Dokun Ajayi Labiyi Vs Alhaji Mustapha Moberuagba Anretiola & Ors (1990)

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KARIBI-WHYTE, J.S.C

 The point of law involved in this appeal is a very short one. It is not new. It is, however, a point of law of immense constitutional importance.  

The point of law we are called upon to decide is whether the High Court can exercise jurisdiction to rule upon the effect of the provision of an Edict which is inconsistent with a provision of the constitution of the Federal Republic. Appellant before us has contended that a court has no jurisdiction to declare on the status of an Edict.

The respondent holds the contrary view that the court is vested with jurisdiction to declare on the validity vel non of an Edict whose provision is inconsistent with the provision of the Constitution.  Although the background facts leading to these contentions are not crucial to the determination of the issues involved and the construction of the provisions, it will be some what helpful to state them in the elucidation of the issues.   The litigation arose from the dispute as to the number of branches constituting the Anretiola Ruling House of Ilero Anretiola was the great grandfather of the plaintiff.

He was also the first Elero of Ilero. Elero is a village in the Kajola local Government Area of Oyo State. On the death of Anretiola, Falodun his half brother succeeded him as the Elero of Ilero. The defendants are the descendants of Falodun. The Anretiola and Falodun families constitute the Ruling Houses of the Ilero Chieftaincy.   Under the Declaration made in 1957 under Section 9 of the Chiefs Law, the Abere, Labiyi, Akintayo and Ige houses were the only Ruling Houses named in respect of the Elero of Ilero Chieftaincy. In 1976 the Oyo State Government set up a commission of inquiry to report on the Chieftaincy Declaration following petitions by Plaintiff’s family.

The findings of the inquiry increased the Ruling Houses by the addition of Anretiola. This recommendation was approved by the Oyo State Government in 1981. Plaintiffs were still not satisfied since the measure, in their view, did not meet with the tradition and yearnings of the majority of the Ilero community. They then brought an action against the Defendants seeking the Declaration stated therein to set aside the Declaration of 1957, and a Declaration that llero customary Law recognised only the Anretiola and Falodun Ruling Houses: They also sought an injunction to restrain the defendants from implementing the said purported declaration of 1981.   In the statement of Defence of the 1st defendant, the issue of the jurisdiction of the trial court to entertain the claim was raised for the 3rd Defendant. It was also argued in addition that the statement of claim did not disclose any cause of action.

In paragraph 7 of the affidavit in support of the Motion to dismiss the action, it was averred as follows-   “That the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, 1985, precludes this Honourable Court from entertaining any civil cause or matter pertaining to Chieftaincy matters.”   On his part, 6th Defendant pleaded in paragraph 14 of his statement of defence the ouster of the jurisdiction of the courts in chieftaincy matters by the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, 1985.  

In his ruling on this objection, the learned trial judge held, “The Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict supra bars the Court from entertaining suit regarding chieftaincy matters as well as Decree No. 13 supra.”   Plaintiff appealed to the Court of Appeal. The Court reversed the decision of the High Court and held that the High Court has jurisdiction to declare the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict inconsistent with the provisions of the Constitution 1979 and therefore void.  

Defendants have appealed to this court against the decision of the Court of Appeal, seeking to restore the decision of the High Court. The two grounds of appeal filed against the judgment read: “(i) The learned Justices of the Court of Appeal erred in law when they, in their lead judgment, said;   (i) ‘As stated at the beginning of this judgment the main issue calling for determination in this appeal is as to whether a court can pronounce on the validity or otherwise of the provisions of an Edict-in this case, the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, No. 3 of 1985 of Oyo State notwithstanding the provisions of the Constitution (Suspension and Modification) Decrees No. 1 of 1984 and the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984.’ (ii) It is my view and I so held, that as section 2(c) of Edict No 1 of 1985 of Oyo State is inconsistent with sections 6(6)(b), 33(1) of the 1979 Constitution, it is void and of no effect.   and they thereby came to a wrong decision.

