3PLR – THE HONORABLE COMMISSIONER FOR LOCAL GOVERNMENT, RURAL DEVELOPMENT AND CHIEFTAINCY MATTERS (ANAMBRA STATE OF NIGERIA) V. HIS HIGHNESS IGWE JOB EZENIUOKWU

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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THE HONORABLE COMMISSIONER FOR LOCAL GOVERNMENT, RURAL DEVELOPMENT AND CHIEFTAINCY MATTERS (ANAMBRA STATE OF NIGERIA)

V.

HIS HIGHNESS IGWE JOB EZENIUOKWU

COURT OF APPEAL (ENUGU DIVISION)

MONDAY, 14TH JANUARY, 1991

CA/E/36/89

3PLR/1991/97  (CA)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS  

GEORGE ADESOLA OGUNTADE, J.C.A. (Presided and Read the Leading Judgment)

SAMSON ODEMWINGIE UWAIFO, J.C.A.

VICTOR JAMES OBANUA CHIGBUE, J.C.A. (Dissented)

 

BETWEEN

1. THE HONORABLE COMMISSIONER FOR LOCAL GOVERNMENT, RURAL DEVELOPMENT AND CHIEFTAINCY MATTERS (ANAMBRA STATE OF NIGERIA)
2. ATTORNEY-GENERAL OF ANAMBRA STATE
3. A.N.C. OBELEALU

 

AND

HIS HIGHNESS IGWE JOB EZENIUOKWE (THE OBI OF ACHINA)

 

REPRESENTATION

M.T.N. Onwugbufor (with him, A.C. Achebe) – for the Appellants

1. E. Izuora – for the Respondent

 

MAIN ISSUES

ADMINISTRATIVE LAW – Administrative panel of Enquiry- When deci­sion thereof will affect matter pending in court – Relevant considera­tions.

ADMINISTRATIVE LAW – Order of Prohibition – Grant of – Attitude of court.

CONSTITUTIONAL LAW – Separation of power under 1979 constitution – Application of

COURT- Affidavit evidence – Conflict therein – How resolved – Duty on court in respect thereof.

COURT – Allegation of fraud – Attitude of court thereto.

COURT – Issue of jurisdiction – Where arises – Power of Court to determine whether it has jurisdiction.

INTERPRETATION OF STATUTES – Decrees No 1 and 13 of 1984 – Pur­port and scope of – Whether protects laws made under civilian govern­ment.

INTERPRETATION OF STATUTES -Ouster of jurisdiction clauses in a statute – How construed.

JUDICIAL REVIEW – Order of Prohibition – Grant of – Attitude of court.

PRACTICE AND PROCEDURE – JURISDICTION – Issue of jurisdiction – Where arises – Power of court to de­termine whether it has jurisdiction.

PRACTICE AND PROCEDURE – JURISDICTION – Issue of Jurisdiction – Where it arises – Duty on court to de­termine in limine – Basis of.

PRACTICE AND PROCEDURE – JURISDICTION – Jurisdiction of court – Meaning of.

PRACTICE AND PROCEDURE – JURISDICTION- Ouster of jurisdiction clauses in a statute – How construed.

NATURAL JUSTICE – Presence of bias on part of Tribunal – How deter­mined – Relevant considerations.

NATURAL JUSTICE – Rules of natural justice – Application of – Attitude of court.

PRINCIPLES OF INTERPRETATION – Ouster of jurisdiction clauses in a statute – How construed.

STATUTES – Decrees Nos. I and 13 of 1984- Purport and scope of-Whether protects laws made under civilian government.

PRACTICE AND PROCEDURE – EVIDENCE – Affidavit evidence -Conflicts therein -How resolved -Duty on court in respect thereof.

WORDS AND PHRASES – Bias – Meaning of

WORDS AND PHRASES – Jurisdiction of court – Meaning of.

