SALAWU OLAGUNJU ADEYEYE & ANOR. V. ALHAJI SHITTU AJIBOYE & ORS
(1987) LCN/2337(SC)
In The Supreme Court of Nigeria
On Friday, the 10th day of July, 1987
SC.201/1985
JUSTICES
KAYODE ESO Justice of The Supreme Court of Nigeria
ANTHONY NNAEMEZIE ANIAGOLU Justice of The Supreme Court of Nigeria
AUGUSTINE NNAMANI Justice of The Supreme Court of Nigeria
MUHAMMADU LAWAL UWAIS Justice of The Supreme Court of Nigeria
CHUKWUDIFU AKUNNE OPUTA Justice of The Supreme Court of Nigeria
Between
- SALAWU OLAGUNJU ADEYEYE
2. OYUN TRADITIONAL COUNCIL Appellant(s)
AND
- ALHAJI SHITTU AJIBOYE
2. ISAIAH ASA
3. AMUSA BALOGUN
4. JONATHAN ADEOGUN ONI
5. MATHEW TANIMOWO Respondent(s)
RATIO
THE PROVISION OF THE 1963 CONSTITUTION OF NIGERIA IN RELATION TO THE OBJECTION TO JURISDICTION TO ENTERTAIN QUESTIONS AS TO THE VALIDITY OF THE THE APPOINTMENT OF A CHIEF
Section 78(6) of the Constitution of Northern Nigeria Cap. 1 Vol. 1, the Laws of Northern Nigeria 1963, provided that: “(6)Notwithstanding anything in any other provision of this Constitution (including in particular section 17 of this Constitution), no question as to the validity, the selection, appointment, approval of appointment of recognition, installation, grading, deposition or abdication of a chief shall be entertained by any court of law in the Region.” PER ANIAGOLU, J.S.C.
DEFINATION OF A “CHIEF” AND “HEAD CHIEF” BY THE COMBINED PROVISIONS OF SECTION 78(4) OF THE CONSTITUTION OF NORTHERN NIGERIA 1963 AND SECTION 3 OF THE INTERPRETATION ACT CAP. 89 1958 LAWS OF THE FEDERATION
The word “chief ” has not been defined in the Constitution of Northern Nigeria, but section 78(4) of the said Constitution has applied the Interpretation Act to the Constitution in these words: “(4) The Interpretation Act as in force on the 1st day of October, 1963, shall apply in relation to this Constitution as it applied in relation to an Act of Parliament.” The Interpretation Act in force on 1st October, 1963, was the Interpretation Act, Cap. 89, Vol. III, Laws of the Federation of Nigeria, 1958. Therein, in section 3, the word “CHIEF” was defined as follows: “chief’ or “native chief’ means any native whose authority and control is (sic) recognised by a native community, and “head chief” means any chief who is not subordinate to any other chief or native authority;” Section 3(8) of the Northern Nigeria Interpretation Law Cap. 52 Vol. II Laws of Northern Nigeria, 1963, carries the meaning of a “chief in identical words. The crucial words in that definition are: “any native whose authority and control is (sic) recognised by a native community…”. PER ANIAGOLU, J.S.C.
CIRCUMSTANCES FOR A CHIEF TO BE GIVEN RESPONSBILITIES AS SPELT OUT BY SECTION 78 OF THE LOCAL GOVERNMENT LAW, NO. 8 OF 1976
For a chief to be given the foregoing responsibilities, he surely must have been accorded recognition by the Government of Kwara State. In 1973 when William Akanbi & Ors. v. Yakubu & Ors., (1973) 12 S.C. 11; (1973)1 All N.L.R. (Part II) 327, was decided by this Court the office of Onijagbo did not attain such height and recognition. PER UWAIS, J.S.C.
THE GOVERNING PRINCIPLE THAT AN APPEAL COURT CANNOT INTERFERE WITH THE FINDINGS OF THE LOWER COURT
the Court of Appeal violated the trite principle that an appeal court will not interfere with the findings of a lower court unless such findings are perverse or would occasion miscarriage of justice – Woluchem & Ors. v. Gudi & Ors., (1981) 5 S.C. 291 Enang v. Adu, (1981) 11-12 S.C. 25, and Ebba v. Ogodo, (1984) 1 S.C.N.L.R. 37. PER UWAIS, J.S.C.
THE PROPER APPROACH FOR A TRIAL COURT IN THE DETERMINATION OF ANY MATTER BEFORE IT
I regard the judgment of the learned trial judge in this case as very well written. I had in the past criticised some judgments of our trial Courts, which begin by citing and discussing a multitude of decided cases without first laying the factual foundation on which those decided cases will stand or fall: see Stephen v. The State (1986) 5 N. W. L. R. 978 at p. 1005. The proper approach for any trial Court is to first set out the Claim or Claims; then the pleadings; then the Issues arising from those pleadings. Having decided on the Issues in dispute the trial judge will then consider the evidence in proof of each issue, then decide on which side to believe and this has got to be a belief based on the preponderance of credible evidence and the probabilities of the case. After this the trial judge will record his logical and consequential findings of fact. It is after such findings, that the trial Court can then discuss the applicable law against the background of his findings of fact. PER OPUTA, J.S.C.
ANIAGOLU, J.S.C. (Delivering the Leading Judgment): The issue in contention in this case on appeal is that of the Oba of Ijagbo traditionally known as the “ONIJAGBO OF IJAGBO – an issue which is not new in our Courts having once been the subject of litigation in William Akanbi v. Yakubu (1973) 12 S.C. 11.
The writ in that case was taken out in 1971 and read as follows:
(1) As against the 1st, 2nd and 3rd defendants that the approval and selection of the Bara was not made according to Ijagbo native law and custom because of irregularities and omissions in the appointment and that it is also ultra vires on the part of the 1st, 2nd and 3rd defendants to install the 4th defendant as the Bara.
(2) A declaration that the appointment of Alhaji Raji Fawomola Olanrewaju as Bara was irregular, fraudulent and against the popular age-long traditional process of Ijagbo people in appointing Bara.
