MR. KAMALDEEN SALAHUDEEN & ORS v. PRINCE ADESINA AREMU AJIBOLA & ORS
(2019)LCN/13238(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of May, 2019
CA/IL/104B/2018
RATIO
WHETHER SECTION 15(1) OF THE CHIEFS (APPOINTMENT AND DEPOSITION) IS A CLOG TO ACCESS COURT, ARBITRARY AND AGAINST NATURAL JUSTICE
It is whether and having regards to Section 6(6) (B) and Section 272 of the Constitution of the Federal Republic of Nigeria, and Article 13(2), 17 (2) and 27(1) of the African Charter and People?s Rights (Ratification and Enforcement) Act Cap A9 Laws of the Federation of Nigeria, the provisions of Section 15(1) of the Chiefs (Appointment and deposition) law is not a clog to access of Court, arbitrary and against natural justice and thereby unconstitutional.PER HAMMA AKAWU BARKA, J.C.A.
FAIR HEARING: IT IS A CARDINAL PRINCIPLE
I must agree with the appellant, that the right to fair hearing is a cardinal principle established by no less, than the ground norm itself, the Constitution of the Federal Republic of Nigeria, 1999. By Section 36 (1) thereof, it is provided that:
In the determination of his civil right and obligation, including any question or determination by or against any government or any authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality.PER HAMMA AKAWU BARKA, J.C.A.
FAIR HEARING: THE ESSENCE OF THE RIGHT TO FAIR HEARING
The essence of this right, seeks to protect the individual from arbitrary decisions that may affect his interest, and guaranteeing to him access to a Court and or tribunal to be heard within the ambit the twin pillars of justice. See Victino Fixed Odds Ltd vs. Ojo & 2 Ors (2010)3 SC (pt. I) 1, per Fabiyi JSC.PER HAMMA AKAWU BARKA, J.C.A.
FAIR HEARING: THE EFFECT OF THE BREACH OF FAIR HEARING
The breach of the principle of fair hearing, renders anything done irrelevant and liable to be discountenanced, as the primary function of the constitution amongst others is the protection of fundamental human rights guaranteed therein.PER HAMMA AKAWU BARKA, J.C.A.
CHIEFS LAW: WHETHER SECTION 15 OF THE CHIEF LAW INFRINGED THE PROVISIONS OF SECTION 6(6) OF THE 199 CONSTITUTION, THE AFRINCAN CHARTER ON HUMAN AND PEOPLES RIGHTS AND THE PRINCIPLE OF NATURAL RIGHT
The plank of the appellants complaint lies on whether Section 15 of the Chiefs Law infringed the provisions of Section 6(6) of the Constitution, the African Charter on peoples right, and the principle of natural right. This Court in the case of Efiok V Government of Cross River (2010) LPELR 4078(CA) relying on the decision of the Supreme Court in NDC Ltd vs. ASWB (2008) ALL FWLR (pt. 422) 1052 @ 1071, where it was held that:
A condition precedent ordered to be done before litigant is entitled to sue by reason of the provisions of some statute is not an ouster clause, and not a devise adapted by the government to prohibit a judicial review. It is additional formality and unless proved to be enacted with a view to inhibiting citizens from having access to Court, is not contrary to Section 6 (6) (b) of the 1979 Constitution and further that:
It has to be borne in mind always and this is settled, that the constitutional right of access to court does not however preclude statutory regulations of the exercise of the right.PER HAMMA AKAWU BARKA, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
Between
1. MR. KAMALDEEN SALAHUDEEN
2. CHIEF SALIU ABDULSALAM
(The Esinkin Oke-Onigbin)
3. CHIEF BURAIMOH OGUNDE
(The Esa of Oke-Onigbin) Appellant(s)
AND
1. PRINCE ADESINA AREMU AJIBOLA
2. MALLAM MUSA DELODUN MOHAMMED
3. CHIEF SAMUEL ABOLARINWA
The Oloja of Oke-Onigbin
(for themselves and on behalf of Odo-Oja Ruling House of Oke-Onigbin)
4. THE GOVERNOR OF KWARA STATE Respondent(s)
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the interlocutory Ruling of the Kwara State High Court sitting in Ilorin in Suit No. KWS/251/2017, between Mr. Kamaldeen Salahudeen and 2 ors vs. Prince Adesina Aremu Ajibola and 3 ors, delivered on the 27th day of July, 2018, wherein the respondent?s preliminary objection was dismissed.
