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F.S.C. 378/1959

18TH MAY, 1961.

3PLR/1961/32 (FSC)




LIONEL BRETT, F.J. (Presided and Read the Judgment of the Court)











Chief F.R.A. Williams Q.C. (O.A. Odutola with him) – for the Appel­lants.

Olu Ayoola – for the Respondent.



CONSTITUTIONAL LAW:- Right of hearing – Audi altarem partem – Whether fundamental or technical

ADMINISTRATIVE LAW:- Executive action under a law ousting court inquiry – irregularity in the performance of executive duty – When the court can still invoke its inherent jurisdiction to quash or issue a certiorari against the executive decision or action

ADMINISTRATIVE LAW:- Effect of failure to observe the audi alteram par­tem rule in the performance of administrative duties

CUSTOMARY LAW: Appointment of traditional ruler – effect of statute thereof

PRACTICE AND PROCEDURE – COURT:- Jurisdiction – Where ousted by statute.

PRACTICE AND PROCEDURE – JURISDICTION:- Courts – Where expressly ousted by statute – When courts should still act.

INTERPRETATION OF STATUTES:- Where there is provision for report of dispute – Presumption of fair hearing arises





BRETT, F.J. (Delivering the Judgment of the Court):

This is an appeal against the judgment of Irwin, J., in the High Court of the Western Region making absolute a rule nisi for a writ of certiorari to quash the approval and recognition by the Governor in Council of the appointment of the second ap­pellant, E.O. Olaneye, as the Dagburewe of Idowa, under section 37(3)(b) of the Appointment and Recognition of Chiefs Law, 1954. The approval and recognition were given on the 11th April, 1956, and published as Western Regional Notice No. 417 in the Gazette of the 7th June, 1956.


The previous holder of the office, Samuel Adebonojo, died on the 3rd March, 1954, and three candidates were put forward to succeed him; of these the appellant E.G. Olaneye and one J.F.A. Osofuye were supported by different parties within the Arijeloye ruling house, and the respondent, J.C. Oshunlaja, was supported by the Jadiara Ile-Nla ruling house. When the families failed to reach agreement they jointly undertook in writing to abide by the decision of the Awujale of Ijebuland, who convened a board of inquiry consisting of the holders of four chieftaincy titles to investigate the matter and submit their recommendation. Acting in accordance with their recommendation, the Awujale, on the 14th September, 1954, approved of E.O. Olaneye as the rightful candidate for appointment in accordance with native law and custom, and he was installed on the 18th October, 1954. No formal act of recognition by or on behalf of the Governor followed im­mediately, but it seems that the Resident thereafter treated Olaneye as the duly appointed Dagburewe.


It does not appear whether Oshunlaja was a party to the written under­taking to abide by the Awujale’s decision and the appellants have not relied on the undertaking. It seems, at least, that Oshunlaja has not at any time at­tempted directly to impugn the decision of the Awujale, but some time in 1955 he instituted proceedings in the High Court (Suit No. M/15/1955) for a writ of certiorari to quash the recognition of Olaneye as Dagburewe by the Resident. On the 16th May, 1956, judgment was delivered in his favour, on the ground that the Appointment and Deposition of Chiefs Ordinance (Laws of Nigeria, 1948, Cap. 12) had applied at the material time to the of­fice of Dagburewe, and that before recognizing Olaneye the Resident had not carried out the “due inquiry” which section 2(2) of the Ordinance re­quires in cases where there is a dispute. In the present proceedings Irwin, J., Supreme Court or Nigeria Law Report also treated the Appointment and Deposition of Chiefs Ordinance as having applied at the material time, and the basis of his judgment was that in 1954 Oshunlaja acquired a right to an inquiry, at which he could be heard, and that that right had not been taken away by any subsequent legislation.


When these proceedings were before the High Court counsel for the present appellant was concerned only to establish that the Ordinance had ceased to apply by the 11th April, 1956, and seems to have been prepared to concede that it did apply throughout 1954, but one of the grounds of this ap­peal is that at the material time of 1954 the Ordinance did not apply. I do not think it necessary to go into that question, as I am unable to accept the view of Irwin, J., that in considering the validity of a decision taken under the Ap­pointment and Recognition of Chiefs Law, it is material whether the pre­liminaries to a valid decision under the Appointment and Deposition of Chiefs Ordinance have been carried out or not. In other words, I do not con­sider that Oshunlaja had any right under the Ordinance which survived after the Ordinance had ceased to apply to the chieftaincy, and it is only necessary to consider what rights he had by virtue of the Law under which the approval which he seeks to have quashed was given.


The appointment and Recognition of Chiefs Law, 1954 (hereinafter re­ferred to as the Law) came into operation on the 13th January, 1955, and part II of it was applied to the office of Dagburewe of Idowa on the 23rd Feb­ruary, 1955. The Law provided that when Part II was applied to any chief­taincy a “competent local government council” should be nominated and that this council might of its own volition and should if required by the Gov­ernor make a declaration setting out the native law and custom regulating the method of selection of a person to be chief. A declaration so made was to be registered with the local government inspector and a copy was to be sent to the Minister. Provision was made for the prompt discharge of their func­tions by the various persons concerned and for an appeal to the Governor by an aggrieved candidate or “ruling house.” The name of the person ulti­mately selected was to be sent to the Governor for approval and recognition and the Governor’s decision was to be final. By section 34 the Courts were precluded from entertaining any civil cause or matter instituted for the de­termination of any question relating to the selection, appointment, installa­tion, deposition or abdication of a chief.


