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Alasan Babatunde, Ajagunna Ii Olukare Of Ikare V. Governor, Western Region (1960) LLJR-SC

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This is an appeal by Alasan Babatunde against the discharge of an order nisi by the High Court of the Western Region sitting at Ibadan. The appellant had obtained an order nisi for a writ of certiorari to issue to the Governor of the Western Region to bring up and quash his order of approval and recognition of the appointment of Amusa Momoh as the Olukare of Ikare. Chief Rotimi Williams, for the respondent, objected in limine before us that, having regard to the provisions of section 3 of the Administration of Justice (Crown Proceedings) Law, 1959, this Court had no jurisdiction to make the order which the appellant had wanted the Court below to make. It is common ground that this law did not come into force until after the Court below had discharged the order nisi, but Chief Rotimi Williams contends that section 3 deals with a matter of procedural law and that it will, therefore, bind this Court in dealing with this appeal. In my view, this is not so. The purpose of section 3 of the law is to preclude the jurisdiction of the High Court to issue prerogative orders in respect of chieftaincy matters. In re Joseph Suche and Co. Ltd. (1875) 1 Ch.D. 48, to which Chief Rotimi Williams himself was good enough to refer us, Jessel, M.R. (at p.50) said:

“It is a general rule that when the Legislature alters the rights of the parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them.”

I have no doubt that the same principle applies to proceedings by way of the prerogative orders, and the appellant, having commenced these proceedings at a time before the jurisdiction of the High Court was precluded, is entitled to have his appeal heard and determined.

I am of opinion, however, that the learned Judge, on the whole of the case put forward by the appellant, was right in discharging the order.

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The first ground on which I think the discharge was right is not one taken in the Court below, nor indeed in this Court, and it is thus: that the appellant was not in law an aggrieved party in relation to the order complained of. The order was made on 17th December, 1956. On 6th October, 1956, the Governor of the Western Region, acting under section 22(1) of the Western Region Appointment and Recognition of Chiefs Law, 1954, had deposed the appellant from his office of Olukare of Ware on the ground that his deposition was necessary in the interest of peace, order and good government. This order was published as W.R.N. No. 14 in the Western Region Gazette No. 2 of 3rd January, 1957. The present proceedings were commenced in the High Court on 18th February, 1957. In my view, the appellant, having been deposed by the Governor, clearly had no such interest in the appointment of a new Olukare as to make him an aggrieved party.

Mr. Ayoola, for the appellant, contended that the appellant might possibly have been appointed again. This Court, however, must deal with these matters on common sense basis, and in my view there can be no doubt that the appellant would certainly not have been reappointed. He had, of course, an interest in his own deposition, and had there been any grounds for challenging that order, then he would have had in relation to it the standing of an aggrieved party. He has, however, taken no action to have that order set aside. In this connection I ought, perhaps, to refer to the case of Nakkuda Ali v. Fayaratne (1951) A.C. 66, which was cited to us by Chief Rotimi Williams, and to mention that the judgment in that case makes it arguable whether in acting under section 22(1) of the Western Region Appointment and Recognition of Chiefs Law the Governor is amenable to certiorari at all.

In the second place, section 34(1) of the Western Region Appointment and Recognition of Chiefs Law, the law under which Amuse Momoh was appointed, and which was in force when these proceedings were commenced, provides that: “……. no Court shall have jurisdiction to entertain any civil cause or matter calling in question anything done in the execution of any provisions of this law or in respect of any neglect or default in the execution of any such provisions by the Governor……” This is a much wider exclusion than that which was considered in The Resident Ibadan Province v. Memudu Lagunju (14 W.A.C.A.) 549), which was cited to us by Mr. Ayoola for the appellant. There jurisdiction was taken away ‘to entertain any civil cause or matter instituted for the determination of any question relating to the selection, appointment, installation, deposition or abdication of a chief’ (s.3, Chieftaincy Disputes (Preclusion of Courts) Ordinance, 1948), and it was held by the Court that the terms of the exclusion did not Include certiorari brought “with the object of compelling the executive to perform its quasi judicial function of holding the inquiry which, in the case of a dispute, was required by law to be held prior to the approval of the appointment of a chief. Under the law applicable in the present case jurisdiction is taken away in relation to any civil cause, which is defined to include certiorari proceedings, which calls in question anything done in the execution of any provisions of the law or in respect of any neglect or default in the execution of any such provisions by the Governor. This exclusion appears to me so wide that it must exclude the appellants application.

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Whether or not it leaves room for the operation of the principle stated in The Colonial Bank of Australasia v. Willan (L.R. 18745 P.C. 417, at 442) that, even where certiorari has been taken away by statute, it may still issue to remove and quash an order on the ground of manifest lack of jurisdiction in the tribunal or person who made it, or of manifest fraud in the party procuring it, it is not necessary to decide, since the appellant does not allege any lack of jurisdiction in the Governor to approve and recognise the appointment, nor does he allege any fraud.

For these reasons I would dismiss this appeal with fifty guineas costs to the respondent.


I concur.


I concur.

Appeal dismissed.

Other Citation: (1960) LCN/0869(SC)

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