Mr. Salami Afolabi & Ors. V. Governor Of Oyo State & Ors. (1985)
LawGlobal-Hub Lead Judgment Report
N. ANIAGOLU, J.S.C.
On 24th June, 1985, this appeal was allowed, the judgment of the Court of Appeal set aside, and the judgment of the High Court of Oyo State holden at Oshogbo (Oloko, J.) restored with N300.00 costs to the appellants. The dispute is about Chieftaincy and it concerns the vacant stool of the OLOBAGUN of OBAGUN in Ifelodun Central Local Government of Oyo State.
The background facts resulting in these proceedings, in respect of which there is no dispute, are that there is an area called OBAGUN under the Ifelodun District Council of the Oyo State in Western Nigeria whose traditional Chief is titled and styled “the OLOBAGUN.” The then Government of Western State of Nigeria, after due inquiries (see the REPORT and Exhibit B) had issued an official document called the “WESTERN STATE CHIEFTAINCY DECLARATIONS” (Exhibit A) containing declarations (among others) about the Ruling Houses of various areas in the Western State entitled to present some chiefs of various localities and the kingmakers of those areas. These declarations were made in exercise of the powers conferred by the Chiefs Law 1955.
At page 21 of the document (Exhibit A) is contained the Chieftaincy Declaration of the OLOBAGUN OF OBAGUN showing the three ruling houses “which have the right” to provide candidates for the Obagun Chieftaincy as, KAYODE, OLUBAKIN and ODUOYE houses, in that order. For its importance the said Declaration is set out hereunder as follows:
“IFELODUN DISTRICT COUNCIL
CHIEFTAINCY DECLARATION: OLOBAGUN OF OBAGUN
In exercise of the powers conferred upon the Council by section 3(1) of the Western Region Appointment and Recognition of Chiefs Law, 1955, the following declaration setting out the method of selection of a person to be Olobagun of Obagun is made by the Ifelodun District Council after consultations with the kingmakers and the representatives of the ruling houses of Obagun as follows:
(a) There are three ruling houses which have the right to provide candidates for the Obagun Chieftaincy. The names of such ruling houses are as follows:
(b) The order of rotation in which every family specified in paragraph (a) is entitled to produce a candidate is as follows:
(c) There is no circumstance when the normal succession to a chieftaincy through the male line of a ruling house can devolve on the female line.
(d) The persons entitled to select the holder of the Chieftaincy are the six persons who are for the time being holding the following chieftaincies:
The Esa The Inurin
The Ojomu The Aro
The Osholo The Odofin
They are the traditional kingmakers.
(e) Whenever a vacancy occurs, the kingmakers shall require the Head-Omoba, who is the person holding the title of ‘Olori-Omoba’ to present a candidate from the family whose turn it is to produce a candidate.
The family concerned selects a candidate and presents him to the Head-Omoba who in turn presents him to the kingmakers.
DECLARED by the Ifelodun District Council on 17th day of October, 1955, and passed by the Council on 16th November, 1956 vide their minute 20 of 16th November, 1956.
The Common Seal of the Council having been affixed in accordance with the Council’s Standing Orders in the presence of:
Chairman, Ifelodun District Council
Secretary /Treasurer, Ifelodun
“APPROVED at Ibadan this 27th day of May, 1957.
Minister of Justice and Local Government
DULY REGISTERED by me at page 189 of the Chieftaincy Declaration Register this 29th day of June, 1957.
R. B. HALLA WAY,
For Acting Permanent Secretary, Ministry of Justice and Local Government.”
As is conceded on all sides, the above declaration satisfied all the requirements of the Chiefs Law. It was declared by the Ifelodun District Council on 17th October, 1955; passed by the Council on 16th November, 1956; affixed with the Common Seal of the Council in accordance with their Standing Orders; approved by the Minister of Justice and Local Government on 27th May, 1957, and registered at page 189 of the Chieftaincy Declaration Register on 27th June, 1957. All action for the validity of the Declaration had thus, it is all agreed, been completed in June 1957.
But the Iwolode family would not accept that 1957 Declaration. They felt very sore about the exclusion of the Iwolode family from the Declaration and had ever since been agitating against the Declaration. Despite the agitation, however, the 1957 Declaration continued to be the recognised declaration. The incumbent OLOBAGUN was Oba Bakare Adekanola from the ODUOYE ruling house.
However, following the incessant agitation, a Review Commission called Chieftaincy Declarations Review Commission was set up by Government on 16th November, 1976, made up of four members of which a High Court Judge, Mr. Justice Adenekan Ademola, was the Chairman. The Review Commission having gone through all the representations made to it recommended that there should be no change to the 1957 declaration. This recommendation was accepted by the Executive Council (See: Exhibit B).
Before then the Chiefs (Amendment) Law, 1963 W.N. No.14 of 1963, had been enacted. Section 9A thereof gave power to the Governor under certain circumstances to order an amendment of a declaration already made. The section reads:
“9A(1) Where the Governor in Council is satisfied that a registered declaration –
(a) does not contain a true or sufficiently clear statement of the customary law which regulates the selection of a person to be the holder of a recognised chieftaincy; or
(b) does not contain a sufficient description of the method of selection of the holder of such a chieftaincy; or contains any error whether as to its form or substance; or is otherwise defective, faulty or objectionable, having regard to the provisions of this Law, the Governor in Council may require the Chieftaincy Committee of the competent council to amend such declaration in any respect that he may specify, or to make a new declaration, according as he may consider necessary or desirable in each case.
(2) The Governor in Council may approve or refuse to approve a registered declaration amended or a new declaration made by a Chieftaincy Committee under sub-section (1) of this section.
(3) Where a Chieftaincy Committee fails to amend a registered declaration in the respects specified by the Governor in Council, or to make a new declaration within a reasonable period of its being required so to do, in accordance with sub-section (1) of this section, the Governor in Council may amend the registered declaration in respect of the recognised chieftaincy concerned in accordance with the powers conferred on the committee under this Law.
(4) The provisions of section 6 shall apply mutatis mutandis in respect of any amendment to a registered declaration or any new declaration made by a chieftaincy committee under sub-section (1) of this section.”
Section 9B of the Law provides for a re-registration of an amended declaration. It says:
“9B(1) Any registered declaration amended or new declaration made by a chieftaincy committee, and approved by the Governor in Council, and any registered declaration amended or new declaration made by the Governor in Council, under section 9A, shall be re-registered or registered, as the case may be, and retained in safe custody by the officer specified in sub-section (1) of section 8.
(2) No registered declaration amended or new declaration made under section 9A shall come into effect until it has been re-registered or registered, as the case may be, in accordance with subsection (1) of this section, and upon being so re-registered or registered, such declaration shall be deemed to contain the customary law regulating the selection of a person to be the holder of the recognised chieftaincy to which it relates, to the exclusion of any other customary. usage or rule or any other declaration that may have been made or registered under any written law.”
It is not disputed that on 26th July, 1981 the incumbent OLOBAGUN, Oba Bakare Adekanola, from Oduoye ruling house, died.
