3PLR – LABIYI V. ANRETIOLA
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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LABIYI
V.
ANRETIOLA
IN THE SUPREME COURT OF NIGERIA
2ND OCTOBER, 1992
3PLR/1992/62 (SC)
OTHER CITATIONS
NWLR (Pt. 258) 139
BEFORE THEIR LORDSHIPS
BETWEEN
DOKUN AJAYI LABIYI (Representing LABIYI family)
AND
- JOKANOLA IGE (Deceased) (Representing IGE family)
- OLADOSU AKINTAYO (Deceased) (Representing Akintayo family)
- ABIOYE ABERE (Representing ABERE family).
- SECRETARY, KAJOLA LOCAL GOVERNMENT
- THE ATTORNEY-GENERAL, OYO STATE
REPRESENTATION
Ayo Faleti – for the appellant
F.I. Oyo Lana (Mrs.), Ag. Chief Legal Officer, Ministry of Justice, Oyo State – for the 6th respondent
Chief R. A. B. Abass, (with him, T. Uweja) – for the respondent
MAIN ISSUES
PRACTICE AND PROCEDURE – Appeals-Ground of appeal and Issues for determination -Error in formulation of-Nature of – Whether mere irregularity or a nullity – Ground alleging misdirection and ground alleging error – Distinction between.
CUSTOMARY LAW – Chieftaincy- Jurisdiction of Court over Chieftaincy matters – Ouster of by Edict – Whether such Edict Constitutional – Sections 6(6)(b) and 236 of the Constitution, 1979 and Section 2(c) Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict No. 3 of 1985 of Oyo State Considered
CONSTITUTIONAL LAW– Decree or Edict inconsistent with unsuspended part of constitution, 1979 – Jurisdiction of High Court to determine validity of – Chieftaincy Matters – Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict No. 3, of 1985 of Oyo State, S.2(c) – Whether inconsistent with Ss.6(6)(b) and 236 of Constitution, 1979 – Legislative Powers of Military Governors – Scope of Military Regime – Status of Laws thereunder – Sections 1(1) and 2(4) (b) of Decree No. 1 of 1984 considered
INTERPRETATION OF STATUTE– Section 1(2)(b)(i) of Decree No. 13 of 1984, Section 2(4) of Decree No. 1 of 1984 – Construction of.
PRACTICE AND PROCEDURE – Jurisdiction- Issue of Jurisdiction – Importance of – Duty on appeal court in considering same – Order 3 rule 2(6) Court of Appeal Rules and Order 8 rule 6 Supreme Court Rules – Decree of Edict inconsistent with unsuspended pan of the Constitution, 1979 – Jurisdiction of High Court to determine validity of – Extent and scope – Chieftaincy Matters – Jurisdiction of Court in respect of.
PRACTICE AND PROCEDURE – Appeals -Issues for determination – Where inelegantly formulated – Power of Appellant Court of formulate issues for determination in the circumstances – Proliferation of issues -Attitude of Supreme Court thereto – Issues not related to any ground of appeal – How treated
WORDS AND PHRASES– ‘Subject to” in a statute – Significance and import of.
MAIN JUDGEMENT
KARIBI-WHYTE, J.S.C. (Delivering The Lead Judgment):
The point of law involved in this appeal is a very short one. It is not new. It is, however, a point of law of immense constitutional importance.
The point of law we are called upon to decide is whether the High Court can exercise jurisdiction to rule upon the effect of the provision of an Edict which is inconsistent with a provision of the constitution of the Federal Republic. Appellant before us has contended that a court has no jurisdiction to declare on the status of an Edict. The respondent holds the contrary view that the court is vested with jurisdiction to declare on the validity vel non of an Edict whose provision is inconsistent with the provision of the Constitution.
Although the background facts leading to these contentions are not crucial to the determination of the issues involved and the construction of the provisions, it will be some what helpful to state them in the elucidation of the issues.
The litigation arose from the dispute as to the number of branches constituting the Anretiola Ruling House of Ilero Anretiola was the great grandfather of the
plaintiff. He was also the first Elero of Ilero. Elero is a village in the Kajola local Government Area of oyo State, On the death of Anretiola, Falodun his half brother succeeded him as the Elero of Ilero. The defendants are the descendants of Falodun. The Anretiola and Falodun families, constitute the Ruling Houses of the Ilero Chieftaincy.
Under the declaration made in 1957, under section 9 of the Chiefs Law, the Abere, Labiyi, Akintayo and Ige houses were the only Ruling Houses named in respect of the Elero of Ilero Chieftaincy.
In 1976 the Oyo State Government set up a commission of inquiry to report on the Chieftaincy Declaration following petitions by plaintiff’s family. The findings of the inquiry increased the Ruling Houses by the addition of Anretiola. This recommendation was approved by the Oyo State Government in 1981. Plaintiffs were still not satisfied since the measure, in their view, did not meet with the tradition and yearnings of the majority of the Ilero community. They then brought an action against the defendants seeking the declaration stated therein to set aside the declaration of 1957, and a declaration that llero customary Law recognised only the Anretiola and Falodun Ruling Houses: They also sought an injunction to restrain the defendants from implementing the said purported declaration of 1981.
In the statement of defence of the 1st defendant, the issue of the jurisdiction of the trial court to entertain the claim was raised for the 3rd defendant. It was also argued in addition that the statement of claim did not disclose any cause of action. In paragraph 7 of the affidavit in support of the Motion to dismiss the action, it was averred as follows:
‘That the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, 1985, precludes this Honourable Court from entertaining any civil cause or matter pertaining to Chieftaincy matters.”
On his part, 6th defendant pleaded in paragraph 14 of his statement of defence the ouster of the jurisdiction of the courts in chieftaincy matters by the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, 1985.