The Law was first amended by Law No. 16 of 1955, which made further provision for declarations under part II and inserted a new section 36, under which the Appointment and Deposition of Chiefs Ordinance was not to apply to a chieftaincy to which part II of the law applied and in respect of which a declaration had been made.


The Law was further amended by Law No. 1 of 1956, which came into operation on the 15th March, 1956. The amending Law made further de­tailed provision for declarations and amended section 36 of the principal Law in such a way as to provide that the Appointment and Deposition of Chiefs Ordinance should cease to apply to any chieftaincy to which Part II of the Law applied, whether or not a declaration had been made in respect of the chieftaincy. It also made transitional provision for the filling of vacancies between the application of Part 11 to a chieftaincy and the making of a declaration in respect of the chieftaincy, by inserting a new section 37, which ‘ reads as follows:­


“ Transitional provisions


  1. (1) Where a person is appointed to a chieftaincy after the appli­cation of Part II to the chieftaincy but before the making of a declaration relating to that chieftaincy, the Governor may approve the person so appointed.


(2)     Any person –


(a)     whose appointment is approved under sub-section (1) of this section: or


(b)     whose appointment to any chieftaincy was approved under the provisions of section 2 of the Appointment and Deposition of Chiefs Ordinance and who holds that chieftaincy immediately before the application to it of Part II; or


(c)     who is notified by the Governor by notice in the Gazette to have been the holder of any chieftaincy immediately before the application to it of Part 11, shall be deemed to have been approved and recog­nised in his appointment under the provisions of Part 11.


(3)(a) Where it appears to the Governor in Council that there is a dispute as to the appointment to any chief­taincy to which Part 11 applies and in respect of which no declaration has effect he may require the local gov­ernment inspector or provincial adviser for the area of the council to submit a report on the dispute to him.


(b)     After considering the report submitted under parag­raph (a) of this sub-section the Governor in Council may give his decision with respect to the appointment in dispute and any such decision shall be final and shall not be open to question in any court.


(c)     Where the Governor in Council requires a local gov­ernment inspector or provincial adviser to submit a report in accordance with paragraph (a) of this sub­section no declaration made by the competent local government council shall be registered until the Gov­ernor in Council has given his decision or notified the competent local government council that a dispute no longer exists.



(d)     A local government inspector or provincial adviser required to submit a report under this sub-section may delegate his functions with respect to such report to an assistant local government inspector or divi­sional adviser.”


On the 7th March, 1956, in reply to a general request sent out on the day on which the amending Law received the Governor’s assent, the Divisional Adviser submitted a report on the dispute over the Dagburewe chieftaincy.


Acting on his instructions, he carried out no personal inquiry into the merits of the rival claimants, and merely reported the steps taken by the Awujale in 1954. On receiving this report the Governor in Council did not treat the dis­pute as closed by issuing a notification under s.37(2)(c) of the Appointment and Recognition of Chiefs Law, but gave a decision under s. 37(3)(6). It is not open to him now to argue that there was no dispute calling for a decision, and it becomes our duty to consider whether the decision is vitiated by any ir­regularity of such a kind that the court retains its jurisdiction to quash it in spite of the words which provide that the decision of the Governor in Coun­cil shall not be open to question in any court.


Adopting the reasoning of the West African Court of Appeal in Resi­dent Ibadan Province V Lagunju (1954) 14 W.A.C.A. 549, I would hold that the essential question is, whether section 37(3) of the Law impliedly requires the officer making the report to give the parties to the dispute the opportun­ity of stating their cases. If it does, then I consider that the courts are not de­barred from quashing a decision of the Governor in Council where the re­porting officer has failed to comply with this requirement. Chief Rotimi Wil­liams has drawn attention to Halsbury’s Laws of England, 3rd edition, Vol­umes 11 page 138, and to the fact that failure to observe the audi alteram par­tem rule is not there included among the grounds for granting certiorari in spite of words purporting to take it away, but it appears from De Smith’s Judicial Review of Administrative Action, page 228, that there is no English decision one way or another on the point, and that there are Canadian deci­sions and an Irish expression of opinion in favour of the existence of jurisdic­tion. In cases to which section 21(1) of the Constitution of the Federation applies, there can be no doubt that the jurisdiction exists, and in my opinion the Courts in Nigeria should be prepared to exercise the jurisdiction in all cases where there is a duty to hear both sides and a failure to do so.


In considering whether s.37 of the Law requires that the parties to a dis­pute should be given the opportunity of stating their cases it is to be remem­bered that the right to be heard is not a legal technicality but one of the fun­damental essentials of natural justice. If a statute provides that where there is a dispute there is to be a report followed by a decision the presumption must be that the parties to the dispute are to be given the opportunity of stat­ing their cases, and a presumption of this kind can only be rebutted by ex­press words. It seems clear that s.37 of the law does not exclude the rule, and that the approval and recognition of Olaneye’s appointment were given in breach of the rule. The only opportunity which Oshunlaja has had of being heard was before the inquiry instituted by the Awujale in 1954, and, as I have already said, in professing to decide a dispute under s.37(3) of the Law the Governor in Council treated the Awujale’s decision as not being conclu­sive.


I would therefore uphold the decision of Irwin, J., though for reasons other than those which commended themselves to him, and would dismiss the appeal. It may be open to doubt whether, in view of the declaration made by the Minister in 1958, Oshunlaja’s candidacy can now even be consi­dered, but the position is not sufficiently clear to justify an appeal court in saying that no purpose would be served by quashing the approval of Olaneye’s appointment. The respondent should have costs assessed at twenty-one guineas.


Appeal Dismissed.



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