 

MAIN JUDGEMENT

OGUNTADE, J.C.A. (Delivering the Leading Judgment):

The respon­dents in this appeal were applicants at Awka High Court: coram, Obiesie, J., and the appellants were then the respondents. Although a great deal of documentary exhibits were filed in the course of hearing the application be­fore the High Court, the relevant facts fall within a narrow compass. The facts are these.

The 1st respondent in this appeal is the Eze of a town called Achina in the Aguata Local Government Area of Anambra State. He was appointed the said Eze in 1977. His emergence as the Eze had not been an easy affair. Another person Michael Z.C. Okpala had the support of Achina Progres­sive Union for appointment as the Eze. The contest between the 1st respon­dent and M. Z.C. Okpala was sufficiently bitter to necessitate the Anambra State Government setting up the Justice Agbakoka Inquiry into the matter. At a stage, it seemed that M.Z.C. Okpala might have the upper hand. But the then Military Government settled for the 1st respondent. The people that supported M.Z.C. Okpala were not to be lightly repressed. They per­sisted in agitating that the 1st respondent was not the rightful Eze. At the vanguard of the agitation was the Achina Patriotic Union. Petitions kept flooding the offices of the appropriate Ministry of the Anambra State Gov­ernment. And it would appear that the town did not enjoy peace.

Meanwhile, a suit was brought against the 1st respondent and his palace secretary over the celebration of the Local Idegwu Day Festival by two of the three component villages of Achina. The villages claimed in the suit that

it was the prerogative of Achina Patriotic Union to fix the day for the celeb­ration of the festival and not that of the 1st respondent. A declaration was sought to that effect. The suit was numbered AA/83/84.

Again in suit No. AA/127/84, the Achina Community excepting the re­spondents sued for a declaration that a document titled “Achina Obiship (Chieftaincy/Traditional Head) Constitution” and cited as “Achina Obiship or Chieftaincy Regulations 1960” executed by the respondents on behalf of the Achina Community be set aside as invalid, null and void.

These two suits were obviously the manifestation of the displeasure of some members of the Achina Community at the enthronement of the 1st re­spondent. While these two suits were still pending, the Anambra State Com­missioner of Local Government, Rural Development and Chieftaincy Matters in a purported exercise of power said to be derived under Section 17 of Anambra State Traditional Rulers Law (No. 14 of 1981) set up an Adminis­trative Enquiry into the chieftaincy dispute in Achina between the 1st re­spondent and Michael Zebendilo Chileka Okpala. The terms of reference of the Panel were:

“(a)    To enquire into the chieftaincy dispute in Achina Community and determine whether or not the present Traditional Ruler should have been recognized ab initio;

(b)     To enquire into and determine the effect of the recognition of the Traditional Ruler on the Community and if the Traditional Ruler, Chief Job Ezemuokwe still enjoys the popular support of his Town/Community;

(c)     To enquire into and determine any other issues relevant to the Petition and make recommendations to the Commissioner.” The sole enquirer in the chieftaincy disputes was Mr. A.N.C. Obeleagu. In reaction to the setting up of the Administrative enquiry, the 1st and 2nd respondents in this appeal brought an application for an order of prohibition from holding the enquiry against the Anambra State Commis­sioner for Local Government, rural Development and Chieftaincy Matters, the State Attorney General and Mr. A.N.C. Obeleagu the sole enquirer who are the appellants in this appeal.

The application was first heard ex-parte pursuant to Order XXII of the High Court Rules Laws of Eastern Nigeria, 1963 applicable to Anambra State. Obiesie, J., on the 11 June, 1987 granted the order of injunction pend­ing the final determination of Suits Nos. AA/83/84 and AA/127/84. The ap­pellants herein as applicants brought a motion to set aside the interim order of prohibition. Save that the interim order previously made was altered as to its duration which was now to remain pending the determination of the mo­tion on notice for prohibition, the motion by the appellants was refused.