By an amendment of the Chiefs Law in 1978 – Chiefs (Amendment) (No.2) Edict 1978 – which now reads as section 15(1) of the Chiefs Law, 1978, Cap 21, Volume 1, Laws of Oyo State of Nigeria 1978, it is provided that where a vacancy occurs in a ruling house chieftaincy –
“(a) the secretary of the competent council shall not later than fourteen days after the occurrence of the vacancy announce the name of the ruling house entitled according to customary law to provide a candidate or candidates, as the case may be, to fill that vacancy;
(b) not later than fourteen days after the announcement by the Secretary, the members of the ruling house, acting in accordance with the declaration, shall submit the name of a candidate or the names of candidates, as the case may be, to the kingmakers;
(c) if within the time prescribed by paragraph (b) of this subsection, the ruling house named in the announcement fails to submit the name or names of a candidate or candidates, and there is more than one ruling house, the secretary shall make an announcement accordingly and the ruling house next entitled according to the order of rotation contained in the declaration shall be entitled to submit a name or names within the period of fourteen days immediately following such announcement, and so on according to the same procedure, until the name of a candidate or candidates is submitted to the kingmakers;
(d) it shall be lawful for the Secretary to attend as an observer any meeting of the ruling house mentioned in sub-paragraphs (b) and (c) of this subsection upon directives issued in that behalf by the Commissioner for Local Government and Chieftaincy Affairs;
(e) within not more than seven days after the submission of the name of a candidate or candidates the kingmakers shall proceed to select a person to fill the vacancy in accordance with the provisions of paragraph (f) of this subsection;
(f)(i) if the name of only one candidate is submitted who appears to the kingmakers to be qualified and not disqualified in accordance with section 14, they shall declare him to be appointed;
(ii) if the names of more than one candidate are submitted who appear to the kingmakers to be qualified and not disqualified in accordance with section 14, the names of those candidates shall be submitted to the vote of the kingmakers and the candidate who obtains the majority of votes of the kingmakers present and voting shall be declared appointed;
(iii) in voting upon candidates the kingmakers shall have regard to the relative ability, character and popular support of each candidate;
(iv) if the name of only one candidate is submitted and it appears to the kingmakers that he is not qualified or is disqualified in accordance with section 14, or if, in the case of a chieftaincy in respect of which there is only one ruling house, no candidate is submitted to the kingmakers, they shall inform the ruling house and the Secretary accordingly and the ruling house shall be entitled to submit a further name or names within fourteen days of being so informed and thereafter the procedure contained in paragraphs (c) to (e) of this subsection shall apply.”
That section, it was submitted, should have been complied with, within 14 days of 26th July, 1981, being the date Oba Bakare Adekanola died. According to the rotational procedure Kayode ruling house should have been announced as
“the ruling house entitled according to customary law to provide a candidate or candidates…..to fill that vacancy.
That was, however, not to be. The Secretary of the Council – the Ifelodun Central Local Government – failed and/or refused to name Kayode ruling house as the appropriate ruling house and to call upon that house to provide a candidate or candidates. The impasse remained at that until 20th January, 1982, when a new Declaration of that date (Exhibit L) was made amending the existing Declaration and including Iwolode family as a Ruling House. The said Exhibit L reads:
IFELODUN CENTRAL LOCAL GOVERNMENT CHIEFTAINCY
COMMITTEE DECLARATION MADE UNDER S.4(2) OF
THE CHIEFS LAW, CAP. 19 OF THE CUSTOMARY LAW
REGULATING THE SELECTION TO THE
OLOBAGUN OF OBAGUN CHIEFTAINCY
(1) Number of Ruling Houses and their identities:
There are four Ruling Houses and the Identity of each Ruling House is:
(2) Order of Rotation:
The order of rotation in which the respective Ruling Houses are entitled to provide candidates to fill successive vacancies in the Chieftaincy shall be:-
(iii) Oduoye (Present Ruling House)
“(3) Persons who may be proposed as candidates:
The persons who may be proposed as candidates by a Ruling House entitled to fill a vacancy in the Chieftaincy shall be:-
(a) Male members of the Ruling House;
(b) of the male line only.
There are six Kingmakers:
(1) Esa of Obagun
(2) Ojomu of Obagun
(3) Osholo of Obagun
(4) Inurin of Obagun
(5) Aro of Obagun
(6) Odofin of Obagun
(5) Method of Nomination:
The method of nomination by each Ruling House is as follows:
The Ruling House whose turn it is to provide a candidate shall nominate, at a family meeting to be summoned by the family head, candidate/candidates to be presented by the family head to the Kingmakers.
MADE BY THE CHIEFTAINCY COMMITTEE IN THE AREA OF THE IFELODUN CENTRAL LOCAL GOVERNMENT which has been designed as the competent Council by Oyo State Local Government Edict No.5 of 1976.
OBA LAW ANI ADEYEMI A.O. ADEDEJI A. O. ADEDEJI
Chieftaincy Committee, Ifelodun Chieftaincy Committee,
Central Local Government Area. Ifelodun Central
Local Government Area.
MADE THIS 20TH DAY OF JANUARY, 1982
APPROVED this 24th day of February, 1982
GOVERNOR OYO STATE OF NIGERIA
Registered this 25th day of February, 1982
SECRETARY TO THE GOVERNMENT
OYO STATE OF NIGERIA.”
The appellants therefore took out this action against the Governor, the Attorney-General, the Secretary of the Council and the Iwolode family in Obagun claiming:
“(1) A DECLARATION that according to the customary Law of OLOBAGUN OF OBAGUN Chieftaincy, the only Ruling Houses which have the right to provide candidates for the OLOBAGUN of OBAGUN Chieftaincy are: KAYODE, OLUBAK1N and ODUOYE Ruling Houses.
(2) A DECLARATION that according to the Customary Law of OLOBAGUN of OBAGUN Chieftaincy, IWOLODE Family is not a Ruling House and cannot provide any candidate to fill the vacant stool of OLOBAGUN of OBAGUN Chieftaincy.
(3) AN INJUNCTION restraining the 3rd Defendant from announcing the name of IWOLODE Family to provide a candidate to fill the vacancy in OLABAGUN of OBAGUN Chieftaincy.
(4) AN ORDER that the 3rd Defendant do forthwith announce the name of KAYODE RULING HOUSE entitled according to Customary Law of OLOBAGUN of OBAGUN Chieftaincy to provide candidates to fill the vacant stool of OLOBAGUN OF OBAGUN.
DATED THIS 28TH DAY OF JANUARY, 1982.”
The case was heard on pleadings by Oloko, J., who at the conclusion of hearing delivered judgment on 28th May, 1982 holding:
“(1) That according to the customary law of Olobagun of Obagun Chieftaincy, the only Ruling Houses which have the right to provide candidates for the Olobagun of Obagun Chieftaincy under
the Olobagun of Obagun Chieftaincy declaration of 1957 are:
ODUOYE RULING HOUSES.
“(2) That the relevant Olobagun of Obagun Chieftaincy Declaration applicable to the filling of the vacancy in the Olobagun of Obagun Chieftaincy is that registered on the 29th day of June, 1957 and existing at the time of death of the incumbent Oba Bakare Adekanola on 26th day ofJuly, 1981.
(3) That Kayode Ruling House is according to the Customary Law of Olobagun of Obagun Chieftaincy contained in the Obagun Chieftaincy Declaration of 1957, the Ruling House.
(4) That the 1st Defendant, his agents or privies are hereby restrained from calling on Iwolode family to provide a candidate to fill the present vacant stool of Olobagun of Obagun.
(5) I hereby order the 1st defendant, his agents or privies to comply with the Chiefs Law by announcing the name of Kayode Ruling House as the Ruling House entitled, according to Customary Law of Olobagun of Obagun Chieftaincy to provide candidate or candidates to fill the present vacant stool of Olobagun of Obagun.”
Dissatisfied with the High Court judgment, the Iwolode family (4th defendant) appealed to the Federal Court of Appeal (now Court of Appeal) by notice of appeal dated 17th June, 1982while the Governor of Oyo State (1st and 2nd, defendants) also appealed to the same Court by notice of appeal dated 7th July, 1982.
The Court of Appeal delivered its unanimous judgment (Uche Omo, Sulu-Gambari and Onu, JJ.C.A.) on 13th September, 1984, setting aside the judgment of the High Court, and in its place, dismissing the case of the plaintiffs in its entirety with a total of N800.00 costs.
