Oladiti Adesola V. Alhaji Raimi Abidoye & Anor. (1999)

LAWGLOBAL HUB Lead Judgment Report

G. KARIBI-WHYTE, J.S.C

This appeal is essentially about the interpretation of the provisions of section 22(5) of the Chieftaincy Law Cap. 21 Vol. 1 of the Laws of Oyo State, 1978. The need for the interpretation was provoked by the criticisms of the procedure allegedly adopted in the filling of the vacant position of the Mogaji of the Oluokun family of Ibadan.

THE FACTS.

On the 21st August, 1986, Gbadamosi Adeleke, the Asiwaju Balogun and the last Mogaji of Oluokun family Ibadan died. A vacancy accordingly for a successor was created. Plaintiff, Mr. Oladiti Adesola from the Aderin branch of the Oluokun family was interested and was nominated to the Olubadan of Ibadan, the 2nd Defendant in this action by his branch of the Oluokun family to fill the vacant position. He claimed it was the turn of his branch of the Family to fill the vacant position. Alhaji Raimi Abidoye Olatunji of the Adetunji branch of the Oluokun Family also interested was nominated for the vacant position to the Olubadan of Ibadan, the 2nd Defendant in this action by his branch of the Oluokun Family. His nomination was supported by the remaining five surviving branches of the Oluokun Family. Raimi Ahidoye Olatunji relied on the claim that the Oluokun family has not adopted the principle of rotation among the surviving branches of the Family in the appointment of the Mogaji. He claimed that the Mogaji of the Oluokun Family is appointed from the candidate chosen by the majority of the surviving branches of the Family. The qualities of ability to promote the interest of the Family and general acceptability to the majority of the surviving branches are the deciding considerations.

BEFORE THE PRESCRIBED AUTHORITY

The two nominations were submitted to the Olubadan of Ibadan. The 2nd Defendant, and the Prescribed Authority under the law whose decision was final. Both parties were invited by the Olubadan to defend their claims to nomination and election to the vacant position of Mogaji of the Oluokun family. Both parties appeared before the Olubadan-in-Council with their witnesses and gave evidence. The matter was adjourned for decision to the 20th October, 1986. On the 17th October, 1986, before the decision of the Olubadan-in-Council, appellant brought an ex parte motion seeking an interlocutory injunction to restrain the 1st defendant from parading himself as the new Mogaji elect by the 2nd Defendant and from performing any rites, ceremonies activities and duties as condition precedent to his installation as the new Mogaji or Head of the Oluokun family of Ibadan, and also from being actually installed as the Mogaji or Head of the Oluokun family of Ibadan.

EX PARTE APPLICATION

The ex parte motion also sought to restrain the 2nd Defendant by himself, his agents, privies and servants from taking any steps or actions whatsoever pursuant to the installation of the 1st Defendant as the new Mogaji or Head of Oluokun Family of Ibadan, and also for actually so installing him.

The application also sought to restrain the 2nd Defendant from initiating, organising and installing any person whatsoever to fill the vacant position of the Mogaji or Head of the Family of Oluokun of Ibadan.

On the 20th October, 1986, the Olubadan of Ibadan, the Prescribed Authority, who also is the 2nd Defendant in this action, approved the nomination of the 1st Defendant and installed him as the Mogaji of Oluokun Family of Ibadan.

ISSUE OF WRIT OF SUMMONS IN THE HIGH COURT

In the writ of summons filed by Appellant/Plaintiff on the 17th October, 1986 at the High Court, Ibadan, he sought for the following reliefs-

1. A declaration that Mr. Oladiti Adesola. the Plaintiff is the rightful Mogaji Oluokun as against Alhaji Raimi Abidoye Olatunji, the 1st defendant, who was wrongly installed the Mogaji or Head of the Family of Oluokun by the 2nd Defendant.
2. A declaration that the installation of the 1st defendant Alhaji Raimi Abidoye Olatunji as Mogaji or Head of Family by the 2nd defendant is null and void and without effect as it contravenes natural justice, and repugnant to native law and custom.
3. An injunction restraining the 1st defendant, Alhaji Raimi Abidoye Olatunji from performing any of the duties rites and activities belonging to the office of the Mogaji Oluokun or Head of the Oluokun family.

Appellant as Plaintiff filed a statement of claim, on the 1st December, 1986 and subsequently amended the same. The 2nd and 1st Defendants filed their statements of defence on the 4th and 13th February, 1987 respectively. The 1st Defendant subsequently filed an amended statement of defence. Appellant filed a reply to the amended statement of defence of the 1st Defendant. The case proceeded to trial before Ibidapo-Obe J who granted all the reliefs sought.

Appeal to the Court of Appeal.

The 1st Defendant appealed against the decision of the learned trial Judge to the Court of Appeal Division, Ibadan, 1st Defendant as Appellant filed nine grounds of appeal. The issue of the jurisdiction of the Court to hear the plaintiffs’ action was raised for the first time on appeal. Ground 9 relevant is as follows:”

The learned trial Judge erred in law in assuming jurisdiction to adjudicate upon and determine this case when:-

(i) The action brought by the Plaintiff is premature under the Chiefs Law, Vol. 1 Cap.21 Laws of Oyo State of Nigeria, 1978.

(ii) The plaintiff had not exhausted his remedy under the law before filing an action in court and

(iii) The decision of the prescribed authority is final and cannot be questioned in any court.”

The Court of Appeal after hearing argument allowed the appeal of the 1st Defendant. The action of the Plaintiff/Respondent was accordingly struck out as having been heard without jurisdiction. The judgment on the 11th July, 1988 of Ibidapo-Obe J was thereby set “side.

Appeal to the Supreme Court

The judgment of the Court of Appeal was based entirely on the consideration of ground 9 which raised the issue of jurisdiction of the court of trial. Plaintiff, who was the Respondent in the court below, not being satisfied has appealed to this Court. The 1st Defendant on his part also filed a cross-appeal.

