ALHAJI RAMONU MUSENDIKU v. FATAI LIADI & ORS.
(2010)LCN/3605(CA)
In The Court of Appeal of Nigeria
On Friday, the 5th day of March, 2010
CA/L/486/2007
RATIO
INTERPRETATION: INTERPRETATION OF SECTION 6(6)(B) IN RELATION TO THE RIGHT OF A PERSON TO ENFORCE HIS CIVIL RIGHTS
Finally, on this point, we must remember that section 6(6)(b) of the Constitution of the Federal Republic of Nigeria, 1999 guarantees uninhibited right to every person to go to Court seeking a determination of any question as to his civil rights and/or obligations. It is my view that for any condition precedent to the exercise of that constitutional right to be effective it must be constitutionally, legally and expressly provided.” PER PAUL ADAMU GALINJE, J.C.A
JUSTICES
BODE RHODES-VIVOUR Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
Between
ALHAJI RAMONU MUSENDIKU Appellant(s)
AND
FATAI LIADI & 8 ORS
(a.k.a. Inufele) Respondent(s)
PAUL ADAMU GALINJE, J.C.A (Delivering the Leading Judgment): By an amended statement of claim dated 12th of July, 2005, the 1st, 2nd, 3rd and 4th Respondents herein claimed against the Appellant herein and 5 others, the following reliefs:-
1. A declaration that under native law and custom, it is only the descendants of OSU-LAIGBO that are entitled to the Baaleship of ISHERI-OSHUN.
2. A declaration that the action of the 2nd and 3rd defendants in proceeding to consider a candidate for the vacant stool of Baale of Isheri Oshun without recourse to the OSU-LAIGBO Family is an infraction of the customary right of LAIGBO-OSU family.
3. A declaration that the 4th defendant, not being a descendant of LAIGBO-OSU Family, is not entitled to be considered nominated or approved for the Baaleship of ISHERI OSHUN.
4. A declaration that the declaration contained in page B10 of Gazette ISSN 0189-0174 NO.4 of 1996 (as it relates to the recognition of ruling houses (sic) in Isheri Oshun) is null and void.
5. A declaration that the descendants of Oshoboja family or Gbadamosi Akapo are not entitled to be considered for the vacant stool of Baale of Isheri Oshun.
6. An Order of Injunction restraining the 5th and 6th defendants from laying any claim to the Baaleship of Isheri Oshun.
7. An Order of Injunction restraining the 2nd and 3rd defendants from considering or approving the 4th defendant based on the declaration contained in the Gazette (for any person whosoever who is not from the lineage of LAIGBO OSU) as the Baale of Isheri Oshun.
8. A Mandatory Order directing the 2nd and 3rd defendants to invite LAIGBO-OSU Family by letter to present a candidate to fill the vacant stool in accordance with established Native Law and Custom.
The appellant herein who is the 4th defendant in the pending suit at the lower court, by a statement of defence dated 28th November, 2005 joined issues with the 1st to 4th Respondents. Thereafter the Appellant filed a motion on notice on the 25th September, 2005 in which he sought, for an order striking out and/or dismiss the suit in limine on the ground that the suit is premature and incompetent, having regard to the provision of section 24(3) of the Obas and Chiefs of Lagos State Law Cap 02 Volume 6 of the Lagos State Laws of Nigeria 2004. This application was heard and in a reserved and considered ruling which was delivered on the 5th of April, 2006, the Court held that it had jurisdiction to entertain the case, because the claim involves among others, issues relating to breach of fair hearing before the making of the Chieftaincy declaration upon which the selection of Obas and Chiefs is based. The application was dismissed for lacking in merit.
The Appellant was unhappy with the ruling. Being dissatisfied and aggrieved, he appealed to this Court. His notice of appeal dated 18th April, 2006 contains four grounds of appeal which I reproduce thereunder without their particulars:-
1. The Learned trial Judge erred in law when he in violation of section 12(1) and 24(3) of the Obas and Chiefs of Lagos State Law wrongly assumed jurisdiction over the claimants’ action.