The appellants herein, were the plaintiffs before the lower Court wherein they claimed against the defendants as follows: –
1. A Declaration that the appointment and installation of the 1st defendant as the Onigbin of Oke-Onigbin on or about 16th April, 2016 about the time the cause of action in Suit No. KWS/88/2015 and Appeal No. CA/IL/47/2016 was extant is fraudulent, deceitful, wrongful, unlawful, unconstitutional, null and void and of no effect whatsoever.
2. A Declaration that by Oke-Onigbin native law and custom, there are only Ruling House that can occupy the stool of Onigbin of Oke-Onigbin in case of any vacancy which are the Egbaraojosan Ruling House Ile-Nla, Aniyaloye Ruling House Ile Odo-Oja, Amoyeniyi Ruling House Ile Baale (Ile Olotin) and
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Aleniloye Ruling House Ile Odogboeyin.
3. A Declaration that the purported nomination, appointment and installation of the 1st Defendant as Onigbin, not been a member of any of the known four Ruling Houses in Oke-Onigbin, is against the native law and custom of Oke-Onigbin and be declared improper, null and void.
4. A Declaration that by the claimants letter of 26th February, 2015, wherein they submitted the name of the 1st claimant to the 5th Defendant for confirmation as the Onigbin of Oke-Onigbin, the 1st claimant is the only validly and duly nominated candidate of Onigbin of Oke-Onigbin and entitled to be appointed and installed as Onigbin of Oke-Onigbi.
5. An Order declaring as null and void any document, instrument or certificate treating and or recognizing the Alapo Family as a Ruling House in Oke-Onigbin including any such document, instrument or certificate nominating, appointing and installing the 1st Defendant as the Onigbin of Oke-Onigbin.
6. An Order of perpetual injunction restraining the 2nd, 3rd, 4th and 5th Defendants from treating and or recognizing the Ile Alapo Compound as a family house that has a right to the
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Chieftaincy stool of Onigbin of Oke-Onigbin.
7. An Order of perpetual injunction restraining the 2nd, 3rd, 4th and 5th Defendants from treating and or recognizing the 1st Defendant as the Onigbin of Oke-Onigbin.
8. An Order of perpetual injunction restraining the 1st Defendant from acting or parading himself as the Onigbin of Oke-Onigbin including receiving emissaries and attending public functions as the Onigbin of Oke-Onigbin.
The 1st to 3rd respondents on receipt of the writ of summons and statement of claim, filed a joint statement of defense incorporating a preliminary objection challenging the jurisdiction of the trial Court, on the basis that the suit is caught up by the provisions of Section 3 (3) and Section 15 (1) of the Chiefs (Appointment and Deposition) Law amongst other grounds. Processes were thereafter filed in response to the preliminary objection, culminating to the ruling of the lower Court delivered on the 27th day of July, 2018 in favor of the appellants to the effect that the preliminary objection raised is without merit and thereby refused.
