Sunday Eguamwense V. James I. Amaghizemwen (1993)

LawGlobal-Hub Lead Judgment Report

This appeal questions the exercise by the High Court of original jurisdiction to hear a declaratory action in respect of a matter with which an inferior tribunal has been vested with jurisdiction.

The facts of the case

The facts of this appeal are not in dispute. The litigation stems from the dispute as to whether respondent or appellant is the proper person to be vested with the title of the Amaghizemwen of Benin. The Amaghizemwen of Benin is a traditional hereditary title in Benin City. The title was created about 1735 A.D. by Oba Oresoyen of Benin. The first Amaghizemwen is said to have been Emodua. The last Amaghizemwen as claimed by the appellant was Ediae who died in 1935.

The case of the respondent is that Ogbeide was the last Amaghizeniwen of Benin. He claims that neither Ediae, nor Eguarnwense, the grandfather and father respectively of the appellant held the title of Amaghizemwen of Benin. Respondent therefore claims that his father Emovon was the eldest son of Ogbeide. Emovon performed all necessary burial rites of Ogbeide, but died in 1931 before he could be installed the Amaghizemwen of Benin. The title had remained vacant ever since.

Appellant has challenged this claim. He denied the claim of the respondent that respondent is a grand child of Ogbeide. Appellant has contended that since Ogbeide was reputed to have died childless, respondent could not be his grandchild. It was also averred that Emovon, respondent’s father was alive when Ediae who died in 1935 was the Amaghizemwen. Ediae held the title from 1918 to 1935.

Respondent dissatisfied with the mediation of the family look his complaint to the Oba of Benin. He wrote several petitions alleging interference and usurpation of his title by the appellant with the active support of some other Benin chiefs who he expected to be impartial. The Oba of Benin first referred the dispute to Chief Inneh, the Ekegbiam of Benin. Respondent was dissatisfied with the effort of Chief Inneh and accordingly protested to the Oba of Benin. The Oba of Benin decided to hear the parties himself, and to decide the dispute. The Oba of Benin after hearing the parties ruled in favour of the appellant. Despite respondent’s protests against the decision, the Oba did not alter his ruling.

Respondent still dissatisfied with the decision of the Oba of Benin then took out a writ of summons of the 7th Feb., 1986 in the High Court seeking a declaration in respect of the same issue which was decided by the Oba of Benin. Both the High Court and the Court of Appeal granted respondent the Declarations and injunction sought. Appellant has now in a further appeal to this court challenged the exercise By the High Court of the jurisdiction to grant a Declaration in respect of the matter over which the Oba of Benin had in the exercise of a statutory jurisdiction already come to a decision. Thus, the appeal before us is not concerned with the rightness or otherwise of the decisions of the court below. Respondent sought by the Declaration the determination of the matters which the Oba of Benin decided. It is as I have already stated whether the High Court has the jurisdiction to make the Declaratory Orders and injunctions.

The appeal before this Court

Appellant relied on the three grounds of appeal, alleging an error in law leading to misdirection and miscarriage of justice in the first ground. The second ground alleged want of jurisdiction in the trial court because of the provisions of sections 21, 22(1), 22(2), 22(3) and 22(6) of the Bendel State Traditional Rulers and Chiefs Law No. 16 of 1979. The third grounds of appeal complain of the finding that the Oba of Benin, the D.W.4 did not give evidence of what he knew, but relied on a report made to him.

Since the issue of jurisdiction is involved and if successful will determine the appeal in favour of the appellant, learned counsel to the appellant, properly formulated the issue for determination on the basis of the issue of jurisdiction which is the substance of the second ground of appeal.

The issue so formulated with which learned counsel to the respondent agrees is as follows:-

“Whether the trial court had jurisdiction to entertain and grant the beliefs claimed by the plaintiff in this action.”

It is appropriate at this stage to set out the reliefs claimed by the plaintiff in the High Court. They are as follows:-

“(a) a declaration that the plaintiff and not the defendant is entitled to be conferred with the chieftaincy title of Amaghizemwen of Benin, it being a hereditary title under Benin Native Law and Custom.