Later, the motion for prohibition was argued on 27th and 28th July, 1988. Ruling was given on the same on 28th September, 1988. Obiesie, J., concluded his ruling in these words:

“In the end result, the Order of Prohibition can be granted on any of the grounds for which relief is sought. I therefore hold that a proper case has been made out for the Order Nisi originally granted to be made absolute and the sole Enquirer be prevented from investigating the alleged Chieftaincy Dispute in Achina. The respondents, servants and agents are hereby prohibited from carrying out or continuing into the alleged chieftaincy dis­pute in Achina based on documents MLG/CM/S.151/788 of 22nd May, 1988.

Costs fixed at N300.00 will be paid by respondents to applicant.” Against the above order, the respondents at the lower court have ap­pealed on seven grounds. In the appellants’ brief filed, seven issues have been raised for determination as hereunder appearing:

“1.     Whether having regard to Decrees No. 1 and 13 of 1984 and No. 18 of 1977 which exclude the jurisdiction of the Courts in relation to acts, things or matters done under a Decree or Edict or to an enquiry under the Tribunals of Inquiry Decree, the learned trial Judge was right in holding that he has jurisdiction to hear and determine the suit which arose pursuant to the act of the respondent in setting up of an inquiry under Edict No. 14 of 1981.

2. Whether the unlimited jurisdiction granted to a High Court by S.6(6)(b) and 5.236 of the Constitution cannot be excluded or li­mited by a Decree particularly where the provision of a Decree limiting or excluding the courts jurisdiction is clear and unam­biguous and the validity of the Edict which the Decree sought to protect was not challenged or impugned by the applicant.
3. Whether having regard to the relief or claim in suits No. AA/83/ 84 and AA/127/84 the learned trial Judge was right in holding that the suits Nos. AA/83/84 and AA/127/84 raise chieftaincy issue or dispute which operates to abate the inquiry thus enabling him to grant the order of prohibition.
4. Whether the evidence of bias before the court was sufficient to enable the learned trial Judge to prohibit the Enquiry on the basis of bias. Put the other way did the evidence before the court disclose a real likelihood of bias or was it imaginary?
5. Whether the learned trial Judge was right in resolving the conflict in the affidavit of Ezeanyaji and that of the 3rd respondent by crediting the applicant and discrediting the 3rd respondent with­out calling oral evidence.
6. Whether having regard to the grounds for the application the learned trial Judge was right in granting prohibition absolute in­stead of prohibiting quos que.
7. Whether having regard to the evidence before the court there was any allegation of fraud and if there is, which is denied, whether such allegation of fraud can operate to enable the court to prohibit the inquiry.”

The respondents have raised two issues of their own for determination. The issues are:

“(a)    Whether the court below had jurisdiction to entertain the appli­cation of the respondent above in the first instance; and

(b)     if the court had jurisdiction whether it made the order of prohib­ition on wrong principles or took into account irrelevant consid­erations.”

I think that the respondents have in their formulation of issue adopted the broad approach whereas the appellants have gone into more details to reflect the points raised in their grounds of appeal. The issues raised by the respondents are quite fully covered in those raised by the appellants.

The argument of appellants’ counsel in support of issues 1 and 2 above is that the lower court had no jurisdiction to entertain the application by reason of Decrees Nos. 1 and 13 of 1984 which barred the courts from look­ing into any act, matter or thing done or purported to be done under or pur­suant to any Decree or Edict. This argument is anchored on Section 5 of De­cree No. 1 of 1984 which provides:

“No question as to the validity of this or any other Decree or Edict shall be entertained by any Court of Law in Nigeria.” And Section 2(b)(i) of Decree No. 13 of 1984 which provides:

“No civil proceedings shall be or be instituted in any court for or on account of or in respect of any matter or thing done or pur­ported to be done under or pursuant to any Decree or Edict and if any such proceedings are instituted before, on or after the com­mencement of this Decree the proceedings shall abate, be dis­charged and made void.”