The plaintiffs have now appealed to this Court against the Court of Appeal judgment upon four grounds of appeal, with particulars, as follows:-
“1. THE LEARNED JUSTICES OF THE COURT OF APPEAL ERRED IN LAW WHEN THEY HELD AS FOLLOWS:
“THERE IS NO DOUBT THAT EXHIBIT “L” BY “SUPERSEDING” EXHIBIT “A”, AND THEREBY INTRODUCING IWOLODE FAMILY AS A FOURTH RULING HOUSE AND WHICH FAMILY TAKES THE PLACE OF THE KAYODE RULING HOUSE AS THE HOUSE ENTITLED TO FILL THE EXISTING VACANCY, HAS AFFECTED ADVERSELY THE ACCRUED RIGHTS NOT ONLY OF THE KAYODE RULING HOUSE BUT OF ALL THE PLAINTIFFS. IT IS ALSO VERY CLEAR THAT IT HAS DONE SO RETROSPECTIVELY SINCE THE RIGHTS BEING LITIGATED ON 29/1/82 WERE THE RIGHTS OF THE PLAINTIFFS/RESPONDENTS UNDER THE THEN EXISTING DECLARATION EXHIBIT “A”.
PARTICULARS OF ERROR
(1) THE JUSTICES OF THE COURT OF APPEAL FAILED TO CONSIDER THE EFFECT OF SECTION 12 OF THE INTERPRETATION LAW OF OYO STATE.
(2) FROM ALL THE CIRCUMSTANCES OF THE CASE, THE PRESUMPTION AGAINST RETROSPECTIVITY WAS NOT REBUTTED BY THE RESPONDENTS. –
- THE LEARNED JUSTICES OF THE COURT OF APPEAL MISDIRECTED THEMSELVES IN LAW WHEN THEY SAID:-
“1 THEREFORE HOLD THAT IT IS THE CLEAR INTENTION AND LANGUAGE OF THE CHIEFS LAW THAT THE ACCRUED RIGHTS CANVASSED IN THIS CASE, SHOULD BE CAP ABLE OF BEING INFRINGED BY AN AMENDEDINEW DECLARATION OPERATING RETROACTIVELY. I AGREE WITH LEARNED APPELLANTS’ COUNSEL THAT THE LANGUAGE OF THE ACT IS CLEAR AND DOES NOT ALLOW OF THE NARROW CONSTRUCTION THAT THE TRIAL JUDGE GAVE TO IT.”
PARTICULARS OF MISDIRECTION
- BY SECTION 9 OF THE CHIEFS LAW, EXHIBIT “A”, A REGISTERED DECLARATION IS THE LAW THAT GOVERNED THE RIGHTS OF THE PARTIES AT THE TIME OF THE DEATH OF THE INCUMBENT OBA ON THE 26TH JULY, 1981.
- BY SECTION 11 OF THE CHIEFS LAW, THE SECRETARY OF THE COMPETENT COUNCIL OUGHT TO HAVE SET IN MOTION THE LEGAL MACHINERY FOR FILLING THE VACANCY INCLUDING HIS STATUTORY DUTY OF EFFECTUATING THE ACCRUED RIGHT OF KAYODE FAMILY RULING HOUSE TO PROVIDE CANDIDATES TO FILL THE VACANCY.
- AT THE TIME THE ACTION WAS INSTITUTED, EXHIBIT “A” WAS THE ONLY LAW REGULATING THE RIGHTS OFTHE PARTIES.
- THE 1ST DEFENCE WITNESS CONFIRMED THAT DURING INTERREGNUM, IT WAS NOT THE PRACTICE TO CHANGE A REGISTERED DECLARATION.
(5) EXHIBIT “L” DID NOT SHOW ANY INTENTION TO AFFECT THE ACCRUED RIGHTS OF THE PLAINTIFFS PARTICULARLY THE KAYODE FAMILY.
- THE LEARNED JUSTICES OF THE COURT OF APPEAL MISDIRECTED THEMSELVES IN LAW WHEN THEY SAID:-
“IT IS ALSO RELEVANT IN THIS CONNECTION TO NOTE THAT THE PRESENT ACTION WAS COMMENCED BY THE PLAINTIFFS ONLY AFTER (AND NINE DAYS AFTER) THE AMENDED DECLARATION WAS, TO THEIR KNOWLEDGE, PASSED. THEREAFTER ALL THAT REMAINED WAS APPROVAL BY THE GOVERNOR AND REGISTRATION OF THE AMENDED DECLARATION. IT SEEMS TO ME THAT THIS IS RATHER A CASE IN WHICH THE COURT SHOULD HAVE REFUSED DECLARATIONS WHICH HAVE BEEN OVERTAKEN BY EVENTS IT BEING THE PRACTICE OF COURTS NOT TO MAKE ORDERS WHICH WILL BE OF NO EFFECT.”
PARTICULARS OF MISDIRECTION
- THERE IS NO AMENDED DECLARATION UNTIL IT IS REGISTERED UNDER SECTION 9 OFTHECHIEFS LAW.
- THE RIGHTS OF THE PLAINTIFFS HAD ACCRUED AT THE TIME OF THE DEATH OF
THE INCUMBENT OBA ON THE 26TH OF JULY, 1981, AND WHEN THE SECRETARY OF THE COMPETENT COUNCIL REFUSED OR NEGLECTED TO APPLY SECTION 11 OFFICE CHIEFS LAW, THE PLAINTIFFS HAD THE LOCUS STANDI TO SEEK THE RELIEFS THEY SOUGHT IN THE HIGH COURT SINCE THOSE RELIEFS WERE JUSTICIABLE.
- THE LEARNED JUSTICES OF THE COURT OF APPEAL ERRED IN LAW IN REJECTING THE UNCONSTITUTIONALITY OF EXHIBIT ‘L’ WHEN EXHIBIT ‘L’ IS AN UNCONSTITUTIONAL INTERFERENCE WITH JUDICIAL POWER BY OYO STATE EXECUTIVE AND IT IS CONTRARY TO THE PROVISIONS OF THE 1979 CONSTITUTION.”
The parties duly filed their briefs of argument and elaborated on those briefs in their oral arguments before us.
CHIEF GANI FAWEHINMI. Counsel for the appellants submitted before us that this appeal entailed two issues, namely:-
(i) Whether Exhibit L has retrospectively taken away the rights of the plaintiffs/appellants. particularly that of the 1st appellant which accrued on 26th July, 1981, being the date the incumbent, Oba Bakare died; and
(ii) Whether section 2 of the “Chieftaincy Matters (Exclusive of Jurisdiction of Courts) Edict,” 1985, of Oyo State, No.3 of 1985, which excludes the jurisdiction of any Court, whether in its original, appellate or by way of transfer, jurisdiction, to entertain any civil cause or matter, in relation to certain specified matters concerning the selection, appointment, abdication of a chief; is constitutional.
Counsel for the respondents, Messrs. Adeniji and Babalola, conceded that the second issue did not fall for a determination in this Court, Mrs. Adeniji having agreed that there was jurisdiction in this Court to hear the appeal, while Mr. Babalola not only concurred with that view, but also stated that they did not raise the Edict as an issue before the High Court and were not raising it before us, since the commencement date of the Edict was 1st January, 1985. With this concession, this Court ruled that the constitutionality of Edict No.3 of 1985 did not therefore arise in this appeal and consequently, that Ground 4 of the grounds of appeal, together with the second issue above, was not now in issue. Chief Fawehinmi, adopting his brief, then argued grounds 1. 2 and 3 together. He submitted that when Oba Bakare died on 26th July, 1981, the Oyo State Chiefs Law, 1978, imposed a duty on the Secretary of the Ifelodun District Council to, immediately and not later than 14 days, announce the name of the Ruling House entitled to present a candidate or candidates.
He further submitted that the plaintiffs/appellants were the three Families recognised since 1957 (See: Exhibit A) as the Ruling houses and that Exhibit A has been the Law in use for upwards of 25 years before this G dispute arose. He further argued that the Court of Appeal was wrong in holding that Exhibit L which took effect on 25th February 1982 had retrospective effect, pointing out that, in fact, the brief by the Ministry of Justice on behalf of the 1st and 2nd Respondents, agreed (at page 5) that Exhibit L had no retrospective effect and that it was not the intention of the Oyo State Government that it should have retrospective effect; nor was it its intention that Exhibit L should supersede Exhibit A. Mrs. Adeniji. Senior State Counsel, Oyo State, for the 1st and 2nd Respondents, submitted (in an apparent contradiction to her brief) that Exhibit L had retrospective effect on 25th February, 1982 and that the Exhibit superseded Exhibit A on that date.
