3PLR – AFISI V. LAWAL

Published by Law Nigeria Admin at October 5, 2018

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR

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AFISI

V. LAWAL

COURT OF APPEAL (LAGOS DIVISION)

THURSDAY, 12TH DECEMBER, 1991

CA/L/74/88

3PLR/1991/15 (CA)

OTHER CITATIONS

BEFORE THEIR LORDSHIPS

IBRAHIM KOLAPO SULU-GAMBARI, S.C.A. (Presided)

UMARU ATU KALGO, J.C.A.

NIKI TOBI, J.C.A. (Read the Leading Judgment)

BETWEEN

ALHAJI L. S. AFISI
MR. SHITTU ASHAFA
ALHAJI LATEEF KAZEEM
ALHAJI AYISATU BAMGBALA
ALHAJI KABIRI DANIA

AND

CHIEF KADIRI KILANI LAWAL
ALHAJI RAFIU SAKA
MR. YEKINI ADIO OLAYIWOLA LAWAL
ALHAJI FATAI AREMU ELETU (Suing for and on behalf of the Eletu Odibo Chieftaincy Family)
THE ATTORNEY-GENERAL, LAGOS STATE
THE MILITARY GOVERNOR OF LAGOS STATE
COMMISSIONER FOR LOCAL GOVERNMENT & CHIEFTAINCY AFFAIRS, LAGOS STATE

REPRESENTATION

Chief Debo Akande, SAN – for the Appellants

Kayode Sofola – for the Respondents

EDITORS

[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]

MAIN ISSUES

ACTION – Representative actions – Nature of – Principles governing.

APPEAL – Oral submission on appeal – Scope of- Issue not raised in brief – Oral argument based thereon – How treated.

CHIEFTAINCY MATTERS – Declaration as to customary law of a community – Declaration that court had jurisdiction to entertain chieftaincy matter – Distinction between – Relevance of distinction.

CHIEFTAINCY MATTERS – Declaration as to customary law of a place on chieftaincy matter – Claim of – Whether can be entertained – Duty on court.

COURT – Jurisdiction of court – Nature, essence and importance of – Attitude of court thereto.

CUSTOMARY LAW – Declaration as to customary law – Jurisdiction of court in respect thereof – Whether fettered

ESTOPPEL – Estoppel per rem judicatam – Conditions for successful plea of.

ESTOPPEL – Estoppel per rem judicatam – Decision of Tribunal of enquiry – Whether plea can be based thereon

EVIDENCE – Estoppel per rem judicatam – Conditions for successful plea of.
JURISDICTION – Declaration as to customary law – Jurisdiction of court in respect thereof – Whether fettered

JURISDICTION- Declaration as to customary law of a community -Declaration that court had jurisdiction to entertain chieftaincy matter – Distinction between – Relevance of distinction

JURISDICTION – Jurisdiction of court – Nature, essence and importance of – Attitude of court thereto.

PRACTICE AND PROCEDURE – Representative actions – Nature of – Principles governing.

PRACTICE AND PROCEDURE – Representative actions – Need to endorse on Writ of Summons in what capacity party sues or is sued.

PRACTICE AND PROCEDURE – Representative actions – Validity of representation in representative actions – Test of.

TRIBUNALS OF ENQUIRY – Decision of Tribunal of Inquiry – Scope of – Effect of – Right of appeal against.

TRIBUNALS OF ENQUIRY – Decision of Tribunal of Inquiry – Whether can ground plea of estoppel per rem judicatam

MAIN JUDGEMENT

TOBI, J.C.A. (Delivering the Leading judgment):

This is yet another chieftaincy dispute. Chieftaincy disputes are never taken lightly in this country. The people very much treasure their age long Chieftaincy institutions. Like gold, if not more. They do not play with them. And so they will fight and fight for them. This is one of such fights. Let me start with the background facts.