In his ruling on this objection, the learned trial judge held:
“The Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict (supra) bars the court from entertaining suit regarding chieftaincy matters as well as Decree No. 13 (supra).”
Plaintiff appealed to the Court of Appeal. The court reversed the decision of the High Court and held that the High Court has jurisdiction to declare the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict inconsistent with the provisions of the Constitution 1979 and therefore void.
Defendants have appealed to this court against the decision of the Court of Appeal, seeking to restore the decision of the High Court. The two grounds of appeal filed against the judgment read:
“(1) The learned Justices of the Court of Appeal erred in law when they, in their lead judgment, said;
(i) “As stated at the beginning of this judgment the main issue calling for determination in this appeal is as to whether a court can pronounce on the validity or otherwise of the provisions of an Edict in this case, the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, No. 3 of 1985 of Oyo State notwithstanding the provisions of the Constitution (Suspension and Modification) Decrees No. 1 of 1984 and the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984.”
(ii) It is my view and I so held, that as section 2(c) of Edict No 1 of 1985 of Oyo State is inconsistent with sections 6(6)(b), 33(1) of the 1979 Constitution, it is void and of no effect.”
and the thereby came to a wrong decision.
PARTICULARS OF ERROR
(a) Constitutionality of Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, No 2 of 1985 was not raised in either of the two grounds of appeal filed by the plaintiff/appellant.
(b) The issues for determination in an appeal must be related to the complaints raised in the grounds of appeal.
(c) What the learned justices of the Court of Appeal observed to be the issue calling for determination in the appeal before them did not flow or arise from the grounds of appeal filed by the plaintiff/appellant.
A Court of Appeal can only hear and decide an issue raised in the grounds of appeal and it is not entitled to make any pronouncement on an issue not placed before it in the grounds of appeal.
(e) The submissions which the plaintiff/appellant made in his brief were not covered by the grounds of appeal filed by him.
- The learned justices of the Court of Appeal erred in law in holding that Decree No. 28 of 1979 is not in pari materia with decree No. 13 of 1984 and in thereupon concluding that the cases of (1) Chief Adebiyi Adejumo v. H. E. Col. Mobolaji O. Johnson, Military Governor of Lagos State (1972)3 S.C. 4 and (2) Adenrele Adejumo & Anor. v. H.E. Colonel Mobolaji O. Johnson, Military Governor of Lagos State (1974)5 S.C. 101 are in applicable to this case and they consequently came to a wrong decision.
PARTICUARS OF ERROR
(a) Both Decree 28 of 1970 and Decree 13 of 1984 provide that one can only attack an Edict if it is inconsistent with a Decree.
(b) In interpreting Decree No. 13 of 1984, the Court of Appeal was bound to follow the Supreme Court’s construction of Decree 28 of 1970 in the above mentioned cases of Adejumo.
(c) Decree No. 13 of 1984 was promulgated to protect Edicts as the Court of Appeal held in Kanada v. The Governor of Kaduna State & Anor. (1986)4 N.W. L.R. (part 35) 361 at 375.
(d) Edict No. 3 of 1985 was not found to be inconstant with any Decree.” Learned counsel to the parties filed and exchanged their briefs of argument. They both adopted the briefs of argument and relied on them in argument before us.
Learned counsel to the appellant formulated the following two issues for determination:-
2.1 The Court of Appeal was correct to have held that the complaint in Ground 1 of the plaintiff’s ground of appeal in the Court of Appeal was clear and could not have misled the defendants who were the respondents in the Court of Appeal.
2.2 Whether the Court of Appeal was correct to have said that the issues calling for determination before it was whether a court could pronounce on the validity or otherwise of the provisions of an Edict, the Oyo State’s Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, No. 3 of 1984 and the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984″
Learned counsel to the respondent has also formulated two issues as follows:-
“01. Whether or not provisions of the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, Oyo State are consistent with the provisions of the unsuspended provisions of the Constitution M the Federal Republic of Nigeria and if not Whether or not the State High Court can declare any inconsistency found in an Edict against a Decree or the unsuspended pan of the Constitution notwithstanding the provisions of Decree No. 13 of 1984?
- Whether if the provision of an Edict are inconsistent with the provisions of an unsuspended part of the Constitution the court can so declare.”
Learned counsel to the 8th defendant/respondent has formulated only one issue for determination which reads:-
“Whether a court can pronounce on the validity or otherwise of the provisions of an Edict, in this case, the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, No. 3 of 1985, of Oyo State, notwithstanding the provisions of Constitution (Suspension and Modification) Decree No. 1 of 1984 and the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984.”
The first of the issues formulated by learned counsel to the appellant is not supported by any of the grounds of appeal filed. It is therefore not an issue for determination before this court. See Modupe v. State (1988) 4 N.W.L.R. 130. The only issues before this court, has been well expressed in the formulation of the plaintiff/respondent. I intend to adopt that formulation in my judgment in this appeal.
Learned counsel to the appellant has argued in his brief of argument that the learned trial judge never held that the provisions of an Edict are subordinate to unsuspended part of the 1979 Federal Constitution of the Federal Republic of Nigeria 1979.” He then stated what he claimed the learned trial judge said as follows –
“From the above what one can observe from the intendment of the legislature of both Decree and Edict mentioned is that the following are orders importance of our fundamental laws or groundnorms (sic) (groundnorm).
(a) The latest Decree if it is no conflict with any existing decrees
(b) Any other Decrees
(c) Decree No. 1
(d) Edicts
(e) Unsuspended part of the Constitution.”