The enquiry in respect of which the respondents in this appeal, (hereinafter called the applicants) sought an order of prohibition was set up under section 17 of the Anambra State Traditional Rulers Law (No. 14 of 1981). The said section provides:

“Where the selection or appointment of a traditional ruler is dis­puted in a town or community, the commissioner may take steps to reconcile the disputants or cause administrative inquiry to be held in respect of such dispute.”

Decrees Nos. 1 and 13 of 1984 only apply to Edicts of Military Gover­nors made subsequent to 31st December, 1983 when the civilian administra­tion was overthrown. There is therefore no reason whatsoever to say that the said Decrees applied to a Law which had been in force since 1981. 1 am sur­prised that appellants’ counsel raised such an argument which has no merit of any kind.

The 3rd issue relates to whether or not Suits Nos. AA/83/84 and AA/ 127/84 have any bearing on the terms of reference of the enquiry as would enable the lower court conclude that the enquiry was to be conducted on a matter that was sub-judice. I have read the pleadings filed in the two cases and my view is that the two cases are not in any way related to the subject matter of the administrative enquiry. Suit No: AA/83/84 only related to the date the Idegwu Festival should hold and who had the power to fix the date. Suit No. AA/127/84 only related to whether or not the Chieftaincy Constitu­tion of Achina 1960 was validly made. I think it is helpful to reproduce the relevant averments in the statement of claim in suit No. AA/127/84. Parag­raphs 17, 18 and 19 of the same reads:

“17.   In Suit No. AA/83/84 the 1st defendant produced and relied on a document headed “Achina Obiship (Chieftaincy/Traditional Head) Constitution” and cited as “ACHINA OBISHIP OR CHIEFTAINCY REGULATIONS 1960.” There in court the plaintiffs saw the spurious document for the first time which is purported to have been executed by the defendants on behalf the entire Achina community including the plaintiff and with their consent. The plaintiffs herein give the defendants notice to pro­duce the said document at the trial.

18. The plaintiffs aver that the said document which is inimical to the interest of the entire community and affect the right of the plain­tiffs in selecting a candidate of their choice on rotational basis to the office of the Chief of Achina was executed without the know­ledge and consent of Achina Community and is a sordid fraud on the said Community.

Particulars of Fraud

(a)     Achina community as a community is unaware of the exis­tence of the said document.

(b)     The signatories were not mandated by Achina Community to execute the document.

(c)     The document was executed behind the back of Achina Community and without their knowledge and was con­cealed from them.

(d)     The document is a trick by the defendants who represented it as an act of Achina Community.

(e)     …………………………

(f)      The document is designed to perpetuate chieftaincy in the family of the 1st defendant and make it hereditary therein instead of rotatory from one village to another in Achina.

19. WHEREOF the plaintiffs claim against the defendants as fol­lows:

(a)     A declaration that the document headed and titled “Achina Obiship (Chieftaincy/Traditional Head) Constitution and cited as “ACHINA OBISHIP OR CHIEFTAINCY REG­ULATIONS 1960” and purportedly executed by the defen­dants on behalf of Achina Community is fraudulent, in­valid, null and void and of no effect whatsoever having been obtained by fraud and not produced by Achina Com­munity or their accredited representatives.

(b)     A declaration that the purported Chieftaincy and/or Achina Obiship (Chieftaincy/Traditional Head) Constitu­tion or Chieftaincy Regulations 1960 in no way effects the right of Achina Community in the identification, selection and presentation of their Chief and/or Obi.

(c)     An Order of Court setting aside the purported Achina Obiship or Chieftaincy Regulation 1960 as not drawn up by the accredited representatives of Achina community selected and mandated by the three villages of Achina in accordance with the custom of Achina Community.” The grouse of the plaintiffs in suit No. AA/127 /84 was that the 1st applicant wanted to perpetuate succession to the Obiship in his family. Whether or not court acceded to the declarations sought therein would still not have any effect on the question whether the 1st applicant should have been recognized as Obi by the State Government in the first place since it was not alleged that the 1st applicant got the recognition by virtue of the Constitution which the plaintiffs in suit No. AA/127/84 wanted the Court to set aside. In the same way, the decision in the suit would not have any bear­ing on whether or not the 1st applicant still enjoyed the support of the Achina community. The lower court was therefore in error to have held that the enquiry was upon a matter which was sub-judice.