2. The Learned trial Judge erred in law in construing the claims of the claimants as not being an amendment or substitution of the Chieftaincy Declaration, but a nullification of it and thereby wrongly assumed jurisdiction over the claimants’ claims.
3. The Learned trial Judge misdirected himself in applying the decision in the cases of Odugbo v. Abu (2001) 14 NWLR (pt. 732) 45 and Ikine v. Edjerode (2001) 18 NWLR (pt. 745) 446 and thereby wrongly assuming jurisdiction in the suit.
4. The Learned trial Judge erred in law when at page 3 of his Ruling held.
“The issue of fair hearing, as averred by the claimants, has taken this suit out of the contention of Learned Counsel for the Applicant. His contention is only restricted to a dispute on the appointment of a person, thus the cases he relied upon. The issue is greater than that. The issue as contented (sic) by the claimants, is that the declaration was obtained without them as members of the Laigbo-Osu family, being heard as to the customary law that binds them. Section 24 of the law, with respect to learned Counsel for the Applicant cannot be a bar to this action, on the allegation that the declaration was made without, I use the words loosely, “the impute” (sic, ‘the impute”) of the claimants, if they are really bonafide members of the family in which the declaration apply as Customary law.”
In line with the relevant rules of this Court, parties filed and exchanged briefs of argument which were variously adopted on the 8th December, 2009. At page 7 of the Appellant’s brief of argument dated 4th February, 2008 and filed on the 4th February 2008, the following issue is formulated for the determination of the appeal:-
“Whether having regards to the reliefs, the averments in the statement of claim and the relevant laws, the Court below was right to have held that it had jurisdiction to entertain the suit.”
The appellant’s reply brief is dated 20th May, 2009 and filed on the 21st May, 2009.
At pages 3 to 4, paragraph 2.1 of the 1st to 4th Respondents’ brief of argument dated and filed on the 23rd April, 2009, Mr. Olumide Ajumerely adopted the sole issue formulated by the appellant. 5th to 7th Respondents did not file any brief and so were not heard in argument.
Mr. Amugo-Umokoro, learned Counsel for the 8th and 9th Respondents attempted to introduce the 8th to 9th Respondents brief of argument but found that it was filed out of time and so had to withdraw it.
Before I consider the argument of both parties, it is pertinent to set out briefly the facts of this case. The 1st to 4th Respondents who are the claimants at the lower court are members of OSU-LAIGBO Ruling House of Isheri Oshun. Their claim is that from time immemorial they have exercised both physical and administrative control over Isheri-Oshun and that the Baale of Isheri Oshun has always been appointed from Osu-Laigbo family. However, after the demise of the last Baale, from Osu Laigbo family, the 2nd and 3rd Respondents commenced arrangement to approve and install the 4th Respondent who is not from Osu Laigbo family as the Baale of Isheri-Oshun. That decision is based on a declaration contained in Gazette ISSN 0189-1074 No.4 of 1996 which made Koniba family a ruling house in Isheri-Oshun. The 1st to 4th respondents who claimed that the declaration is against the tradition and custom of Isheri-Oshun, contended that Osu-Laigbo family was not consulted before the declaration was made as such they were not given fair hearing. They therefore took out a writ at the lower court to challenge the validity of the declaration. The appellant herein brought an application at the lower court praying that the suit be dismissed in limine. It is the refusal to do so by the learned trial Judge that has resulted to this appeal.
Mr. Kemi Pinheiro, learned Senior Counsel for the appellant, in his argument, submitted that the objection raised in the application of the appellant to the suit of the 1st to 4th Respondents at the court below was predicated on the provisions of sections 12 and 24 of the Obas and Chiefs of Lagos State Law Cap. 02 Volume 6 of the Laws of the Lagos State of Nigeria 2004. The summary of the objection was that the suit was premature in view of the aforestated provisions of the law and that the court consequently lacked jurisdiction to entertain same. Learned Senior Counsel cited the authorities in Eguamwense v. Amaghizenwen (1993) 9 NWLR (pt. 315) 1 and Fasade v. Babalola (2003) 13 NWLR (pt.8030) 26 and urged the Court to set aside the decision of the lower court.