Learned counsel then submitted; following the above, that the Court of Appeal was wrong to have formulated the issue for determination before it as it did. The Court of Appeal had formulated the issue as follows:
‘Whether a Court can pronounce on the validity or otherwise of the provisions of an Edict in this case, the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, No. 3 of 1983 of Oyo State notwithstanding the provisions of the Constitution (Suspension and Modification) Decree No. 1 of 1984 and the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984″
It was submitted that the issue for determination so formulated was not covered by the grounds of appeal filed, and was therefore not relevant to the determination of the appeal. The decisions of this court in Okonkwo & Anor. v. Okolo (1988)2 N.W.L.R. (part 79)632, Okonkwo & Ors. v. Onyia (1989) I N.WL.R (part99) 514 and Okpala & Anor. v. Ibeme & Ors. (1989) 2 N.W.L.R. (part 102) 208, were cited and relied upon for the submissions.
Learned counsel citing and relying on Ejowhomu v. Eter Mandilas Ltd. (1986) 5 N.W.L.R. (part 39) finally submitted that the Court of Appeal was obliged and only decide the appeal before it. It was not entitled to correct any error in the ground of appeal filed by the appellant. The decision of the Court of Appeal it was submitted, which was not based on arty ground of appeal properly before it, was therefore wrong in law. The findings of the trial court therefore stand unchallenged and the Court of Appeal was not entitled to disturb them.
Appellant has adopted an entirely mistaken and erroneous view of this appeal. Learned counsel is wrong in the submission that the issue for determination formulated by the Court of Appeal was not covered by the grounds of appeal filed.
It is for this purpose necessary and relevant to reproduce the two grounds of appeal in the Court of Appeal from which the Court of Appeal formulated the issue for determination. They are as follows:
“1. The learned trial judge erred in law and misdirected himself in the interpretation of section 1 and 1 (2) of the Federal Military Government (Supremacy and Enforcement of Powers) Decree No.13 1984 when he held:
“The intendment as positively stated in the decree is to oust the jurisdiction of the court over any case challenging the validity of a decree or edict or probing into either of them.”
When the court was not called upon to probe the competence or validity of the Edict but to determine whether section 2 of the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, 1985 is inconsistent or otherwise with the provisions of unsuspended (sic) provisions of the 1979 Constitution of the Federal Republic of Nigeria.
- The learned trial judge erred in law when he held that the provisions of an Edict are subordinate to unsuspended part of the Constitution of the Federal Republic of Nigeria 1979 when Federal Military Government (Supremacy and Enforcement of Powers) Decree 1984 does not state so nor could it but be interpreted so.”
In his brief of argument in the court below learned counsel to the appellant formulated the following three issues from his two grounds of appeal.
“1. Whether the provisions of Oyo State Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, 1985 conflict with section 6(6) and 236 of 1979 Constitution, if they do whether they prevail over the provisions of the unsuspended provisions of the Constitution.
- Whether in the light of the provisions of Decree 1 of 1984 as to the powers of a Military Governor to promulgate Edicts, he can amend the unsuspended part of the Constitution of the state.
3 Whether the High Court can declare any inconsistency found in an Edict against a Decree or the unsuspended part of the Constitution notwithstanding the provisions of Decree No. 13 of 1984.”
This court has always frowned at and viewed with disfavour the proliferation of issues for determination formulated from grounds of appeal. The principles which govern the formulation of Issues for determination is that a number of grounds could where appropriate be formulated into a single Issue running through them. It is patently undesirable to split the Issue In a ground of appeal. In the instant case learned counsel to the appellant has formulated three issues from the two grounds of appeal. In their essence the grounds of appeal filed relate to the conflict between the provisions of section 2 of the Oyo State Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, 1985 and the exercise of the jurisdiction of the Courts in the application of unsuspended portions of tit constitution of the Federation 1979 in the light of the Federal Military Government (Supremacy and Enforcement of Powers) No. 13 of 1984.
The court below was free either to adopt the Issues so formulated by learned counsel or to formulate such Issues that are consistent with the grounds of appeal filed by the appellant. It is in the observance of this principle in pursuit, of the proper administration of justice that the court below considered an appropriate, formulation of the Issue consistent with the grounds of appeal filed when a was observed that although, the grounds of appeal were inelegantly drafted, the complaints therein were clear and not misleading. The court went on to point out, correctly, that “the main issue calling for determination in this appeal is as to whether a court can pronounce on the validity or otherwise of the provisions of an Edict in this case, the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, No. 3 of 1985 of Oyo State – notwithstanding the provisions of the Constitution (Suspension and Modification) Decree No. 1 of 1984 and the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984.”
I agree entirely with the formulation of the single issue as arising from the grounds of appeal filed, and as an issue appropriate for the determination of the appeal before the court. Learned counsel was therefore in error in his submission that the issue for determination was not based on any ground of appeal properly before the court. The court below did not correct any error in the grounds of appeal filed. it was perfectly entitled to do so.
This appeal could be decided on this ground alone since learned counsel to the appellant did not in his brief put forward any arguments in contention of the issue formulated by the Court of Appeal. Appellant is deemed to have conceded. On this ground alone, the appeal fails and is dismissed. It is however, important to consider the very important constitutional issues involved in the formulation.
The issue of the relationship between the Federal Military Government and the component state units in the exercise of legislative powers, and the exercise by courts of jurisdiction to declare upon the validity vet non of the exercise of such powers has been with us from the early years of our Military democracy.