(3) A declaration that the 1st, 2nd and 3rd defendants or their agents deliberately acted fraudulently by putting themselves forward as the rightful people to appoint the Bara of Ijagbo and by falsely informing the then Sole Administrator of Oyun Division, Mr.J.A. Omotosho that the 4th defendant has been properly appointed, according to the customs and thereby misled the authorities in Oyun Division.
(4) An injunction restraining the 4th defendant from performing any B of the functions of Bara of Ijagbo or from holding himself out as the Bara of Ijagbo.
(5) A declaration that since the 4th defendant has not been properly appointed according to the established custom and age-long tradition of the Ijagbo people his appointment or purported appointment should be declared null and void and of no effect whatever
Whereas the title “BARA” was used as an alternate to the title “ONIJAGBO” in the 1971 case, the institutional title appears now to have crystallized, settled and subsumed in the word “ONIJAGBO” having regard to the claim in the present suit on appeal, which reads:
“The Plaintiffs are the King makers of Ijagbo in the Oyun Local Government Area of the Kwara State of Nigeria. The Ijagbo king makers appointed His Highness Oba Joseph Ebun Adepoju Odewale (now deceased) as the Oba of Ijagbo (the Onijagbo of Ijagbo) on 13/2/77 and installed him on 31/8/79.
In November, 1979 the Oyun Traditional Council announced that it appointed the first defendant as the Onijagbo of Ijagbo which is contrary to the native law and custom of Ijagbo people and which is ultra vires the powers of the second defendant as stipulated in section 78 of the Local Government Edict No. 8 of 1976. The said Oba Joseph Ebun Adepoju Odewale filed a suit against the two defendants for declaration and perpetual injunction (Suit No. KWS/18/79) on 26/11/80 but he died a month ago.
“Wherefore the plaintiffs claim against the two defendants both jointly and/or severally for (1) a declaration that the purported appointment of the first defendant as the Onijagbo of Ijagbo by the second defendant is null and void and (2) a perpetual injunction prohibiting the first defendant from parading himself and/or acting as the Onijagbo of Ijagbo either directly or indirectly and from sitting at the meetings of the meetings (sic) of the second defendant as the Onijagbo of Ijagbo without the consent and/or appointment of the plaintiffs.”
The reason for this consumption is to be found in the learned trial Judge’s fifth finding of fact which is set out shortly hereafter, in the course of this judgment. The case was tried on pleadings duly ordered and delivered.
After dealing with the evidence before him, the learned trial Judge (Gbadeyan, J,) made the following findings of fact:
“First, from the respective families of the Plaintiffs, chiefs nominated by their families and appointed by the reigning Onijagbo are the traditional appointors or kingmakers of any subsequent Onijagbo.
Secondly, before and since the demise of the last undisputed Onijagbo in 1969, the five Plaintiffs who are nominated heads of their respective families have not been appointed chiefs to enable them perform validly and customarily as Ijagbo kingmakers.
Thirdly, with the decisions in WILLIAM AKANBI’S case in the High Court (supra) and the Supreme Court of Nigeria it became evident that Ijagbo had no recognised customary chieftaincy title as it needed to make a “supplication” to the State Government to create one in the traditional sense.
Fourthly, in consequence of the Supreme Court’s decision the Ijagbo Community entered into series of correspondence with the Kwara State Government which directed the Oyun Traditional Council inter alia to conduct an enquiry into the Onijagbo Chieftaincy and “resolve the stalemate resulting from the nullification of the appointment of Tofowomola by the court.
The Traditional Council was acting in (sic) virtue of the provisions of Section 78(1)(h) of the Local Government Law, 1976.
Fifthly, the Onigosun Commission of Enquiry revealed that there are two Ruling Houses at Ijagbo and they are viz the dormant Oluode Atonaodose Ruling House and the active Bara Ruling House which within the last 150 years, had always produced the Onijagbo and thus giving the impression that the Onijagbo Chieftaincy is hereditary within the Bara family alone.
Sixthly, it is established that all Ijagbo Community leaders, elders and members wanted an end to the stalemate in the selection of a recognised Onijagbo and, therefore, actively and ably participated in the Commission set up for the purpose of resolving the stalemate.
Seventhly, it is clear that the Oyun Traditional Council, acting as directed by the Government, deliberated on the Commission’s report and accordingly advised the Kwara State Government on the same (vide exhibit 206). The Government not only made its stand known when it accepted the recommendation of the Oyun Traditional Council and approved the appointment of the only nominated candidate of the three contestants whose candidature was backed by the Bara family.
This recognition was further confirmed by the visit of the then Commissioner for Local Government who was also the Deputy Chairman of the State Executive Council accompanied by the appropriate top schedule officials to Ijagbo and Oyun Traditional Council.”
(The italics are mine).
As can therefore be seen above, the title “BARA” was not the title of the institution but the name of one of the two families which produced the incumbents of the ‘ONIJAGBO’ stool -which family sought to give the name “BARA” as the stool-name, a possible ruse designed to hoodwink the unwary into the belief that the ‘Bara’ family was the family entitled to produce the ONIJAGBO of Ijagbo, ad infinitum.
The High Court, in the end, held that the case involved a chieftaincy matter in respect of which the High Court lacked jurisdiction to hear and determine, and accordingly dismissed the case. The Court found this in the following words of its judgment:
“I therefore, come to the conclusion that this is a chieftaincy matter over which as at the time the cause of action arose, this court lacked jurisdiction and consequently, the court’s jurisdiction on same remains ousted notwithstanding the provisions of S.236 of the 1979 Constitution.”
On appeal to the Court of Appeal, that Court reversed the judgment of the High Court on the issue of jurisdiction and held, on that issue, that the High Court had jurisdiction. Permit me to quote in extenso. It said:
“In my view I find nothing in the totality of the evidence adduced before the trial court in the case in hand to show that Bara of Onijagbo has been transformed to a chief, in the true sense of the word, since the Supreme Court’s judgment in Akanbi v. Yakubu (supra). Patently absent is any document unambiguously stating that the Kwara State Government has recognized him as “a chief in the traditional sense”. There is also nothing to my mind from which it can be implied validly that he has been so recognized. It can be gathered from Exhibits 201 and 2D2 that Onijagbo of Ijagbo was regarded as a member of the Traditional Council at the time of the late Onijagbo before Akanbi v. Yakubu case. The position of Onijagbo was vacant in the Traditional Council before another Onijagbo had not been appointed. It is also clear from Exhibit 1 page 6 the judgment of the High Court in Akanbi v. Yakubu as testified to by one of the witnesses that “when Yesufu Popoola became the head of Bara’s compound and the President/Chairman of the six heads of compounds” that he Attended “Council meetings” at Offa where he was called “either Bara or …Onijagbo”. It cannot therefore be said that the 1st respondent taking his seat as a member of the Oyun Traditional Council has raised his status to that of a Chief, different from what the previous “Onijagbo” had been.