The plaintiffs/respondents filed an action in the lower court seeking for certain declarations. They number up to four. First, a declaration that in accordance with tradition, native law and custom and usages that there is only one Family of the Eletu Odibo Chieftaincy family which is Oshobile family. Second, a declaration that the family is entitled to provide a candidate or candidates to fill the vacant office of Eletu Odibo in the Oshobile Family. Third, a declaration that the Alli Idosu Family are not and have never been members of the Eletu Odibo Chieftaincy Family and are therefore not entitled to the Eletu Odibo Chieftaincy title. Four, a declaration that the purported recommendation made by the Tribunal of Inquiry into the selection of the Chieftaincy Title of Eletu Odibo of Lagos is irregular, wrong, unconstitutional, null and void and contrary to the age-long tradition, native law, custom, the Usages and the Constitution of the Flew Odibo Chieftaincy Family and should be set aside.

The Plaintiffs/respondents also filed a motion for interlocutory injunction restraining the 1st, 2nd, 3rd, 4th, 5th and 7th defendants/appellants from “recognizing or taking any steps whatsoever in recognizing or installing or causing to be installed or recognise the 6th and/or 8th defendants or any other member of the Alli Idosun Family as the Eletu Odibo of Lagos.”

The 4th to 8th defendants/appellants entered appearance. They then filed a counter affidavit of 16 paragraphs. Alhaji Kabiri Dania was the deponent. He is the 8th defendant/respondent. They did not stop there. They moved a step further. And it was a big step. It was a step challenging the jurisdiction of the lower court. This they did by way of a preliminary objection.

Let me state the ipsissima verba of the objection for ease of reference:

“(1) That this Honourable Court lacks jurisdiction to hear this matter by virtue of the Obas and Chiefs of Lagos State Law, No. 6 of 1981.

(2) That the 1st, 2nd , 3rd and 4th plaintiffs/respondents have no authority to institute this matter on their behalf as members of the Eletu Odibo chieftaincy Family.

(3) The subject matter has been canvassed by all members of the Eletu Odibo Chieftaincy Family including the Plaintiffs and settled by Omo-Eboh Judicial Tribunal (set up under one of the Tribunals of Inquiry Law, Cap. 135 of the Laws of Lagos State 1973) Whose recommendation, and Government’s acceptance have not been challenged by the plaintiffs or quashed by anybody.”

The learned trial judge, in a considered ruling, did not see her way clear in granting the preliminary objection. She threw it away. On the issue of Jurisdiction, this is what she said:

“Section 4(8) of the Constitution provides that the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of judicial tribunal established by law. The mere vesting of the exercise of certain powers on another authority or institution cannot expressly or impliedly exclude the jurisdiction of the court. I agree with plaintiffs’ counsel that with the unlimited jurisdiction of the court the 2nd leg (sic) of the preliminary objection issued is untenable and is therefore dismissed.” Aggrieved by the entire ruling, some defendants/appellants have come to us. They initially filed four grounds of appeal. They added two more grounds making six. The grounds of appeal without the particulars are as follows:

“(1) The learned trial Judge erred in law in dismissing the objection of the Defendants/Appellants to the effect that the Jurisdiction as to the candidature of a Chieftaincy stool is vested in the Governor of a State by virtue of the Chiefs law, No. 6, Laws of Lagos State, 1981.

(2) The learned trial Judge erred in law in holding that even though the issues of a Chieftaincy stool is vested in a Tribunal, it will not amount to a duplication of proceedings for the High Court to try such Chieftaincy issue already tried and settled by the acceptance of a Tribunal’s Report.

(3) The learned trial Judge erred in law in the interpretation of the Supreme Court decision of Adigun and others v. Attorney-General of Oyo State and others (1987) 1 N.W.L.R, (Pt.53) 678 and in failing to adhere to the principle established and decision made by the case of Dr. J.M. Okonjo v. Dr. M. Odje and others(1985) I0S.C. 267.

(4) The learned trial Judge erred in law in holding that the issue of representation raised is premature and a matter on which evidence has to be adduced.

(5) The power of the High Court in relation to the appointment of a Chief under the Oba and Chiefs Law No. 6 of Lagos State, 1981 is ousted by section 6(6) (d) of the 1979 Constitution.