Mr. Olumide Aju, Learned Counsel for the 1st to 4th Respondents submitted that all arguments canvassed by the Learned Senior Counsel for the appellant on these points are totally misconceived and shows a lack of understanding of the nature of claim presented to the lower court and reliefs being sought before that Court. In a further argument learned Counsel submitted that the supervisory powers of the Court in matters such as this, has never been in doubt, and the ruling of the lower court receives support from earlier decisions of the Supreme Court that the High Court retains its jurisdiction, as the Court of last resort, where the scope of the relief before the Court, touches on the denial of fair hearing by a public or statutory body. In aid learned Counsel cited the case of Yahaya Adigun v. A.G. Oyo State (1987) 1 NWLR (pt. 53) 678 and contended that the Supreme Court in that case, did not impose an added obligation, that the plaintiffs ought to first exhaust a review mechanism of appealing to the Governor before nullifying the declaration as it is being contended by the Appellant in this appeal. Learned Counsel also cited Ajakaiye v. Idehai (1994) 8 NWLR (pt. 506) 525 where the Supreme Court held that once the relief before the Court is not for the Court to take over the statutory functions reposed in a named office like the Minister, Commissioner, President or Governor regarding the appointment of a Chief or the amendment of a Chieftaincy declaration, the Court still retains its jurisdiction to declare as to the validity or otherwise of the Chieftaincy declaration. Learned Counsel then urged this Court to dismiss the appeal.
In the decision of the lower Court upholding its jurisdiction to entertain this matter, it held as follows:-
“The issue of fair hearing, as averred by the claimants, has taken this suit out of the contention of learned Counsel for the Applicant. His contention is only restricted to a dispute on the appointment of a person, thus the cases he relied upon. The issue as being contended by the claimants is that the declaration was obtained without them, as members of the Laigbo-Osu family, being heard as to the Customary Law that binds them. Section 24 of the law, with respect to learned Counsel for the Applicant cannot be a bar to this action, on the allegation that the declaration was made without, I use the words loosely, “the imput” of the claimants, if they are really bona fide members of the family in which the declaration apply as Customary Law.”
Section 11 of the Obas and Chiefs of Lagos State law provides as follows:-
“Where a declaration in respect of a recognized Chieftaincy is registered under this section the matters therein stated shall be deemed to be the customary law regulating the selection of a person to be the holder of the recognized Chieftaincy of the exclusion of any other customary usage or rule.”
Section 12 of the same law provides as follows:-
“(1) Where the governor is satisfied that a registered declaration;
(a) does not contain a true or sufficiently clear statement of the customary law which regulates the selection of a person to be the holder of a recognized Chieftaincy; or
(b) does not contain a sufficient description of the method of selection of the holder of such recognized Chieftaincy; or
(c) contains any error whether as to its form or substance; or
(d) is otherwise defective, faulty or objectionable having regard to the provisions of this law, the Governor may require the Chieftaincy committee to amend such declaration in any respect that he may specify or to make a new declaration, according as he may consider necessary or desirable in each case.”
The 1st ground of the application that led to this appeal is that the suit brought by the 1st to 4th Respondents is premature and incompetent having regard to the provision of section 24(3) of the Obas and Chiefs of Lagos State Law Cap. 02 Volume 6 of the Lagos State Laws of Nigeria 2004.
The 2nd ground is that the provision of section 12(1) of the same law makes the Governor the only authority with the power to amend or replace a defective or faulty registered declaration having been satisfied that any of the conditions in sub-sections A-D exists.