Indeed at page 4 of Exhibit 2D4, minutes of the Oyun Traditional Council of 19/7/79, it is stated that the appointment of the 1st respondent was approved “to fill the vacant stool of Onijagbo of Ijagbo and to be in the same status with the former holder of Onijagbo of ljagbo and as a member of Oyun Traditional Council.” (Italics supplied). The assertion of the learned trial Judge that the Onijagbo has since August, 1979 been accorded the recognition as a chieftaincy title is to my mind not supported by evidence. Both respondents erroneously relied in their pleadings on section 2 of the Local Government (Amendment) Edict No.5 of 1979 which confers on the Military Administrator or Government the power to appoint a district head on the advice of the Traditional Council as the basis of the 1st respondent’s appointment as a chief. As rightly pointed out by the learned trial judge “reliance seems to be wrongly placed on the Local Government (Amendment) Edict 1979″. Since the 1st respondent is not a district head he could not have been appointed under that section of the law.”
The Court set aside the judgment of the High Court and in its place declared the appointment of the appellant as the Onijagbo of Ijagbo, by the Oyun Traditional Council, as null and void. It is from that judgment of the Court of Appeal that the appellants have appealed to this Court on ten original grounds of appeal, complaining of a number of issues. For the purpose of this appeal, however, only one issue needs now to be determined, namely, the issue of jurisdiction.
The decision of the Supreme Court in WILLIAM AKANBI & 4 Ors. v. JOSEPH YAKUBU & 3 Ors. (Supra) was handed down on 21st December, 1973 declaring that the position of the Onijagbo of Ijagbo was honorary and was not properly a chief’s position, recognized. It was a mere title of honour or dignity. The Court was of the view that the Onijagbo was simply the Chairman or President of a Community of 6 heads of compounds at Ijagbo and could not be described as a chief since he was no more than a titular head of a gerontocracy appointed by the remaining 5 heads of compounds from time to time. In that position the Onijagbo was only a prima inter pares who had no authority of any kind over the village community of Ijagbo, apart from the nebulous power and influence granted him, if properly appointed, by his remaining five colleagues and heads of compounds. The Court further held that the society of Ijagbo was clearly republican in its political complexion and had yet to evolve into a chieftaincy or, indeed, a kingdom. The Court likened the Ijagbo community to that of the earlier Ibadan Community, before the appointment of the 1st Olubadan which it described as “congeries of compounds with family heads who meet together to administer the affairs of their community”. It was clear that from the judgment of the Court, the Supreme Court regarded the title of the Onijagbo of Ijagbo as mere dignitorial title of some local honorary importance, but not one carrying a governmental importance in the sense of being accredited and recognized by the Government as an institutionalized chieftaincy under section 11 of the Chiefs (Appointment and Disposition) Laws Cap. 20 Laws of Northern Nigeria.
Counsels have argued around this finding of the Supreme Court whether for or against – to give or to deny, the High Court jurisdiction to hear this matter.
Prof Adesanya, for the Appellants, has argued that since that decision of the Supreme Court on 21st December, 1973 a lot of water has flowed under the bridge. The position of the Onijagbo of Ijagbo, he said, had drastically changed. By the recognition accorded to the position by government, the Onijagbo of Ijagbo had become a chief recognized under the Chiefs Law. Since under the 1963 Constitution a chieftaincy matter was not subject to the jurisdiction of the courts, the jurisdiction having specifically been ousted – the High Court has no jurisdiction to entertain this matter and therefore Gbadeyan, J., was right in holding that his court had no jurisdiction to entertain the matter. A fortiori, the Court of Appeal was wrong in holding that the High Court had jurisdiction. He, therefore, asked this Court to uphold the judgment of the High Court on the issue of jurisdiction.
Mr, ljaodola. Counsel for the Respondents, on the other hand, argued that the position of the Onijagbo of Ijaggo had not changed since the decision of the Supreme Court on 21st December, 1973 in Akanbi v. Yakubu (supra). He argued that the decision of the High Court that this matter was a chieftaincy matter was perverse. Referring to Exhibit 2D4 of 19th July, 1979, he submitted that the status of the Onijagbo of Ijagbo was the same as it was when Akanbi v. Yakubu (supra) was decided. When this Court drew Mr. Ijaodola’s attention to the fact that if the government had approved the institution since the decision of Akanbi v. Yakubu, that approval or recognition would take the matter outside the decision of Akanbi v. Yakubu, Mr. ljaodola replied that government had not recognized the Onijagbo as a chief but merely recognized the Onijagbo as a member of the Oyun Traditional Council.
Both Counsel had therefore agreed that under the 1963 Constitution which was in force before 1st October, 1979 (when the 1979 Constitution which abrogated it came into force) the High Court would not have had jurisdiction over a chieftaincy matter. The question which has crystallized the arguments of Counsel and which now falls for a determination – a determination upon which this appeal hinges is: has there been anything – any occurrence – which has changed the jurisdictional situation of the Kwara State High Court, before the coming into force of the 1979 Constitution, in relation to the powers of the State High Court to entertain the Onijagbo Stool Claimant Dispute Professor Adesanya says there has been; Mr. Ijaodola says there has not been. Let us now look at what has transpired.
There was a commission of Inquiry for the selection of the Onijagbo of Ijagbo, held at the Oyun Traditional Council Chamber, which commenced on 29th April,1978 at 10a.m. (See the invitation to the Inquiry issued by the Secretary to the Council, Exhibit 2). The said Secretary, LASISI AFOLABI AGBOOLA, gave evidence of this inquiry, as D.W.2, at page 63 of these proceedings.