PARTICULARS OF ERROR (a) Constitutionality of Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, No 2 of 1985 was not raised in either of the two grounds of appeal filed by the plaintiff/appellant. (b) The issues for determination in an appeal must be related to the complaints raised in the grounds of appeal. (c) What the learned justices of the Court of Appeal observed to be the issue calling for determination in the appeal before them did not flow or arise from the grounds of appeal filed by the plaintiff/appellant.   A Court of Appeal can only hear and decide an issue raised in the grounds of appeal and it is not entitled to make any pronouncement on an issue not placed before it in the grounds of appeal. (e) The submissions which the plaintiff/appellant made in his brief were not covered by the grounds of appeal filed by him.   2. The learned Justices of the Court of Appeal erred in law in holding that Decree No. 28 of 1979 is not in pari materia with Decree No. 13 of 1984 and in thereupon concluding that the cases of (1) CHIEF ADEBIYI ADEJUMO V. H. E. COL. MOBOLAJI O. JOHNSON, MILITARY GOVERNOR OF LAGOS STATE (1972)3 S.C. 45 and (2) Adenrele ADEJUMO & ANOR. V. H.E. COLONEL MOBOLAJI O. JOHNSON, MILITARY GOVERNOR OF LAGOS STATE (1974)5 S.C. 101 are in applicable to this case and they consequently came to a wrong decision.   PARTICUARS OF ERROR (a) Both Decree 28 of 1970 and Decree 13 of 1984 provide that one can only attack an Edict if it is inconsistent with a Decree.

(b) In interpreting Decree No. 13 of 1984, the Court of Appeal was bound to follow the Supreme Court’s construction of Decree 28 of 1970 in the above mentioned cases of Adejumo. (c) Decree No. 13 of 1984 was promulgated to protect Edicts as the Court of Appeal held in KANADA V. THE GOVERNOR OF KADUNA STATE & ANOR. (1986)4 N.W. L.R. (PART 35) 361 at 375. (d) Edict No. 3 of 1985 was not found to be inconstant with any Decree.” Learned counsel to the parties filed and exchanged their briefs of argument. They both adopted the briefs of argument and relied on them in argument before us.   Learned counsel to the appellant formulated the following two issues for determination. “2.1 Whether the Court of Appeal was correct to have held that the complaint in Ground 1 of the Plaintiff’s Ground of Appeal in the Court of Appeal was clear and could not have misled the defendants who were the respondents in the Court of Appeal.

 2.2 Whether the Court of Appeal was correct to have said that the issues calling for determination before it was whether a court could pronounce on the validity or otherwise of the provisions of an Edict, the Oyo State’s Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, No. 3 of 1984 and the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984.’   Learned counsel to the Respondent has also formulated two issues as follows- “0.1. Whether or not provisions of the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict Oyo State are consistent with the provisions of the unsuspended provisions of the Constitution of the Federal Republic of Nigeria and if not Whether or not the State High Court can declare any inconsistency found in an Edict against a Decree or the unsuspended pan of the Constitution notwithstanding the provisions of Decree No. 13 of 1984? 0.2.

Whether if the provision of an Edict are inconsistent with the provisions of an unsuspended part of the Constitution the Court can so declare.”   Learned counsel to the 6th Defendant/Respondent has formulated only one issue for determination which reads- “Whether a Court can pronounce on the validity or otherwise of the provisions of an Edict, in this case, the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, No. 3 of 1985, of Oyo State, notwithstanding the provisions of Constitution (Suspension and Modification) Decree No. 1 of 1984 and the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984.”  

The first of the issues formulated by learned counsel to the Appellant is not supported by any of the grounds of appeal filed. It is therefore not an issue for determination before this Court. See Modupe v. State (1988) 4 N.W.L.R. (Pt.87)130. The only issues before this Court, has been well expressed in the formulation of the Plaintiff/Respondent.