In the early decision of the Lakanmi v. A-G Western State (1974)4 E.C.S. L.R. 713 the Supreme Court attempted to assert its constitutional authority in declaring invalid the provisions of a decree which was inconsistent with the provisions of the Constitution. The correct position has always been and this was reasserted in Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970, that the Decrees of the Federal Military Government are superior to the surviving sections, of the Constitution, 1963. The Constitution 1963 is superior to the Edicts of Military Governors. Although the Courts are vested with jurisdiction to determine the Issue where a provision of a decree or Edict is inconsistent with the surviving section of the Constitution 1963, I had no jurisdiction to pronounce on the validity of the making of the Decree or Edict. These propositions have been clearly enunciated in the judgment of this court in Adamolekun v. The Council of the University of Ibadan (1968) N.M.L.R. 253 where Ademola, C.J.N., construing the provisions of section 6 of Decree No. I of 1966 in relation to the exercise by the Court of its jurisdiction to pronounce on the validity of an Edict, said;
“Reading the Decree as a whole we are in no doubt that section 6 does not preclude the courts from enquiring into any inconsistency that may arise, but merely bars the court from questioning the validity of the making of a Decree or an Edict on the ground that there is no valid legislative authority to make one. In other words the court is not enquiring into whether the Military Governor of a Region could legislate by Edict, but only whether section 35 of the Edict is inconsistent with the Constitution of the Federation.”
This view was followed in Onyiuke v. Esiale (1974)1 All N.L.R. (part 11)151, Peenok Investment Ltd. v. Hotel Presidential Ltd. 1982) 12 S.C. 1 Agip (Nig.) Ltd. v. A-G of Lagos State (197/)11-12 S.C 33. The last mentioned case was decided under Decree No. 32 of 1975 which is in pari materia with Decree No. 1 of 1966, in respect of the legislative powers of the Federal Military, Government and State Governors.
In construing the provisions of section 4 of Decree No. 2 of 1975, this court referred to section 1(2) of Decree No. 1 of 1966 as pari materia and held that Decree No. 32 of. 1975 continued and affirmed the unsuspended portions of the Constitution of the Federation 1963.
A new Constitution came into force on the 1st October, 1979. Sections 1, 6(6)(b) and 235 of which provide as follows –
“1 (1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Re-public of Nigeria”
6(6)(b) The judicial powers vested in accordance with the foregoing provisions of this section shall extend to all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.
236(1) Subject to the provisions of this Constitution and in addition to such other jurisdiction a may be conferred upon it by law, the High Court of a state shall have unlimited jurisdiction to hear and determine any civil proceeding in which the existence or extent of a legal right power, duty liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty forfeiture, punishment or other liability in respect of an offence committed by any person.”
On the 1st January, 1984, Decree No. 1 of 1984, was promulgated suspending certain provisions of the Constitution of 1979. The suspended sections of the Constitution did not include the above. Sections 302(1), (2), (3), (4) and 5 of Decree No. 1 of 1984 provides as follows:
“2(1) The Federal Military Government shall have power to make laws for the peace, order and good government of Nigeria or any part thereof with respect to any matter whatsoever.
(2) The Military Governor of a State-
(a) shall not have power to make laws with respect to any matter included in the Exclusive legislative List; and
(b) except with the prior consent of the Federal Military Government, shall not make any law with respect to any matter in the concurrent Legislative List relating to Federal legislative Powers set out in the second column of Part 11 of the second schedule to the constitution,
(3) Subject to subsection (2) above and the Constitution of the Federal Republic of Nigeria 1979, the Military Governor of State shall have power to make laws for the peace, order and good government of that state.
(4) If any law
(a) enacted before 31st December, 1963 by the House of Assembly of a State or having effect as if so enacted; or
(b) made after that date by the Military Governor of a state, is inconsistent with any law-
(f) validly made by the National Assembly before that date, or having effect as if so made or
(i) made by the Federal Military Government on or after that date. The law made as mentioned in sub-paragraph (i) and (ii) above shall prevail and the state law shall to the extent of the inconsistency, be void.”
It is clear on reading of section 2(1)-(4) of Decree No 1 of 1984, particularly subsection (3) that the legislative powers of the Military Governor of a state Is subjects prior consent of the Federal Military Government with respect to any matter in the concurrent legislative list relating to Federal Legislative powers set out In the second column of part II of the second schedule of the Constitution, and to the Constitution of the Federal Republic of Nigeria 1979.
I have already set out in this judgment the provision of section 1, 6(6)(b) and 236 of the Constitution 1979. It is clear from the words of section 2(3) of Decree No. 1 of 1984, that any law validly made by a Military Governor of a state is subject to the provisions of the Constitution 1979.
This was the position on the 31st December, 1983, when the Constitution (Suspension and Modification) Decree 1984 came into force.
It is Important to refer to the unambiguous words of section 1(1) of Decree No. 1 of 1984 which suspended the provisions of the 1979 mentioned in schedule 1 to the Decree section 1 (2) then goes further to provide as follows-
“Subject to this and any other Decree the provisions of the said Constitution which are not suspended by (1) above shall have effect subject to the modification specified in schedule 2 to this Decree “
Thus on the 31st December, 1983, the status of the laws In the order of superiority would seem to be as follows-
- Constitution (Suspension and Modification) Decree 1984
- Decree of the Federal Military Government
- Unsuspended provisions of the Constitution 1979
- Laws made by the National Assembly before 31112183 or having effect as H so made
- Edicts of Governor of a State.
- Laws enacted before 31 at December, 1983 by the House of Assembly of a State, or having effect as H so enacted.
I have already reproduced section 2(4)(b) which provides that where any law made by the National Assembly before3lst December, 1983, or made by a Military Governor of a State thereafter, is inconsistent with a law made by the National Assembly, before that date, or by the Federal Military Government on or after that date, the laws of the Nationals Assembly or the Decree of the Federal Military Government shall prevail, and the state law shall to the extent of the inconsistency be void.
What has been under consideration in the court below and which the Court pronounced upon is whether section 2 of the Chieftaincy Matters Exclusion of Jurisdiction of Courts) Edict No. 3 of 1985 ousted the jurisdiction of the court from enquiring into Chieftaincy matters. On the other hand whether the Edict is void on grounds of inconsistency with the provisions of section 6(6)(b) and 236 of the Constitution 1979.