Section 12(1)(a)-(d) has been reproduced before now. ‘However, section 24(3) of the Obas and Chiefs of Lagos State Law Cap 02 Volume 6 of the Lagos State Laws of Nigeria 2004 provides as follows:-
“Where there is dispute, whether a person has been appointed in accordance with customary law to a customary chieftaincy, the chieftaincy committee may determine the dispute.” The provision of section 12 of the Obas and Chiefs of Lagos State Law (the law) empowers the Governor to direct a Chieftaincy committee to amend any chieftaincy declaration where such declaration:
1. does not contain a true or sufficiently clear statement of the customary law which regulates the selection of a person to be the holder of a recognized chieftaincy.
2. does not contain a sufficient description of the method of selection of the holder of such recognized chieftaincy.
3. contains any error whether as to its form.
4. is otherwise defective, faulty or objectionable having regard to the law.
The 1st to 4th Respondents claims at the lower court do not fall into any of the provisions of section 12 of the law. Where a claim relates to any of the items mentioned in section 12 of the law, a party who feels aggrieved may exhaust all the administrative remedies available before heading to the Court. However, in the instant case the 1st to 4th Respondents claimed that none of the members of OSU-Laigbo was consulted before the declaration contained in page B10 of the Gazette ISSN 0189-0174 NO.4 of 1996 (Gazette) was made, is a clear complaint of lack of fair hearing and a challenge to validity of the chieftaincy declaration that made Koniba family a ruling house in Isheri Oshun. The claims at the lower court are not covered by section 24(3) of the Obas and Chiefs of Lagos State Law.
In Unilorin v. Oluwadare (2003) 3 NWLR (pt. 808) 557 where it was argued for the appellant that until the respondent had exhausted the remedies provided in section 17(2) of the University of Ilorin Act any resort to a Court action was premature. Section 17(2) of the University of Ilorin Act provides that, where disciplinary measure is meted out to a student, he may within the prescribed period and in the prescribed manner appeal against it to the council, and where such an appeal is brought, the council shall after causing such inquiry to be made in the manner as the council considers just, either confirm or set aside the direction or modify it in such manner as the council thinks fit.
It was held that the student was not bound to take his appeal to the University Council before he institutes an action. At page 583 paragraphs F-H, Onnoghen JCA, (as he then was) had this to say:-
“That apart the respondents’ complaint is basically against an infringement of his fundamental right of fair hearing which is a constitutionally guaranteed right that cannot be taken away by any domestic arrangement between parties.
Finally, on this point, we must remember that section 6(6)(b) of the Constitution of the Federal Republic of Nigeria, 1999 guarantees uninhibited right to every person to go to Court seeking a determination of any question as to his civil rights and/or obligations. It is my view that for any condition precedent to the exercise of that constitutional right to be effective it must be constitutionally, legally and expressly provided.”
I associate myself with my learned brother, Onnoghen JCA (as he then was) and adopt the holding as reproduced hereinabove, as mine. The authorities in Eguamwense’s case and that of Fasade v. Babalola (supra) are not applicable in this case as they concern dispute over appointment made under valid Chieftaincy Declarations. The 1st to 4th respondents cannot be barred from having their matter determined at the lower court by the provisions of the Obas and Chiefs of Lagos State law.
Finally, I find no merit in this appeal which I hereby dismiss. The Respondents are entitled to the cost of this appeal which I assess at N30,000:00.
BODE RHODES-VIVOUR, J.C.A.: I read in advance the judgment of my learned brother P. A Galinje, J.C.A, and I am in full agreement with him that this appeal has no merit. I also dismiss the appeal with the consequential order as to costs.
HUSSEIN MUKHTAR, J.C.A: I was privileged to read in draft the lead judgment of my learned brother Galinje, J.C.A just delivered. I am in complete agreement with the reasoning therein and the conclusion that the appeal is devoid of merit, which I adopt as mine.
I also would dismiss the appeal for lacking in merit and subscribe to the consequential orders in the judgment including the one as to cost.
Appearances
Kemi Pinheiro, SANFor Appellant
AND
Mr. Olumide Aju
Mr. Amugo-UmukoroFor Respondent