The 1st – 3rd Defendants now the 1st ? 3rd Respondents
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in this appeal were not satisfied with the decision of the lower Court, and thereby filed a Notice of Appeal to this Honorable Court via Appeal No: CA/IL/104/2018. See p. 352-357 of the Record of Appeal. The judgment in Appeal No: CA/IL/104/2018 was delivered on the 19th day of March, 2019, which judgment favored the Appellants in this Appeal. In the course of Appeal No: CA/IL/104/2018, the Appellants (then Respondent) successfully sought for the leave of this Honorable Court to cross appeal, which application was granted vide this Court?s ruling dated 19th day of March, 2019. Interestingly, the application seeking for the leave to cross appeal was made after judgment was delivered in Appeal No: CA/IL/104/2018, when Appellants sought the leave of this Honorable Court by Motion filed on the 20th day of March, 2109 and granted on the 2nd day of April, 2019 to raise and to argue fresh issue of law bordering on the constitutionality of Section 15 of the Chiefs (Appointment and Deposition) Law of Kwara State which was not raised nor addressed at the Lower Court and or contained in the Ruling of the Lower Court.
The Appellants appeal is predicated upon
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one ground of appeal, namely.
The learned Trial Judge erred in law when he gave credence to Section 15 of the Chiefs (Appointment and Deposition) Law of Kwara State which provisions in fact contravene Sections 6(6)(b) and 272 of the Constitution of the Federal Republic of Nigeria and Articles 13(2), 17(2) and 27(1) of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap A9, Laws of the Federation of Nigeria 2004, thereby constituting a clog to access to the Court, arbitrary and against the rules of natural justice.
In the appellants brief filed on the 20th day of March, 2019 and deemed filed on the 2nd of April, settled by Tosin Alawode, and from the lone ground of appeal filed, distilled a single issue to wit:
Whether having regards to Sections 6(6) (B) and 272 of the Constitution of the Federal Republic of Nigeria and Articles 13(2), 17(2) and 27(1) of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap. A9, Laws of the Federation of Nigeria, the provisions of Section 15 of the Chiefs (Appointment and Deposition) Law of Kwara State is not a clog
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to access Court, arbitrary and against natural justice and unconstitutional.
Mr Adeseko, the learned counsel for the 1st – 3rd respondents in opposition to the appeal, filed a joint 1st – 3rd respondents brief on the 12th of April, 2019 incorporating a preliminary objection to the competence of the appeal. The preliminary objection is primarily founded upon two grounds, namely that the sole ground as couched is vague and not a reasonable ground of appeal, thereby offending the provisions of Order 7 Rule 3 of the Court of Appeal Rules 2016, and further that the instant appeal ought to have come by way of a respondent?s notice of cross appeal, a respondent?s notice of appeal, and not a notice of appeal in view of appeal with No. CA/IL/104/2018. I shall return to the preliminary objection anon.
The 4th respondent on his part filed a brief of argument on the 11th of April, 2019, settled by H.A. Gegele, the learned Director civil litigation, Kwara State.
All the processes filed by the respective parties were identified by each of them and adopted as their various submissions on the 16th of April, 2019, being the scheduled
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hearing date. While the appellant urged upon the Court to allow the appeal, and to grant consequential prayers in the following manner:
1. A declaration that Section 15 of the Chiefs (Appointment and deposition) Law of Kwara State is inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria, the African Charter on Human and Peoples Rights (ratification and Enforcement) Act and the notions of natural justice, equity and good conscience thereby arbitral, null, void and unconstitutional.
2. The order striking down Section 15 of the Chiefs (Appointment and Deposition) Law of Kwara State for being inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria, the African Charter on Human and People?s rights (ratification and Enforcement) Act and the notions of natural justice, equity and good conscience.
It is appropriate at this point to consider the preliminary objection raised by the 1st ? 3rd respondents. The wisdom of doing so as settled by numerous decisions of the Apex Court and this Court is that where the preliminary objection to the appeal succeeds, there may
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be no need to go further considering the arguments in support of the issues for determination. See Ralph Uwazurike vs. AG – Federation (2007) LPELR ? 3448 (SC).
Preliminary Objection.