(6) The High Court does not have jurisdiction to deal with Chieftaincy matters.
Briefs were filed and duly exchanged. Counsel for the defendants/appellants formulated three issues for determination as follows:

(a) Whether in the absence of being party to an earlier hearing on the same issues before a Panel and plea of denial of fair hearing the High Court has jurisdiction to hear and determine all over again the question of what constitutes Eletu Odibo Chieftaincy Family. an issue that has been settled by a Judicial Tribunal, the proceedings of which both parties and other interested parties effectively participated and whose recommendation have been accepted by Government;

(b) Whether the High Court was right in holding that the issue of representative capacity of the plaintiffs was premature especially when the plaintiffs did not aver that they had any authorization and their counsel did not make any submission on it.

(c) Whether in the light of the recent Supreme court decisions in A.G. Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552, Mustapha v. A.G., Lagos State, the High Court has jurisdiction to entertain a Chieftaincy matter.

Counsel for the plaintiffs/respondents also formulated three issues thus:

(1) Whether in view of the provisions of the Obas and Chiefs of Lagos State Law, the High Court of Lagos has original jurisdiction to grant the declarations sought in the action herein.

(2) Whether the proceedings of the Tribunal of Enquiry set up under the Obas and Chiefs of Lagos State Law constitute a bar to the maintenance of the suit.

(3) Whether the learned trial judge was right in holding that the issue of the competence of the plaintiffs to institute the action was premature.

In his brief, and in oral submission in expatiation thereof, learned Senior Advocate for the appellants, Chief Debo Akande contended that the case is a Chieftaincy matter within the meaning of the Obas and Chiefs Laws, No. 6 of 1981 of Lagos State. Contending that the power to approve or refuse a declaration in relation to any Chieftaincy is vested in the Governor by virtue of section 9 of the law, Learned Senior Advocate submitted that as long as the Governor in the exercise of the power complies with the procedure laid down in the enabling law, the court cannot interfere with the exercise of the power which is essentially executive. He relied on Chief Edewor v. Chief Uwegba and others (1987) 2 S.C.N.J. 10 at 39; (1987) 1 NWLR (pt.50) 313; Prince Yahaya Adigun and others v. The Attorney-General of Oyo State and others (1987) 1 N.W.L.R. (Pt.53) 678 at 698, 733 – 734, 716 -717 and 741 – 742. Having participated in the Tribunal of Inquiry, it was not open to the respondents to challenge the findings of the Tribunal by filing a writ of summons. To the Learned Senior Advocate claims (d) and (e) are a direct challenge to the authority of the Governor under section 9 of the law. Citing the case of Adigun v. Attorney-General of Oyo State (1987) 1 NWLR (Pt. 53) 678, Learned counsel submitted that the High Court cannot hear all over again a Chieftaincy matter which a judicial tribunal has fully ironed out, especially in the absence of any allegation of denial of fair hearing. Recalling the conditions laid down by Eso, J.S.C. in Adigun, learned counsel submitted that all of them were fulfilled in the instant case and therefore the High Court could not have interfered with the exercise of executive function by the Governor. Counsel quarrelled with the way the learned trial judge interpreted Adigun. Whereas in Adigun the basis of the court’s interference was the denial of fair hearing to one of the parties, it was not so in the instant case, as there was no such allegation of denial of fair hearing, counsel argued.

He argued further that in view of section 25(6) and 52 of the Chiefs Law, Cap. 25 and section 14 of the Obas and Chiefs Law the learned trail judge was in error when he held that notwithstanding those sections, sections 6(6)(b) and 236 of the 1979 Constitution confer jurisdiction on him to deal with the Chieftaincy matter. He called in aid Attorney-General of Lagos State v. Dosunmu (1989) 3 N.W LR (Pt. I 11) 552; Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt.58) 539 at 552, Attorney-General of Bendel State v. Attorney-General of the Federation and others (1981) 10 S.C 1; Unongo v. Aku and others (1983) 2 SCNLR 332 Governor of Kaduna State and others v. Kagoma (1982) 6 S.C. 87 at 129 – 131. Agbetoba v. Lagos State Executive Council (1991) 4 NWLR (Pt. 188) 664; Utih v. Onoyivwe (1991) 1 NWLR (pt. 166) 166 and Osadebay v. Attorney-General of Bendel State (1991) 1 NWLR (Pt. 169) 525.
Learned Senior Advocate, accordingly submitted that the learned trial judge in her ruling misconstrued the limitation placed on sections 6(6)(b) and 236 of the Constitution. To him, the matter comes within the ouster provision of section 6(6)(d) of the constitution as it qualifies as an existing Law. He opined that it is the 1963 Constitution that is applicable by virtue of sections 6(6)(d) and 274(1) of the Constitution. He further argued that a matter coming under an existing Law cannot be entertained by the court.