As regards whether or not there was bias on the part of the sole enquirer – 3 rd appellant, the trial Judge at page 124 had observed:

“Applicant is only asserting that the respondents be prohibited from going on with the inquiry because of two pending suits (supra) relating to the matter, bias on part of respondents and lack of jurisdiction.”

I have above disposed of the aspect of the matter concerning the exis­tence of two suits. Was their any bias on the part of the sole enquirer? The al­legation of bias was based on the deposition of one Basil Ezeanyaji who said that the sole enquirer Mr. A.N.C. Obeleagu (3rd appellant), Mr. A.O. Amaechina, Mr. C.I. Okonkwo and another person on arrival at Achina for the inaugural sitting of the administrative enquiry went to the residence of Mr. Michael Z.C. Okpala and therein dined and wined. Mr. M. Z. C. Okpala as stated earlier is a disputant with the 1st applicant for the Ezeship of Achina.

However, the 3rd appellant swore to a counter-affidavit wherein he de­nied knowing Mr. M.Z.C. Okpala or going to his house to dine and wine on 8th June, 1987.

If indeed, the 3rd appellant had sat to a dinner in the house of Mr. M.Z.C. Okpala before coming to the venue of the enquiry to preside over the same, he would have disqualified himself as a person fit to preside over the enquiry. His independence and objectivity would have been irredeema­bly compromised. For as Lord Denning observed in Metropolitan Properties Co. Ltd. v. Lannon (1968) 3 All E.R. 304 at 310 (a case referred to by the lower court) –

“The Court looks at the impression which would be given to other people. Even if he (the Chairman of the tribunal in that case) was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances there was a real likelihood of bias on his part, then he should not sit . . . . . And if he does sit, his decision cannot stand . . . . . . . . . The court will not enquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking:

“The Judge was biased.”

There is no doubt that the contents of the affidavit of Basil Ezeanyaji when read against the counter-affidavit of the 3rd appellant – A.C. Obeleagu, raised a serious conflict. For while Ezeanyaji said he saw Obeleagu call at the house of M.Z.C. Okpala eat and dine therein, Obeleagu said he never called there. How did the lower court resolve this obvious conflict? The lower court concluded that:

“….. the action of the sole enquirer on arrival to look into the matter coupled with his views embodied in his own affidavit on behalf of all the respondents and that of a serious government functionary definitely disqualifies him from holding the enquiry.”

The above statement by the lower court would appear to convey that the court accepted the allegation that in truth, the sole enquirer called at the house of Mr. M.Z.C. Okpala and dined there. I do not think that the lower court followed the correct approach. When there were such conflicts on the affidavit evidence before the court, they should have been resolved by oral evidence. See Falobi v. Falobi (1976) 9-10 S.C. 1. It cannot escape notice that the allegation made against the sole enquirer was grave and scandalous in the extreme as should not be lightly believed. But the court as it appears from the judgment so readily accorded credence to the allegation. I do not think that this was right. The lower court ought not to have accepted that the 3rd appellant so patently misconducted himself without a cogent evidence.

The lower court also said that there was no jurisdiction in the board of enquiry to look into the chieftaincy dispute on the ground that an allegation had been made that the 1st applicant was appointed the Eze or Obi following the bribes given to some persons connected with the appointment. At page 136 of the Record of Proceedings, the court in its ruling referred to a depos­ition in the affidavit of the 3rd appellant where he said:

“It became expedient to determine whether the plaintiffs recog­nition was tainted by fraud and whether he enjoys the majority support of his people following the dispute which engulfs the community.”