Mr. Babalola, for the 4th Respondent, submitted that in construing Exhibit L this Court should take into consideration its effect. He pointed out that the Executive Council was given the power to amend a Declaration when it was satisfied that such an amendment was necessary and desirable. He argued that once a Declaration was registered it became the only effective Law and therefore that with the coming into force of Exhibit L, Exhibit A ceased to exist and to have effect. He finally submitted that the right of a Ruling House to be called upon was subject to the entire Chiefs Law of 1978.
It is important, I think, in resolving this appeal, to first draw attention to the concession made in the brief of the 1st and 2nd Respondents at page 5 from which Mrs. Adeniji has tried, surprisingly, to resile. It reads:
“1ST AND 2ND RESPONDENTS’ ARGUMENT
It is our humble submission that it was not the intention of the Oyo State Government that Exhibit “L” was to have a retrospective effect. Nor was it intended to supersede Exhibit “A”. The then Executive of Oyo State, by Exhibit “L” was only exercising its power under the Chiefs Law by including Iwolode as one of the ruling houses to the Olobagun of Obagun Chieftaincy. Thus by virtue of Section 12 of the Interpretation Law Cap. 52, Vol. III Laws of Oyo State of Nigeria 1978 which provides thus:-
“When any Law amends or adds to any Ordinance or Law the amending Law shall so far as is consistent with the tenor thereof, and unless the contrary intention appears, be construed as one with the amended Ordinance or Law, and the amended Ordinance or Law may in the amending Law, be referred to as the Principal Ordinance or Law.
Exhibit “L” has not superseded Exhibit “A”. Similarly, it is our humble submission that Exhibit “L” was not intended to impair the existing right of the Plaintiffs/Appellants.”
Had the 1st and 2nd Respondents continued to maintain the stance they took in their above brief as stated above, this contest would have been between the plaintiffs and Iwolode family, the 4th Respondents, only – a family which has maintained that the effect of the new legislation, Exhibit L, was to wipe out the old legislation, Exhibit A, and any rights which had accrued under it.
The narrow issue to which the contest has been reduced is, therefore:
Whether the amendment of Exhibit A by the enactment of Exhibit L affected the rights of the plaintiffs which had become vested before the passage of the said Exhibit L.
In the first place, Exhibit L was promulgated on 20th January, 1982; approved by the Governor of Oyo State on 24th February 1982, and registered, as required by law, on 25th February, 1982. Exhibit L had therefore become an effective law declaring the customary law it embodies on 25th February, 1982, by virtue of the Chiefs (Amendment) Law, 1963, S.9B(2). By clause (1) of Exhibit L “IWOLODE” had become added to the existing Ruling Houses for the purpose of the Olobagun of Obagun Chieftaincy. No one is challenging the power of the Governor to make the addition. From the 25th February 1982, it is not disputed that IWOLODE family is now one of the now four families entitled, at the appropriate time, to present candidates. Nothing, in the face of Exhibit L makes it retrospective. It does not mention the earlier enactment (Exhibit A), whether expressly or by implication. Therefore, the date on which Exhibit L came into effect was 25th February, 1982, repealing that Chieftaincy Declaration which came into force on 27th May, 1957 (Exhibit A). As stated in Alhaji the Hon. D. S. Adegbenro v. The Hon. S. L. Akintola (1963) 1All N.L.R. 299 at 301-302, adopting the principle mentioned at page 286 of the 10th Edition of Maxwell on Interpretation of Statutes that:
“It is presumed, where the objects of the Act do not obviously imply such an intention, that the legislature does not desire to confiscate the property or to encroach upon the rights of persons, and it is therefore expected that, if such be its intention, it will manifest it plainly, if not in express words at least by clear implication and beyond reasonable doubt. There was no mention of the suit, or the parties, or of costs in the Amendment Law and there was no clear implication that the legislature intended not only to settle a political question, but also to deprive the applicant of his costs.”
Certainly, by express enactment, Exhibit L, has not made any mention of the vested right of the Kayode Ruling House in the Obagun Chieftaincy.
The next question is whether by implication those rights are deemed to have been affected. Based upon the presumption that a legislature does not intend what is unjust, the Courts have always leaned against giving statutes a retrospective effect and usually regard them as applying to facts or matters which come into existence after the statutes were passed unless it is clearly shown that a retrospective effect was intended by the Legislature. This is a fundamental rule of English Law which Nigeria has adopted. To sample a few English authorities, reference must be made to WEST v. GWYNNE (1911) 2 Ch. 1 dealing with leases and with the Conveyancing and Law of Property Act, 1892 which is said to apply to all leases whether executed before or after the commencement of the Act. Kennedy, L.J., in concurring with the judgments of Cozens-Hardy, M. R. and Buckley, L.J., that section 3 thereof was of general application, stated at pages 14- 15 that:
“I think that, upon the whole, the view which Joyce J. has adopted is preferable to that for which the counsel for the appellant have contended, in regard to applicability of s.3 of the Conveyancing
Act, 1892, to the present case. The question is whether that section ought or ought not to have effect in regard to a lease made in July, 1874. I agree with the appellant’s counsel and with Joyce J. (who refers to a judgment of Rigby L.J. to the like effect) that the question cannot rightly be decided by treating the section as merely an enactment which amends and is to be read with, or into section 14 of the Act of 1881, as to which, by the express terms of the last-named section, the Legislature has prescribed that it is to be held applicable to leases made before as well as after the commencement of that Act. ” (Italics supplied)
Continuing at the same page 15, he recognised the “general rule of English Law” saying:
“I recognize the existence and the justice of the general rule of English law which is summarized by Sir Peter Maxwell in his work on the Interpretation of Statutes, 4th Ed. p. 322, and is illustrated in his and notes, as it was in the course of the argument of counsel in this Court, by a long line of cases, “that no statute shall be construed so as to have a retrospective operation, unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication.””
Thus, it was by express provision that that enactment was made retrospective. That differed from DAVID W. E. SMITH v. HENRY CALLANDER (1901) AC. 297 in which the Market Gardeners Compensation (Scotland) Act 1887 was held not to be retrospective and do not entitle tenants under leases current at the commencement of the Act to compensation in respect of market garden improvements executed prior to the commencement of the Act.
The same was true of CARSON v. CARSON And Another (1964) 1 WLR. 511 – a case of divorce – in which although s.3 of the Matrimonial Causes Act 1963, was held to have effected an alteration in the substantive law, the section was not retrospective so as to interfer with the rights that had accrued prior to its coming into operation, Parliament not having either expressly or by clear implication made it retrospective, and therefore a husband could rely upon a revival of a condoned adultery which occurred in 1962 to seek for divorce of the wife. Scarman, J., (See p. 519) was of the view, in that case, that the date of filing of the petition was quite immaterial and that a petition filed on that date of judgment but alleging conduct prior to July 21st, 1963; as reviving condoned adultery would be a well-founded petition provided, of course, the petitioner succeeded in proving the necessary facts alleged and subject to the question of unreasonable delay. He therefore held that the principle of non-retrospective effect of statutes except they are so intended expressly or by implication has been
“so frequently quoted with approval that it now itself enjoys almost judicial authority.”
(page 516 ibid)
In CROXFORD v. UNIVERSAL INSURANCE COMPANY LTD (1936) 2 KB. 253, Scott L.J. discussing this principle of law, as set out in Maxwell on Interpretation of Statutes, stated that “that page (of Maxwell) Seems to me to contain an almost perfect statement of the principle that you do not give a statute retrospective operation unless there is perfectly clear language showing the intention of Parliament that it shall have a retrospective application,”
Again, the Courts have adopted the principle that statutes which encroach on the rights of the subjects, whether as regards person or property, are subject to a strict construction in the same way as Penal Acts. Therefore, it is recognised that such statutes should be interpreted, if possible, so as to respect such rights and that if there is any ambiguity, the construction which is in favour of the freedom of the individual should be adopted (DAVID v. Da SILVA (1934)AC. 106. From this, the presumption has been formulated by the Courts that a statute does not retrospectively abrogate vested rights or take away proprietary rights without making provision for compensation. (ATT.-GEN. v. HORNER 1884) 14 QBD. 245, per Brett M.R.) (But see also: BELFAST CORPORATION v. O.D. CARS LTD. (1960) AC. 490.