Relying on sections 1(1)(d) and 3(2) of Act No. 18 of 1977, Learned Senior Advocate submitted that in addition to the protection of section 6(6)(d) and the confirmation of section 274 of the Constitution, Act No. 18 of 1977 further validates any act or acts of the Governor, and therefore outside the jurisdiction of the High court. He relied on section 274(4)(b) of the Constitution for the definition of an existing law. He further relied on the case of Adigun, (supra) at page 2 of the respondent’s brief. Counsel submitted that the quotation credited to Obaseki, J.S.C. supports the view that Chieftaincy matters were outside the jurisdiction of the courts. He further contended that the quotation at page 3 of the case credited to Eso J.S.C. also supports the case of the appellants.

Learned Senior Advocate claimed that the declaration asked for in (d) and (e) actually challenged the making of the declaration by the Executive, while (b) and (c) attacked the recommendations made by the Tribunal to the Governor on the issue of representation and representative action. Learned Senior Advocate submitted that the learned trial judge was not justified in holding that the issue was premature, especially when the Judge held that in any representative action any party claiming that he was authorized to represent others must prove the authority, otherwise he will have no locus standi before the court. He urged the court to allow the appeal.

Learned counsel for the respondents, Mr. Kayode Sofola, both in his brief of argument and oral submission contended that the appeal lacked merit and should be dismissed. On the issue of jurisdiction, learned counsel also relied copiously on the decision of the Supreme Court in Adigun. He quoted in extenso from the judgments of Obaseki , Eso and Karibi-Whyte, H.S.C. He also relied on Eguamwense v. Amaghizemwen (1986) 5 NWLR (Pt.41) 282.

He submitted that there is a fundamental misconception in the submission of chief Akande that sections 6(6)(d) and 274(1) of the Constitution apply. To the learned counsel, allusion to an obsolete law does not oust the jurisdiction of the court. He contended that the law applicable in a matter is the law in force at the time the cause of action arose. He called in aid the case of Mustapha v. Governor of Lagos State (supra).

Counsel claimed that the cause of action arose in 1977 long before the 1979 Constitution came into operation. To counsel, it was the Legal Notice No. 71 of 1980 that set up the Tribunal of Inquiry in a notice which came after the 1979 Constitution. Learned Counsel therefore urged the court to discountenance the authorities cited by chief Akande.

Dealing with the reliefs claimed by the plaintiffs/respondents, learned counsel argued that until what is alleged to be unconstitutional in respect of the declaration is spelt out in the pleadings, it will be premature to deny a party access to court in limine. Relying once again on Mustapha, page 568, learned counsel submitted that in order to determine jurisdiction, the court must look at the writ of summons and the statement of claim. To counsel, affidavit evidence cannot be equated with statement of claim. He called the court’s attention to page 6, paragraph 4.3 of the Amended Brief.

On claim (a), (b) and (c) learned counsel submitted that they are justiciable. To him the issue of fair hearing could be raised at any time to challenge the proper making of the declaration.

Contending that the second issue raised by the appellants is related to the first issue and that it arises from Ground 2, learned counsel submitted that the point raised by Chief Akande is a non-issue. The proceedings of the inferior tribunal have limited relevance to the ‘lis’ in the instant action. Certainly they do not bring into application any defence of estoppel, counsel argued.

With regard to ground 3, learned counsel argued that contrary to the appellant’s assertions, the Adigun’s case has not demonstrated the “exceptions to situations when the court can interfere in Chieftaincy matters.” In that case, the court was at pains to distinguish the difference between the functions of the court and the declaration making process of the executive. To counsel, in the circumstances of that case, a declaration was vacated as being no declaration for certain defects. Whether the declaration was nullified or not, the jurisdiction of the court to make the declaratory orders sought was affirmed, counsel claimed.

