Chiefs Law (amended) 1999 of Ondo State as applicable to Ekiti State were relied upon for this proposition and argument.
With a close look at the above provisions of the Chiefs Law (amended) (Supra), Section 1 vests on the State Government the power to make Chieftaincy Declarations, while Sections 3 and 16 of the same law empowers the State Executive Council to cause an inquiry to be held as ordered and held in the present case. Section 16(2) of the Chiefs Law (as amended) stipulates that the provision of the Commission of Inquiry Law shall apply in relation to an inquiry under the Edict as they apply in relation to inquiry under the law.
It is not in doubt that the report of the Committee has been submitted for the Governor’s approval. The Governor had not taken any decision on the report of the Committee before the 1st respondent instituted the action in the lower court and no approval had been given. The 1st respondent also agreed and argued that the Governor (2nd Respondent) had not taken any decision in respect of the recommendations of the Chieftaincy Committee, page 9 of the 1st Respondent’s brief of argument, as at the time the action was taken out in the lower court. The action sought declaratory and injunctive reliefs from the lower court to make declarations regarding who the paramount ruler of Omuo Kingdom, a declaration as to what the custom and tradition of Omuo Kingdom is, the membership of Elekota of Kota as a member of the Kingmakers to Olomuo, allegedly the only recognized Oba of the entire Omuo Kingdom and injunctive order sought restraining the defendants, their agents, servants or privies from recognizing or having anything to do with Elekota Chieftaincy in Omuo Kingdom pending the determination of this suit amongst other reliefs sought, pages 327 – 328 of the printed records, earlier reproduced in this judgment.
Section 1 of the Chiefs Law (Supra) vests on the State Government the power to make Chieftaincy Declarations. Section 1 provides as follows:
“1. (1) The Commissioner may by order apply the provisions of this any
(2) Subject to the provisions of this Edict, the Committee of a Local Government Council Area-
(a) May; and
(b) Shall, if so required by the Commissioner, make a declaration in writing stating the customary law which regulates the selection of a person to be the holder of a recognized Chieftaincy.
(3) In the case of a ruling house Chieftaincy the declaration shall include-
(a) A statement of the customary law relating to the following matters: –
(i) The number of ruling houses and the identity of each such ruling house;
(ii) Where there is more than one ruling house, the order of rotation in which the respective ruling houses are entitled to provide candidates to fill successive vacancy in the chieftaincy;
(iii) The persons who may be proposed as candidates by a ruling house entitled to fill a vacancy in the chieftaincy;
(iv) The number and identity of the Kingmakers; and
(v) The method of nomination by each ruling house.
(b) Where, before the making of the declaration, the right of providing candidates has not been exercised under customary law in accordance with an ascertainable order of rotation, the recommendation of the Committee as to the order in which the ruling houses should exercise that right after the coming into effect of the declaration.
(4) In the case of a recognized chieftaincy other than a ruling house chieftaincy, the declaration shall contain a sufficient description of the method of selection of the holder of the chieftaincy.
(5) In the exercise of their powers under this section a committee shall ensure that no family is declared as a ruling house which is not generally recognized as such at the time of making the declaration by the community with which the chief concerned is associated.
(Underlined mine for emphasis)
From the above section, there is a definite statutory provision for the declaration of the customary law regulating the selection of a person to be the holder of a recognized chieftaincy as well as those to be proposed as candidates by a ruling house entitled to fill a vacancy in the chieftaincy. The declaration also specified the method of selection of the holder of the chieftaincy amongst other things.
Section 3, specified the powers of the Executive Council with respect to the declarations specified in the Chiefs Law. In the present case where an Inquiry has been caused to be held in accordance with Section 16 of the Law (Supra) the report of the Committee when submitted to the 2nd respondent (the Governor) could amend, approve or totally refuse any declaration or declarations made by the Commission of Inquiry. Approval of the recommendations is not automatic. The Appellant and the 1st Respondent did agree that in this case the action was taken out before any decision by the Governor (2nd Respondent).
Section 3 of the Chiefs Law provides as follows: –
“3. (1) The Executive Council may, where it has caused an inquiry to be held in accordance with Section 16 amend, approve or refuse to approve any declaration or declarations made by the Commission of Inquiry.