It is in this same vein that the Courts have developed the principle that where there is ambiguity about the extent to which a statute has derogated from common law rights, the Courts should resolve the issue in favour of maintaining common law rights unless they are clearly taken away. In Re “Wonderland,” Cleethorpes (1965) AC. 58, (East Coast Amusement Co. Ltd. v. British Transport Board), for example, Viscount Simonds at page 71 approve this principle when he held, inter alia:
“Undoubtedly the Act of 1954 in important respects derogates from the common law rights of the landlord; he is no longer master of the situation to grant or deny a new lease to his tenants, but, if there is any ambiguity about the extent of that derogation, the principle is clear that it has to be resolved in favour of maintaining common law rights unless they are clearly taken away: See Cliff v. Taylor (1948) 2 KB. 394))
The principle has also been evolved that there is always a presumption based upon a supposition that the legislature would not do injustice, that the legislature does not intend to limit vested rights farther than clearly appears from the enactment. In Re Metropolitan Film Studios Application (1962) 1 WLR. 1315, Ungoed-Thomas, J., in determining a case of landlord and tenant in which the landlord applied for leave to proceed to claim for forfeiture and damages based upon breaches of covenant to repair, stated at page 1323, that:
“The well-established presumption is that the legislature does not intend to limit vested rights farther than clearly appears from the enactment.”
It was in the light of this strict construction that the Queen’s Bench Division decided the case of REGINA v. GOVERNOR OF BRIXTON PRISON, Ex parte HAVLIDE (1969) 1 WLR. 42 in which an alien entered the United Kingdom under a landing condition permitting him to remain for three months in England. At the expiry thereof, he did not leave and was charged under Article 25(1) of the Aliens Order, 1953, with a breach of the landing condition. He pleaded guilty at the Central Criminal Court and was sentenced to three months imprisonment suspended for 12months. If in addition, the Commissioner, purporting to act under 26(1) required him to enter into recognizance of 10.00pounds to leave the United Kingdom within two months. On October 22, within the two month period, the Home Secretary made a deportation order against him and he was detained in Brixton Prison. On his application for leave to move for a writ of habeas corpus on the ground that a deportation order could not be made against him before the two month period given by the Commissioner to leave the country had expired, it was held, refusing the application, that the power of a court was limited to requiring an alien to enter into recognizance to comply with the provisions of the order and, accordingly, as there was no provision in the order that required an alien to leave the United Kingdom when the period imposed by the landing condition had expired, the court had no power to require an alien to enter into recognizance to leave and to give him time within which to do so.
Other Nigerian authorities than ADEGBENRO v. AKINTOLA (Supra) are no less emphatic in upholding that principle. This Court in F.S. UWAIFO v. ATT.-GEN. BENDEL STATE And Ors.(1982) 7 SC. 124 at 193-194 (per Idigbe, J.S.C.) specifically dealt with the effect at Common Law of a repeal of a Statute and approved the statement of Tenderden L. J. and Tindal L. J. in SURTEES v. ELLISON 9B & C750 at 752 that such a repealed Statute
“must be considered, except as to transactions past and closed, as if it had never existed.” (Italics supplied)
In EDWIN JOHNSON alias SOFA BOY & Another v. THE STATE (1981) 2 SC. 29 at 38 the same Court (per Aniagolu, J.S.C.) supported the decision of the English Court in THE COLONIAL SUGAR REFINING COMPANY LIMITED v. IRVING (1905) AC. 369 that statutes are not to be held to act retrospectively to deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right, unless a clear intention to that effect was manifested.
Equally supportive of the principle is the judgment of this Court in THE SWISS AIR TRANSPORT CO. LTD. v. THE AFRICAN CONTINENTAL BANK LTD. (1971) 1 All NLR. 37 where at page 46, Lewis, J.S.C., delivering the judgment of the Court had this to say:
“…but in any case as the Companies Decree 1968 did not deal specifically with existing actions and apply the changes to them, and as it was not couched in language clearly showing an intention that the Statute should operate retrospectively and as it was not procedural the presumption against it having retrospective effect must apply.”
GODWIN IKPASA v. BENDEL STATE (1981) 9 SC.7 at 15-16; ADAMO LAWANI ADESHINA v. LAMIDl LEMONU (1965) 1 All NLR. 233 at 234; EDNA OKAFOR v. ALEXANDER IBEZIAKO And Another (1965) 1 All NLR. 407 at 411 are but instances of the application of the doctrine. H.C. OKAFOR v. UTOMI ONIANWA And Another (1964) 1 All NLR. 348 – case dealing with the Native Courts Ordinance – contains this passage at page 350 (per Bairamian, J.S.C.)
“One argument is that as the Native Courts Ordinance had been repealed in the Western Region, the trial judge should not have looked at it. That argument overlooks the fact that the repeal of a law does not affect anything done in the days when it was in force; the High Court was entitled to look at the Ordinance.” (Italics mine) And so, from the foregoing, it is clear that our Laws do not permit the deprivation, from an individual, of his vested rights merely because the law existing when the rights vested has been repealed, unless the Legislature categorically, in a clear and unambiguous language, in the repealing of the statute, declares that the right be divested.
The Court of Appeal decided against the appellants setting aside the judgment of the High Court in their favour.
Before that Court, Counsel for the appellants made seven points as follows:
- That with effect from 25th February, 1982, Exhibit L superseded Exhibit A and became the only existing Chieftaincy Declaration for the Olobagun of Obagun Chieftaincy;
- That Exhibit L having recognised the Iwolode family as a ruling house, its rights cannot be overlooked by the trial judge in deciding on the declaration claimed which should have been refused;
- That the right to present a candidate for the vacant stool did not accrue until the Secretary of the Competent Council had performed his duty, under S.11(a) of the Chiefs Law, (now S.15 of the 1978 Chiefs Law) of announcing the name of the ruling house entitled according to customary law to provide candidate or candidates to fill the vacancy;
- Alternately to 3 above, that assuming that the right to present a candidate or candidates accrued on the death of the incumbent, the right was subject to the over-riding provisions of the new Chieftaincy Declaration (Exhibit L) which could be made by the Governor, under section 9 of the Chiefs Law, to amend or change the Declaration at any time, “whether during an incumbency or an interregnum”;
- That the narrow construction given to S.9 of the Chiefs Law by the trial judge was in error, since it ought to have been given its ordinary meaning, particularly so, as no absurdity would arise from such interpretation;
- That the validity of Exhibit L was not being challenged in these proceedings and therefore Exhibit L remained the law, which the High Court could not overlook;
- That since as at 29th January, 1982, when the writ in this case was filed, the Secretary of the competent Council had not announced any ruling house to be entitled, there was no grievance or actionable wrong, recognisable in law, in respect of which the writ could have been filed.
Respondents’ counsel, replicando, asserted
- that with effect from 25th February, 1982, Exhibit L became effective after registration and superseded Exhibit A;.
- that Exhibit L which recognised the Iwolode family as a ruling house entitled to contest, could not be overlooked by the trial judge in determining the declaration sought and therefore the declaration ought to be refused in the exercise of the court’s discretion;
- that the right to present a candidate for a vacant stool did not accrue until the Secretary of the Competent Council had performed his duty of announcing the name of the ruling house entitled according to customary law; and
- that the right (if any) was not justiciable until it had been infringed and since the Secretary had not made any announcement no such right has been infringed.
