Prince J.S. Atolagbe & Anor V. Alhaji Ahmadu Awuni & Ors (1997)

LAWGLOBAL HUB Lead Judgment Report

L. UWAIS, C.J.N.

In the High Court of Kwara State, the appellants herein were plaintiffs and the respondents herein and one other (The Commissioner for Chieftaincy Affairs, Kwara State) were defendants. The claim brought by the plaintiffs, which was based on chieftaincy dispute, was for the following declarations:-

“1. That the purported appointment of Alhaji Ahmadu Awuni as the Elese of Igbaja by the 3rd defendant is contrary to the native law and custom of Irese land relating to the appointment of an Elese, contrary to-the Elese of Irese (Confirmation of Declaration) Edict, 1987 and contrary to all known laws relating to the selection and appointment of an Elese of Irese land and is therefore null and void.

2. That the 1st plaintiff is the proper and rightful person to be appointed the Elese of Ireseland having been selected by the Abidolu Royal Families, the Irese Kingmakers and (in accordance with the Elese of Irese (Confirmation of Declaration) Edict, 1987.
3. A perpetual injunction restraining the 1st defendant from parading himself as the Elese of Ireseland or performing any acts appertaining to the office of Elese of Ireseland, and an injunction restraining the 2nd and 3rd defendants from installing recognising or in any way dealing with the 1st defendant as the Elese of Igbaja (Irese land)”.

The 2nd, 3rd and 4th defendants brought a motion on notice in which they prayed for as follows:-

“(a) An order dismissing/or striking out this suit on the ground that the plaintiffs failed to deposit the sum of ten thousand naira (N10,000.00) prior to instituting and/or filing this suit as required and/or enjoined by the mandatory provisions of section 15(1) of the Chiefs (Appointment and Deposition)(Amendment) Edict, No.3 of 1988.

(b) And for such further order(s) as this honourable court might deem fit to make in the circumstances of this case.”

Paragraph 5 of the affidavit in support of the motion stated thus:

“5. That the said Mr. S.O. Otu, the Director of Civil Litigation, Ministry of Justice, Ilorin, told me and I verily believed him that the plaintiffs herein did not pay the sum of N10,000.00 to the Kwara State Government prior to instituting the suit before this honourable court.”

The plaintiffs did not file a counter-affidavit challenging the assertion in paragraph 5 of the affidavit in support of the motion, which came before Orilonise; J. for hearing on 20th November, 1990. In his ruling dismissing the application, the learned trial Judge adverted to the following:-

“In Gambari & Ors. v. Gambari (supra) (1990) 5 NWLR (pt 152) 572 the Court of Appeal has ruled in favour of the constitutionality of Section 15(1) of the Chiefs (Appointment and Deposition) (Amendment) Edict No.3 of 1988. The Edict creates a condition precedent, the non fulfilment of which ousts the jurisdiction of the court in any suit challenging the appointment of a chief by the Military Governor or any appointing authority in Kwara State. Even though the rulings of this Court in lfelodun/Ifelodun Traditional Council & Anor v. Alhaji Garba Idirisu & Anor. In Suit No.KWS/OM/2188 (judgment) delivered on 15th July, 1988 and in Atolagbe &Anor v. AhmaduAwuni &3 Ors. Suit No. KWS/OM/14/89 (judgment) delivered on 5th June, 1989 (both unreported) have not been set aside on appeal, I cannot remain indifferent to the decision of the Court of Appeal in Gambari v. Gambari (supra).

In that case, the Court of Appeal dismissed the appellants’ appeal to it and upheld the decision of the High Court in striking out the suit of the plaintiffs/appellants who had instituted a chieftaincy action without complying with section 15(1) of Edict, No.3 of 1988 which stipulates (sic) stipulates the deposit of N10,000.00 prior to the commencement of any such suit I am bound by that decision the effect of which is that the imposition of a compulsory non-refundable deposit of N10,000.00 is a condition precedent which must be fulfiled in an action of this nature before the action can be competent and before the court can be vested with jurisdiction to adjudicate same.”

The learned trial Judge referred to the decision of this court in Bakare v. Attorney General of the Federation (1990) 9 SCNJ 43; (1990) 5 NWLR (Pt. 152) 516,which considered the constitutionality of the provisions of Petition of Rights Act Cap. 149 Laws of the Federation of Nigeria, and Lagos, 1958 vis-a-vis the provisions of Section 6 subsection (6)(b) of the Constitution of the Federal Republic of Nigeria, 1979. Disregarding the binding effect on him of the decision of the Court of Appeal in Gambari’s case. the learned trial Judge stated thus in following the decision of this Court in Bakare’ s case:-

“In the same vein, I respectfully hold the view that Section 15(1) of Edict, No. 3 of 1988 which requires a non-refundable N10,000.00 to the Government of Kwara State before that government can be challenged in a chieftaincy dispute in which the government has approved an appointment places an unnecessary embargo on a person’s right of access to the court….. Any legislation that abridges the right of any person of access to court is not in consonance with the provisions of the 1979 Constitution. Section 15(1) of Edict No. 3 of 1988….. is a legislation which abridges the access to court by a person whose civil rights and obligations are for determination in a chieftaincy dispute.”

The learned trial Judge concluded his ruling by holding that the application had no merit and, therefore, dismissed it. It is quite clear to me that the learned trial Judge did not obviously agree with the decision of the Court of Appeal in Gambari’s case (supra), and, therefore, did not allow the doctrine of stare decisis to guide him since he preferred the decision in Bakare’s case. Consequently, the 1st, 2nd and 3rd defendants decided to appeal against the ruling.