(2) The Executive Council may approve or refuse to approve any declaration or declarations made by the Committee:
Provided that the Executive Council before exercising its powers under this sub-section may-
(a) Cause an inquiry to be held in accordance with section 16, or
(b) Whether or not an inquiry has been held, require the committee to amend the declaration in any respect that it may specify.
(3) Where in respect of a chieftaincy-
(a) The committee fails to make a declaration within six months of being required to do so in accordance with sub-section 1; or
(b) The committee fails to amend a declaration in the respects specified by the Executive Council within six months of being required to do so in accordance with sub-section (2) of this section,
The Executive Council may make a declaration in respect of that chieftaincy in accordance with the powers conferred on the committee.
(4) Before exercising any of the powers conferred by sub-section (3) of this section, the Executive Council may cause such inquiries to be held in accordance with Section 16 as appear to it to be necessary or desirable.
(5) Upon a declaration in respect of a chieftaincy being made by the Executive Council every declaration previously made under this Edict or under the repealed Law relating to that Chieftaincy shall be void and of no effect.”
While Section 16 provides as follows: –
16. “(1) The Executive Council may cause such inquiries to be held at such times and in such places and by such person or persons as it may consider necessary or desirable for the purposes of this Edict.
(2) The provisions of the Commissions of Inquiry Law shall apply in relation to an inquiry under this Edict as they apply in relation to an inquiry under that Law.”
The learned counsel to the Appellant had argued that the 1st respondent could only challenge the decision of the Governor on the recommendation or report of the Committee of Inquiry by way of judicial review but, in this case, the Governor was yet to take a decision on the report of the Committee of Inquiry. The High Court could review or set aside a decision of the Governor in an appropriate condition, in its supervisory role or appellate jurisdiction. The 1st Respondent’s action was neither an application for judicial review of the proceedings of the committee nor an appeal against any decision of the Governor. This was made clear in the case of OGUNBAMBI V, BADAGRY L.G. (2009) (SUPRA) at PAGES 172 – 173, 35 – 25, where it was held that where there is a prescribed authority to look into complaints of candidates or contestants to the chieftaincy, nominations or elections to fill vacant chieftaincies in accordance with the customary law of the area regulating the chieftaincy the authority or person prescribed under the law or statute could conduct an inquiry or take decisions on such matters as has happened in this case where the committee of inquiry has taken its decisions and submitted their recommendations. It was held as per Adamu, J.C.A (as he then was) that where a party is aggrieved, the options are as follows:
“A party aggrieved by that enquiry or decision can then thereafter approach the High Court for a review or for the remedy under its supervisory jurisdiction. See, OLADOYE V. ADMINISTRATORS OSUN STATE (1996) 10 NWLR (Pt.475) 38 at 53-54, LIPEDE V. SHONEKAN (1995) 1 SCNJ 184; 1995 1 NWLR (PT.374) 668 and EDEWOR V. UWEGBA (1937) 1 NWLR (PT.50) 313.”
The Chiefs Law (Supra) has made provisions as to the procedure to be followed to determine chieftaincy issues as regarding nominations, recognition, customary law guiding same amongst other functions, which must be exhausted before a party can resort to the High Court for a judicial review, or remedy under its supervisory jurisdiction. Even at that, the High Court’s role would be determining the legality of the proceedings and decisions of the inferior court or tribunal in this case the committee of inquiry, not the merits of the proceedings, decisions taken or the acts of the committee of inquiry. The merits of the decisions of the committee falls under what the High Court would determine under its appellate jurisdiction. In the present case the 1st respondent neither applied for a judicial review nor appealed against any decision. See, SHYLLON V. UNIVERSITY OF IBADAN (2007) (SUPRA); GOVERNOR OYO STATE V. FOLAYAN (1995) 8 NWLR (PT.413) 292; OKEAHIALAM V. NWAMARA (2003) (SUPRA).
In respect of a judicial review, it is usually for the purpose of quashing any illegal acts or erroneous decisions, for instance, performed in excess of the jurisdiction of the inferior court or governmental body, see, NWANKWO V. SHITTA-BEY.