In resolving these contentions the Court of Appeal held –
(a) that Exhibit L had superseded Exhibit A;
(b) that there was a right as claimed which had accrued;
(c) that the right was not justiciable until it had been infringed or there was a threat to it and that in the circumstances of this case the plaintiffs were right to have gone to court;
The Court further held:
There is no doubt that Exhibit L by “superseding” Exhibit A, and thereby introducing Iwolode Family as a fourth “ruling house as the house entitled to fill the existing vacancy, has affected adversely the accrued rights not only of the Kayode ruling house but of all the plaintiffs. It is also very clear that it has done so retrospectively since the rights being litigated on 29/1/82 were the rights of the Plaintiffs/Respondents under the then existing declaration Exhibit A.”
(d) that, however, there was a clear intention, on a broad reading of the provisions of Exhibit L under the Chiefs Law, that the accrued rights canvassed in this case should be capable of being infringed by an amended new declaration operating retrospectively.
The Court finally said (per Uche Omo, J .C.A., concurred by Sulu-Gambari and Onu, JJ.C.A.);
“I agree with learned appellants’ Counsel that the language of the Act is clear and does not allow for the narrow construction that the trial Judge gave to it vide Chief Awolowo v. Shehu Shagari (supra) the presumption against retroactivity is therefore rebutted.”
The kernel of the judgment of the Court of Appeal against the appellants was therefore that the Governor had power to do what he did in amending the declaration in Exhibit L and that the intention of the legislature under the Chiefs Law was that he should have that power and should affect an accrued right by such amendment. Having conceded that the plaintiffs had an accrued right; that the right was justiciable in all the circumstances, and that the plaintiffs were right to have gone to Court, the only real issue in respect of the determination by the Court of Appeal was whether that Court was right in holding that the intention of the law was that the Governor should have the power to interfere with the vested right.
There is clearly no doubt that by section 15(1)(a) of the Chiefs Law, 1978, the Secretary of the Itelodun District Council was bound to announce, within 14 days, of the incumbent OBA BAKARE ADEKANOLA on 26th July 1981, the Kayode Ruling House as the ruling house entitled, according to customary law, to provide a candidate to fill the vacancy. The right to be announced enured to the KAYODE HOUSE immediately upon the death of Oba Bakare on that 26th July, 1981. It was a right not subject to the whims of the Secretary. By ordinary arithmetical calculation the Secretary ought to have announced Kayode Ruling House on or before 9th August 1981 – being the 14th day after the date of the death of the incumbent, Oba Bakare.
Equity regards as done that which ought to be done. Therefore, by 9th August 1981, Kayode House was deemed to have been announced. By s.15(1)(b) of the same law, the members of the Kayode House should have submitted the name of a candidate or names of candidates to the Kingmakers within another 14 days, that is to say, on or before 23rd August 1981.
Section 15(1)(e) ibid requires the Kingmakers, within 7 days “to select a person to fill the vacancy in accordance with the provisions” of that subparagraph. Again, that would bring the date (after 23/8/81) to 30th August 1981.
Section 15(1)(c) provides for a situation where the Kayode Ruling House Kingmakers have failed to agree on a candidate in which case their chance would be lost to next Ruling House which would be called upon by the Secretary to present a candidate. That event had not occurred and, therefore, that sub-paragraph was uncalled-for in the determination of this appeal.
The position then, was that if the Secretary had done his duty, as he ought to have done, following the provisions of s.15(1), the Kayode Ruling House should have been selected as the new Olobagun of Obagun, on or before 30th August, 1981. The right of the Kayode House had certainly accrued before the plaintiffs took action on 28th January, 1982. Indeed, the right had accrued in 1981.
Between 26th July, 1981, when Oba Bakare died and 28th January, 1982, when the plaintiffs took out their writ of summons, the right of the Kayode Ruling House to the Obaship had been con5istently and systematically threatened by the relevant authorities, by the long delay and the commission of inquiry instituted. The plaintiffs were clearly justified to have taken out their writ. The failure by the Secretary to make announcement of the Kayode House as the rightful house to present a candidate or candidates, was clearly in breach of section 15(1) of the Chiefs Law, 1978. The. Iwolode family cannot build upon that breach to claim, in 1982, that Exhibit L entitled them to present the next Olobagun. In any case before Exhibit L was made in 1982, Kayode House should have been sitting on the saddle, as the reigning Olobagun, since 1981. Since in equity that which ought to be done is deemed to have been done, the Kayode Ruling House was deemed to have presented the Olobagun, duly installed, since 1981, and, therefore, the true meaning of Exhibit L was that it unseated the Kayode House Olobagun and removed him from the throne. The Governor certainly had no jurisdiction under the Chief Law, 1978 to do that.
It could be said that this approach is one based upon abstract concept and that no Olobagun was in fact unseated. The answer lies in the logical application of that principle of Equity which has been developed since 1732 in BANKS v. SUTTON (1732) 2 P.Wms. 700 at 715.
The Locus Classicus of the principle has been WALSH v. LONSDALE (1882)21 Ch. D.9 in which it was decided that a person occupying under an executory agreement for a lease is no more a tenant from year to year at Law by the payment of rent, but is to be treated as if he was, in fact, holding under the lease already executed and, therefore, he was subject to the right of distress as if the lease had been already granted. At page 15 Jessey, M.R., put it this way:
“On the other hand, he is protected in the same way as if a lease had been granted; he cannot be turned out by six months’ notice as a tenant from year to year. He has a right to say, “I have a lease in equity, and you en only re-enter if I have committed such a breach of covenant as would if a lease had been granted have entitled you to re-enter according to the terms of a proper proviso for re-entry.” That being so, it appears to me that being a lessee in equity he cannot complain of the exercise of the right of distress merely because the actual parchment has not been signed and sealed.”
Other examples of the principle are to be found in the ancient rule in HOWE v. EARL OF DARTMOUTH (1802)7 ves. 137 which stipulates that where there is residuary bequest of personal estate in a Will to be enjoyed by persons in succession, the trustees must, unless the Will shows a contrary intention, realize such parts of the estate as are of a wasting character, such as copyrights, or of a reversionary nature, such as interests subject to subsisting life interests, or are otherwise not investments authorized by the general law or by the Will, and invest the proceeds in some authorized security. The trustees must do this whether or not there is an expres provision in the Will for this to be done, because, in the absence of a contrary intention, the Court assumes that the testator intented his legatees to enjoy the same thing in succession, and so requires the property to be converted into permanent investments of a recognised character.
Also, as another illustration, is the Doctrine of Conversion by which, if land is sold, there is forthwith an actual conversion of the land into money; and similarly, if land is purchased, there is an actual conversion of money into land. Sir Thomas Sewell, M.R., expounding the principle in the leading case in FLETCHER v. ASHBURNER (1779) I Bro. C.C. 497 at 499, stated that nothing is better established than that –
“Money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted; and this in whatever manner the direction is given; whether by Will, by way of contract, marriage articles, settlement, or otherwise, and whether the money is actually deposited, or only covenanted to be paid, whether the land is actually conveyed or only agreed to be conveyed. The owner of the fund or the contracting parties may make land money, or money land.”
I cannot conclude this judgment without reference to section 13 of the Interpretation Law Cap. 52 Vol.]]1 Laws of Western Nigeria, applicable to Oyo State in which it is provided that:
“13. The Repeal of any Ordinance or Law or any part thereof shall not, unless the contrary intention appear –
X X X X X X
(c) affect any right, privilege, obligation or liability accrued or incurred under any enactment so repealed.”
The Chiefs Law Cap 21, while making provision for an amendment of a registered Chieftaincy Declaration in section 10; for re-registration of the amended Declaration in s.11 and in section 12 for the effect of such re-registration on the powers and duties conferred or imposed by the said sections 10 and II, was careful to provide in section 13 that such re-registration would not, by itself alone, affect that validity of any selection, appointment, approval or setting aside of any selection or appointment or any holder of a recognised chieftaincy, or any other thing whatsoever made, given or done before the amendment. For clarity, the section is set out hereunder:
“13. Nothing in sections 10 to 12 contained and in particular no amendment or re-registration of a registered declaration or making and registration of a new declaration, in accordance with the provisions of those sections, shall by itself alone affect the validity of any selection, appointment, approval or setting aside of any selection or appointment of any holder of a recognised chieftaincy, or any other thing whatsoever made, given or done by any person or authority in accordance with the provisions of this Law and before any such amendment or re-registration of a registered declaration or making or registration of a new declaration as aforesaid.”