Appellant filed two original grounds of appeal on the 9th day of August, 1993 and was granted leave of this court on the 11th January, 1995 to file three additional grounds of appeal. The additional grounds of appeal are an improvement of and cover the grounds in the original ground of appeal.

The original grounds of appeal are as reproduced below –

“GROUNDS OF APPEAL

(1) The learned Appellate justices erred in law when they held as follows: ….. all persons within its (section 22’s) contemplation have a duty to exercise the “power” “May” in subsections (2), (3), (4), (5) and (6) to section 22 of the Chiefs Law created and imposed a duty.

PARTICULARS OF ERROR OF LAW’

(1) The learned Appellate justices erred in law by holding that the failure of the Appellant to make representation to the Commissioner of Chieftaincy Affairs before having access to Court which is not statutorily mandatory is to the case of the Appellant.

(2) The Learned Appellate Justices wrongly construed the provision of section 22 subsections (2), (3), (4), (5) and (6) of the Oyo State Chiefs Law Cap. 21 of 1978 without regard to section 6(6)(b), 33(2)(b), 236 and 274(3)(d) of the Constitution of the Federal Republic of Nigeria 1979.

PARTICULARS

(i) The High Court has unlimited jurisdiction in the civil matters

(ii) The exercise of the unlimited jurisdiction of the High Court is not statutorily subject to any condition precedent.

(iii) The Learned Appellate Justices wrongly gave a blanket construction and interpretation to section 22 subsections (2), (3), (4), (5) and (6) of the Oyo State Chiefs Law Cap. 21 of 1978 without considering the effect of the provisions of sub-section 4 of the statute which is an express ouster of the jurisdiction of the court.

RELIEF SOUGHT FROM THE SUPREME COURT

(i) To allow the appeal and set aside the decision of the Court of Appeal and restore the judgment of the High Court.

(ii) To give judgment to the Plaintiff/Respondent/Appellant

(iii) Any other or further orders as the court may deem fit.”

Also reproduced hereunder are the additional grounds of appeal –

“GROUNDS OF APPEAL

That the Court of Appeal erred in Law in holding that the Plaintiff/Appellant’s suit was premature as he had not exhausted his remedies under the provisions of sections 22(3), 22(4), 22(5), and 22(6) of the Chiefs Law, Volume 1, Cap. 21 Law of Oyo State of Nigeria 1978.

PARTICULARS OF ERROR

Even where the said actions or steps taken by the Plaintiff! Appellant was premature, it was an irregularity. Such mere irregularity cannot vitiate the judgment of the Trial Court.

Going by the provisions of the Chiefs Law, the said provisions are not mandatory on the Plaintiff/Appellant. The Court of Appeal did not give enough or probably any attention to the reason(s) adduced by the Plaintiff/Appellant why he filed the present suit at the Ibadan High Court before the Olubadan-in-Council announced his findings. The Plaintiff/Appellant filed this suit at the High Court before the announcement of the findings of Olubadan-in-Council in the INTEREST OF JUSTICE AND FAIR PLAY because there was the story all over the place that it was the 1st defendant who the Olubadan-in-Council had approved.

The Court of Appeal did not at anytime consider the CONSTITUTIONAL RIGHT of the Appellant to go to Court as a FUNDAMENTAL RIGHT inalienable to the APPELLANT.

The Court of Appeal erred in Law in holding that the Trial Court lacked jurisdiction to entertain the suit.

PARTICULARS OF ERROR

The Court of Appeal specifically found that such as issue of jurisdiction was not canvassed by the Defendant/Respondent at the Trial Court.

The Defendant/Respondent at the trial court failed to raise any objection in his pleadings as to the issue of jurisdiction in the Court of Trial.

The Defendant/Respondent having participated fully and through in the trial he would be deemed to have waived his right to object, thus making it too late for him to complain at anytime, or at the Court of Appeal.

Whether the Court of Appeal was right in holding that section 22(4) of the Chiefs Law 1978 did not oust the jurisdiction of the Oyo State High Court.

PARTICULARS OF ERROR

That by virtue of sections 6(2), 6(6)(b), section 236 and section 274(3) of the Constitution of the Federal Republic of Nigeria 1979, section 22(4) of the Chief Law 1978 was inconsistent with the 1979 Constitution, and to the extent that it purported to oust the jurisdiction of the High Court would be ultra vires, void and of no effect. No state Legislation shall legislate the High Court out of jurisdiction since by section 236 of the 1979 Constitution the High Court of a state has (an) UNLIMITED JURISDICTION in any matter, such as that of this case validly brought before it.”

Respondent has filed a notice of cross-appeal.

“GROUNDS OF APPEAL

The learned justices of the Court of Appeal erred in law in failing to consider grounds 1,2,3.4,5.6,7 and 8 of the grounds of appeal contained in the Amended Notice of Appeal dated 16th March, 1993 and reduced to issues 1, 2, 3, and 4 of the brief of argument filed and argued.

PARTICULARS OF ERROR IN LAW

Although the Defendant/Respondent in the lower court filed 9 grounds of appeal, formulated live issues thereon and argued the said issues in his Amended Brief of Argument dated 6th May, 1992, the learned Justices of the Court of Appeal in their judgment of 26th July, 1993 considered only ground 9 of the grounds of appeal and issue No.5 of the brief and based their judgment solely on that issue without considering the others and argument based thereon in the Appellants Brief of Argument.

The Court of Appeal has the legal duty to consider each and every ground of appeal and issues argued before it before giving judgment either way.

If the Court of Appeal had considered the other four issues they would have come to the same conclusion that the other four issues ought also to succeed.