The present action was by way of injunction and declarations sought by the 1st respondent from the lower court. By the nature and function of declaratory actions, it is used in a variety of circumstances and is usually accompanied by ancillary reliefs and no doubt can be utilized in chieftaincy disputes but, it depends on the surrounding circumstances of each particular case. The learned counsel to the 1st respondent had dwelt on the High Court having the jurisdiction to grant declaratory reliefs in chieftaincy matters and that it could exercise that jurisdiction without equivocation while relying on the cases of OKOMALU V. AKINBODE (2006) (SUPRA) and EGUAMWENSE Vs. AMAGBIZENWEN (SUPRA) amongst others. Declarations as sought in this case, are usually followed by ancillary reliefs, even though, it is discretionary, it would and ought not to be entertained where a decision has been taken by a statutory body as in this case.
A second decision from the High Court one way or the other would serve no useful purpose. Worse still, in the present case, the learned counsel to the 1st respondent has in his argument; at page 7 of his brief supported the case of the appellant by acknowledging the state of the law when he submitted that:
“… a declaration as to the customary law of a particular area may be a matter within the exclusive jurisdiction of those on whom it is conferred by statute …” (Underlining mine for emphasis).
The learned counsel went further to argue that: (at pages 7-8).
“… it is nevertheless within the province of the jurisdiction of the court to ascertain, as a matter of fact, what the customary law is and to decide whether the declaration sought is permitted by law.”
By this argument, the learned counsel with respect is blowing hot and cold. If a matter is within the exclusive jurisdiction of those on whom it is conferred by statute, the High Court has no business again to declare what the customary law is and to determine whether the declaration sought is permitted by law. Also, by so doing, the court would have assumed jurisdiction where none has been vested on it, if anything, it has been taken away by its grant to the body it is conferred by statute, in this case, the Chieftaincy Committee of Inquiry, via the Chiefs Law (Supra).
The learned counsel to the 1st respondent also argued, at page 8 of his brief that reliefs (i) (viii) of the 1st Respondent’s claim as set out earlier in this judgment had nothing to do with the report or recommendations of the chieftaincy committee of inquiry set up by the 2nd Respondent but, that the reliefs sought for a declaration of the lower court to make a finding of what the applicable customary law is, concerning the status of the Elekota of Kota as a quarter head chief and a kingmaker under the paramountcy of 1st Respondent and according to the subsisting Olomuo Chieftaincy Declaration. The question now is: Should the lower court grant the declarations sought, of what use would its finding of what the applicable customary law is, concerning the status of Elekota of Kota? It would be of no use and would have no effect on the status quo or the finding of the committee of inquiry on whom such power is vested by virtue of Section 1 of the Chiefs Law.
In my humble view, for the High Court to grant the declarations and the injunctive reliefs sought in this case following the decisions of the committee of inquiry, would require a hearing or rehearing (since the case before the lower court is not an application to review and it is also not an appeal against any finding) of a decided matter by the committee awaiting the reaction of the Governor (2nd Respondent). This situation would be endless as any dissatisfaction by anyone, of the decision of an inferior tribunal or an inquiry stands to be reheard on an application for declaration. There would be no end to it. Again, if the lower court entertains the matter and grants the declaratory orders sought, it would have no effect on the decision of the body of inquiry, which would still stand, it would not vacate or revoke such decision unless the committee on its own chooses to revoke its findings or declarations.
In addition, if the High Court entertains the matter and makes a finding and grants the declaration sought, it still would not serve any useful purpose, the scenario would be one of having two inconsistent findings, (on the same issues on the chieftaincy questions raised) one by the inferior body of inquiry and the other by the court. The line of cases where a chieftaincy declaration could be set aside under certain circumstances where for instance, a registered declaration is proved to be unconstitutional or contrary to the customs and traditions of the people or contrary to the provisions of any Act or Law (including the Chiefs Law) under which it was made) are distinguishable from the present case. In the former case, the court has the competence to declare same null and void if from the evidence, it is clear that the said declaration does not truly represent the customary law it professes to restate for which the declaration was sought in the first place, see, MAFIMISEBI VS EHUWA (2007) 1 S.C (PT.11) 73; (2007) 2 NWLR (PT.1018) 385 at 431, and more recently restated in the Apex Court’s decision: ADEKEYE & 6 ORS V. ADESINA & 4 ORS (2010) 12 S.C (PT.11) P.1, in which it was held that the court has no power to assume the functions of chieftaincy committee as regards the making or amendment of customary law governing the selection and appointment of traditional chiefs, see also ADIGUN VS. A.G. OYO STATE (1987) 1 NWLR (PT.53) 678. The declarations sought by the 1st Respondent would have the effect of the court making or amending the customary law (or being called upon to do so) governing the selection and appointment of traditional chiefs in which procedure has been given in the Chiefs Law. If the High Court assumes the power to do so, there would be in existence two parallel findings, one by the committee of inquiry another by the court.