The lower court held that where a person is accused of committing a criminal offence, he must be taken before a court of law for trial. The follow­ing cases were relied upon. Dr. E.O.A. Denloye v. Medical & Dental Prac­titioners Disciplinary Committee (1968) 1 All N.L.R. 306 and Garba v. Uni­versity of Maiduguri (1986) 1 NWLR (Pt. 18) 550.

I think that courts must be careful in the way they accept the use of the word “fraud” by litigants in proceedings before them. The word “fraud” is so elastic in meaning as to cover the commission of a criminal offence as well as incidents of mere impropriety. It is often loosely used to cover both situa­tion. For instance it was never alleged in this case that a particular public of­ficial has taken a bribe or other gratification to influence the appointment of the 1st applicant as the Obi or Eze of Achina. Allegations like “a lot of water has passed under the bridge” etc. when used colloquially mean no more than that some improprieties were committed in the process of the appointment of 1st applicant as Eze or Obi. They do not mean that particular criminal of­fences were committed. The lower court was therefore in error to conclude that the sole enquirer would in the course of his enquiry have to try anybody on any criminal offence. That conclusion is far-fetched and not home out by the evidence before the lower court.

From what I have said so far in this judgment, the impression is con­veyed that the lower court ought not to have granted the order of prohibi­tion. But I must emphasize that the grant of the order of prohibition is an exercise of discretion. There is one aspect of this matter that cannot be ig­nored. In the counter-affidavit deposed to by the sole enquirer, he said in paragraph 5 thus:

“That paragraph 13 of the affidavit is not true in that the petition was based on valid and substantiated facts of which no reasona­ble man will impugn. It is not therefore true to say that the agitators are acting in bad faith. The petitions raised the funda­mental question as to whether the plaintiff should have been recognized ab initio. The petitioners imputed fraud on the part of the plaintiff and questioned the continued validity of the recogni­tion having regard that the plaintiff was neither selected by the people of Achina nor presented to the Senior Divisional Officer. Worse still they allege that he was not also recommended by the Agbakoba Panel which the Government adopted in publishing the name of Z.C. Okpala as the person to be recognized by the Government as per the Government Publication which is at­tached and marked as Exhibit A. Furthermore the petitioners al­leged that the plaintiff does not command the majority support of the people of Achina. It became expedient to determine whether the plaintiff’s recognition was tainted by fraud and whether he enjoys the majority support of his people following the dispute which engulfs the Community. The petition of Achina Progres­sive Union is attached herewith and marked as Exh. B. The es­sence of the petition is to give the plaintiff opportunity to be heard and to defend himself according to law. The inquiry is neither punitive nor is it intended to remove the plaintiff willy-nilly.”

Some of the allegations against the 1st applicant as are to be found in the petitions against him were summarized thus in exhibit F1 which reads:

“GOVERNMENT OF ANAMBRA STATE OF NIGERIA

Ministry of Local Government, Rural Development & Chief­taincy Matters,

Permanent Secretary’s Office, P.M.B. 1145,

ENUGU.

MLG/GM/S.151/785

Mr. A.N.C. Obeleagu,

Adminstrator,

Njikoka Local Government,

ABAGANA.

14th May, 1987.

ADMINISTRATIVE PANEL OF ENQUIRY ON CHIEFTAINCY DISPUTE IN ACHINA COMMUNITY, AGUATA LOCAL GOVERNMENT

Since the recognition of the reigning Traditional Ruler of Achina, His Royal Highness, Igwe Job Ezemuokwe in 1976, The Achina people have continued to petition against his recognition on grounds of irregularity. They have insisted that their popu­larly selected candidate, Chief Michael Z.C. Okpala was cheated out through undue influence by Chief Ezemuokwe. The latest petition dated 3rd November, 1986 from the Achina Patriotic Union, together with its attachments, tells all the story. The issue appears, therefore, to be fundamental as it questions the compe­tence of the recognition accorded to the Traditional Ruler. Any attempt, therefore, to set up a Peace Committee cannot work until the fundamental question is cleared.