(b) a declaration that the conferment of the hereditary title of Amaghizemwen of Benin by Omo N’aba Erediuwa, the Oba of Benin, on the defendant on or about the 3rd of July, 1985, in Benin within Benin Judicial Division is contrary to Benin Native Law and Custom of inheritance and therefore ought to be set aside.

(c) an order of perpetual injunction restraining the defendant his, heirs, servants and agents from parading himself as the Amaghizemwen of Benin.”

I have already stated above that the dispute between the parties was taken to the Oba of Benin by the respondent for settlements. The Oba found in favour of the appellant. The Oba of Benin acted in his capacity as Prescribed Authority with statutory powers for resolving disputes relating to the appointment of certain classes of Chiefs. This Chieftaincy title of Amaghizemwen of Benin comes within the class in respect of which the prescribed authority is vested with jurisdiction to settle disputes.

The statutory provisions

It is important to refer to the enabling section 21 of Traditional Rulers and Chiefs Edict No. 16 of 1979 which provides as follows:-

“The Executive Council may appoint in respect of a local government area or part thereof, an authority (in this Edict referred to as the Prescribed Authority) consisting of one person or a committee of two or more persons to exercise the powers conferred under this part in respect of the office of a traditional chief or a honorary chief whose chieftaincy title is associated with a community in that area.”

The Oba of Benin is the prescribed authority under the Traditional Rulers and Chief Edict No. 16 of 1979. The function of the prescribed authority is stipulated in section 22(3) of the Edict and provides that,

“where there is a dispute as to whether a traditional chieftaincy title has been conferred on a person in accordance with customary law or as to whether a traditional chieftaincy title has been conferred on the right person, the prescribed authority, or the Executive Council as the case may be, may determine the dispute.”

The sub-sections of section 22 have made provision for the review of the decision of the prescribed authority. For instance, sub-section 6 of section 22 provides for a review by the Executive Council of the decision of the “prescribed authority.”

Thus the Traditional Rulers and Chiefs Edict No. 16 of 1979 which has provided for the prescribed authority, to decide disputes under the Edict, has also provided under the Edict for the channel of correction of the decision. It seems to me however that the jurisdiction for a determination of the dispute “whether a traditional chieftaincy title’ has been conferred on a person in accordance with customary law or as to whether a traditional chieftaincy title has been conferred on the right person…………” has been vested in the prescribed authority, or the Executive Council by section 22(3)

The statutory provision compared with the declaratory reliefs claimed. I have already set out above the declarations sought by the respondent in the High Court. It is quite clear that it is (i) a Declaration that appellant is not entitled to be conferred with the hereditary chieftaincy title of Amaghizemwen of Benin, and (ii) that the conferment of the hereditary Chieftaincy title of Amaghizemwen on the appellant is contrary to Benin Native Law and Custom and ought to be set aside, (iii) A perpetual injunction.

There is no doubt that these reliefs fall squarely within the jurisdiction statutorily vested in the “prescribed authority” by section 22(3). The question appellant has put before us is whether in view of section 22(3), the High Court is entitled to exercise jurisdiction in respect of the declarations sought. The declarations are the same as the subject matters of the jurisdiction vested in the “prescribed authority.”

Arguments of Counsel

Learned Counsel to the parties have field their briefs of argument which they relied upon in their argument before us.

(i) Appellant’s Counsel.

Chief F.R.A, Williams, S.A.N. for the appellant has based his argument on the application of general principles of law, and the intention of the legislature as expressed in the provisions of the Traditional Rules and Chiefs Edict No. 16 of 1979. Learned counsel submitted that the vesting power to decide a question of fact or law in a person or authority other than a court of law is a clear indication of the intention of the legislature to vest the jurisdiction to decide such questions to the person or authority other than the courts. This intention is further re-enforced by the provision for the review or appeal procedures in such statutes. Counsel cited and relied on dicta in Anisminic v. Foreign Compensation Commission (1969) 2 AC 147; Healey v. Minister of Health (1955) 1 QB 221; Punton v. Ministry of Pensions and National Insurance (1964) 1 WLR 226.

Chief Williams, SAN formulated the principle involved and which should govern the issue as follows:-

“Where an authority vested with statutory function (including the power to decide any question of law or fact) exercises that function and he does so in relation to a matter of a kind over which he is authorised to act, then the validity of his action can only be challenged by an appeal or review (where that is available or by invoking the supervisory jurisdiction of the High Court to quash it or set it aside). It cannot be challenged by an action for a declaration.”