As rightly argued by the learned counsel to the appellant, the action of the 1st respondent is premature having not exhausted all the remedies in the Chiefs Law before going to court, the Governor has not taken any decision on the report/recommendation, which if not favourable is challengeable. See, ODUGBO VS. ABU (SUPRA).
The issue before us is not whether a declaratory relief could be sought in the High Court in a Chieftaincy matter , simpliciter, the issue is: can the High Court be called upon to make declarations and grant injunctive reliefs concerning the same issues already taken a decision upon by the chieftaincy committee which has been empowered to do so by the Chiefs Law, that has been specifically vested with the power to make such declarations stating the customary law regulating the selection of recognized chieftaincies amongst other functions? I think not.
The learned counsel to the 1st respondent also dwelt on the combined effect of the provisions of Sections 6 (6) (b) and 272 (1) of the 1999 Constitution (Sections 6 and 236 of the 1979 Constitution) which set out the jurisdiction of the High Court, in arguing that actions for declaratory reliefs, simpliciter as in the 1st Respondent’s claim, falls within the original jurisdiction of the High Court but, undeniably, the High Court has an unlimited jurisdiction under the combined effect of the above provisions to hear and determine any civil or criminal proceedings or matter in which the existence or extent of any legal right, power, duty, privilege is in issue, such jurisdiction does not mean or is not restricted to the exercise of an original jurisdiction by the High Court. It includes the exercise of an appellate or supervisory jurisdiction by the said High Court, See, UTIH V. ONOYIVWE (1991) I NWLR (PT.166); GUARDIAN NEWSPAPER LTD VS. A.G, FEDERATION (1991) 1 SCNJ 25; (1995) 5 NWLR (PT.398) 703; BARCLAYS BANK OF NIGERIA LTD VS. CBN (1976) 6 S.C. 175 and MISCELLANEOUS OFFENCES TRIBUNAL V. OKOROAFOR (2001) 18 NWLR (PT.745) 295. The learned counsel to the appellant was therefore right when he argued that what was available to the 1st respondent if aggrieved by the report of the inquiry or decision was to approach the High Court for a review or a remedy under its supervisory jurisdiction, even at that, the necessary conditions would have to exist for such application as earlier highlighted in this judgment, such as error of law or fraud in the proceedings for a review and appeal when considering the merits, see, OLADOYE V. ADMINISTRATORS OSUN STATE (1996) 10 NWLR (PT.476) 38 at 53 – 54; LIPEDE VS. SHONEKAN (1995) 1 SCNJ 184; (199s) 1 NWLR (PT.374) 668 and EDEWAR VS. UWEGBA (1987) 1 NWLR (PT.50) 313.
Therefore, Section 272 of the 1999 Constitution is not an unlimited power for all High Courts to assume jurisdiction in all subjects, more so where provisions have been made statutorily through local remedies on specific subjects as in this case, which were not exhausted before the 1st respondent took out this action.
The present case must be distinguished from the line of cases where following the committee’s recommendations the Governor approves a recommendation, before implementation the aggrieved party goes to court to challenge the approval.
No doubt, the law is that the jurisdiction of the High Court to grant a declaration is not to be taken away except by clear words.