In relation to the third issue, learned counsel submitted that the respondents who brought the action in a representative capacity are presumed to have the necessary mandate from the family to bring the action. He contended that it is only after pleadings have been filed that necessary particulars of the authority can beset out. Besides, the party seeking to challenge the authority to institute the action should depose to facts which form the basis of the allegation in a formal application in that behalf, learned counsel argued. Furthermore, he argued that from the action brought by the respondents, the appellants are not admitted as members of the Eletu Odibo family such as to make their views relevant. .

Chief Akande, replicando, submitted that Mr. Sofola has misconceived when a cause of action really arises. Here-echoed his earlier submission that once a declaration has been made under an existing law, the courts cannot exercise jurisdiction. He relied on section 274 (1) of the Constitution and pointed out to the court that in Agbetoba the declaration was dated 13/10/82 and said to be made under the existing law and approved in 1983, long after the 1979 constitution was enacted.

On the issue of pleadings not being filed learned Senior Advocate submitted that the writ of summons and the affidavit evidence are enough to show enough challenge to the Obas and Chiefs Law. To counsel, when the justice of the case is clear, a court of law cannot grapple with unreasonable technicalities. He relied on United Australia Ltd v. Barclays Bank Ltd (1941) A.C. 1 at 29; U.T.C. v. Pamotei (1989) 2 NWLR (Pt. 103) 244 at 248 and 249.

Still holding tenaciously to Adigun, Learned Senior Advocate submitted that the case was confined to the issue of fair hearing. To counsel, the respondents cannot raise the issue of fairhearing as they have agreed that there was a fair hearing of the matter.

Before I move to the main issues, I should take a procedural point raised by learned Senior Advocate in his preliminary objection before the court below. And it is that the 1st, 2nd, 3rd and 4th plaintiffs/respondents had no authority to institute the action on their behalf as members of the Eletu Odibo Chieftaincy Family. Counsel also raised it as an issue for determination in his Amended Brief of Argument.

The fundamental principles governing suit or actions brought in a repre¬sentative capacity are (i) that those represented have a common interest and a common or community grievance; (ii) that the relief sought must in its nature be beneficial to all those whom the plaintiff is representing. See chief Atanda and Another v. Olanrewaju and Others (1988) 4 N.W.L.R. (Pt.89) 394; Ayinde and others v. Akanji and others (1988) I NWLR (Pt.68) 70 Amajideogu and Others v. Ononaku & Others (1988) 2 N.W.L.R(Pt.78)614; Oragbaide v. Oninju(1962) I All N.L.R. 32; (1962) I SCNLR 70.

Representative action is a rule of convenience only. It is a rule that was originated for convenience, and for the sake of convenience, its application has been relaxed. It is not to be treated as rigid but as flexible tool in the administration of justice. See Anatogu v. Attorney-General, East Central State and Others ( 1976) 11 S.C. 109; Obiode v. Orewere (1982) 1-2 S.C. 170 at 175. A representative action must be endorsed in the writ and in what capacity the plaintiff or defendant sues or is sued. See Alhaji Otapo v. Chief Sunmonu and other (1987) 2 N.W.L.R. (pt. 58) 587.

In the instant case, the respondents specifically mentioned on record are four. The record shows that they have sued for and on behalf of the ELETU ODIBO CHIEFTAINCY FAMILY. The action was filed way back in 1987. This is 1991. The action is about four years old. In the absence of any specific denial of the claim of the four respondents specifically mentioned or challenged of the veracity of the claim, I think a court of law is entitled to presume that the representation is valid. I say so because I expect any person who has not given a mandate to a plaintiff to represent him to disassociate himself from the suit at the earliest opportunity.

The crux of the matter is the issue of jurisdiction. While learned Senior Advocate for the appellant contend that the court lacks jurisdiction in the matter; the contrary position is taken by learned counsel for the respondents. In order to fully appreciate the legal position, it is necessary to go into the historical background. And I will start from the constitutional position in the 1960s.

The Constitution of the Federal Republic of Nigeria, 1963 provided for the prohibition of certain legal proceedings in courts of law. That was in section 161. One of such proceedings was chieftaincy matter. The constitution called it Chieftaincy question. Thus section 161(3) of the constitution provided that “no chieftaincy question shall be entertained by any court of law in Nigeria, and a certificate which is executed by an authority authorized in that behalf by a law coming into force in a territory on or after the date of commencement of this Constitution (including a law passed before that date) and which states (a) that a particular person is or was by reference to that territory or a part of it, a chief of a specified grade at a specified time or during a specified period, or (b) that the provisions of a law in force in that territory relating to the removal or exclusion of Chiefs from areas within in the case of particular person, shall be conclusive evidence as to the matters set out in that statement.”