Learned counsel submitted that the vesting power to decide a question of fact or law in an authority renders such decision of the authority binding on the parties’ affected unless and until it is nullified on appeal to the Court or appropriate proceedings in the manner prescribed by the enabling statute. Hence a party affected by the decision cannot treat it as non-existent and therefore bring an action for declaration contrary to the determination of the statutory authority. Counsel relied on dicta in Smith v. East Elloe Rural District Council (1956) AC 736 at 769-770; Ridge v. Baldwin (1964) AC 40 at p. 125.

(ii) Respondent’s Counsel

Mr. Osifo for the respondent relied on the unlimited jurisdiction of the High Court, and the judicial powers of the Courts respectively in sections 236 and 6(6)(b) of the Constitution 1979. It was submitted that the maxim ubi ius ibi remedium applied to the case and that it was inappropriate to interpret the provisions of the Traditional Rulers and Chiefs Edict No. 16 of 1979 by reliance on English decisions. Learned counsel argued that the Oba of Benin who is the prescribed authority would seem from his powers to be a judge in his own cause. He submitted that section 22(6)(a) & (b) of the Edict which only provides for an alternative remedy has not taken away the right of an aggrieved person to seek redress in the High Court. The provision has not taken away the jurisdiction of the High Court under section 236(1) of the Constitution 1979.

It was submitted relying on Olawoyin v. Attorney-General Northern Region of Nigeria (1961) 2 SCNLR 5; (1961) 1 All NLR 269 and Nwankwo v. Nwankwo (1992) 4 NWLR (Pt. 238) 693, 710 that a High Court is precluded from granting a declaratory relief in the following situations –

(a) where the 1979 Constitution has vested exclusive jurisdiction in such matters in another tribunal

(b) the grant of the declaration would amount to an academic exercise.

Mr. Osifo submitted that the jurisdiction of the High Court in this matter cannot be merely supervisory once it is conceded that the finality clause in section 22(4)(a) & (b) of the Traditional Rulers and Chiefs Edict 1979 is null and void. Learned counsel cited several decided cases of this court in support of the submission that express words are required to exclude the exercise of the jurisdiction of the High Court to grant a declaratory relief in such matters – Pyx Granite Co., Ltd v. Ministry of Housing and Local Government (1958) 1 QB 554; Governor of Ondo State v. Adewunmi (1988) 3 NWLR (Pt. 82) 280; Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139 were cited and relied upon.

Chief F.R.A. Williams, SAN in appellant’s reply brief pointed out that the Oba, who is the prescribed authority having ruled in favour of the appellant had no power to have gone back on that decision. Learned counsel also replied to the submission that there was jurisdiction under section 236 to grant the declaration. It was pointed out that the emphasis is on the disability of the person seeking to invoke the jurisdiction of the court having lost a claim for redress before the prescribed authority in the exercise of its statutory jurisdiction.

Consideration of the Submissions.

I have set out the submissions of the parties. The issue before us can however be put in a very narrow compass. It is whether the High Court can exercise its declaratory jurisdiction in respect of a matter already decided by the prescribed authority in the exercise of a statutory power.

I do not see how the maxim ubi jus ibi remedium relied upon by counsel to the respondent applied to this case. Neither the right nor the remedy is in doubt.

It is therefore not a case for formulating a remedy to meet a right where there is no remedy.

The issue may be better understood after a summary exposition of the nature of a declaratory relief. It is accepted that the action for declaration is a useful and important procedural method for ascertaining and determination of a point of law or the construction of a document, and for the determination of the validity of orders or decisions of inferior courts or tribunals – See Vine v. National Dock Labour Board (1957) AC 488, Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government (1960) AC 260. Its nature is very much misunderstood. The action for declaration is used in a great variety of circumstances and is usually accompanied by ancillary reliefs. This procedure has been very commonly adopted in cases of disputes as to title to land held under customary law. – See Fabunmi v. Agbe (1985) 1 NWLR (Pt. 2) 299. It is also generally used in disputes as to title to chieftaincy. See Gbokoyi v. Minister of Chieftaincy Affairs (1965) NMLR 7. However, where the relevant statute has given exclusive jurisdiction to another tribunal or hierarchy of tribunals, the jurisdiction of the court to grant a declaration would appear to be ousted. – See Punton v. Ministry of Pensions & National Insurance (1964) 1 WLR 226.