Having, therefore, considered all the questions, the Com­missioner has decided to invoke the powers conferred on him by Section 17 of the Anambra State Traditional Rulers’ Law (No. 14 of 1981) which states inter alia:

“Where a selection or appointment of a Traditional Ruler is disputed in a Town or Community, the Commissioner may take steps to reconcile the disputants, or cause ad­ministrative enquiry to be held in respect of such dispute.” Accordingly, the Commissioner has appointed you the Sole En­quirer in the Chieftaincy Dispute in Achina Town/Community. You will be assisted by the Secretary to the Awka Local Govern­ment, Mr. A.O. Amaechina who will serve as the Secretary to the Enquiry and to whom I am sending a copy of this letter for easy liaison with you. You will find enclosed, two copies of the petition by the Achina Patriotic Union and its attachments as mentioned above to help you with the background.

Your terms of reference are as follows:­

(a)     To enquire into the chieftaincy dispute in Achina Com­munity and determine whether or not the present Traditional Ruler should have been recognized ab initio;

(b)     To enquire into and determine the effect of the recognition of the Traditional Ruler on the Community and if Chief Job Ezemuokwe still enjoys the popular support of his town/ community;

(c)     To enquire into and determine any other issues relevant to the petition and make recommendations to the Commissioner.

You will complete the assignment within one month.

The Administrator of Aguata Local Government to whom this letter is also being copied is to provide you with all the logistic support for the assignment.

(SGD.) NDUKA I. EYA

PERMANENT SECRETARY.”

By the deposition of the sole enquirer reproduced above, he accepted that these allegations were based on “valid and substantiated facts which no reasonable man will impugn.” This was most unfortunate. The question is – since when has the sole enquirer been of that frame of mind? The applicants had not asked that the order of prohibition be granted on the ground that the sole enquirer had pre-accepted the truth of the allegations made against the 1st applicant. But they alleged bias. Ought a court guided by the tenets of justice to have concluded that the sole enquirer who had formed the impre­ssion that the allegations he was to investigate were true be allowed to con­tinue with the enquiry? I do not think so. I think that the lower court rightly exercised its discretion in granting the order of prohibition subject to what I say hereunder.

It is clear that the sole enquirer could not be trusted to impartially per­form his duties. The lower court granted an order of prohibition in absolute terms restraining the appellants from conducting the enquiry. I think that the order as made is wrong. Under the 1979 Constitution of Nigeria, a State Executive has its constitutional duties just as the Judiciary has its own duties. The Judiciary ought not to interfere with the right of the executive to per­form its duties. “The order as made by Obiezie, J., will entail very grave disruption of the machinery of government. If the continued Ezeship or Obiship of the 1st applicant will lead to rancour and chaos and absence of progress in Achina, the Commissioner for Local Government, Rural De­velopment and Chieftaincy Matters has a duty derived from under the Con­stitution and in particular from the Traditional Rulers Law 1981 to stop a drift into the abyss of anarchy and retrogression of Achina. The court cannot stop the Commissioner from performing such duties.

This leads to the conclusion that whilst there was evidence that the 3rd appellant Mr. A.C. Obeleagu could not fairly and impartially perform the duties of a sole enquirer, it nonetheless was the duty of the 1st respondent/ appellant to set up an administrative inquiry headed by a competent person. Instead of prohibiting the appellants absolutely from holding t enquiry, the lower court should have made an award of prohibition quos que so that the enquiry should go on but with another person as the sole enquirer.

In the end result this appeal partially succeeds. The order of prohibition as granted by the lower court is amended to read that the sole enquirer – the 3rd appellant is barred from conducting such enquiry with liberty in the 1st respondent/appellant to appoint any other fit and proper person as the sole enquirer. This shall be the order of this court. Each of the parties is to bear its own cost.