RELIEFS SOUGHT FROM THE SUPREME COURT

1. To allow this cross-appeal and consider grounds 1, 2, 3, 4, 5. 6, 7 and 8 of the grounds of appeal and the issues formulated thereon and arguments canvassed in the printed briefs of the parties.
2. To affirm the judgment of the Court of Appeal on all the five issues formulated and argued before it.
3. Any other relief or reliefs as the court may deem fit.”

Briefs of Argument and Respondents’ Preliminary Objection to the Appeal

Learned Counsel to the parties have filed their briefs of argument, which they adopted and relied upon at the hearing of this appeal. Learned counsel for the Respondent raised, in his brief of argument, preliminary objection to the hearing of appellant’s appeal on the grounds of incompetence. He observed that the Appellant has filed two separate notices of appeal. The 2nd notice of appeal was filed on the 23rd November, 1993 beyond the three months statutorily allowed after delivery of judgment. It was submitted there being no application for extension of time granted by the Court, the notice of appeal was incompetent and should be struck out.

Secondly, since the issues for determination were formulated on the incompetent grounds of appeal, there are no issues properly formulated. The issues formulated should accordingly be struck out. The court pointed out to learned counsel for the Respondent, that it granted leave to Appellant to file and serve additional grounds of appeal and the said grounds having been filed no question of incompetence of the grounds of appeal or the issues on which they are based arises.

The preliminary objection which was unnecessary arose from the lack of familiarity of counsel with the trends in the conduct of the appeal. The order of this Court granting application for additional ground of appeal was served on the Respondent. Learned Counsel for the Respondent no longer wished to pursue the preliminary objection which was accordingly struck out.

Formulation of issues for Determination

Learned counsels to the parties have formulated the issues for determination, though couched in different words but in substance aiming at identical results.

Appellant

Learned Counsel to the Appellant has formulated the issues as follows.” Issues for Determination in the Appeal

The issues for determination in the appeal shall be put as follows:

4.1. Whether the Court of Appeal was right to have categorised and or RAISED (the status) (of) the title of MOGAJI, OR HEAD OF FAMILY, to that of a CHIEF, (minor or otherwise): to bring same within the purview and or determination of sections 22(3), 22(4), 22(5), and 22(6) of the Chiefs Law, Volume 1, Cap, 21, Laws of Oyo State of Nigeria, 1978.

4.2 Whether, if the answer to the above, (4,1), is in the NEGATIVE, the Honourable Court of Appeal will, shall or should RIGHTLY and or PROPERLY have assumed jurisdiction to rightly and properly determine the Appeal, totally on the MERITS.

4.3 Whether the ‘UNLIMITED JURISDICTION’ granted to State High Courts by the Constitution of the Federal Republic of Nigeria, 1979, did or should not ENURE FOR THE Plaintiffs/Appellants to have their RIGHTS in Law and on the merits determined. Irrespective of the ‘so-called’ prematuredness and inexhaustiveness of his remedies as provided for by the Chiefs Law Volume 1, Cap, 21, Laws of Oyo State of Nigeria, 1978.”

RESPONDENT

On his part, learned Counsel to 1st Respondent states his formulation as follows –

“Issues for determination:

1. Whether the Court of Appeal was right in treating the title of MOGAJI in Ibadan land as a minor Chieftaincy within the provision of section 22 of the Chiefs Law, Volume 1, CAP 21 Laws of Oyo State of Nigeria, 1978.
2. Whether the Court of Appeal was right in holding that the action brought by the appellant is premature for failure of the appellant to comply with the statutory provision of Section 22 of the Chiefs Law of Oyo State and so the High Court lacks jurisdiction to entertain the case.
3. Whether the Court of Appeal was right in holding that the word “MAY” used in the con of Section 22 of the Chiefs Law is MANDATORY and not DISCRETIONARY.
4. Whether the Court of Appeal was right in holding that Section 22 of the Chiefs Law of Oyo State does not conflict with Sections 6(6)(b) and 236 of the Constitution of Federal Republic of Nigeria 1979 to vest jurisdiction in the High Court to grant declaratory action to the appellant in matters relating to that section of the Chiefs Law,”

During argument before us learned counsel for Appellant conceded that only his issues 2 and 3 survive the preliminary objections of the Respondent.

Comment on the issues formulated.

A careful reading and comparison of the two formulations discloses the nature of the different approaches adopted by learned Counsel in the formulation of the issues. Whereas the formulation of the issue no. 1 are identical, Appellants formulation of the issue no. 2 adopts a negative approach enabling the exercise of jurisdiction, whereas learned counsel to the Respondent adopts a positive approach of the effect of non-compliance with the provision of section 22 of the Chiefs Law of Oyo State, Cap. 21 Vol. 1, Laws of Oyo State 1978. There is no difference in substance and indeed in words between the Appellant’s third issue, and the Respondent’s fourth issue. However in the interest of clarity I have considered the issues necessary for the determination of this appeal on the grounds of appeal surviving the objection. I have relied on issues 2 and 3 of the appellant.

I have stated in this judgment that the gravamen of this case lies in the proper construction of the provisions of section 22 of the Chiefs Law. This falls within the surviving issues 2 and 3. I am of opinion that this will involve a determination of the status of the Mogaji whether he is a minor Chief within the meaning of section 22(3), 22(4), 22(5) and section 22(6).

(1) Arguments of Counsel-Appellant

Arguing the 1st issue for determination, which is related to ground 2 it was submitted that the Court of Appeal was wrong to have elevated the Mogaji to the status of a minor chief, and accordingly to raise the title of Mogaji within the family to that of a Chief. This brings the contention, within the purview of the meaning of the construction of section 22(3), 22(4), 22(5) and 22(6) of the Chiefs Law of Oyo State of Nigeria 1978.