The Permanent Secretary in the Kwara State Governor’s Office, Ilorin, one CHARLES ADELOKUN BELLO, gave evidence on the outcome of the inquiry hereinbefore mentioned. For its importance I reproduce his evidence:
“I know that there is a Council so called Oyun Traditional Oyun, (sic) Offa. I know Ijagbo as one of the towns in Oyun. I know there is a ruler at Ijagbo but I do not know his title. I know by virtue of my position that Obas and rulers assist the Government in collecting taxes in their domains. I am aware that the Kwara State Government set up an Inquiry into the Bara Chieftaincy of ljagbo. I know that the Oyun Traditional Council made recommendations to the Government on the findings of the Enquiry. I know that the Government accepted the recommendations of the Traditional Council and consequent upon the acceptance a new Onijagbo was appointed and the State Government approved the appointment of the Onijagbo. The Onijagbo whose appointment was approved is the one presently reigning.
XX: by Laaro: By virtue of my position as Permanent Secretary in the Governor’s Office, I know that the person so appointed Onijagbo by the State Government is Salahu Adeyeye. Re – Ex: Nil”
Be it noted that he was a witness for the plaintiffs.
The 1st appellant – SALAWU OLAGUNJU ADEYEYE – gave evidence that the Kwara State Government accepted the recommendation of the Commission of Inquiry and that as a result he was appointed the Onijagbo of Ijagbo. He swore:
“As a result of the Enquiry and the recommendation accepted by the State Government the 1st defendant was appointed the Onijagbo of Ijagbo. I was given a letter to that effect. The letter is identified by the 1st defendant.
Chief Afe Babalola: I seek to tender it.
Mr. Ijaodola: No objection whatsoever.
Exhibit ‘1D1′.”
The said Exhibit 1D1, is a letter dated 21st August, 1979, addressed to the first appellant, from OBA MUSTAPHA OLAWORE OLANIPEKUN ARIWAJOYE II, the OJofa of Offa, informing him of his appointment as the ONIJAGBO of IJAGBO. For its importance it is necessary to set out this letter of appointment in full as follows:
“HIS ROYAL HIGHNESS OBA MUSTAFA OLAWORE
OLANIPEKUN ARIWAJOYE II
THE OLOFA OF OFFA
CHAIRMAN OYUN TRADITIONAL COUNCIL
TELEGRAM: Olofa,Offa
Oyun Traditional Chairman’s Office,
Telephone: 23 Offa. P. O. Box 75,
OFFA.
Our Reference: OY/TR/L/3/70
Your Reference………… 21st August, 1979.
Prince Salawu Olagunju Adeyeye.
Ile Bara,
Ijagbo.
APPOINTMENT OF ONIJAGBO OF IJAGBO
This is to inform you that your appointment as Onijagbo of Ijagbo and as a member of Oyun Traditional Council had been approved by the Oyun Traditional Council headed by Oba Mustapha Olawore Olanipekun Ariwajoye II.
2. Your appointment takes effect as from 1st August, 1979, and by this appointment your name has been enrolled “as a member of Oyun Traditional Council.
3. Please accept my hearty congratulations. I wish you God’s (sic) guidance and happy reign over your people (amen).
KI ADE PELORI KI BATA PE LESE.
AJAGBO AJETO (AMIN).
……………………….
(Sgd.)
HIS HIGHNESS
OBA MUSTAPHA OLAWORE OLANIPEKUN
ARIWAJOYE II,
CHAIRMAN
OYUN TRADITIONAL COUNCIL.”
P.W. 2, ISAAC AJIBADE ODEWALE, a legal practitioner, accepted in evidence that the Commissioner for Local Government, Information and Social Development, the Deputy-Chairman of the Kwara State Executive Council, the Permanent Secretary Chieftaincy Affairs and the Secretary to the Oyun Local Government, all came to Ijagbo to congratulate the 1st Appellant upon his appointment as the Onijagbo of Ijagbo. This was what he swore to in evidence:
“It is true that on 11/9/79 the Commissioner for Local Government, Information and Social Development and the Permanent Secretary Chieftaincy Affairs and the Secretary to the Oyun Local Government came to Ijagbo to congratulate them on the appointment of the 1st defendant as the new Onijagbo and appealing to them to keep peace and order. There is always peace in Ijagbo.”
The learned trial judge accepted all this evidence whereupon he came to the conclusion he arrived at page 93 saying:
“Therefore, it is now crystal clear that a Chieftaincy title viz
Onijagbo of Ijagbo variously known by some other names but formerly attracting no Government recognition as a Chieftaincy title in the strict sense has since August, 1979, been accorded such recognition by the Olofa of Offa, the paramount Ruler of the area, the Oyun Traditional Council and the State Government.”
This conclusion naturally flows from the evidence adduced and I am firmly of the view that it was amply justified.
The position then was that since the judgment of the Supreme Court in 1973
(i) A Commission of Inquiry was held in 1978 into the Onijagbo of Ijagbo stool;
(ii) That as a result of the inquiry the 1st Appellant was selected as the Onijagbo;
(iii) That His Royal Highness the Olofa of Offa conveyed to the 1st Appellant (Exhibit 1D1) letter of his appointment;
(iv) That after the said letter of appointment, Commissioners of Government, especially those intimately connected with Chieftaincy affairs in the Kwara State Government went and congratulated the 1st Appellant upon his appointment;
(v) That the Permanent Secretary in the Governor’s Office swore that the State Government had accorded recognition to the 1st Appellant as the Onijagbo of Ijagbo.
(See the Local Government (Amendment) Edict No.5 of 1979, section 2(3)). With all these, certainly, a lot has happened since the decision of the Supreme Court in 1973 in AKANBI v. YAKUBU (supra). For one thing, the State Government has accorded recognition and status to the position of the “ONIJAGBO” of IJAGBO. The title “ONIJAGBO” has become an institutionalized title, clearly appropriated to the corporeal of that office in Ijagbo, now known and accepted as the “ONIJAGBO”, after a Commission of Inquiry was held, which went into the existence and tenets of the office together with those entitled to be appointed to the office. There was no such inquiry before the 1973 case. The institution had now acquired enhanced status and a Governmental recognition.