By section 1(1) of Decree No.1 of 1984; section 6(2) of the 1979 Constitution which vests the judicial powers of a State in the courts established by section 6(5), was not suspended. Similarly not suspended Is section 6(6)(b) which extended the exercise of judicial powers to all matters between persons or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to their civil rights and obligations. In addition to these constitutional powers section 236, has subject to the provisions of the Constitution vested in the High Court unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, Interest or obligation Is in Issue.
The Constitution has vested these aforementioned jurisdiction in the court. It has been submitted that notwithstanding these clear provisions of the Constitution 1979, and of Decree No. 1 of 19[14 saving them, section 2(c) of the chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict No. 3 of 1985 of Oyo state has deprived the courts of the jurisdiction vested in them by the Constitution.
I hereunder reproduce the relevant sections of the Edict which are as follows:
“2. Notwithstanding anything in any written law whereby or whereunder jurisdiction is conferred upon any court, whether such jurisdiction is original, appellate or by way of transfer no court shall have jurisdiction to entertain any civil cause or matter.-
(a) instituted for the determination of any question relating to the selection, appointment, installation or deposition, suspension or abdication of a chief; or
(b) instituted for the recovery or delivery up of any property in connection with the selection, appointment, installation, deposition, suspension, or abdication of a chief;
Provided that any recognised chief whose appointment has been approved by the Executive Council or any minor chief whose appointment has been approved in accordance with part 3 of the Chiefs Law shaft not be precluded from taking action in a court of competent jurisdiction for the recovery or delivery of such property and related damages;.
(c) calling in question anything done in the execution of any of the provisions of the Chiefs Law or in respect of any neglect or default in the execution of any such provision by the Military Governor of Oyo State of Nigeria in Council, the Executive Council, the State Commissioner, a local government or its Secretary, a Committee, a ruling house or a kingmaker, or,
(d) calling in question anything done by the Military Governor of Oyo State of Nigeria with respect to a Chief or a Chieftaincy (whether before or after the application of the Chiefs Law).”
The purport of the Edict as can be gathered from the clear opening words of section 2, is to exclude the jurisdiction of the courts in respect of matters vested in them by the Constitution?
It is not arguable that there is a conflict between the provisions or the Constitution 1979, which vests in the courts unlimited jurisdiction to hear and determine any civil proceedings in which the civil rights and obligations of the parties are in issue – see section 6(6) (b) and 236 of the Constitution 1979 and the Edict ‘of the Governor of Oyo State which is purporting to divest the courts of the exercise of their constitutional jurisdiction.
Section 2(3) of Decree No. 1 of 1984, has made the laws made by the Military Governor of a State, subject to the unsuspended provisions of the Constitution 1979.
The phrase “subject to” in the section is significant. The expression is often used in statutes to introduce a condition, a proviso, restriction and indeed a limitation – See Oka v. Oke (1974) I.All N.L.R. (part 1) 443. The effect is that the expression evinces an intention to subordinate] the provisions of the subject to the section referred which is intended not to be affected by the provisions of the latter See Aqua Ltd. v. Ondo State’s Sports Council (1988)4 N.WL.R (part 91) 622. In other words, where the expression is used at the commencement of a statute, as in section 1(2) of the Decree No 1 oil 984,it implies that what the sub-section is “subject to” shall govern, control and prevail; over what follows in that seen or subsection of the enactment. See Tukur v. Government of Gongola State (1986)4 N.W.L.R. 529. In the instant case, the Edict No. 3 of 1985 of the Military Governor of Oyo State which is subject to the unsuspended sections 6, 236 of the Constitution 1979, and subordinated to those sections of the constitution, shall be governed and controlled by the constitutional provisions.
There appears to me a clear inconsistency between the two laws. This Is because whilst sections 6 and 236 of the Constitution has vested jurisdiction in the court, section 2(c) of the Edict is purporting to divest that jurisdiction. The Inconsistency lies in the Incompatibility of the two laws. Inconsistency Is not, merely from the existence of the laws. The inconsistency lies in the fact that the two laws cannot co-exist. The laws being inconsistent, are void to the extent of such inconsistency.
By enacting Edict No. 3 of 1985, the Military Governor of Oyo State (would appear to have) acted ultra vires his legislative powers. (This is because) a Military Governor of a State is precluded from making laws with respect to any matter in the concurrent Legislative List relating to Federal Legislative power without prior consent, of the Federal Military Government -see section 2(2)(b) of Decree No. 1 of 1984.
It is important to point out that the combined effect of sections 1(1), 6(6) (b) and 236 of the Constitution 1979 Is to restore to the Courts the exercise of jurisdiction In Chieftaincy matters hitherto ousted under section 158 of the Constitution 1963. Since the coming Into force in October 1, 1979 of the Constitution 1979, disputes relating to Chieftaincy have remained justiciable. The Import of the unambiguous provisions of section 2 of Decree No. 1 of 1984 is to make the unsuspended provisions of the Constitution 1979 superior to laws made by the National Assembly and Edicts made by Military Governors.
The same sections make any provisions of an Edict of the Military Governor Inconsistent with an unsuspended section of the Constitution 1979 void.
I have already reproduced the relevant provision of the Edict in this judgment, which is similar to the provisions of section 11(7) of the Chiefs Edict No. 11 of 1984. In Governor of Ondo State v. Adewunmi (1988)3 N.WL.R. (part 82)280, this court declared void the provisions of section 11(7) ousting the-jurisdiction of the High Court in Chieftaincy matters. That decision applies to this case and is binding on this court.
The provisions of section 2 of the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict No. 3 of 1985 promulgated by the Military Governor of Oyo State is inconsistent with sections 6(6)(b) and 236 of the Constitution 1979 and is accordingly void. Accordingly, the Court of Appeal was right in its decision that the Edict could not operate to oust the jurisdiction of the High Court. The learned trial judge was wrong to hold that his jurisdiction was ousted.