It is the contention of the Appellant that the Mogaji is not a chief or a minor Chief within the meaning of the Chiefs Law, Cap. 21 Vol. 1, Laws of Oyo State, 1978. It was submitted that a Chief is defined as “a person whose Chieftaincy title is associated with a native community and includes a minor chief and a recognized chief.” Learned Counsel queried whether the Mogaji can fall within the above definition. He argued referring to paragraph 8 of the amended statement of claim and paragraph 6 of the amended statement of defence that the Mogaji is and has to be the Head of Oluokun family as found by the trial Judge. It is therefore not a chieftaincy title as provided under the Chiefs Law.

Learned Counsel referred specifically to Ibadan District Council and submitted that the Mogaji is not one of the ten Chieftaincies designated. The Mogaji as a title is not included. The Privy Council decision of Laoye & Ors. v. Oyetunde (1944) 10 WACA 4 was cited in support.

(ii) Respondent

In his answer to the submissions of the Appellant, learned counsel to the Respondent observed that the parties had fought the case in the trial Court and in the Court of Appeal on the basis that the title of Mogaji in Jbadan, unlike other parts of Yoruba land is a minor chieftaincy. Learned Counsel referred to paragraphs 5, 6, 25, 33, 45 of the Appellant’s statement of claim in support. Reliance was also placed on the judgment of S. B. Rhodes J.C.B.E. in Bakare Adesola Oluokun & anor. v. Salami Adedojo Adigun & Ors. Suit No. 1/9/1946 tendered by Appellant and admitted as Exh. “P. 4.” At P. 2 of Exhibit P4, S.B. Rhodes J observed as follows-

“(1) The Oluokun family is one of the important families at Ibadan

(2) The Mogaji is the person properly appointed by the family to be the head of the family and when such an appointment has been constitutionally recognised by the Olubadan-in-Council, the Mogaji becomes eligible for appointment to the rank of a Senior Chief and by stages up to the office of the paramount chief of Ibadan known as the Olubadan …”

Again at pp. 7-g of Exhibit “P. 4” it is stated as follows-

“However, the defence of the Third Defendant is that they have no power to create Mogajis. That it is the matter for the family concerned; but that they have the power to recognise after appointment, such recognition carries with it the right to collect the Native Administration Tax from the taxable members of his area, and that it is a stepping stone to the rank of a senior chief ending up to that of Olubadan if lucky.”

Learned counsel referred to the averment in paragraph 5 of the 2nd Defendant’s statement of defence, and to the evidence of the Secretary to the Olubadan-in-Council in the trial at page 94. It was submitted that the title Mogaji is associated with lbadan Community as a minor chieftaincy in that no one can be appointed to the title of a senior Chief without being first appointed a minor chieftaincy of Mogaji. This, it is argued, is why the Olubadan-in-Council is the prescribed authority for the appointment of Mogajis in Ibadan land. Learned Counsel to the Respondents referred to the reference made by Appellant’s Counsel to the Law of Western Region 1959 as in-appropriate and inapplicable to this case. He pointed out that the ten Chiefs named in the schedule to that law were the Chiefs governed by Part II of that law. Furthermore in the Chiefs Law of Oyo State applicable in this case, only the Olubadan of lbadan is named in Part 11, all other chieftaincies are in Part 111. It was submitted that the decisions of Laoye & Ors. v. Oyetunde (1944) 10 WACA 4, and Alhaji Salami Olaniyi v. Aroyehun (1991) 5 NWLR (Pt.194) 652; (1991) 7 SCNJ 40 cited in support of the submission that the Mogaji in Ibadan is not a Chief do not support the proposition. Laoye v. Oyetunde, it was submitted was based on an interpretation of Section 2(2) of Ordinance No. 14 of the Laws of Nigeria 1930, and where a chief has been differently defined. In fact what the court held was that the Bale of Ogbomoso is not a head chief or a chief in the Colony of Lagos. It was not held that Bale of Ogbomoso is not a chief.

Also Olaniyi v. Arohewun held that a village head is not a “chief’ within the purview of the Chiefs (Appointment and Deposition) Law, of Kwara State unless he has been appointed a graded chief by the Governor of Kwara State under sections 3 and 5 of the said law. In that case the word “Chief” is defined differently and was based on section 5(1) of the Chieftaincy Disputes (Preclusion of Courts) Ordinance No. 30 of 1948.

Based on the foregoing Learned Counsel proffered his definition of the Mogaji as follows:-

“(i) “Mogaji” in Ibadan land (unlike other parts of Yoruba land) means a person whose chieftaincy title is associated with Ibadan community and it is a minor chieftaincy.

(ii) It is just not the head of a family but also a minor chieftaincy which is in the words of the appellant marked by “ranking” “ordering” and “promotion”

It was accordingly submitted that the title of “Mogaji” in Ibadan is a minor chieftaincy of which the Olubadan of Ibadan is the Prescribed Authority. The Mogaji becomes eligible for appointment to the rank of a senior chief and by stages up to the position of the Paramount Chief of Ibadan, known as the Olubadan of Ibadan.

(ii) The system of Chieftaincy in Ibadan is governed from the junior Chieftaincy of Mogaji to appointment to the senior chieftaincy.

(iii) The Mogaji is a minor chief associated with Ibadan community and the Olubadan of Ibadan is the prescribed authority for the recognition and installation,

Learned Counsel derived his conclusion from the definition of the word “Chief’ in section 2 of the Chiefs Law of Oyo State, 1978. Cap. 21 Vol. 1 Laws of Oyo State, Chief there is defined as

“a person whose chieftaincy title is associated with a native community and includes a minor chief and a recognised chief’ It was finally submitted that the Court of Appeal was right in treating the title of “Mogaji” in Ibadan as a Minor Chief within section 22 of the Chiefs Law of Oyo State 1978. The above were the submissions of the parties on the issue whether the Court of Appeal was right in regarding the title of “Mogaji” in Ibadan land as a minor chieftaincy within the meaning of section 22 of the Chiefs Law, Cap. 21 Vol. 1 Laws of Oyo State of Nigeria 1978. Consideration of Counsel’s submission

There seems to me no doubt that this is a threshold issue, the resolution of which determines the fate of Appellants’ claim. This is because the issue whether the Olubadan of Ibadan can exercise jurisdiction in this matter depends upon whether the title “Mogaji” comes within the definition of minor chief, within Part 111 of the Chiefs Law. This is the issue in contention in the court below, though assumed by both parties during the trial.