Mr. ljaodola had submitted that all that had happened was that the Onijagbo had been recognised as a member of the Oyun Traditional Council and no more. This submission has, however, overlooked, or has ignored, the statement of the Permanent Secretary in the Governor’s Office (P.W. 3) who gave positive and categorical evidence, which was accepted by the trial judge, that the Government had accepted the recommendations of the Commission of Inquiry and accorded recognition to the Onijagbo. Being a witness for the plaintiffs, his evidence amounted to a solemn admission in favour of the defendants’ case.
Against these accepted facts, one may now examine the law, as it stood under the 1963 Constitution of Nigeria, in relation to the objection to jurisdiction.
Section 78(6) of the 1963 Constitution of Northern Nigeria Cap. 1 Vol. 1, the Laws of Northern Nigeria 1963, provided that:
“(6) Notwithstanding anything in any other provision of this Constitution (including in particular section 17 of this Constitution), no question as to the validity of the selection, appointment, approval of appointment, recognition, installation, grading, deposition or abdication of a chief shall be entertained by any court of law in the Region.”
The word “chief” has not been defined in the Constitution of Northern Nigeria, but section 78(4) of the said Constitution has applied the Interpretation Act to the Constitution in these words:
“(4) The interpretation Act as in force on the 1st day of October, 1963, shall apply in relation to this Constitution as it applies in relation to an Act of Parliament.”
The Interpretation Act in force on 1st October, 1963, was the Interpretation Act, Cap. 89 Vol. Ill, Laws of the Federation of Nigeria, 1958. Therein, in section 3, the word “CHIEF” was defined as follows:
“chief” or “native chief” means any native whose authority and control is (sic) recognised by a native community, and “head chief” means any chief who is not subordinate to any other chief or native authority;”
Section 3(8) of the Northern Nigeria Interpretation Law Cap. 52 Vol. II Laws of Northern Nigeria, 1963, carries the meaning of a “chief” in identical words.
The crucial words in that definition are:
“any native whose authority and control is (sic) recognised by a native community ..
The “authority and control” of the Onijagbo of Ijagbo are certainly recognized by the native community of Ijagbo, hence these protracted litigations.
They are not litigating over a worthless stool or dynasty.
The words used by the Olofa of Offa in the last sentence of his letter to the 1st defendant, Exhibit 2D1, show clearly that the Onijagbo has “authorfty and control” over the Ijagbo Community when he wished him “Good’s (sic) guidance and happy reign over your people (amen).”
(Italics is mine).
Having regard to all the foregoing, one is bound to come to the conclusion that the Onijagbo of Ijagbo comes within the definition of “Chief’ as contemplated in the aforementioned laws.
Section 78(6) of the Constitution of Northern Nigeria, 1963, ousts the jurisdiction of the courts to entertain chieftaincy matters as set out in that section. Again section 11(a) of the Chief (Appointment and Deposition) Laws. Cap. 20 Vol. 1. Laws of Northern Nigeria 1963 make provision similar to that in the Constitution, denying jurisdiction to the courts on the same matters.
The claim before the court is clearly one questioning the appointment of the Appellant to the chieftaincy title of the Onijagbo of Ijagbo. That was precisely what the Constitution and other relevant laws, as they then stood, forbade the Courts from inquiring into.
The High Court was right in holding that it had no jurisdiction to entertain this case; the Court of Appeal was wrong in holding that the High Court had jurisdiction.
Accordingly, this appeal must be allowed, and is hereby allowed. The judgment of the Court of Appeal is set aside and the judgment of the High Court hereby restored.
The Appellants are entitled to the costs of this appeal against the Respondents which I hereby assess at N300.00 in this Court and N250.00 in the Court of Appeal.
ESO, J.S.C.: I have an advantage of a preview of the judgment which has just been delivered by my learned brother Aniagolu J.S.C. The facts have been so plainly set out and the law so well applied, that 1can have nothing to add. I entirely agree with the reasoning and conclusion. I too will allow the appeal and abide by the orders made by my brother Aniagolu J.S.C in the aforesaid judgment.
NNAMANI, J.S.C.: I had a preview of the judgment just delivered by my learned brother, ANIAGOLU, J.S.C. I entirely agree with his reasoning and conclusions.
Only one ground of appeal needs to be considered in this appeal, and that is the one raising the issue of jurisdiction. The learned trial Judge had, at the conclusion of the trial before him, dismissed the case of the Respondents/Plaintiffs on the ground that the suit, being concerned with a Chieftaincy matter, the High Court had no jurisdiction, after reviewing the evidence before him, he had concluded the question whether there was “a chieftaincy issue” in these words, “Therefore, it is now crystal clear that a Chieftaincy title viz Onijagbo of ljagbo variously known by some other names but formerly attracting no Government recognition as a Chieftaincy title in the strict sense has since August 1979 been accorded such recognition by the Olofa of Offa, the paramount Ruler of the area, the Oyun Traditional Council and the State Government Having thus held, and after referring to Section 3 of the Interpretation Law of Kwara State in which “Chief’ is defined as –
“any native whose authority and control is recognised by a native community”
and Section 78(6) of the Constitution of Kwara State Cap. 1 of the Laws of Northern Nigeria, 1963 which reads:-
“Notwithstanding anything in any other provision of this Constitution (including in particular Section 17 of the Constitution), no question as to the validity of the selection, appointment, approval or appointment, recognition, installation, grading, deposition or abdication of a chief shall be entertained by any court of law in the Region”,
he concluded as follows:-
“I therefore come to the conclusion that this is a chieftaincy matter over which as at the time the cause of action arose, this Court lacked jurisdiction and consequently, the courts jurisdiction on same remains ousted notwithstanding the provisions of Section 236 of the 1979 Constitution”
The Court of Appeal, Kaduna Judicial Division overruled him holding that the High Court had jurisdiction, hence the appeal to this Court.
Both the Court of Appeal and the Respondents herein seem to rely so much on the decision of this Court in William Akanbi and 4 Ors. vs. Joseph Yakubu and 3 ors. (1973) 12 S.C. 11. There this Court in effect held that the title of Onijagbo of Ijagbo was an honorific title, and not a chieftaincy title that it was more of a position of honour and dignity.
The respondents contended in the present suit that the position of the Onijagbo had not changed since the William Akanbi case. It seems to me too that from the evidence before the trial court, this cannot he so. There was enough evidence to indicate, as the learned trial Judge found, that the Chieftaincy had been accorded recognition by the State Government since August 1979.