The appeal of the appellants is accordingly dismissed. The judgment of the Court below is hereby affirmed. Appellant shall pay N,000 as costs to the respondents.
KAWU, J.S.C. I have read, in draft, the lead judgment of my learned brother, Karibi-Whyte, J.S.C., just delivered. I agree the appeal should be dismissed and it is hereby dismissed.
NNAEMEKA-AGU, J.S.C. This is an appeal by Dotun Ajayi Labiyi, who was the 1st defendant in the Saki High Court of Oyo State, against the decision of the Court of Appeal, Ibadan Division, which had reversed the decision of the High Court in this suit.
For a proper appreciation the real issues in controversy in this appeal, it is important, I believe, to set out the background facts. The suit raises a chieftaincy question. The plaintiff, Alhaji Mustafa Moberuagba Anretiola, is a member of Anretiola Ruling House and brought the action on behalf of the family. The 1st, 2nd, 3rd and 4th defendants were sued respectively on behalf of Labiyi, Ige, Akintayo and Abere families. The fifth and sixth defendants were respectively the Secretary of Kajola Local Government and the Attorney-General of Oyo State. By the Chieftaincy Declaration of 1957 four families, namely:- Abere, Labiyi, Akintayo and Ige families were declared the ruling houses of hero. As a result of an inquiry in 1976, following some petitions of protest, the Oyo State Government in 1981 accepted the recommendation of the Commission that the number of Ruling Houses be increased to five, that is to say the plaintiff and defendants’ families,- contrary to plaintiff contention that only Anretiola and Falodun families ought to be the Ruling Houses according to the custom of Ilero. So, the plaintiff brought an action in Saki High Court claiming against the defendants the following reliefs:
“1. Declaration that the purported Declaration made in 1981 in respect of Elero of hero Chieftaincy subdividing two ruling Families of (i) Anretiola and (ii) Falodun into five ruling houses is not in accordance with the customary law applicable to Elero of hero Chieftaincy.
- Declaration that the two ruling families entitled to Elero of hero Chieftaincy according to hero customary law are (i) Anretiola and (ii) Falodun.
- Injunction to restrain the defendants from implementing the said purported declaration of 1981.
Without filing a defence, the 1st defendant brought a motion praying the court for an order dismissing the action on the ground that the court had “no jurisdiction to entertain this chieftaincy action.” The 3rd defendant also brought a motion praying the court to strike out the action on the grounds that the statement of claim disclosed no cause of action and that the court had no jurisdiction to entertain the suit. The 6th defendant also raised an objection on want of jurisdiction. In his ruling, the learned trial judge, Adesina, J., dismissed the intention on non-disclosure of a cause of action but on ground of want of jurisdiction, he struck out the case. He held:
“The Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict of 1985 supra bars the court from entertaining suit regarding chieftaincy matters as well as decree No. 13 supra”
From the above what one can observe from the intendment of the legislature of both Decree and Edict mentioned is that the following are the orders of importance of our fundamental laws or groundnorms (sic) (groundnorm).
(a) The latest Decree if it is no conflict with any existing decrees
(b) Any other Decrees
(c) Decree No. 1 (d) Edicts
(e) Unsuspended part of the Constitution.
From the above I hold that I have no jurisdiction to entertain the action.”
On appeal to the Court of Appeal, Ogundare, J.C.A., (as he then was) summarized the main issue raised by the appeal in the following words:
“As stated at the beginning of this judgment the main issue calling for determination in this appeal is as to whether a court can pronounce on the validity or otherwise of the provisions of an Edict in this case, the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, No. 3 of 1985 of Oyo State notwithstanding the provisions of the constitution (Suspension and Modification) Decrees No.1 of 1984 and the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984.”
Then after examining the provisions of sections 1(2), (3) and (4) of Decree No. 1 of 1984 and No. 13 of 1984 he held that the court had jurisdiction to inquire into whether section 2(c) of the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, No. 3 of 1985 was in conflict with the relevant unsuspended provisions of the 1979 Constitution, namely sections 6(6) (b), 33(1), and 236. Having come to the conclusion that the Edict was in conflict with those provisions, he held that the provisions of the Edict void. He, therefore, allowed the appeal and remitted the case to the High Court for determination on the merits. Onto, J.C.A., (as he then was) and Sulu-Gambarl, J.C.A., concurred.
The 1st defendant then appealed to this court upon two grounds of appeal. Grounds 2 was, however, abandoned. From the remaining ground of appeal the appellant formulated the following issues, namely:
“1 Whether Court of Appeal was correct to have held that the complaint in Ground 1 of the plaintiff’s ground of appeal in the Court of Appeal was clear and could not have misled the defendants who were the respondents in the Court of Appeal.
- Whether the Court of Appeal was correct to have said that the issues calling for determination before it was whether a court could pronounce on the validity or otherwise of the provisions of an Edict, the Oyo State’s Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, No. 3 of 1984 and the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984.”
These were more succinctly formulated by the learned counsel for the plain-tiff/respondent. The issues were stated as follows:-
“1. Whether or nor provisions of the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, Oyo State are consistent with the provisions of the unsuspended provisions of the Constitution of the Federal Republic of Nigeria and rf not.
Whether or not the State High Court can declare any inconsistency found in an Edict against a Decree or the unsuspended part of the Constitution notwithstanding the provisions of Decree No. 13 of 1984?
- Whether if the provision of an Edict are inconsistent with the provisions of an unsuspended part of the Constitution the court can so declare.”
The formulation on behalf of the 6th respondent was in substance not far different from the above issues.