The 1st 3rd respondents preliminary objection raised against the hearing of the appeal is located at page 4 of the 1st – 3rd respondents brief, and argued from pages 4 ? 9 thereof. It was submitted therein that the sole ground of appeal as couched by the appellants is vague and not a reasonable ground of appeal, and thereby worthless and invalid. In support of the contention, learned counsel cited the case of CBN & 1 or vs. Okojie & ors (2002) 9 NSCQR 612 @ 621, which defined a vague ground of appeal as a ground of appeal which does not provide any explicit standard for its being understood, and or where the complaint cannot be understood in relation to the subject, or it is not particularized, or the particulars are clearly irrelevant. Alluding to the ground of the appeal as couched by the appellants, learned counsel questioned when the trial Court could be said to have given credence to Section 15 of the Chiefs (Appointment and Deposition) Law of Kwara State.
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In further submission learned counsel argued that a ground of appeal should attack the ratio of the finding of the trial court, and in the instant case, no ratio can be seen to have provoked the ground of appeal.
That aside, learned counsel questioned the competence of the ground of appeal on the reasoning that appellant ought to have initiated the appeal by way of respondents notice of appeal, a respondents notice of cross appeal and not a notice of appeal. He argued that appeals with No CA/IL/104/2018 and CA/IL/104B/2018 all filed by the appellant are meant to cause confusion and therefore misleading, and referred the Court to the decision of Olodo & Ors vs. Iburuku & Ors (2011) LPELR ? 3644 (CA), cited with approval in the decision of this Court to the effect that; the applicant being the respondent in the appeal and having filed a notice of cross appeal ipso facto becomes a cross appellant whether he tags it as notice of appeal or cross appeal, and it does not require a new appeal number. He urged the Court based on the foregoing to hold that the ground of appeal being incompetent rubs on
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the competence of the appeal, and should be struck out as being incompetent.
The appellants response to the preliminary objection raised can be found at pages 2 – 3 of the appellants reply brief filed on the 15th of April, 2019. Learned counsel argued therein that the sole ground of appeal in contention is neither vague nor confusing. He referred to paragraphs 3.0.0 3.0.4 of the appellants brief to that regard. He argued that in all honesty the respondent cannot claim ignorance of the complaint of the appellant and cites the case of Ngere vs. Okuruket XIV (2017) ALL FWLR (pt. 882) 1302 @ 1330 in that regard. He equally draws the Court?s attention to the particulars, and argued that the flaws highlighted therein are based clearly on issues of law.
On whether the sole ground related to the judgment of the lower Court, learned counsel referred to the application for leave to raise a fresh issue as granted by the Court, contending that the arguments raised by the respondent were determined by the said ruling on the application, and thereby becomes issue estoppel. The ruling of Tsammani JCA, in the case of
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Oyo State Paper Mills Ltd vs. Nibel Company (Nig.) Ltd (2017) ALL FWLR (pt. 873) 1653 @ 1710 was referred to. Learned counsel urged the Court on the foregoing to dismiss the preliminary objection as being misconceived.
The resolution of the two issues canvassed by this preliminary objection does not raise much concern. The issues raised and argued all gravitates around the application by the appellant to appeal on a fresh point or issue, to which the challenge to the constitutionality of Section 15 of the Chiefs (Appointment and Deposition) Law of Kwara State. The application having been sought for and granted, raising the same arguments as a preliminary point amounts to issue estoppel. In the case of Oyo State Paper Mills Ltd vs. Nibel Company (Nig.) Ltd, (supra) cited by the appellants, Tsammani on an issue, not dissimilar to the one under consideration, held that:
?After a careful consideration of the motions of the 3rd October, 2012, and 11th February 2013, I am of the view that the learned trial judge was right when he held that the locus standi of the appellant to present the petition had been settled vide the appellants motion of 3rd October, 2012. Same could
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therefore not be raised again as done by the appellants motion?. See also Ezewani vs. Onwordi (1986) LPELR ? 1214 (SC).