It was in evidence that after an Enquiry held by the Oyun Traditional Council on the instructions of the Kwara State Government, that Government accepted the recommendations of the Panel and appointed the 1st Appellant, Onijagbo of Ijagbo. A letter to that effect was given to him, and that letter was tendered in these proceedings as Exhibit ‘1D1’. Perhaps more damning for the case of the respondents herein – plaintiffs in the suit – was the testimony in the trial court of their witness, P.W.3, who incidentally was a Permanent Secretary in the Governor’s Office. Because of the importance of this testimony I shall set down a portion of it, At page 55 of the record he said –
“I am aware that the Kwara State Government set up an Inquiry into the Bara Chieftaincy of Ijagbo. I know that the Oyun Traditional Council made recommendations to the Government on the findings of the Enquiry. I know that the Government accepted the recommendations of the Traditional Council and consequent upon the acceptance a new Onijagbo was appointed and the State Government approved the appointment of the Onijagbo. The Onijagbo whose appointment was approved is the one presently reigning”
The Onijagbo having thus been accorded recognition by the State Government, the matter was taken beyond the confines of ‘the William Akanbi case. What the present suit raised was therefore a chieftaincy matter which the High Court had no jurisdiction to entertain.
I hereby, therefore, allow the appeal and set aside the judgment of the Court of Appeal, Kaduna Judicial Division. I endorse all the orders made by my learned brother, Aniagolu, J.S.C. including his order as to costs.
UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother Aniagolu, J.S.C. and I agree with the reasons and conclusion therein.
Apart from the evidence of the Permanent Secretary in the Governor’s Office – Mr. Charles Adelokun Bello (P.W. 3) – that the appointment of the 1st appellant as the Onijagbo of Ijagbo was approved by the Kwara State Government, there was in evidence also the letter of the Olofa of Offa (exhibit 1D1). This letter indicates that the 1st appellant was not only appointed as the Onijagbo but had also become a member of the Oyun Traditional Council. Now the membership of the Traditional Council is, by itself, a further evidence of the recognition accorded, by the Government of Kwara State, to the office of Onijagbo as that of a chief.
By the Local Government Law, No. 8 of 1976 there are to be established, in Kwara State Emirate and Traditional Councils. The membership of the Councils as at the date the 1st appellant was appointed to the Oyun Traditional Council was to consist of traditional rulers and district heads. The functions of the Councils are spelt out by section 78 of the Local Government Law, No. 8 of 1976 as follows-
“78. (1) The functions of a Council established under this Part shall be-
(a) to formulate general proposals as advice to the Local Government or to all Local Governments in its area;
(b) where applicable, to harmonise the activities of such Local Governments through discussion of problems affecting them generally and by giving advice and guidance thereon to such Local Governments;
(c) where applicable, to co-ordinate development plans of such Local Governments by joint discussion and advice;
(d) where requested by the Military Governor or, as the case may require, by some or all the Local Governments in its area, to assist in the assessment of community tax in consultation with such Local Government or Local Governments in the area and its subsequent collection;
(e) to determine religious matters where appropriate;
(f) to give support for arts and culture;
(g) to assist in the maintenance of law and order;
(h) to advise on any matter referred to it by the State or Federal Government;
(i) to make representations or express opinions to the State Government or any other organization on behalf of the Local Government, or as the case may require, the collective behalf of all such Local Governments on any matter of concern to the area as a whole whether or not such a matter is within the legislative competence of any such Local Government;
(j) to determine questions relating to chieftaincy matters and control of traditional titles and, where such matters are within the exclusive prerogative of the Emir, Oba or principal Chief, to give advice thereon where so requested;
(k) notwithstanding any other provision of this Edict, to determine customary law and practice on all matters governed by customary law including land tenure under customary law.”
For a chief to be given the foregoing responsibilities, he surely must have been accorded recognition by the Government of Kwara State. In 1973 when William Akanbi & Ors. v. Yakubu & Ors., (1973) 12 S.C. 11; (1973)1 All N.L.R. (Part II) 327, was decided by this Court the office of Onijagbo did not attain such height and recognition. Times have changed. The learned trial judge was therefore right in holding that –
“…..it is now clear that a Chieftaincy title viz Onijagbo of Ijagbo variously known by some other names but formerly attracting no Government recognition as a Chieftaincy title in the strict sense has since August, 1979 been accorded such recognition by the Olofa of Offa, the paramount Ruler of the area, the Oyun Traditional Council and the State Government.”
And concluding thus-
“I have no iota of doubt in my mind, therefore, that this is a chieftaincy matter the dispute in which as at the time of the 1st Defendant’s appointment the Military Administrator of Kwara State was the final judge. The jurisdiction of this court was ousted by the provision(s) of section 11 of the Chiefs (Appointment and Deposition) Law and section 78(6) of the Constitution of Kwara State Cap. 1 of the Laws of Northern Nigeria, 1963.”
In holding as follows:
“In my view I find nothing in the totality of the evidence adduced before the trial court in the case in hand to show that Bara of Onijagbo has been transformed to a chief, in the true sense of the word, since the Supreme Court’s judgment in Akanbi v. Yakubu, (supra). Patently absent is any document unambiguously stating that the Kwara State Government has recognised him as ”’a chief in the traditional sense.”
the Court of Appeal violated the trite principle that an appeal court will not interfere with the findings of a lower court unless such findings are perverse or would occasion miscarriage of justice – Woluchem & Ors. v. Gudi & Ors., (1981) 5 S.C. 291 Enang v. Adu, (1981) 11-12 S.C. 25, and Ebba v. Ogodo, (1984) 1 S.C.N.L.R. 37. There was both oral evidence (by the plaintiff’s witness – P.W, 3) and documentary evidence (exhibit 1D1), adduced by the plaintiff and the 1st defendant respectively, to justify the finding of the trial court that the 1st defendant was a chief recognised by the Government of Kwara State. There were also the provisions of section 78 of the Local Government Law, No.8 of 1976 to strengthen the finding made by the learned trial judge. There can be no doubt, therefore, that the jurisdiction of the trial court was ousted by virtue of the provisions of section 78 subsection (6) of the Constitution of Northern Nigeria. Cap. 1.