The power to make binding declaration is discretionary – See Ibeneweka v. Egbuna (1964) 1 WLR 219. The Court will refuse to exercise such jurisdiction to determine an academic or hypothetical question – See Re Barnaro (1949) Ch. 258. Hence, where the declaration sought is already a decision of a statutory tribunal, the court will decline to exercise its discretionary jurisdiction to grant a declaration. – See Argosam Finance Co. Ltd v. Oxby (1964) 1 All ER 791.

A declaratory judgment will be granted where the justice of the case demands it more than any other remedy See Bello v. Eweka (1981) 1 SC 101.

Now, it is important to advert to the fact that respondent accepted that the Oba of Benin, who is the “prescribed authority” had given a decision, and that he issued the writ seeking the declaration because of the refusal of the Oba of Benin to alter his ruling. In the pleadings before the Court, respondent in paragraphs 22,.23, 24, 25, of his statement of claim averred as follows:-

“22. Before 3rd July, 1985, when the title of Amaghizemwen of Benin was conferred, on the defendant, the Oba sent for both the plaintiff and the defendant. At the palace they both told their stories to the Oba who promised to give a ruling on the matter at a later date. While the ruling was being awaited, the Oba without delivering the ruling conferred the title on the defendant on 3rd July, 1985.”

23. On the 28th October, 1985, plaintiff wrote another petition to the Oba protesting against conferment of the title on the defendant. In the petition plaintiff urged the Oba not to confirm the conferment since the defendant was not entitled to it. This letter will be relied upon at the trial of this action. So also will he rely on other letters/petitions subsequent to this.
24. Plaintiff was also reliably informed that about the end of October, 1985, the Omo N’Oba allowed the defendant to present himself for the second ceremony of “Imegie” (installation), thereby further consolidating the usurpation of the title of Amaghizemwen by the defendant, on the 24th December, 1985, plaintiff wrote another petition to the Oba protesting against the undeserved favour he had shown to the defendant. A copy of this letter shall be founded upon at the trial of this action.”
25. When the Omo N’Oba will not listen to plaintiffs protests and representations, he was compelled to institute this action 7th February, 1986, a day before the defendant would have gone to the Oba’s palace to perform the third and most important ceremony of IKPONWENDOHIA (IGHOGHEGIE) which would have enabled him to take his proper place in the appropriate palace society as a recognised Benin title Chief.”

As against the above, the appellant in paragraph 17 of his statement of defence averred as follows:-

“17. The defendant admits paragraphs 22 and 23 of the statement of claim only to the extent that the Oba and his Chiefs went into the claims of the plaintiff which were dismissed and on 3rd July, 1985, the Omo N’Oba conferred the title of Amaghizemwen on the defendant.”

It is pertinent to refer to the evidence at the trial of the Oba of Benin who is the prescribed authority, and gave evidence for the defendant, now appellant as D.W. 4. I quote his evidence verbatim as in pages 209 line 8 to 210 lines 1- 11.

“DEFENCE WITNESS 4: The Oba of Benin: Affirms, I am the Oba of Benin.

I live in the Oba’s palace. I am recognised as the 1st class traditional ruler in Nigeria. I am the embodiment and custodian of Benin Native Law and Custom. The Oba of Benin hereditary title is conferred on an entitled person, the title vests. I know the plaintiff and the defendant. I know D.W. 3. I recognised Exhibit ‘G2, Exhibit ‘G’ is petitioned under the name of J.I. Emovon. In one of the petitions the plaintiff asked that the matter be referred to their family and I did. I think D.W. 3 did something about the matter. I also know that the plaintiff said he did not accept what the D.W. 3 did and I also told the D.W. 3. As a result of not being satisfied by the plaintiff I called all the parties including the Isienmwenro Group. They were received in one of the Halls where complaints are received from the public. Apart from families, the Hall is open to all persons and it is public. I am not sure of the date the parties and their group came to me but I know I listened to them. After listening, J came to the conclusion that Emovon was not eligible to the title. This conclusion was put to the parties in the presence of all the people present on that day. After hearing the complaint did not adjourn sine die. I said that the findings of those who went into the matter as presented to me, J held that the plaintiff was not entitled to be conferred with the title. I also said that from the available evidence before me, the title has fallen on the defendant’s line. I also said that although the defendant’s father has not taken the title, there was evidence that his father had functioned in that position. I then decided to keep the title and later to decide what to do with the title. From all available evidence adduced before me, I understand that the last holder of the, title was Ediae, I know the D.W. 2, he is the Secretary of the Benin Traditional Council. I see Exhibits “L” and “K”. They were written with my authority. After a while I conferred the title to the defendant. in my estimation based on the investigation, I gave the title to the right person.”