Far from empowering the Governor to take away the accrued right of the Kayode Ruling House to the Olobagun Chieftaincy stool as held by the Court of Appeal, the Chiefs Law, indeed, by its section 13, forbids the Governor from so doing. It is consistent with the said section 13 of the interpretation Law, and is in accord with the Rule of Law of all civilized countries the world over. The Court of Appeal was clearly in error when it held that by the tenor of the Chiefs Law the presumption against retroactivity of the repealing law, Exhibit L, has been affected – that concept of law recognised as far back as 1898 in RE: ATHLUMNEY Ex parte WILSON (1898) 2 QB. 547 at 551-552; (1895-1899) All E.R. (Reprint) 329 at 331-332 where Wright, J., sitting in the Queen’s Bench Division held that:
“Perhaps no rule of construction is more firmly established than this – that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.”
It was for the above reasons that I concurred on 24th June, 1985, in allowing this appeal, setting aside the judgment of the Court of Appeal, and restoring the judgment of the High Court, with costs assessed as hereinbefore set out.M. BELLO, J.S.C.: On the 24th day of June, 1985, we allowed the appeal, set aside the decision of the Court of Appeal and restored the decision of the High Court with costs to the respondents fixed at N300.00 and reserved our Reasons for the judgment till today.
I have read the Reasons for Judgment just delivered by my learned brother, Aniagolu, J.S.C. Save that I have some reservations in the application of the rules of equity to the interpretation of the provisions of the Chiefs Law, Cap. 19, Laws of Western Nigeria 1959 and the Instruments made thereunder, I adopt his reasons. I agree by virtue of the relevant provisions of the Chiefs Law and the Chieftaincy Declaration Instrument, Exhibit A, which my learned brother set out fully, that the right of the Kayode Ruling House to succeed to the stool of Olobagun had become vested on 26th July, 1981, when the former Olobagun died. It is manifest that the amendment to Chieftaincy Declaration Instrument, Exhibit L which added the Iwolode family to the families entitled to the succession to the stool of Olobagun, was not made with retrospective effect and there is no indication whatsoever that it was intended to be retrospective. It is clear from the provisions of section 11 of the Chiefs Law that Exhibit L came into effect on 25th February, 1982, being the date on which it was registered. The Court of Appeal therefore erred in law in giving Exhibit L retrospective operation. The vested right of the Kayode family remained intact and was not affected by the amended Chieftaincy Declaration Section 13 of the Interpretation Law Cap. 52, Laws of Western Nigeria.
A. O. OBASEKI, J.S.C.: On the 24th day of June, 1985, after studying the record of proceedings and hearing the submissions of counsel on the issues for determination raised in the appeal, I, (in concurrence with my learned brother Justices of the Supreme Court), allowed the appeal, set aside the decision of the Court of Appeal and restored the decision of the High Court with costs to the appellants fixed at N300.00 and reserved my Reasons for the Judgment till today. I now proceed to give my reasons hereunder:
This appeal deals with chieftaincy matter in the Ifelodun Local Government Area of Oyo State and the chieftaincy title concerned is the “Olobagun of Obagun. The Chieftaincy stool has been vacant since 26th July, 1981, the date the former incumbent, Oba of Obagun, Bakare Adekanola, the Olobagun of Obagun died. Since then, the battle for succession has been on. As at this date, i.e. 26th July, 1981, succession to the vacant stool was regulated by the customary law declared in the Olobagun of Obagun Chieftaincy Declaration on the 17th day of October, 1957 by the Uelodun District Council (as it then was) passed by the Governor-in-Council on the 16th day of November, 1956 and approved on the 27th day of May, 1957, and registered on the 29th June, 1957 [see Exhibit A1. In the Declaration, only 3 Ruling Houses were recognized and the stated order of rotation is:
Kayode Ruling House
Olubakin Ruling House
Oduoye Ruling House
This is common ground between the parties. By section 11 of the Chiefs’ Law as amended by the Chiefs Amendment Law (No.2) 1978 now section 15(1)(a) of the Chiefs Law Cap 21 Laws of Oyo State 1978, it is provided:
“Where a vacancy occurs in a ruling house chieftaincy and a declaration has effect with respect to that chieftaincy-
(a) the secretary of the competent council shall not later than 14 days after the occurrence of the vacancy announce the name of the ruling house entitled according to customary law to provide a candidate or candidates as the case may be to fill that vacancy,
(b) not later than 14 days after the announcement by the secretary, the members of the ruling house, acting in accordance with the declaration, shall submit the name of a candidate or names of the candidates as the case may be to the kingmakers.”
According to the declaration in Exhibit A, it was the turn of Kayode Ruling House to produce a candidate for the obaship. One of the complaints of the appellants was the failure of the Secretary of Ifelodun Council to comply with the provisions of section 15(1)(a). His failure to comply with this section trampled down the rights of the Kayode Ruling House and made it impossible for that House to comply with section 15(1)(b) of the Chiefs Law. Following the report of an Administrative Inquiry, Exhibit J dated 1st April, 1981, the Government approved the recommendation of the said administrative inquiry that the Iwolode family be included in the Olobagun Chieftaincy Declaration as a fourth Ruling House and accordingly by letter dated 14th December, 1981, directed the Chieftaincy Committee of the Ifelodun Central Local Government to amend the 1957 Olobagun Chieftaincy Declaration. The amended Olobagun Chieftaincy Declaration was made on the 20th January, 1982, by the Chieftaincy Committee. On the 29th January, 1982, the appellants instituted these proceedings in the High Court claiming declaratory reliefs, an order of perpetual injunction and an order of mandamus on 1st and 3rd defendants to comply with the Chieftaincy Law. The amended Olobagun Chieftaincy Declaration Exhibit L was registered on the 25th day of February, 1985, i.e. one month and five days after the commencement of the action to bring it into force. According to the provision of section 11(2) of the Chiefs Law:
“No registered declaration amended or new declaration made under section 10 shall come into effect until it has been re-registered or registered as the case may be in accordance with subsection 1 of this section and upon being so re-registered or registered, such declaration shall be deemed to contain the customary law regulating the selection of a person to be the holder of the recognised chieftaincyto which it relates to the exclusion of any other customary usage or rule or any other declaration that may have been made or registered under any written law.”
The learned trial judge, in granting the reliefs sought, said:
“On the totality of the evidence before me, I hereby make the following declarations:
- That according to the customary law of Olobagun Chieftaincy, the only Ruling Houses which have the right to provide candidates for the Olobagun of Obagun chieftaincy under the Olobagun of Obagun Chieftaincy Declaration of 1957 are:
Oduoye Ruling Houses
- That the relevant Olobagun of Obagun Chieftaincy Declaration applicable to filling of the vacancy in the Olobagun of Obagun Chieftaincy is that registered on the 29th day of June, 1957 existing at the time of the death of the incumbent Oba Bakare Adekanola on the 26th day of July, 1981.
- That Kayode Ruling House is, according to the customary law of Olobagun of Obagun Chieftaincy contained in the Obagun Chieftaincy Declaration of 1957, the Ruling House to provide a candidate or candidates to fill the vacancy of the Olobagun of Obagun.
- That the 1st defendant, his servants or privies are hereby restrained from calling on Iwolode family to provide a candidate to fill the present vacant stool of Olobagun of Obagun.
- I hereby order the 1st defendant, his agents or privies to comply with the Chiefs Law by announcing the name of Kayode Ruling House as the Ruling House entitled, according to customary law of Olobagun of Obagun Chieftaincy family to provide candidate or candidates to fill the present vacant stool of Olobagun of Obagun.”