Accordingly, this appeal succeeds and I allow it. I endorse the order as to costs made by my learned brother Aniagolu, J.S.C.
OPUTA, J.S.C.: I have had the privilege of a preview in draft of the lead judgment just delivered by my learned brother Aniagolu J.S.C., and I am in complete and entire agreement with his arguments and conclusion that the Court of Appeal Kaduna Division, with the greatest respect, was wrong in upsetting the judgment of the learned trial judge. Gbadeyan, J. of the Kwara State High Court. Consequently I also agree that this appeal ought to be allowed.
The crux of the matter is the jurisdiction of the Courts to entertain the present Suit KWS/123/80. Although the Writ commencing these proceedings was issued in Ilorin on the 3rd day of November 1980 the issue of jurisdiction has to be decided by, and dependent on, the date the cause of action arose and not on the date the Writ was filed: see Uwaifo v. Attorney-General Bendel State (1982) 7 S.C. 124; (1983) 4 N.C.L.R. 1.
The bone of contention in this case has been whether or not the “title” Onijagbo of Ijagbo is a Chieftaincy title recognised by Government. This arose from the decision of this Court in Williams Akanbi & 4 Ors. v Joseph Yakubu & 3 Ors. (1973) 12 S.C. 11. At pp. 17/18 of the report, this Court held:-
… There is no evidence before us to show that the president of the Committee of the six compound heads is a chief in the accepted connotation of the term in law, nor that he could even be regarded as a “head chief” in view of the definition of this expression in Section 3 of the Interpretation Law Cap 52 which defines a head chief as one who is not subordinate to another chief or Native Authority. We are of the view that the Chairman or President of the Committee of the six heads of compounds at Ijagbo cannot be a chief because he is no more than a titular head of a gerontocracy appointed by the remaining five from time to time and to whom he is accountable for his actions. He would appear only to be a primus inter pares who has no authority of any kind over the village community of Ijagbo apart from the nebulous power and influence granted him if properly appointed by his remaining five colleagues … ”
One important thing to note about Akanbi’s case supra is that the observations of this Court reproduced above were all predicated on the fact that “there was no evidence” to establish the contention that the Bara of Ijagbo was a chieftaincy title.
In this case now on appeal the position of the Court of Appeal is that “the assertion by the learned trial judge that the Onijagbo of Ijagbo has since August 1979 been accorded the recognition of a chieftaincy title is to my mind not supported by evidence”. On this crucial issue Professor Adesanya for the Defendants/Appellants submitted that since the decision in Akanbi’s case supra the Kwara State Government had accorded recognition to the office of Onijagbo of Ijagbo and elevated it to the status of a “Chieftaincy Title”. Mr. Ijaodola strenuously argued that the status of Onijagbo of Ijagbo was still “no more than a titular head of a gerontocracy”. He relied wholly on Akanbi’s case supra. Whether Professor Adesanya is right or Mr. Ijaodola is right can only be decided by looking at the evidence led and the findings made by the learned trial judge.
Charles Adelokun Bello called by the Plaintiffs themselves as P.W.3 testified under cross-examination that the Kwara State Government did “set up an Inquiry into the Bara Chieftaincy of Ijagbo”. This Inquiry started on 29th April, 1978. As a result of that Inquiry the Oyun Traditional Council made recommendations to the State Government regarding the status of the Onijagbo ofljagbo. The Kwara State Government accepted the recommendations of the Oyun Traditional Council. Following that acceptance “a new Onijagbo was appointed and the State Government approved the appointment of the new Onijagbo”. In further cross-examination by Mr. La’aro at p. 58 P.W. 3 confirmed:-
“By virtue of my position as Permanent Secretary in the Governor’s Office, I know that the person so appointed Onijagbo by the Government is Salawu Adeyeye” (that is the 1st Defendant/Appellant).
If one may pause here and compare the appointment of the Bara of Ijagho in Akanbi’s case supra and the appointment of the Ist Defendant/Appellant in this case one discovers that in Akanbi’s case the appointment was made by “the heads of compounds at Ijagbo”. The six Heads of Compounds appointed one of themselves as Chairman or President of the Council. In this case the appointment, according to the evidence of P. w. 3, was made by the State Government. One may now ask what possible interest will the Kwara State Government have to appoint the 1st Defendant as Onijagbo if that office is “no more than a titular head of a gerontocracy” The appointment of the Onijagbo of Ijagbo by the State Government can only he interpreted to mean that that Government now recognizes the Onijagho as a chieftaincy title.
There is also the evidence of Isaac Ajibade Odewale called again by the Plaintiffs/Respondents as P.W.2 that the Commissioner for Local Government, Information and Social Development along with the Deputy Chairman of the Kwara State Executive Council, plus Permanent Secretary Chieftaincy Affairs, and the Secretary to the Oyun Local Government – all these eminent and highly placed Government functionaries took the time to travel to Ijagbo to congratulate the 1st Appellant upon his appointment as the Onijagbo of Ijagbo. Surely, it will need more than the appointment of a person “who has no authority of any kind over the village community of Ijagbo”
(as found in Akanbi’s case supra) to attract all these important officials to Ijagbo. Added to this is the evidence of the 1st Defendant himself that he is the Traditional Ruler of Ijagbo; that he became such traditional ruler following the Government’s acceptance of the Report of the Inquiry into the Onijagbo chieftaincy title. There was also the letter EX 1D1 dated 21st August, 1979 conveying to the 1st Defendant/Appellant his appointment as a member of the Oyun Traditional Council by virtue of his prior appointment as Onijagbo of Ijagbo. From all these it ought to be clear to anyone that the status of the Bara of Ijagbo in Akanbi’s case supra is not on the same pedestal as the status of the Onijagbo of ljagbo in this case.
I regard the judgment of the learned trial judge in this case as very well written. I had in the past criticised some judgments of our trial Courts, which begin by citing and discussing a multitude of decided cases without first laying the factual foundation on which those decided cases will stand or fall: see Stephen v. The State (1986) 5 N. W. L. R. 978 at p. 1005. The proper approach for any trial Court is to first set out the Claim or Claims; then the pleadings; then the Issues arising from those pleadings. Having decided on the Issues in dispute the trial judge will then consider the evidence in proof of each issue, then decide on which side to believe and this has got to be a belief based on the preponderance of credible evidence and the probabilities of the case. After this the trial judge will record his logical and consequential findings of fact. It is after such findings, that the trial Court can then discuss the applicable law against the background of his findings of fact.