It is not disputed that the Chieftaincy dispute between the respondent and the appellant was referred to the Oba of Benin, who is the “prescribed authority” in accordance with section 22(3) of the Traditional Rulers and Chief Edicts No. 16 of 1979. The “prescribed authority” also decided the matter as he is entitled by the statute to do. This decision is still valid and subsisting.

The contention of learned counsel to the respondent seems to me to be that the decision of the “prescribed authority” valid, binding as it is, can be ignored, and an action for declaration seeking to achieve the same result pursued.

His main contention is that section 22(6)(a) & (b) did not deprive an aggrieved party of the right to seek redress in the High Court. Section 22(6)(a) & (b) it was contended only provides for an alternative remedy. The court can exercise jurisdiction under section 236 of the Constitution 1979 which vests unlimited jurisdiction in the High Court.

I have already set out the provisions of section 22(3) of the Edict No. 16 of 1979. Furthermore, the provision in sub-section (6) of section 22 is clear and unambiguous that the decision of the prescribed authority may be reviewed by the Executive Council on the application of an aggrieved party.

Section 22(6)(a)(b) provides as follows:

“(6) The Executive Council may on the application of an aggrieved party:-

(a) review the decision of a prescribed authority made under sub-section (3) of this section and substitute its own decision therefor; or

(b) approve the conferment of a traditional chieftaincy title on a person if such approval was withheld by the prescribed authority contrary to sub-section (5) of this section.”

It seems to me clear that the intention of the legislature is to vest the jurisdiction for determining such disputes in the prescribed authority. In this case both the right and the remedy have been provided for under the statute. This does not affect the general supervisory jurisdiction of the prescribed authority as an inferior tribunal, which the High Court can exercise over inferior tribunals.

It is accepted as correct principle of law that where a statute creates a special right to which a special remedy is attached, resort cannot be had to any remedy other than that provided for in the statute creating the right. As Lord Watson LJ., expressed it in Barraclough v. Brown (1987) AC at p. 622,

“The right and the remedy are given uno flatu and the one cannot be dissociated from the other.”

The “prescribed authority” in the instant case in who is vested the jurisdiction to determine disputed chieftaincies is an independent body whose decision is subject to review by the Executive Council. There is no doubt that the “prescribed authority” is under the supervisory jurisdiction of the High Court. The right to a disputed chieftaincy under the Traditional Rulers and Chieftaincy Edict No. 16 of 1979 and the remedy are granted under the Edict. Chief Williams, SAN has cited to us the English decisions of Healey v. Minister of Health (1955) 1 QB 221 and Plinton v. Ministry of Pensions and National Insurance (1964) 1 WLR 226. I think the principles applied in these cases are applicable to the instant case.

In Healey’s case the question was whether plaintiff, who was the assistant to a charge-hand in a shoemaker’s shop where patients in a Mental Hospital participated in shoe making as part of their therapy, is also a Mental Health Officer, within the meaning of the National Health Service (Superannuation) Regulations 1950. The Regulations by regulation 60, provided that the question is to be determined by the Minister. The Minister decided against the plaintiff. The plaintiff sued the Minister for a declaration that he (the plaintiff) was, and at all material times had been a Mental Health Officer within the meaning of the Regulations.

The Court of Appeal rejected the contention. The grounds on which the decision was based was summed up in the judgment of Lord Denning. It is that granting the declaration would involve rehearing the case afresh. That is, the Court will have to rehear the very matter which the Minister had decided, He then went on to point out that

“……If the Court were to embark on a rehearing of this sort there is no telling where it would stop. Every person who was disappointed with a Minister’s decision could bring an action for a rehearing. That would be going much too far.”