Such was the clear provision of section 161(3). That was not the end of the matter. The interpretation clause in its section 164 defined chieftaincy question as “any question as to the validity of the selection, appointment, approval of appointment, recognition, installation, grading deposition or abdication of a chief.”

Flowing from that constitutional provision, a number of laws ousted the jurisdiction of the courts in chieftaincy matters. It is important to mention that neither the 1960 Independence Constitution, nor the 1979 Presidential Constitution specifically ousted the jurisdiction of the courts in Chieftaincy matters the 1963 Republican Constitution did. And so one can say that the section 161 situation was an exclusive preserve of the 1963 Constitution.
But that is not to say that all Chieftaincy matters was justificiable under the 1979 Constitution. And here, the operative word is all and 1 so emphasize it. Although the 1979 Constitution did not contain the specific provision of the 1963 Constitution in its section 161 prototype, the 1979 Constitution did not leave the matter open ended.

Section 274 made provisions for existing laws. Section 274(1) specifically provided for the validity of existing laws with such modifications as may be necessary to bring them into conformity with the provisions of the Constitution. Section 274(4) defines existing law as “any law and includes any rule of law or any enactment whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date comes into force after that date”

As to what constitutes existing law, see generally Balogun and Others v. Attorney-General of Lagos State and Others (1981) 1 N.C.L.R. 31, Akanro v. The Lagos State Electoral Commission and Others (1981) 1 N.C.L.R. 51; Lawal v. The Lagos State Electoral Commission and Others (1981) 1 N.C.L.R. 63 Kanada v. Governor of Kaduna State (1986) 4 N.W.L.R. (pt.35) 361; Chief Osadebay v. Attorney-General of Bendel State (1991) 1 NWLR (Pt.169) 525. Section 274 of the Constitution, as it is, does not have any bearing with the matter before us. It is like a toothless dog which can only bark but cannot bite. But when the section is read along with section 6 of the Constitution, the nexus becomes apparent. And here I am specifically referring to section 6(6)(d). That subsection intentionally restricted the wide judicial powers vested in the courts by section 6(6)(a) and (b) section 6(6)(c) is another ouster clause.

I will not deal with it as it is not directly related to the matter before us.

It is section 6(6)(d) that is related to the matter before us and I shall reproduce it here for ease of reference:

“The judicial powers vested in accordance with the foregoing provisions of this section shall not as from the date when this section comes into force, extend to any action or proceedings relating to any existing Law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make such Law.”

The courts have taken time to interpret the combined effect of sections 6(6)(d) and 274 of the Constitution. See generally Uwaifo v. Attorney-General of Bendel State and Others (1982) 7 S.C. 124; Fatola v. Prince Mustafa and Others (1985) 2 N.W.L.R. (Pt.7) 438; Prince Mustafa v. Governor of Lagos State and Others (1987) 2 NWLR (Pt.58) 539; Din v. Attorney-General of the Federation (1988) 4 N.W.L.R. (Pt.87) 147.

Let me now take the enabling laws of Lagos State. The first law governing chieftaincy in Lagos State was the Chiefs Law, Cap. 25 Laws of Lagos State, 1973. Subject to the proviso to section 52(b), section 52 of that l aw ousted the jurisdiction of the courts in Chieftaincy matters. Cap.25 came into effect on different dates, according to the different parts of the Law. This was followed by the enactment of the Chas and Chiefs of Lagos Edict, No. 2 of 1975. The Edict came into operation on 1st September, 1974. In 1976 there was an amendment to the 1975 Edict. That was the Obas and Chiefs of Lagos (Amendment) Edict No. 5 of 1976. In 1978, two Edicts amended the Chiefs Law, Cap. 25. They are the Chiefs (Amendment) Edict No. 21 of 1978 and the Chiefs (Amendment) (No.2) Edict No. 22 of 1978. The two Edicts came into operation on 22nd September, 1978 and 30th October, 1978 respectively. That was the position until 1981 when the Obas and Chiefs Law of that year was enacted. The 1981 Law repealed all the above laws in its schedule. Therefore learned Senior Advocate cannot be correct when he submitted that the Obas and Chiefs Law of 1975 was amended by the 1981 Law. The correct legal position is that the 1975 Law was repealed by the 1981 Law.