Learned counsel for the appellant in his brief relying on the case of Nwadike v. Ibekwe (1987)4 N.WL.R. (part 67)7,8, at p. 744, submitted that the ground of appeal before the Court of Appeal could not be both an error in law and a misdirection at the same time, that the ground lacked particulars; that the said ground had nothing to do with the misinterpretation of section 1(2) of the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 13 of 1984 and that the ground did not comply with Order 3 rule 2(2) of the Court of Appeal Rules. So, the Court of Appeal was wrong to have over-ruled the submission that the ground was incompetent. He further submitted that the Court of Appeal totally misunderstood the complaint in ground 2 because the learned trial judge never held that Edicts were subordinated to the unsuspended provisions of the 1979 Constitution, rather that he stated their order of importance. He con-tended that the issue, as formulated by the Court of Appeal was wrong and not based on any grounds of appeal before the court. So the issue was incompetent. In support he cited the following cases -Okonkwo & Anor. v. Okolo (1988)2 N.W.L.R. 632, Oniah & Ors. v. Onyia (1889) 1 N.W.L.R. 514, Okpala & Anor. v. Ibeme (1989)2 N.W.L.R. 208, Osinupebi v Saibu & Ors. (1982)7 S.C. 104, P110 & 111. The Court of Appeal not entitled to correct any error which was not raised in any of the grounds of appeal: Chief Ejowomu v. Edoki-Eta Mandilas Ltd. (1986, 5 N.W.L.R. (pan 39)1.
In his brief, learned counsel for the plaintiff/respondent submitted that the learned counsel for the 1st defendant/appellant failed to argue the important constitutional and jurisdictional issue raised by this appeal and which have been resolved in favour of the respondent’s stance in many decided cases.
In his own brief, learned counsel for the 6th respondent submitted that the two Decrees, Namely Nos: 1 and 13, of 1984 do not preclude the courts from inquiring into any inconsistency between an Edict and Decree or an unsuspended section of the 1979 Constitution or an Act of the National Assembly, but bars the courts from questioning the vire of making a Decree or an Edict.
Now, in order to consider property the procedural issues raised by the appellant, it is necessary to set out the grounds in the Court of Appeal.
The two grounds read as follows:-
“1. The learned trial judge erred in law and misdirected himself in the interpretation of section 1 and 1(2) of the Federal Military Government (Supremacy and Enforcement of Powers) Decree No.13 1984, when he held:
‘The intendment as positively stated in the decree is to oust the jurisdiction of the court over any case challenging the validity of a decree or edict or probing into either of them.”
- When the court was not called upon to probe the competence or validity of the Edict but to determine whether section 2 of the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, 1985 is inconsistent or otherwise with the provisions of unsuspended (sic) provisions of the 1979 Constitution of the Federal Republic of Nigeria.
- The learned trial judge erred in law when he held that the provisions of an Edict are subordinate to unsuspended part of the 1979 Constitution of the Federal Republic of Nigeria 1979.
When Federal Military Government (Supremacy and Enforcement of Powers) Decree 1984 does not state so nor could it but interpreted so.”
From these, three issues were formulated, namely:
- Whether the provisions of Oyo State Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict, 1985 conflict with section 6(6) 236 of 1979 Constitution if they do whether they prevail over the provisions of the unsuspended provisions or the Constitution.
- In the light of the provisions of Decree 1 of 1984 as to the powers of a Military Governor to promulgate Edicts, he can amend the unsuspended part of the Constitution of the State Court (sic).
- The High Court can declare any inconsistency found in an Edict against the Decree or the unsuspended part of the Constitution notwithstanding the provisions of Decree No. 13 of 1984.”
The 3rd defendant who was the respondent in the court below formulated the issue thus:
“It is respectfully submitted that the issue for determination in this appeal is whether or not the trial court was right in holding that the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict 1985 precluded it from entertaining the claims of the plaintiff.”
I may pause here to observe that although plaintiff’s issue No. 2 above was inelegantly drafted, the above issues by the plaintiff and the 3rd defendant not only related reasonably to the above grounds of appeal but were fully argued by the parties. The 6th defendant raised no issue but argued the issue of jurisdiction. Importantly, none of the parties raised any objection as to whether the issues as formulated related to or arose from the grounds of appeal. The 1st defendant neither appealed nor filed a brief. In the circumstances, the appellant cannot now raise the above questions in this court. Counsel will do well to remember that the question of Issues and their relationship with the grounds of appeal are matters of practice and procedure. They go to irregularity and are no grounds for nullity. A party who has to take objection to such matters must do so timeously and before taking any fresh steps after becoming aware of the non-compliance. Admitted that the 3rd defendant could, therefore, not have, properly raised the above questions in this court, the 1st defendant who is the appellant in this court but who neither appealed nor filed any brief in the court below is in a worse position in that his lack of competence to now raise the above questions further complicates his case. So, much as it is true that a ground of appeal which is a misdirection is different from, and in fact mutually exclusive of one which Is an error-in law (for which Mwadike v. Ibekwe (1987) N.W.L.R. 718, p. 744) for the simple reason that the former relates to the court’s statement of a party’s case whereas the latter relates to the determination by the court, the question being one which derives from the rules, the appellant has lost the opportunity of raising the point at this stage. In a case like this in which the defendants were sued jointly and severally, the present appellant who was the 1st defendant should have filed his brief timeously and/or otherwise taken in the court below the objection to the form of the ground of appeal filed by the plaintiff in that court. He cannot now take it up in this court. However, the ground contains full particulars.
On principle, the points of procedure how raised by the appellant arose from one basic misconception. A point of jurisdiction was duly raised in the brief and duly gone into by the Court of Appeal. Without trying to show that the court was in error in the way It resolved it, he seeks to jettison it on mere procedural grounds, which are not clearly supported by the rules. it must be noted, however, that an Issue of jurisdiction of a court is most fundamental. For where a court lacks jurisdiction, it lacks the vires to decide any issue in the case. It is mainly to enable the court to go into such fundamental issues uninhibited that it is provided in Order 3 rule 2(6) of the Court of Appeal Rules as follows:-
“(6) Notwithstanding the foregoing provisions the court in deciding the appeal shall not be confined to the grounds set forth by the appellant.