Lord Denning then went on to accentuate the absurdity and inconvenience of granting the declaration. He said:

“…And suppose that the Court did rehear the matter and decide in Mr. Healey’s favour, and grant the declaration which he asks, what would happen to the Minister’s decision So far as I can see, it would still stand unless the Minister chose of his own free will to revoke it. There would then be two inconsistent findings, one by the Minister and the other by the court. That would be a most undesirable state of affairs. 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 Punton v. Ministry of Pensions & National Insurance (1964) 1 All ER 448, Sellers LJ, was dealing with an identical factual situation. He considered Healey’s case, and said; at p. 455.

“Apart from certiorari there is more important, no way of substituting an effective award on which the claims could be paid. It would be out of harmony with all authority to have two contrary-decisions between the same parties on the same issues obtained by different procedures, as it were, on parallel courses which never met or could meet and where the effective decision would remain with the inferior tribunal and not that of the High Court. I conceive that to be the case here, and it seems to me to lead to a conclusion against the jurisdiction of the High Court in this particular matter.”

Mr. Osifo has relied on the unlimited jurisdiction vested in the High Court by sections 6(6)(b) and 236 of the Constitution 1979 to argue that the High Court had the jurisdiction to grant a declaration in respect of a subject matter within the jurisdiction of another but inferior tribunal.

It is not disputed that section 6(6)(b) prescribed the subject matter of judicial powers of the courts under the Constitution. It includes jurisdiction in respect of disputes between persons, between states, and between persons and a state or the Federal government. The unlimited nature of the jurisdiction even where it concerned subject matter, the discretionary nature of an action for declaration enjoins the court to be cautious in the exercise of its discretion. The relief claimed should be something which the Court can grant.

The Court of Appeal had in Fawehinmi v. A-G (No. 1) (1989) 3 (Pt. 112) NWLR at p. 707 suggested that the powers of the High Court to make prerogative orders, declarations and injunctions “was given a new lease of life under the 1979 Constitution” by the combined effect of the unlimited jurisdiction of a State High Court under section 236 and section 6(6)(b) which vested judicial powers of the Constitution to extend to all matters between persons or between government or authority and any person in Nigeria and to all actions and proceeding relating thereto, for the determination of the civil rights and obligations of that person.

The Court of Appeal has stated the position too widely. The nature and effect of an order for certiorari is clearly different from a declaration. An order for certiorari corrects errors of inferior tribunals and quashes erroneous decisions, declaration as to right already determined by the inferior tribunal does not correct the errors, if any, of the tribunal but leaves it as it is. It declares what the court regards as the true legal position. The effect is that both any wrong decision of the inferior court, and the declaration remain. This was the situation which Denning L.J pointed out in Healey v. Minister of Health (supra), when he said that:

“…there would then be two inconsistent findings, one by the Minister and the other by the Court. That would be a most undesirable state of affairs.”

It is indeed described as a legal curiosity. The effect of the decisions of the courts below which granted the declaration sought is to create the undesirable situation stated above. Respondent has not challenged the validity of the decision of the “prescribed authority” either by appeal to the Executive Council for review, or by certiorari removing it to the High Court to be quashed. It is inappropriate to do so by a declaration. The decision of the “prescribed authority” therefore remains valid and effective.

In the circumstance the High Court should have in the exercise of its jurisdiction in the declaratory relief borne in mind the fact that there was a valid and subsisting decision of an inferior tribunal. The High Court would therefore be exercising its discretion to grant a declaration in respect of a legal situation which is already determined. The legal position of the status of the Chieftaincy title of Amaghizemwen of Benin in respect of which the declaration was being sought has at the time of the suit been determined by the “prescribed authority”. The High Court went outside its jurisdiction in granting the declaration sought.

The appeal succeeds and it is hereby allowed. The decision of the Court of Appeal dated 7th July, 1989 affirming the judgment of the High Court dated 9/7/87 which granted the relief claimed in the declaratory action is hereby set aside.

Appellant is entitled to the costs of this appeal assessed at N450 in the Court below, N1,000 in the High Court, and N1,000 in this Court.

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SC.12/1991