In any case as argued by the appellant, the learned counsel for the 1st ? 3rd respondent and indeed this Court cannot say that the complaint of the appellant, to wit whether the provisions of Section 15 of the Chiefs (Appointment and deposition) Law of Kwara State is unconstitutional vis a vis the provisions of Section 6 (6) of the Constitution of the Federal Republic of Nigeria 1999 as amended and Sections of the African Charter on Human and People?s Rights (Ratification and Enforcement) Act, is not a clog to access to justice and thereby arbitrary, and against natural justice, is not understood by him.
The appellant in the instant case as against the decision in the case of Olodo vs. Iburuku (Supra) is the appellant and not a respondent, and this differentiates the two situations, thereby making the Olodo case inapplicable. I think the correct stand of the Courts is that exposed by the Apex Court in the case of Ngere vs. Okuruket (supra), to the effect that where notable issues arise for the determination
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of the Court, such should call for the Court?s determination. I see no merit in the entirety of the preliminary objection raised, and accordingly dismiss the same.
Main Appeal.
All parties are agreed that the sole issue formulated by the appellants, to wit,
?Whether having regards to Sections 6(6) (B) and 272 of the Constitution of the Federal Republic of Nigeria and Articles 13(2), 17(2) and 27(1) of the African Charter on Human and Peoples Rights (Ratification and enforcement) Act, Cap. A9, Laws of the Federation of Nigeria, the provisions of Section 15 of the Chiefs (Appointment and Deposition) Law of Kwara State is not a clog to access Court, arbitrary and against natural justice and unconstitutional.
Learned counsel for the appellant argued the issue from pages 5 ? 10 of the brief, wherein he alluded to the provisions of Section 15 of the Chiefs (Appointment and deposition) Law of Kwara State as imposing an obligation on a person who intends to challenge the act of the Governor of Kwara State in appointing or approving the appointment of a graded chief in the state to first make a deposit of a non-refundable deposit
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of the sum of one hundred thousand naira, also Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1999 as amended, Section 272 (1) and (2) of the same Constitution, Article 13(2), 17 (2) and 27 (1) of the African Charter on Human and Peoples Rights (ratification and Enforcement) Act and submitted that any statute that seeks to undermine citizens constitutional rights particularly with regards to access to justice cannot be allowed. Relying on the case of Fidelity Bank Plc vs. Monye (2012) 10 NWLR (pt. 1307) 1 @ 32 per Adekeye JSC, learned counsel contends that whereas the law granted easy access to persons aggrieved, where any legislation is found to be inconsistent with the provisions of the Constitution, such legislation must give way and be struck out. He called in aid the decisions ofAigoro vs. Comm. Lands And Housing Kwara State (2012) 11 NWLR (pt. 1310) 111 @ 135, Ubani vs. Director, SSS (1999) 11 NWLR (pt. 625) 129, and Olagbenro vs. Olayinka (2014) 17 NWLR (pt. 1436) 313 @ 375 with regard to the supremacy of the Constitution over any other law, and posits that the Chiefs law is inconsistent with the provisions of the Constitution
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and the other laws above cited, and therefore urged the Court to declare that Section 15 of the Chiefs Law of Kwara State is inconsistent with the constitution, the African Charter on Human rights and all known notions of natural justice, equity and good conscience and therefore unconstitutional null and void. And finally to strike down Section 15 of the Chiefs law for its inconsistency with the constitution and the charter on human rights.
?The response of the 1st ? 3rd respondents is at pages 9 ? 16 of the brief. Contending that the answer to the question posed is in the negative, learned counsel argued that Section 15 of the Chiefs (Appointment and deposition) Law of Kwara State 2006 is a condition precedent before an aggrieved party can institute an action before a competent Court in respect of issues on the appointment of any chief by the Kwara State Government. Alluding to the provisions of Section 15 of the Chiefs Act, learned counsel opined that the law is part of the powers donated to the legislature by the constitution, and therefore a mere condition precedent which does not violate the principles of natural justice muted by the
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appellants.