Provided that the Court shall not if it allows the appeal rest its decision on any fund not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.”
This was complied with in the Court of Appeal. A similar provision is made in Order 8 rule 6 of the Supreme Court Rules, 1985. The only condition which needs to be fulfilled is to ensure that, in keeping with the letters and spirit of section 33 of the Constitution of 1979, both parties have been given the opportunity of a fair hearing before the court decides. There is no complaint about lack of hearing in this case.
It is, however, not true that the issue for determination as formulated and pronounced upon by the Court of Appeal was not covered by the ground of appeal. The conclusion l feel bound to reach is, therefore, that although the principles of decided cases cited by the appellant are clear and, in my view, correct on the dry bones of law, they are unavailing to him on the facts of this case.
I agree with the submission of learned counsel for the plaintiff/respondent that after taking the above objections, which I have now resolved against him, the appellant did not go further to show that the Court of Appeal was wrong in the manner it resolved the issue of jurisdiction However, this being an issue of jurisdiction, I shall consider it.
I would hold that that court was perfectly correct where it held as follows:-
‘The ouster of the Courts jurisdiction under section 1(2) (b)(i) only relates to “any act, matter or thing done or purported to be done under or pursuant to any Decree or Edict.” It does not preclude the courts from declaring void any Edict that is inconsistent with any law validly made by the National Assembly before 31st December, 1983 or made by the Federal Military Government on or after that date-See section 2(4) of Decree No.1 of 1984. It is, in my humble view, wrong to read into the Decree what is not there, as was, with respect, done in this case by the learned trial judge. Indeed, the wording of section 1(2)(b) of decree No. 13 of 1984 is quite different to the wording of section 1(2)(b) of Decree No. 28 of 1970. What is precluded from the court’s jurisdiction in section t (2)(b) () of Decree No. 13 of 1984 is any act, matter or thing done or purported to be done under a Decree or an Edict to which for purposes of interpretation, must be added the words “that is validly promulgated.” Where any Edict is void by virtue of Decree No. 1 of 1984 anything done under such a void Edict cannot, in my humble view, qualify for the protection provided in section 1(2)(b)(i) of Decree No. 13 of 1984.”
This has been the interpretation of this court to the ouster provisions in Decree Nos. 1 of 1984 and 13 of 1984 and similar Decree before them. See Military Government of Ondo State v. Adewunmi (1988)3 N.W L.R. (part 82) 280; Onyiuke v. Eastern States Interim Assets Liabilities Agency (1974)1 All N.L.R. (part 2) 151; Adejumo v. Johnson (1972) 3 S.C. 45 Council of the University of Ibadan v. Adamolekun (1967) 1 All N.L.R. 213; Osadebay v. A. G. Bendel State (1991) 1 N.W.L.R. 525.
The principle is a simple. The organic Decree, in this case No.1 of 1984 set out to define the organic law or grund norm of Nigeria. Subject to its provisions it gave unlimited legislative powers to the Armed Forces Ruling Council and so it has power even to amend the organic Decree by subsequent Decrees. Subject to the limitations placed by the Decree itself, it gave unlimited legislative powers to a Military Governor of a State within his area of authority and competence. One of those limitations, as per section 2(4) of Decree No. 1 of 1984 is that the Military Governor of a State must not pass any Edict which is inconsistent with the organic Decree, any other Decree, any unsuspended section of the 1979 Constitution, or any Act of the National Assembly. To give effect to the intendment of this legislative scheme, the organic Decree left unsuspended section 6(6)(b) of the 1979 Consti-tution which gives judicial powers to the courts and section 236 of the same which ‘gives unlimited jurisdiction to the High Courts of States to adjudicate on all matters relating to the civil rights and obligations of any person in the Nigeria State. The summary effect of this state of our constitutional provisions and legislations is that Oyo State High Court has the jurisdiction and powerto inquire into whether or not section 2(c) of the Chieftaincy Matters (Exclusion of Jurisdiction of Courts) Edict No. 3 of 1985, is inconsistent with the letters and spirit of Decree No. 1 of 1984, Decree No. 13 of 1984 which reinforces it, and section 6(6)(b) and 236 of the 1979 Constitution. For, nothing can be more in conflict with the judicial powers vested on the courts by section 6(6)(b) of the Constitution and the unlimited jurisdiction of the High Courts of a State to hear and determine all issues relating to the civil rights and obligations of the plaintiff than to exclude the jurisdiction of Oyo State High Court from adjudicating on the chieftaincy question clearly a civil right of the plaintiff. As there can be no doubt that it is in conflict therewith, it is void and of no effect. The Court of Appeal was right to have so held.
For the above reasons; the appeal fails, and is hereby dismissed. I affirm the decision and orders of the Court of Appeal with M1,000.00 costs to each of the plaintiff and the 6th Defendant. But in the interest of justice, I direct that the appeal be heard before another judge of the competent High Court.
OGWUEGBU, J.S.C. I have had the advantage of reading in draft, the judgment of my learned brother, Karibi-Whyte, J.S.C., just delivered and I hereby give my concurrence to it.
There is no doubt that the trial court was trying to limit the jurisdiction conferred upon it in section 236 of the Constitution of the Federal Republic of Nigeria, 1979 as amended.
I too dismiss the appeal and abide by the order as to costs.
MOHAMMED, J.S.C. I have had the advantage of reading in draft, the lead judgment of my learned brother, Karibi-Whyte, J.S.C., just delivered. I agree with the conclusions reached by him and the reasons for the conclusions which I adopt as mine. I too dismiss the appeal and affirm the decision of the lower court with N1.000.00 costs to respondents.
Appeal dismissed.