When the 4th defendant appealed to the Court of Appeal, the declarations and orders were set aside. Hence, this Appeal was lodged by the appellants.
Before the hearing of this appeal, the Military Governor of Oyo State promulgated an Edict titled ‘Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict 1985 No.3. As a result of this, learned counsel for the appellants formulated two issues as issues for determination in this appeal. They are:
- Whether Exhibit ‘L’ has retrospectively taken away the rights of the plaintiffs/appellants particularly that of the 1st appellant which accrued on the 26th of July, 1981, when Oba Bakare Adekanola from Oduoye Ruling House died.
- Whether section 2 of Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict 1985 is unconstitutional.
On No.1, that submission of learned counsel for the appellant is that Exhibit ‘L’ has not retrospectively taken away the rights of the plaintiffs/appellants particularly that of the 1st appellant which accrued on the 26th of July, 1981. Principal among the reasons given by appellant’s counsel is that the Chiefs Law under which the Declaration in Exhibit ‘L’ was made and registered does not say so either expressly or by implication. Mrs. Adeniji, learned Senior State Counsel for the 1st and 2nd respondents, however, submitted in her amended brief that Exhibit ‘L’ supersedes Exhibit A and that Exhibit F ‘L’ has retrospective effect.
Chief Afe Babalola gave issue No.1 a different formulation. In his formulation he posed two questions as follows:
(1) whether the 1957 Olobagun of Obagun Chieftaincy Declaration Exhibit ‘A’ still has any legal force or effect having been superseded by Exhibit ‘L’ by virtue of section 9B(2) of the Chiefs Law of Oyo State as amended in 1963.
(2) whether the right of Kayode Ruling House to present a candidate to fill the vacant stool of Olobagun of Obagun as contained in Exhibit A the 1957 Declaration, cannot be affected by the 1982 Declaration registered on 25th February, 1982.
My learned brother, Aniagolu, J.S.C. has given detailed consideration to these questions in his Reasons for Judgment delivered a while ago, the draft of which 1 had the advantage of reading in advance. I agree with him and I adopt his opinions as mine.
Learned counsel for the 4th respondent, after referring to the provisions of (section 98(1) and (2) of the Chiefs Law of the Western State 1959 now section 11(1) and (2) of the Chiefs Law Cap 21 Vol. 1 Laws of Oyo State 1978, contended and submitted that Exhibit L has to be related to sections 10 and 11 of the Chiefs Law Cap. 21 Laws of Oyo State 1978, under which it was made to determine its legal effect in this case. He then went on to submit that it seems clear that the object of section 11(2) of the Chiefs Law Cap 21 Laws of Oyo State, 1978, is to confer a right of super session on an amended or new declaration over any other previous declaration or customary usage previously in existence at the time the amended or as soon as the new or amended declaration is registered.
While in one breadth learned counsel for the 4th respondent submits that Exhibit L has retrospective effect, he in another breadth concedes that the life of Exhibit A continued to and expired on 25th February, 1982, when Exhibit L was registered. This concession is underlined by his reference to and citation of section 9 of the Interpretation Law which provides:
“where any law repeals wholly or in part any former ordinance or law and substitutes other provision therefore, the repealed ordinance or law shall remain in force until the substituted provision comes into operation.”
A law is said to have retrospective effect when the date of commencement is earlier in point of time than the date of enactment. If, as conceded Exhibit L came into operation on the 25th day of February 1982 and Exhibit A continued to have effect until that 25th day of February, 1982 when it ceases to have effect, Exhibit L has not, on the facts of the case in the instant appeal, taken on any retrospective effect. I therefore find both learned counsel for the appellants and learned counsel for the 4th respondent ad idem on this issue despite the different approaches to the questions.
The supersession of Exhibit’ A’ by Exhibit ‘L’ on the 25th February, 1982 does not amount to retroaction of Exhibit L. It only amounts to a repeal of Exhibit A with effect from 25th February, 1982. Turning to counsel for 1st and 2nd respondents, she did not appear to me convinced of her submission that Exhibit L has retrospective effect and she did not pursue the submission beyond the mere expression of it. It appears to me that both learned counsel for the 1st and 2nd respondents and learned counsel for the 4th respondent overlooked the most important issue in this matter. This is whether the right of succession of Kayode Ruling house vested on the 26th July, 1981 when the incumbent Oba died. If it vested on that day according to the customary law then in force which is that set out in Exhibit A, then Exhibit L is irrelevant in the consideration of the issue of succession.
In my view, looking at the date of the death of Oba Bakare i.e. 26th July, 1981, it is Exhibit A that the court has to look at to ascertain succession. At that time, the declaration of customary law set out in Exhibit L was not in existence. It had not been promulgated and it had not been registered. There can be no registration until the Declaration is made and approved. Learned counsel for the appellants pressing his point home, submitted and I agree with him, that since Exhibit L does not manifest an intention to have retrospective effect and since giving retrospective effect to Exhibit L is not a necessity without which violence will be done to the language of Exhibit L there is a presumption against retrospectivity of Exhibit L.
To answer the question whether Exhibit L has retrospective effect, it is necessary to examine the declaration itself to see whether it contains express provisions making it so. It is also necessary to examine the provisions of section 11(2) of the Chiefs Law Cap 21 Vol. 1 Laws of Oyo State, 1978 to see whether the section gives Exhibit L retropective effect. This is necessary because every law which takes away or impairs any vested right acquired under existing laws or creates a new obligation or imposes a new duty or attaches a new disability in respect of transactions or consideration already past, is deemed to be retrospective:- [Allen v. Gold Reefs of W. Africa (1900) 1 Ch. 656, 673]. It is a fundamental rule of our laws in Nigeria that no statute shall be construed so as to have retrospective operation unless its language is such as plainly to require such a construction. [see Lauri v. Renad (1892) 3 Ch. 402, 421].
No rule of construction is more firmly established than that a statute is not to be given retrospective operation as to impair an existing right or obligation otherwise than as regards matters of procedure unless that effect cannot be avoided without doing violence to the language of the enactment [See In re Athlumney (1898) QR 547, 551, 552]. See Edna Okafor v. Alexander Ibeziakor & Anor. (1965) 1 All NLR 407, 411
The Council of the University of Ibadan v. N. K. Adamolekun (1967) 1 All NLR 213, 214
Godwin Ikpasa v. Bendel State (1981) 9 SC. 7 at 15-16 Adegbenro v. Akintola (1963) 1 All NLR 299 at 301-302
Edwin Johnson & Anor. v. The State (1981) 2 Sc. 29 at 38
I have examined Exhibit L and can find no provisions therein given it retrospective operation. I now turn to section 11(2) of the Chiefs Law Cap 21 Laws of Oyo State 1978. That sub-section provides that
“No registered declaration amended or new declaration made under section to shall come into effect until it has been re-registered or registered as the case may be in accordance with subsection 1 of this section…..”
I find that this section 11(2) of the Chiefs Law gives definite negative answer to the whole question of whether Exhibit L which is Exhibit A amended has retrospective operation or not. The provision of section 11(2) of the Chiefs Law in effect determines when a registered declaration amended comes into effect. It is not the declaration itself that determine the point of time. In clear and unambiguous language, the subsection fixes the point of time as the date of registration. It has not fixed the point of time at any date before the day of registration. It is therefore clear that the question for determination in this appeal must be given the answer that Exhibit L has no retrospective operation and therefore the customary law that governs succession to the chieftaincy title of Olubagun of Obagun is as contained in Exhibit A and that it is now the turn of Kayode Ruling House to present a candidate for the stool.
The Court did not allow learned counsel for the appellant to argue the 2nd question for determination as the issue did not arise. Learned counsel for the respondents expressly stated that they were not raising the issue of jurisdiction and that they had not raised the issue in their briefs. Since it was not an issue in these proceedings, the court could not engage in a speculative academic exercise.
It was for the above reasons and the reasons set out in the Reasons for Judgment of my learned brother, Aniagolu, JSC. that I allowed the appeal on the 24th day of June, 1985.