This was also in line with the submissions of the learned counsel to the 1st respondent who with due respect misapplied the law and the authorities cited and relied upon, along the line of MILITARY GOVERNOR ONDO STATE VS. ADEWUMI (1988) 3 NWLR (PT.82) 20; BALOGUN & ORS V. ODE & ORS (2007) VOL. 149 LRCN 1611 at 1622 amongst others. On the other and to the contrary, following the above statement of the law, a declaration as to the customary law of a particular area, in this case the Chiefs Law of Ondo State as applicable to Ekiti State which vested exclusive jurisdiction on those it conferred powers to look into chieftaincy dispute as outlined in the said law, which is statutory, by this, the jurisdiction of the court to consider an action for declaration in its original jurisdiction in respect of the same issues as provided for in the Chiefs Law by statute, has been taken away or ousted by the clear words of the provisions of the above law.
It is also trite, as argued by the learned counsel to the 1st respondent that it is the plaintiff’s claim in the writ of summons and the statement of claim that determines the court’s jurisdiction. The reliefs sought by the 1st respondent as plaintiff was not seeking for instance that the court determine the validity or otherwise of the existence of a particular custom but, is on the other hand asking the High Court to make Declarations that would have the effect of a sub-legislation or parallel legislation whatever the case may be. The duff of the court is not to legislate but rather to interpret what has been legislated, the law. The High Court in my humble opinion is not vested with the jurisdiction to make declarations of customary law relating to the selection of chiefs, under the law. It is outside the general jurisdiction of the High Court as donated by Section 272(1) of the 1999 Constitution.
I hold that the clear words of the Chiefs Law (Supra) particularly Sections 1, 3 and 16 are straight forward and unambiguous, has statutorily provided or vested the jurisdiction to determine chieftaincy disputes (appointment, approval, determination of chieftaincy disputes, suspension, deposition and abdication of Chiefs and matters connected therewith) in line with the Law.
The learned counsel to the 1st Respondent had argued that nothing in Sections 1, 3, and 16 of the Chiefs Law (Supra) precludes the High Court from exercising its original jurisdiction over the declaratory and injunctive reliefs claimed by the 1st respondent, It is trite that what is not included in a statute is excluded. The extent of the jurisdiction of the chieftaincy committee was specified in the Chiefs Law, which includes making recommendations to the Governor. In this case I reiterate that the Governor had not taken a decision when the 1st respondent took out his action. At this stage the issues of appeal or supervisory jurisdiction cannot be gone into as neither of these was before the lower court for determination.
In the final analysis, I hold that the lower court had no jurisdiction to entertain this matter, therefore the Ruling of the learned trial judge, A.S. Daramola, J. (Now Chief Judge) of Ekiti State High Court in Suit No: HAD/70/2004, delivered on 13th day of December, 2010 is hereby set aside.
The appeal is allowed. Suit No: HAD/70/2004 before the High Court is struck out on the ground that the trial court lacks original jurisdiction to entertain same.
The 1st respondent is to pay the appellant costs of N30,000.00 (Thirty Thousand Naira).
SOTONYE DENTON-WEST, J.C.A.: I am aware of the judgment of my learned brother, Chidi Nwaoma Uwa, JCA, just delivered. I agree to the judgment but not without reservation. I posit for the sake of emphasis, clarity and my reservation that generally, High Court has unlimited jurisdiction to hear and determine any civil or criminal proceedings or matter in which the existence or extent of any legal right, power, duty, privilege is in issue. See the provisions of sections 6(6)(b) and 272(1) of the 1999 Constitution of Nigeria (As amended). However, such jurisdiction is not limited to being original; it does not exclude the exercise of an appellate or supervisory jurisdiction by the said High Court. See, MISCELLANEOUS OFFENCES TRIBUNAL V. OKOROAFOR (2001) 18 NWLR (Pt.745) 295.
More so, the constitution of the Federal Republic of Nigeria 1999 (As amended) remains the fundamental and paramount law of the land. In essence, I dare say without equivocation that all other laws are subordinate and are built upon it, See Section 1(3) of the said 1999 Constitution.
Similarly, jurisdiction of the court cannot be exercised in vacuum. In other words, for a party to evoke the jurisdiction (whether original, appellate or supervisory) of the court, such a party must come with proper legal tools in a proper procedure and there should be nothing in the claim of such a party or any statutory provision capable of disrobing the court of jurisdiction. This means that where a statute provides for a procedure to be observed or followed before a matter can be instituted, such has to be observed or complied with in order not to divest the court of the competence to entertain same.