Learned counsel to the Respondents has submitted that since the parties had contested the case before the High Court and the Court of Appeal on the basis that the title of Mogaji in Ibadan was a minor Chieftaincy, the Appellant cannot now resile from that position. I do not share this view.

It is true that as an issue of fact a person is precluded from resiling from and abandoning an issue already admitted. It is however a different consideration whether the fact so admitted amounts to a conclusion of law. It is an elementary but cardinal principle of the exercise of jurisdiction that where the court lacks jurisdiction the parties cannot confer and vest jurisdiction on it. Accordingly, the fact that the parties fought a case erroneously on the basis that the court had jurisdiction when there was none cannot estop a party from subsequently taking the contrary position – See Shitta-Bey v. Attorney-Gen. for the Federation (1998) 10 NWLR (Pt.570) 392 SC. It follows from this principle that Jurisdiction cannot be acquired by consent of the parties, nor can it be enlarged by estoppel. – See Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt.16) 264. This principle is fortified by the well settled principle that the issue of jurisdiction which determines the competence to exercise jurisdiction can be raised at any stage of a trial and indeed even for the first time on appeal – See Bronik Motors Ltd. & anor. v. Wema Bank Ltd. (1983) 1 SCNLR 296; (1983) 6 SC. 158; Onyema v. Oputa (1987) 3 NWLR (Pt.60) 259.

If a Court has no jurisdiction to hear and determine a matter before it, any step taken in relation to the matter is a nullity and void – See Timitimi v. Amabebe & Ors. 14 WACA 374; Madukolu v. Nkemdilim (1962) 1 SCNLR 341; (1962) 1 All NLR 587. Hence in the instant case the competence of the learned trial Judge to exercise jurisdiction will rest entirely on construction of the provisions of the Chieftaincy Law of Oyo State.

Whether the Mogaji is a Chief

It is the contention of the Appellant that the Mogaji who is accepted by both sides as the title for the head of family in Ibadan land, is not a Chief within the definition of the word in the Chieftaincy Law, Cap. 21, Vol. 1, Laws of Oyo Sate, 1978. It is however, the contention of the Respondent that the title of Mogaji falls within the definition of the word “Chief ‘ and accordingly the Mogaji comes within the meaning of the word “chief’ as defined.

It is necessary for our purpose to determine into what category the title Mogaji falls. Although not expressly so stated it is admitted that the Mogaji is a title. It is acknowledged as the title given to a head of family in Ibadan land. Accordingly, the title Mogaji to found jurisdiction must fall within the definition of the word “chief”. The definition of the words “chief’ “minor chief” “recognized chief,” “recognised chieftaincy” in section 2 of the Chiefs Law Cap. 21, Vol. 1, Laws of Oyo State. 1978 provide as follows-

“chief’ means a person whose chieftaincy title is associated with a native community and includes a minor chief and a recognized chief.

“minor chief’ means a chief other than a recognised chief

“recognised chief’” means a person appointed to a recognized chieftaincy.

“recognised chieftaincy” means a chieftaincy to which the provisions of Part 2 apply.

Analyzing the qualities and functions of the holder of the title of Mogaji, it seems to me accepted without dispute that he is the head of his native community appointed by his family and recognised by the Olubadan of Ibadan. This description comes within the accepted definition of the word “chief’ in section 2 of the Chieftaincy Law Cap. 21 Vol. 1 of Laws of Oyo State 1978. The fact that the holder of the title of Mogaji, the head of a family, is not indicated as one of the designated ten chiefs in Ibadan docs not take the title out of the definition because the definition of the word ‘chief’ includes a rccogniscd chief and a minor chief. A minor chief is a chief other than a recognised chief.

The word “chief”’ has been variously defined in different laws where the expression has been used with minor and insubstantial variations. The word has been defined in the Interpretation Ordinance 1946, No.7 of 1947 subsequently repealed and replaced by the Interpretation Act. 1964. No. 1 of 1964, section 18. All the definitions are consistent on the view that a chief means a native whose authority and control is recognised by a native community.

We have already reproduced in this judgment the definition of the word in section 2 of the Chiefs Law of Oyo State, which is applicable to this case. This definition would seem to me to be derived from the definition of the word in section 2 of the Chiefs Law. Cap. 19 of the Laws of Western Nigeria, 1959, which is identical. It is difficult to refute the argument that the operating and dominant consideration in the definition of the word is the holding of a title recognised by the native community. It is accepted that a Chief is an acknowledged leader in his society and among members of his community, which status carries with it both social prestige and political functions. Learned Counsel for the Appellant cannot be understood to be suggesting that the holder of the title of Mogaji in Ibadan land does not fall within the above definition.

A similar situation fell for judicial determination in the early West African Court of Appeal decision in Ononye v. Obanye (1945) 11 WACA 60. In this case Plaintiff claimed, a declaration, that as “Okpala” he is the head of Mgbelekeke family, and that as such head he was entitled to all the rights attached to that office according to native law and custom, and that he is the proper representative of the family according to native law and custom. Where, as in the instant case, it was contended that the “Okpala” was merely the head of the extended family, which only enabled him to bring action in the name of the family. The Court rejected the contention and relying on Dr. Meeks, book on Law and Authority in a Nigerian Tribe, held that the Okpala could be regarded as a Chief.

In Osamor v.Obi Izediuno & anor. (1955-56) WRNLR 118 the court interpreting the provision of the Interpretation Ordinance it was held that the control and authority of a Juju Priest, if recognised by a native Community would bring such a person within the definition of chief. The court pointed out at P. 120 that the Ordinance does not state the nature of the authority or extent of the control needed to make a person a chief and that it need not be necessarily administrative.