The 4th respondent on his part from pages 4 ? 11 of their brief, and relying on established case law, maintained that the provisions of Section 15 (1) of the Chiefs Law is not an impediment to a citizen?s right guaranteed by Section 6 (6) of the Constitution of the Federal Republic of Nigeria 1999.
The sole issue for resolution is very narrow indeed. It is whether and having regards to Section 6(6) (B) and Section 272 of the Constitution of the Federal Republic of Nigeria, and Article 13(2), 17 (2) and 27(1) of the African Charter and People?s Rights (Ratification and Enforcement) Act Cap A9 Laws of the Federation of Nigeria, the provisions of Section 15(1) of the Chiefs (Appointment and deposition) law is not a clog to access of Court, arbitrary and against natural justice and thereby unconstitutional. This is the question all parties strove to answer.
I must agree with the appellant, that the right to fair hearing is a cardinal principle established by no less, than the ground norm itself, the Constitution of the Federal Republic of Nigeria, 1999. By Section 36 (1) thereof, it is provided that:
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?In the determination of his civil right and obligation, including any question or determination by or against any government or any authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality?.
The essence of this right, seeks to protect the individual from arbitrary decisions that may affect his interest, and guaranteeing to him access to a Court and or tribunal to be heard within the ambit the twin pillars of justice. See Victino Fixed Odds Ltd vs. Ojo & 2 Ors (2010)3 SC (pt. I) 1, per Fabiyi JSC. The breach of the principle of fair hearing, renders anything done irrelevant and liable to be discountenanced, as the primary function of the constitution amongst others is the protection of fundamental human rights guaranteed therein. The plank of the appellants complaint lies on whether Section 15 of the Chiefs Law infringed the provisions of Section 6(6) of the Constitution, the African Charter on people?s right, and the principle of natural right. This Court in the case of
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Efiok V Government of Cross River (2010) LPELR ? 4078(CA) relying on the decision of the Supreme Court in NDC Ltd vs. ASWB (2008) ALL FWLR (pt. 422) 1052 @ 1071, where it was held that:
?A condition precedent ordered to be done before litigant is entitled to sue by reason of the provisions of some statute is not an ouster clause, and not a devise adapted by the government to prohibit a judicial review. It is additional formality and unless proved to be enacted with a view to inhibiting citizens from having access to Court, is not contrary to Section 6 (6) (b) of the 1979 Constitution? and further that:
?It has to be borne in mind always and this is settled, that the constitutional right of access to court does not however preclude statutory regulations of the exercise of the right.?
Laid down the principles determining when an enactment can be held to infringe the provisions of Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1999thus:
?An enactment should not be held to infringe the provisions of Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1999, unless it does one of the
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following:
1. provide for the sharing of judicial powers of state with any other body other than the Court in which it is vested by the constitution.
2. purports to remove judicial power vested in the Court or redefine it in a manner as to whittle it, or
3. limit the extent of the power vested. The enactment must amount to a total or partial usurpation of judicial powers vested in the Courts by the Constitution, or it must have purported to divest the Court of the exercise of judicial powers. See also NNPC vs. Chief Gani Fawehinmi (1998) 7NWLR (pt. 559) 598.
In the instant case, it is evident that the appellant is irked by the stipulation in the Chiefs (appointment and deposition) law of Kwara State, which demands that the sums of N100, 000. 00 only be deposited by a litigant intending to challenge any appointment made in accordance with the Law. Mr H. A. Gegele, the learned Director, Kwara State argued that the provision of Section 15 (1) & (2) of the Chiefs Law of Kwara State merely laid down the condition precedence for the institution of a suit in respect of a graded stool as provided for under Section 5 of the Chiefs law of Kwara State
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and it is only when the condition precedent is complied with that the Court is clothe with the requisite jurisdiction to hear the suit. I agree with him. This Court in the earlier case of Adejola vs. Bolarinwa (2011) 12 NWLR (pt. 1261) 380 per Iyizoba JCA, in giving effect to the precondition of paying N100, 000. Held that:
?By the provision of Section 15(1) of the Chiefs (Appointment and deposition) Law of Kwara State,?. one of the condition precedent for litigation against the stool of graded chiefs is the payment of N100, 000, where one of the parties is a graded chief in chieftaincy matter, pre action notice or Governors enquiry, alternative dispute resolution to be issued before a government agency or department can be sued?.