This is exactly what the learned trial judge Gbadeyan, J. did in this case. The lead judgment of my learned brother Aniagolu, JSC clearly and admirably brought this out. In view of the evidence before him and in view of the fact that he believed the P.W. 2, P. W. 3 and the 1st Defendant and his witnesses, the learned trial judge was able, and rightly in my view, to conclude on these facts (at p. 93 of the record of proceedings):- “Therefore, it is now crystal clear that a chieftaincy title viz Onijagbo of Ijagbo variously known by some other names but formerly attracting no Government recognition as a Chieftaincy title in the strict sense has since August 1979 been accorded such recognition by the Olofa of Offa, the paramount Ruler of the area, the Oyun Traditional Council and the State Government”
(The italics mine).
With the above finding which is amply supported by credible evidence the stage is now cleared and set for the consideration of the main issue in this case – the issue of jurisdiction.
From the evidence of Isaac Ajibade Odewale, P.W. 2. Legal Adviser of the Plaintiffs’ family at pp. 51 and 52, it was the appointment of the 1st Defendant/Appellant as the Onijagbo of Ijagbo on the 21st August 1979 per EX. 1D1 that sparked off these proceedings. The cause of action therefore arose on August 1979 before the coming into force of the 1979 Constitution on 1st October, 1979. This fact is important because by that very fact the applicable law will be the 1963 Constitution of the Federation of Nigeria No. 20 of 1963. By Section 161(3) of the said 1963 Constitution:-
“161-(3) … no chieftaincy question shall be entertained by any Court of law in Nigeria”.
The next logical questions to consider are-
(1) What was the main claim before the trial Court
(2) Did that claim raise a chieftaincy question
The claim of the Plaintiffs/Respondents at p.2 of the record ended thus:-
“Wherefor the plaintiffs’ claim against the two defendants:-
(1) a declaration that the purported appointment of the first defendant as the Onijagbo of Ijagbo by the second defendant is null and void;
(2) a perpetual injunction prohibiting the first defendant from parading himself and/or acting as the Onijagbo of Ijagbo either directly or indirectly and from sitting at the meetings of the meetings (sic) of the second defendant as the Onijagbo of Ijagbo without the consent and/or appointment of the plaintiffs”.
Now it is necessary to decide whether the above claim of the Plaintiff/Respondents amounts, in law, to a chieftaincy question”. Section 165(1) of the 1963 Constitution No. 20 of 1963 defines “Chieftaincy question” to mean:-
“any question as to the validity of the selection, appointment, approval of appointment, recognition, installation, grading, deposition or abdication of a chief”.
Section 78(6) of the 1963 Constitution of Northern Nigeria Cap 1 of 1963 includes not only a definition of chieftaincy question but also an ouster of jurisdiction over such questions –
“Section 78
-6 Notwithstanding anything in any other provision of this Constitution (including in particular Section 17 of this Constitution), no question as to the validity of the selection, appointment, approval of appointment, recognition, installation, grading, deposition or abdication of a chief shall be entertained by any Court of law in the Region” (The italics mine).
Thus far there is no doubt that the claim before the trial Court in this case came squarely under the umbrella of “chieftaincy question” as defined by Section 165(1) of the 1963 Constitution of the Federal Republic of Nigeria and Section 78(6) of the Constitution of Northern Nigeria 1963.
The last subsisting question in this appeal now is – Is the Onijagbo of Ijagbo a chief strictu sensu or is it what this Court in Akanbi’s case supra described as “a titular head of a gerontocracy appointed by the remaining five Heads of Compounds” The trial Court found and rightly too that after the Government’s recognition, the title Onijagbo of Ijagbo became a recognised chieftaincy title. The expression “chief” was not defined in the 1963 Constitutions of the Federation or of Northern Nigeria. The word “chief’ is however defined in Section 3(8) of the Northern Nigeria Interpretation Law Cap 52 of 1963 as follows:-
“S. 3-8 “Chief” or “native chief” means any native whose authority and control is recognised by a native community ….”
Before considering whether the 1st Defendant/Appellant is a chief as above defined one is compelled to observe that it is utterly ridiculous that in 1987- 27 years after our independence in 1960 – we are still content to use the word “native” an expression of inferiority and contempt in our laws. Let us hope that the Law Review Commission will act swiftly to remove this emblem, this vestige of colonialism from our Statute Book.
There is no doubt that in and by EX. 1D1, His Royal Highness Oba Mustafa Olawore Olanipekun Ariwajoye II, the Olofa of Offa recognized the authority of the 1st Defendant/Appellant over his people when he wished him God’s guidance and happy reign over his people. There is also no doubt that the 1st Defendant was, as Onijagbo of Ijagbo, appointed to the Oyun Traditional Council not to represent himself – No – but to represent his community. The Kwara State Government also recognised the Onijagbo as a ruler of his community of Ijagbo. From any angle one may choose to look at it, the 1st Defendant/Respondent, Onijagbo Salawu Olagunju Adeyeye is a chief as defined by law. That being so the claims before the trial Court could not be adjudicated upon as they clearly raise a “chieftaincy question” which question the 1963 Constitution had placed beyond the jurisdiction of the Courts. The learned trial judge was thus right in holding that he had no jurisdiction to entertain this suit. The Court of Appeal Kaduna Division was, with the greatest respect, wrong in holding, that the trial Court was wrong.
In the final result and for all the reasons given above and also for the fuller reasons in the lead judgment of my learned brother Aniagolu, J.S.C., which I now adopt as mine, I, too, will allow this appeal and same is hereby allowed. I adopt all the consequential orders made by and in the lead judgment.
Appeal Allowed.
Appearances
Professor S.A. Adesanya (with him A. Kuku, S.O. Sanni and L.O. Fagbemi)
Kehinde Otta, Senior State Counsel Kwara StateFor Appellant
AND
J.O. Ijaodola (with him J.O. Tanimowo and A. Adewale)For Respondent