I agree with learned counsel to the Respondent that the decisions relied upon by Appellant in support of the proposition that the Mogaji is not a chief are not appropriate and therefore cannot be binding precedents. Laoye & Ors. v. Oyetunde (1944) 10 WACA 4, was a decision that the Bale of Ogbomoso is not a head chief. It was not a decision that the Bale of Ogbomoso was not a chief. Again, Alhaji Salami Olaniyi v. Aroyehun (1991) 7 SCNJ 40 which held that a village head is not a chief within the purview of the Chiefs (Appointment and Deposition) Law of Kwara State, unless he has been appointed a graded chief by the Governor of Kwara State under sections 3 and 5 of the Law. The definition of the word “chief” in that Law which is based on the provisions of section 5(1) of the Chieftaincy Dispute (Preclusion of Courts) Ordinance No. 80 of 1948 is different.

Considering a number of the admitted facts in the credentials of the holder of the title of Mogaji. it is inescapable to conclude that:

(i) He is the person properly appointed by the family to be its head

(ii) On being thus appointed, he becomes eligible for appointment to the rank of a senior chief and by stages up to the status of the paramount chief of Ibadan, known as Olubadan of Ibadan (iii) The Oluokun family is one of the important families of lbadan.

(iv) He is given the power to collect the native administration tax from the taxable members of his area.

(v) Exhibit P4, Statement of Judgment S. B. Rhodes.

All the above facts are admitted and no longer require any further evidence in proof – See Bello v. Farmers Supply Co. Ltd. (1998) 10 NWLR (Pt.568) 64.

I have no doubt in my mind that a person appointed a Mogaji of his family in Ibadan, assumes the position and status of a minor chief. This is because his title of Mogaji is associated with Ibadan community, and it is a title other than a recognised chief. The title makes him eligible to appointment as a senior chief in the Ibadan Chieftaincy hierarchy leading to the ultimate position of the Olubadan of Ibadan.

The Court of Appeal was therefore right in regarding the title or Mogaji in Ibadan, as a minor chief within the meaning of section 22 of the Chiefs Law, Part 3, Cap. 21, Vol. 1 Laws of Oyo State, 1978.

The Issue No.2 The next issue for consideration is whether the court of trial had jurisdiction to determine the claims before it as it did. This is the second issue for determination formulated by the Appellant as follows –

“Whether if the answer to 5.1 (above) is in the negative, the Honorable Court of Appeal should, will or shall rightly and properly assume jurisdiction to rightly and properly determine the issue.”

Appellant’s submissions

Learned Counsel to the Appellant sought and was granted leave to argue issue 4 together with issue 2. Issue number 4 states –

“Whether the Honourable Court of Appeal, should not have assumed jurisdiction to determine the case on the merits – the law and evidence led (by the parties and their witnesses).”

In arguing the appeal, learned counsel submitted that even given the exercise of unlimited jurisdiction of the High Court as formulated in issue 3, he would still contend that the Court lacked the requisite jurisdiction. Issue 3 as formulated states as follows –

“Whether the “Unlimited jurisdiction” granted to the State High Courts by the Constitution of the Federal Republic of Nigeria 1979, did or should not enure for the Plaintiff/Appellants to have their rights in law and on the merits determined, irrespective of the “so called” prematuredness and in exhaustiveness of his remedies as provided for by the Chiefs Law, volume I, cap. 21, Laws of Oyo State of Nigeria, 1978.”

Learned counsel relied on the construction of section 22(6) of the Chiefs Law, which is as follows-

“Any person aggrieved by the decision of the prescribed authority may within twenty-one (21) days make representation to the Commissioner”

In the argument of learned counsel to the Appellants, the offending interpretation is the opinion of Nsofor JCA, where the word “may” in the section is construed as imposing a duty. Reading the leading judgment the learned Justice said.

“Now in connection with determination and settlement of certain minor chieftaincy disputes, section 22 of the Chiefs Law 1978 has created and set up an adjudicative procedure and machinery. It gave ‘power’ to seek a remedy and to give a remedy. In my view all persons within its (section 22’s) contemplation have a duty to exercise the power. May in sub-sections (2)(3)(4)(5) and (6) … imposed a duty”

Learned Counsel relied on the definition of the word “may” in Black’s Law Dictionary, and the judgment of Uche Omo JCA in Chief Sarim Adeniran Degbekun v. Oba Yesufu Omoloye (unreported Court of Appeal decision CA/1/125/86) to argue that the word “may” in section 22(5) of the Chiefs Law of Oyo State 1978 was not mandatory on the Plaintiff/Appellant. Accordingly Section 22(5) did not impose any duty on the Plaintiff/Appellant to make representation to the Commissioner. It was submitted such a course of action being optional, ought not take precedence over the constitutional right of access to the courts, which is his fundamental right.

Finally, learned Counsel submitted that Respondents having participated in the trial of the action to conclusion should be taken to have waived their right to object to the jurisdiction at the trial. It was argued that it was too late for Respondents to take advantage of the want of jurisdiction. It can at best be regarded as an irregularity. The decisions of Sonuga & ors. v. Anadein & ors. (1967) NMLR 77 and Gani Fawehinmi v. NBA No.1 (1989) 2 NWLR (Pt.105) 494 were cited and relied upon,

Reply by Respondent

In his reply, learned Counsel to the Respondent submitted that the word “may” in any statute can be used as discretionary or mandatory. It was submitted that it was the duty of the court to discover the real intention of the statute. This can be done by considering the whole scope of the statute to be construed. Learned Counsel referred to the opinion of Nsofor JCA for the meaning of the word “may” where he said.