Belgore JSC, in addressing the provisions of the Kwara State Edict No. 3 of 1988, which provision is akin to Section 15 (1) of the Chiefs Law of Kwara State in the case of Obaba vs. Mil. Governor of Kwara State (1994) 4 NWLR (pt. 336) 26, re-emphasized the position of the law with regards to the payment of the N100, 000. as a precondition thus:
?All that the payment of the fee of N10, 000
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Naira is to have access to Court to be heard. No action can be filled without payment of a fee? the edict to my mind was properly made by the Military Governor of Kwara State as by doing so he has not contravened any part of the constitution?.
Ogbuagu JSC in the case of Nigercare Development Co. Ltd vs. Adamawa State Waterboard and ors (2008) LPELR 1997 (SC), also commenting on the payment of a non-refundable deposit as a precondition for the institution of a case held that:
?In my respective view, the said provision is a condition precedent as far as the suit against the 1st defendant/respondent are concerned. Therefore the failure of the appellant to comply with it clearly makes the suit incompetent?.
I would however express gratitude to the learned counsel for the 4th respondent, having referred to the case of Atolagbe vs. Awuni (1997) NWLR (pt. 522) 536 @ 564, which case emanated from the High Court of Justice, Kwara State concerning a chieftaincy dispute. The full Court of the Supreme Court considered the provisions of Section 15(1) of Edict No. 3 of 1988, which also stipulated the deposit of N10, 000.00 prior to
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the commencement of any suit. In the said action, the argument therein was whether Section 15(1) of Edict No 3 of 1988 is a legislation which abridged the right of any person of access to justice and therefore not in consonance with the provisions of the 1979 Constitution. It would appear that the trial Court had earlier in his judgment agreed with the position that indeed the provision of Section 15 (1) of the Chiefs Edict, violated the claimants constitutional right as provided for by Section 6 (6) of the Constitution. The Apex Court in the consideration of whether indeed the statute conflicted with the constitution agreed with Chief Wole Olanipekun, held per Uwais CJN, that:
?It has been contended that the payment of the fee is punitive and therefore constitutes an infraction on the provisions of Section 6 (6) (b) of the 1999 Constitution which provides impeded access to Court. I am unable to accept this argument. In our system of Court administration, it is not possible for a litigant to walk into our Courts to institute a suit without paying fees. Such fees are being charged for the purpose of raising funds for public revenue. They are not
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charged to punish the litigant for deciding to take advantage of the provisions of Section 6(6) of the 1979 Constitution?.
Wali JSC, in his concurring decision rammed the point home, by stating that:
?Section 6(6) of the Constitution of Nigeria is not a clog on the government to legislate for peace, order and good government. Section 15(1) and (2) of the 1988 Edict No. 3 of Kwara State is not an impediment to a citizen?s right guaranteed by Section 6 (6) of the 1979 Constitution, but an extension of procedural law for initiating civil action in category of matters stated in the said law. It is purely procedural no more no less?.
?And Onu JSC, opined at length thus:
?Section 6 (6) (b), in my view, does not help the appellants? case, moreso that there is a difference between a law providing that the jurisdiction of a Court is completely ousted as contained in the Chiefs Edict No. 11 of 1984 (Ondo State) leading to the decision of this Court in Governor of Ondo State vs. Adewunmi (1985) 3 NWLR (pt. 13) 493 and a law like Edict No. 3 of 1988 (Kwara State) which is merely procedural or adjectival and stipulates
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a condition precedent which a litigant must fulfill before coming to Court for redress.?