Let me pause here and examine the declarations sought vis-à-vis the decision of the Supreme Court in Prince Adigun and Others v. The Attorney-General of Oyo State and Others (1987) 1 N. W.L.R. (Pt.53) 678. I had earlier summarized them at the beginning of this ruling, I will not repeat the exercise. It looks to me from the substance of the reliefs sought that they relate to the customary law of the people vis-à-vis the chieftaincy institutions. The main relief is that in accordance with tradition, native law and custom and usages there is only one Family of the Eletu Odibo Chieftaincy Family which is Oshobile Family. All the other reliefs flow from that main relief, which is tied up to a declaration of the “tradition, native law and custom and usages.”

The Supreme Court examined similar situation in Adigun’s case. In that case, the relief sought was that Ogunmakinde Ande is under the customary law of Iwo the only Ruling House. In dealing with the issue of jurisdiction raised, Obaseki, J.S.C. said at page 702:

“What the appellants seek is a declaration that Ogunmakinde Ande is under the customary lave of Iwo the only Ruling House. In carrying out this judicial task, the court will from the evidence adduced ascertain and find whether there is customary law on the matter, what the Customary law is and then decide whether on the evidence, Ogunmakinde Ande is the only Ruling House in Iwo from which Oluwo of Iwo can be selected and appointed. It cannot, in my view, be correctly and legally argued that the High Court cannot entertain and adjudicate on such a claim in exercise of its unlimited jurisdiction vested in it by section 236(1) of the Constitution of the Federal Republic of Nigeria.”
Eso, J.S.C. also gave a helping hand:

“The declaratory order being sought is that by the customary law prevailing in Iwo, the general jurisdiction of the court is being invoked that customary law permits of only one ruling house in the Ogunmakinde Ande Ruling House. It is not a declaration that the court has jurisdiction to make a Chieftaincy declaration …..”

Learned Senior Advocate tried to distinguish Adigun from the case before us. His argument was that Adigun involved fair hearing, while the present matter does not. With respect that looks to me like a distinction without a real distinction. To me, the issue does not arise in the circumstances of this case. In my humble view, the above positions held by Obaseki and Eso JJ.S.C. could not have been influenced by the denial of fair hearing to any of the parties. Even if there was no denial of fair hearing, the Supreme Court would have come to the same conclusion.

There is clear distinction between a declaration on the customary law prevailing in a community and a declaration that a court has jurisdiction to entertain a chieftaincy matter. While a court of law, may under certain circumstances, not have jurisdiction to make the latter declaration, there is no law known to me ousting the jurisdiction to make a declaration on customary law governing a particular matter or community. In my view, the mere fact that a declaration on a customary law relates to a chieftaincy matter, does not ipso facto remove the courts jurisdiction to make such a declaration.

Learned Senior Advocate relied on a number of cases, particularly Prince Mustafa v. Governor of Lagos (supra) and Attorney-General of Lagos State v. Dosunmu (supra). I have carefully examined the two cases and I do not see that the facts therein are similar. The reliefs sought in the two cases are not the same as the reliefs sought in this matter. While the reliefs sought in Mustafa are closer to those sought in the instant case, the reliefs sought in Dosunmu have not the slightest relationship with those sought in this matter. I say so because Dosunmu had to do with land and not with chieftaincy.

I now deal with the issue whether the court below has jurisdiction to hear the matter which has already been heard and disposed of by a judicial tribunal. Although learned Senior Advocate did not directly rely on the principle of estoppel per rem judicatam, it will not be wrong to conclude that the issue is based on it. The Law is common place that before a plea of estoppel per rem judicatam can apply, the following conditions must be present: (a) The parties must be the same. (b) The subject matter must be the same. (c) There must be a lis inter parties in which the point relied on for establishing the estoppel was not merely incidentally or collaterally discussed and litigated, but was fundamental to the conclusion reached by the court. (d) There must be a final decision of a court of law. (e) The court must have jurisdiction in the matter. See generally Alase and others v. Ilu and others (1965) NMLR 66; Chief Esi v. Chief Secretary (1973) 11 S.C. 189; Fadiora v. Cbadebo (1978) 3 S.C. 219; Coker v. Sanyaolu (1976) 9-10 S.C. 203; Ofunne v. Okoye (1966) 1 All N.L.R. 94.