I quite appreciate the attitude of the trial Judge, A.S. Daramola, J. (now Chief Judge) of Ekiti State High Court who in his wisdom overruled the preliminary objection raised by the 2nd-6th Respondent challenging the jurisdiction of the court over the suit.
The court assumed jurisdiction in obedience to Sections 6(6)(b) and 272(1) of the said 1999 Constitution. This indeed is a right step in accordance with the dictates of the law. Nevertheless, the facts and circumstance of this appeal are such that I am reluctant to vindicate the trial court.
It is not in dispute that the reliefs sought by the 1st Respondent in the lower court are declaratory and injunctive in nature and that the 1st Respondent and the Appellant submitted themselves to the Chieftaincy Committee of Inquiry set up by the State Government to look into the request of the Appellant for recognition of Elekota of Kota as a crowned Oba. The Committee came up with a report and forwarded same to the Governor for his reaction. The expectant action of the Governor was yet to be performed when the matter was instituted before the lower court. By the combined provisions of Sections 1, 3, 16 of the Chiefs Law (Amended) 1999 of Ondo State as applicable to Ekiti State, the State Government is empowered to make Chieftaincy Declarations, the State Executive Council is empowered to cause an inquiry to be held as in the instant case and the commission of inquiry law shall apply in relation to an inquiry under the Edict as they apply in relation to inquiry under the law.
I am in consonance with the argument of the appellant that the High Court could review or set aside a decision of the Governor in an appropriate condition in its supervisory role or appellate jurisdiction. But the 1st respondent’s action at the lower court was neither an application for judicial review of the proceedings of the committee nor an appeal against any decision of the Governor.
See, OGUNBAMBI V. BADAGRY LOCAL GOVERNMENT (2009) 9 WRN 156 at 172-173; OLADOYE v. ADMINISTRATORS OSUN STATE (1996) 10 NWLR (pt.476) 38 at 53-54; LIPEDE V. SHONEKAN (1995) 1 SCNJ 184; (1995) 1 NWLR (PT. 374)-1068; EDEWOR V. UWEGBA (1987) 1 NWLR (PT.50) 313.
Notwithstanding the foregoing, certain questions could arise from this appeal such as: Is there any stipulated period within which the Governor ought to perform his duty in the circumstance? Was the period long overdue for the act? Can an individual be deprived of the right to fight for a just course in a court of law, simply because the Governor has not reacted as in the circumstance of this appeal? In addressing these puzzles, I wish to state that from the facts before the court, no proof that there was a stipulated time or delay/ failure on the part of the Governor to act on the Committee’s recommendations as to warrant the suit by the 1st Respondent at the court below. Be that as it may, I could see that the 1st Respondent was in a hurry to truncate Governor’s approval or disapproval of the recommendations of the committee. The Respondent’s action in my view was unripe and without regards to the statutory provisions up cited.
I must reiterate here that a party wishing to come to equity should wash his hands clean; otherwise the doors of equity may not be opened for such a party.
Furthermore/ may I state categorically that except for the peculiar circumstances of this appeal, High Court ordinarily is vested with the competence to entertain the matter.
On the whole, I am obliged with reservation, to align myself with my learned brother, Chidi Nwaoma Uwa, JCA’S judgment that the court below had no jurisdiction over the matter. I abide by all the orders made therein including order as to cost.
TOM SHAIBU YAKUBU, J.C.A.: My Lord, Chidi Nwaoma Uwa, JCA, had obliged me with the draft of the judgment of this court which he has just delivered. All the issues in the appeal were comprehensively and painstakingly addressed in the said judgment to my satisfaction, such that I have nothing more useful to add to it.
I abide by the consequential orders therein that the lower court had no jurisdiction to entertain the matter.
I subscribe to the order as to costs contained in the lead judgment, as mine.
Appearances
Bamidele Omotoso, Esq., with Rotimi Adabembe, Esq., and Jesumiseun Adewumi (Miss)For Appellant
AND
Oluwole Adeyemi Esq., for the 1st Respondent.
Gbenga Daramola, Esq., Deputy Directory Law Review, Ekiti State Ministry of Justice for 2nd – 6th Respondents.For Respondent