“It is important to note that the word ‘may’ always gives a power but the further question whether given the power there is a duty to exercise it must depend on the words creating the power.” (lines 10-12 p. 433)

Learned Counsel cited Julius v. Lord Bishop of Oxford (1880) 5 AC. 214/223 and Bakare v. AG. of the Federation (1990) 5 NWLR (Pt.152) 516 for the cases where the word “may” is held to be mandatory. Learned counsel went on to submit that on a reading together of the provisions of section 22(5) and (6) an aggrieved party like the appellant has no option but to appeal within 21 days to the Commissioner in charge of chieftaincy matters who has the duty to cause an inquiry to be held, into the dispute.

Consideration of Counsel’s Submissions-

It is relevant to set out the actual words of the statute and any associated provisions to enable a proper interpretation of the provision. Section 22(5) provides as follows –

“Any person aggrieved by the decision of the prescribed authority in exercise of the powers conferred on the prescribed authority by sub-sections (2), (3) and (4) of this section may within twenty-one days, from the date of the decision of the prescribed authority, make representations to the Commissioner to whom responsibility for chieftaincy affairs is assigned that the decision be set aside and the Commissioner may, after considering the representations, confirm or set aside the decision.”

It seems to me clear from the above provision that the person aggrieved by the decision of the prescribed authority is allowed twenty-one days from the date of the decision of the prescribed authority to make representations to the Commissioner for Chieftaincy Affairs to set aside the decision. This is the remedy and the channel provided for him. There is no question as to whether or not he may appeal to the Commissioner for Chieftaincy Affairs, this being the remedy provided under the statute. Accordingly the word “may” although etymologically permissive, is in this con mandatory.

The construction of the word “may” in provisions of statutes has always raised difficulties. This is not because of the imprecision of the word because it is not, but essentially because the word “may” assumes a technical meaning depending upon the intendment of the statutory provision in which it is used. Although the etymological meaning of “may” is permissive and facultative, and seldom can mean “must” and imperative, it assumes this last mentioned character, when there is anything in the provision that makes it the duty on the person on whom the power is conferred to exercise that power. When the exercise of the power is coupled with a duty on the person to whom it is given to exercise it, then it is imperative.

In the instant case, there is a duty on the aggrieved who desires to set aside the decision of the prescribed authority to make his representation to the Commissioner for Chieftaincy Affairs within twenty-one days of the decision. The use of the expression “may” in this situation is not merely facultative, but mandatory. There is no alternative. The aggrieved has no choice of action in the remedy provided for him. – See Bakare v. Attorney General of the Federation (1990) 5 NWLR (Pt.152) 516. Accordingly, the word “may” in section 22(5) of the Chiefs Law of Oyo State, 1978 should be construed as imperative; the exercise of the right not being optional.

It was further submitted that the exercise of the option should not take precedence over the constitutional right of access to court; which is a fundamental right. This point could be summarily dismissed by reference to the provisions of section.33 (2)(a) of the Constitution 1979 which recognises fair hearing where a law

“(a) provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person.”

The essence of the provision of section 22(5) is to afford the person aggrieved by the decision of the prescribed authority to make representation to the Commissioner for Chieftaincy Affairs. The provision is not in violation of section 33(2)(a) of the Constitution and has not interfered with Appellant’s access to the court. – See Umaru v. Abudl-Mutallabi (1998) 11 NWLR (Pt.573) 247. Appellant also contended that having taken part in the trial, Respondent should be deemed to have waived his objection to want of jurisdiction, having not raised the issue in their pleadings. It is accordingly too late for Respondent to complain and to take advantage of the defect which is a mere irregularity already accepted by them, and acted upon without any prejudice to them. The decisions of Sonuga & ors. v. Anadein & ors. (1967) NMLR 77 and Gani Fawehinmi v. N.B.A. (No.1) (1989) 2 NWLR (Pt.105) 494 were cited in support.

The decision of Gani Fawehinmi v. N.B.A. (No.1) (1989) 2 NWLR (Pt.105) 494, cited and relied upon by Appellants counsel is inappropriate, that case is not based on want of jurisdiction.

It is an elementary proposition of law that where there is no power to exercise jurisdiction, no legal action results. A fortiori the question of a waiver does not arise. What is not within the control or competence of a party cannot be subject matter of a waiver. – See e. Learned Counsel to the Respondent accurately summarised the gravamen of the appeal referring to issues 2, 3 & 4, when he said at para. 6.0 1 of his brief’.

”The sum total of the issues is whether, the Court of Appeal was right in holding that the action of the appellant is premature and that in spite of the provisions of sections 6(6)(b) and 236 of the Constitution of the Federal Republic of Nigeria 1979, the High Court of the State has no jurisdiction to grant the declaratory action sought by the appellant in this suit.”

Exercise of the Powers and the Remedy-Construction of Section 22.

The rights and remedies of the persons appointed under the provisions of Part 3 of the Chiefs Law are clearly provided in section 22 of the Chiefs Law as follows

“22(2) Where a person is appointed, whether before or after the commencement of this Law, to fill a vacancy in the office of a minor chief by those entitled by customary law so to appoint and in accordance with customary law, the prescribed authority may approve the appointment.

(3) Where there is a dispute whether a person has been appointed in accordance with customary law to a minor chieftaincy the prescribed authority may determine the dispute.

(4) The decision of the prescribed authority-

(a) to approve or not to approve an appointment to a minor chieftaincy; or

(b) determining a dispute in accordance with sub section 3 of this section,

shall be final and shall not be questioned in any court.

(5) Any person aggrieved by the decision of the prescribed authority by subsections (2), (3) and (4) of this section, may within twenty-one days from the date of the decision of the prescribed authority, make representations to the Commissioner to whom responsibility for chieftaincy affairs is assigned that the decision be set aside, and the Commissioner may, after considering the representations confirm or set aside the decision.

(6) Before exercising the powers conferred by subsection (5) of this section, the Commissioner may cause such inquiries to be held in accordance with section 21 as appear to him necessary or desirable.