I do not think I should take any time on this aspect because it does not arise at all. Let me take only one aspect to dispose of it and it is that the plea in the circumstances of the case does not apply in respect of the decision of the Tribunal of Inquiry. The law is elementary that the Tribunal is an inferior institution to the High Court. Therefore a party who is not satisfied with a decision of a Tribunal has the right to seek redress in a competent court of law. There cannot be any finality in the decision of a Tribunal in the sense that it is not appealable, unless the enabling law so provides. I am not quite sure whether such a provision can stand in the light of the Constitution, particularly sections 6 and 236 thereof. In most cases, laws setting up Tribunals provide for right of appeal on the part of an aggrieved party. Even where such a right is not specifically provided for, a party aggrieved by a decision of a Tribunal has the legal right to seek redress in a competent court of law.

That is what the respondents have done in the instant case and I cannot see why they cannot do so. Certainly, they cannot be estopped from doing so. Certainly, the court below, a court of competent jurisdiction, cannot also be estopped from doing so. The issue therefore fails.

Jurisdiction is a priceless commodity of the court. Jurisdiction is the life wire of the court as a legal institution established for the determination of the rights of parties. Once the Constitution vests in a court jurisdiction on a matter, no statute can take it away. That will be an unconstitutional act and it will be null, void ab initio.

The Constitution is so clear in its ouster provisions. In other words, where the Constitution of the land intends to oust the jurisdiction, it clearly so provides and a court of law cannot arrogate to itself jurisdiction which the Constitution has clearly denied it.

Whether a court has jurisdiction in a matter or not does not lie in the speculative or conjectural mind of either the court or the parties. The determination of jurisdiction is not a game of chess where there is always the chance element. Since it is not open to any guess, it is not one of the aspect of our law whether the court should use the objective or the subjective test. It is on the contrary, a matter of raw and hard law which is either donated by the constitution or by the enabling statute or by both. Accordingly, where the Constitution or the enabling statute intends to oust the jurisdiction of the court, the ouster provisions must be clear, precise and unequivocal. In the absence of any clarity, precision and unequivocation, a court of law will be entitled to hold that it has jurisdiction in a particular matter. It is not for instance like a matrimonial case where a court of law has some leeway to determine whether from the facts of the case, the marriage has irretrievably broken down either because of adultery, cruelty or desertion. There is no room for a court to meander on the issue of jurisdiction. A court either has jurisdiction to entertain a matter or it has not. The matter is as stringent as that.

I have not dealt with the “issue” of when the cause of action arose in this matter and the consequences of that on the larger issue of jurisdiction. That is an intentional act. The issue was never raised by the parties in their briefs. It was learned counsel for the respondents, who mentioned it in the course of his submission. The law is trite that parties are bound by their briefs in the court as they are bound by their pleadings in the trial court. Oral submissions are meant only to amplify the arguments already contained in the brief. They cannot be extended to introduce new areas not already contained in the brief. And that is the reason why I decided not to go into the ‘issue’, because it is in reality not an issue before us.

In the circumstances, I am of the view that the court below has the jurisdiction to determine the issues before it. Accordingly, the appeal fails and it is hereby dismissed. I award N150 costs in favour of the respondents.

SULU.GAMBARI, J.C.A. I have had the privilege of reading in advance the judgment just read by my learned brother, Niki Tobi, J.C.A.
The appeal therefore fails and it is accordingly dismissed with the order of costs as made by him in the lead judgment.

KALGO, J.C.A. I have had a preview of the judgment just delivered by my learned brother, Niki Tobi, J.C.A. and I entirely agree with the reasoning and conclusion reached therein. I have nothing useful to add.

I also dismiss the appeal and award N 150.00 costs in favour of the respondent.

Appeal dismissed.