To further buttress the fact that the provision of Section 15 of the Chiefs law which provides for a deposit of N100,000 to the Accountant-General of the state for any aggrieved party in the appointment of the graded stool in line with Section 5 of his lordship Muhammed JSC @ pg 567 para E-G sees the payment as a source of revenue for the state government the reason why his lordship opine @ pg 567 para E-G thus;
?chieftaincy disputes are by their nature a rich people contest if the government of Kwara State in its wisdom sees that it could gain revenue through the ever unending dispute in chieftaincy matters, in Kwara State, in my respective view, I do not see any infraction of Section 6 (6)(b) of the 1979 Constitution, if it imposes a fee of N100,000 as a condition precedent to filing a challenge to the validity of an appointment or refusal to appoint any chief in Kwara State. The Courts are open to parties wishing to sue provided that they pay revenue in the way of fees which the constitution permit the state government to raise for the
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administration of the state. In the same manner, if you want to obtain or reseal a letter of administration in which millions of naira are involved you have to be ready to pay large sum of money as fees before your letter of administration will be issued or resealed. It is not like any ordinary Court fee and is not contrary to the constitution.?
The aggregate of the extant decisions of the Court on the issue remains that although a Court of law will not allow any provisions of an enactment to be read in such a way as to deny a litigant access to Court pursuant to Section 6 (6) of the Constitution, Fidelity Bank Plc vs. Monye (2012) 10 NWLR (pt. 1307), Aigoro vs. Comm. of Lands and Housing Kwara State (2012) 11 NWLR (pt. 1310) 111, such situations having been spelt out in the case of Efiok vs. Government of Cross Rivers State (supra), the provisions of Section 15(1) of the Chiefs Law, cannot be construed as being inconsistent with the provisions of Section 6 (6) (b) of the 1999 Constitution, but rather a procedural step setting out a conditional precedent exercisable before a litigant can approach the Court. From the foregoing decisions and the
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finality laid to the issue by the Apex Court, that it cannot be held that Section 15 of the Chiefs Law of Kwara State is inconsistent with the provisions of the Constitution and or the African Charter on human and peoples right, nor can it be said to be arbitral, null and void and or unconstitutional. The sole issue in this appeal is therefore determined against the appellant.
Hence the issue having been determined against the appellant, the appeal lacks merit and it is hereby dismissed. The appellants shall pay costs of 100, 000 Naira to the two set of respondents.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Having had a preview of the Judgment just delivered by my learned brother, Barka, JCA, I cannot but concur with the reasoning postulated therein, to the conclusive effect that the instant appeal is lacking in merits.
Consequently, I too hereby dismiss the appeal on terms of the Judgment.
IBRAHIM SHATA BDLIYA, J.C.A.: I have had advantage of reading before now, the draft copy of the leading judgment delivered by my lord, Hamma Akawu Barka JCA. I am in total agreement with the reasoning and
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conclusion arrived at in dismissing the appeal for being unmeritorious. All the issues for determination in the appeal have been considered and resolved in the lead judgment.
There is nothing useful I can add thereto other than to dismiss the appeal. The appeal is dismissed accordingly. I abide by the order made on costs.
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Appearances:
Tosin Ademola OlarewajuFor Appellant(s)
O. J. Adefeseko with him, L.O. Alaosun for the 1st-3rd Respondents.
A. A. Daib (CSC) with him, M.A.Z. Usman (SC), R.K Abdukadir (SC) and I.B. Ameen (SC) for the 4th RespondentFor Respondent(s)
Appearances
Tosin Ademola OlarewajuFor Appellant
AND
O. J. Adefeseko with him, L.O. Alaosun for the 1st-3rd Respondents.
A. A. Daib (CSC) with him, M.A.Z. Usman (SC), R.K Abdukadir (SC) and I.B. Ameen (SC) for the 4th RespondentFor Respondent