(7) Where the Commissioner in his determination under subsection (5) of this section sets aside an appointment to a chieftaincy, he shall require the persons responsible under customary law for the appointment of the person to fill the vacancy in that chieftaincy to appoint another person in accordance with the customary law within such time as he may specify.”

There is no doubt on the face of the claim, before the learned trial Judge, the Appellant is disputing the appointment by the prescribed authority, the Olubadan of Ibadan of Raimi Abidoye Olatunji as the Mogaji of Oluokun family of Ibadan.

The remedy provided by S. 22(3) is for the prescribed authority to determine such a dispute. The decision of the prescribed authority to approve or not to approve an appointment to a minor chieftaincy or determination that a person has been appointed in accordance with customary law to a minor chieftaincy shall be final and shall not be questioned in any court. That is not the end of the remedy. However, a person aggrieved by the exercise of powers under subsections (2), (3) and (4) is entitled within 21 days of the making of the decision to make representations to the Commissioner for Chieftaincy Affairs, who may confirm or set aside the decision of the prescribed authority. On his part, the Commissioner for Chieftaincy Affairs may cause such inquiries to be held as appears to him necessary or desirable for the determination of the dispute.

These are the procedural steps provided by the Chieftaincy Law for the redress of grievance in respect of disputes arising from the decision of the prescribed authority. It is obvious from these provisions that whereas the decision of the prescribed authority is not subject to the jurisdiction of the courts, the aggrieved still has an opportunity to make representations to the Commissioner for Chieftaincy Affairs, who is the administering authority, before any decision affecting the aggrieved is made. – (See S. 33(2)(a). The relevant sections of the Chieftaincy Law do not contain any provisions making the determination of the administering authority final and conclusive. – See S. 33(2)(b). The determination of the Commissioner for Chieftaincy Affairs, is clearly not excluded from the jurisdiction of the court. Accordingly, the issue of access to the courts is not foreclosed as to make the provision a violation of the fundamental right of access to the courts.

The precondition for access to the court in respect of disputes arising from the determination of the prescribed authority are that (a) the prescribed authority must have made a determination, (b) the aggrieved should have made a representation to the Commissioner for Chieftaincy Affairs within twenty-one days of the giving of the decision, and (c) the Commissioner for Chieftaincy Affairs should have determined the dispute after due inquiry. These steps exhaust the remedy available to persons aggrieved under the exercise of powers vested in the prescribed authority by section 22 of the Chiefs Law of Oyo State 1978. Appellant does not appear to have satisfied any of the above steps.

It seems to me that whereas section 22 vests in the prescribed authority the determination of facts and law relating to the appointment of a minor chief, other than in a court of law, the review of the determination of the prescribed authority re-enforced by subsections (5) and (6) of section 22 is vested in the commissioner for Chieftaincy affairs, whose determination unlike that of the prescribed authority is subject to judicial supervision. Learned counsel to the Appellants has submitted that section 22 of the Chiefs Law is in conflicts with sections 6(6)(b) and section 36 of the Constitution 1979. I find no conflicts in the operation of these provisions.

Section 22 of the Chiefs Law, has vested in the prescribed authority the determination of disputed minor chiefs. The aggrieved party has also been compelled by statute to pursue a special remedy under the Chiefs Law. “It would be mischievous” in the words of Lord Herschell in Barrraclough v. Brown (1897) AC. 615, to hold that when a party is compelled by statute to resort to an inferior court he can come first to the High Court to have his right to recover determined. Such a proposition is not supported by authority, and is I think, unsound in principle” I entirely agree. Having vested the determination of disputed minor chiefs in the prescribed authority, the aggrieved by statute compelled to resort to a particular remedy, should be left to exhaust his remedy. Since the right and the remedy are given uno flatu, the one cannot be dissociated from the other. – See Lord Watson in Barraclough v. Brown (1897) AC at Pp. 621-622.

The inequities of the exercise of concurrent jurisdiction between the inferior tribunal and the High Court was pointed out by Lord Denning M R in Healey v. Minister of Health (1955) 1 QB, 221-228. He observed that there is the possibility of “two inconsistent findings, one by the Minister and the other by the Court. That would be a most undesirable state of affairs:’ This is what happened in this case. The decision of the High Court was different from that of the prescribed authority. He then stated what I regard as the crux of the matter. He said; “In my opinion, if the court were to entertain this declaration, it would be going outside its province altogether. It would be exercising a jurisdiction to “hear and determine” which does not belong to it, but to the Minister.

In the instant case, the determination of disputed minor chieftaincies is a jurisdiction by statute vested in the prescribed authority. I agree with the submission of learned counsel to the Respondents that the High Court has no jurisdiction to exercise the jurisdiction vested in the prescribed authority. In Eguamwense v. Aniaghizemwen (1993) 9 NWLR (Pt.315) 1, this Court held that where the right and the remedy has been granted by statute, the right and remedy being uno flatu must be taken together. Appellant has not complied with any of the preconditions enabling him to bring the action. Indeed he applied for a declaration even before the prescribed authority gave his decision. Appellant has not even applied to the Commissioner for Chieftaincy Affairs, within twenty-one days of the determination by the prescribed authority, For the above reasons Appellant has not resorted to the remedies statutorily available to him on the infringement of the alleged right by the prescribed authority. Appellant has therefore not satisfied the preconditions for bringing an action. The action of Appellant is accordingly premature and does not give rise to a cognisable cause of action. The Court of Appeal was accordingly right to hold that the learned trial Judge lacked the requisite jurisdiction to hear and determine the claims before him, The Appellant’s suit in the High Court was accordingly properly struck out. Having decided this appeal on the ground of want of jurisdiction in the court of trial, it is not necessary to decide the issues raised in the cross-appeal which concerns the merit of the claim before the court.

I assess the costs of this appeal in favour of the Respondents at N10,000 to the 1st Respondent.

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SC.265/1993