UWAIFO, J.C.A.: I have read in draft the judgment of my learned brother Oguntade, J.C.A. He has quite ably dealt with the issues after stating the re­levant facts with remarkable clarity. I need not go over the facts again.

The lower court unquestionably had jurisdiction to entertain the pro­hibition proceedings before it. From the facts and circumstances of this case, the appellants had not the remotest cause to wish to rely on the various De­cree No. 18 of 1977, No. 1 and No. 13 of 1984 cited by them. They have no bearing with the Anambra State Traditional Rulers Law, No. 14 of 1981 under which the Inquiry in question in this case was set up.

There is the issue of the conflicting affidavit evidence about whether the Sole Inquirer, Mr. A.N.C. Obeleagu, went to dine and wine in Chief Michael Z. C. Okpala’s house on the morning before the inquiry was to com­mence. The respondent said he did so but Mr. Obeleagu denied this. The re­spondent based his allegation of bias on that matter. Therefore the conflict in affidavit evidence was on very material facts. The law is well-settled that in a situation like that it is not possible to resolve such conflict without calling oral evidence, see Uku v. Okumagba (1974)3 S.C. 35 at 64-65; Falobi v. Falobi (1976) 9-10 S.C. 1 at 14-15; National Bank v. Are Brothers (1977) 6 S.C. 97 at 107. Even if the parties failed to ask the court to be allowed to cross-examine any of the deponents or to call any witness, this does not re­lieve the court of its obligation as to its duty in this regard in order to be able to resolve the conflict upon proper grounds: Akinsete v. Akindutire (1966) 1 All NLR 147 at 148; Eboh v. Oki (1974) 1 S.C. 179 at 189-190. The learned trial Judge in the present case did not call oral evidence. He purported to re­solve the facts against Mr. Obeleagu to find bias on completely untenable grounds. He was in grave error.

Again, I cannot accept the lower court’s view that the Board of Enquiry had no jurisdiction to look into the matter assigned to it on the ground that there had been an allegation that the appointment of the respondent as the Eze or Obi was because “a lot of water had passed under the bridge,” a phrase which the lower court took as an allegation of fraud connoting that bribes had been received by some persons involved in the said appointment. I think there has been a misconception of that phrase. It is a manner of speaking, an idiomatic expression, to show that the unexpected happened because strings were pulled in the opposite direction. These could merely be in the form of pressure or influence.

The deposition in the 3rd appellant’s wherein he paid that it became expedient to determine whether the respondent’s recognition as the Obi was “tainted by fraud” does not add anything to the above reference to water having passed under the bridge so as to imply that bribes had been given. An allegation of fraud does not necessarily mean bribery. When such an allega­tion of fraud is made, it would have to be supported by particulars which themselves may make no mention of bribe. It is not unusual to allege fraud in civil cases without imputing any crime. Fraud in misrepresentation, as said Lord Herschell in the famous case of Derry v. Book (1889) 14 App. Cas. 337 at 369, may simply mean that someone “knowingly made a false statement, or one which he did not believe to be true, or was careless whether what he stated was true or false. It follows that it ought to be assumed by the lower court at this stage that what may be involved is whether the recognition of the respondent was through some fraudulent claim or misrepresentation in whatever form. The trial Judge was in error to have read the crime of bribery into it.

Finally, I do not think it is right to find any impropriety in pursuing the civil actions and the inquiry at the same time. There is certainly no conflict in the two functions and no prejudice of any kind can possibly be suffered by the respondent in either direction. The terms of reference of the Board of Enquiry are not the same as the reliefs sought in the two actions. The result of the inquiry cannot he used by the plaintiffs in those suits against the re­spondent who is the defendant in the said suits if it is unfavourable to him. Over and above all, the Executive cannot be inhibited from performing its duty by the judiciary simply because the judiciary is also called upon to per­form its own function in similar circumstances. No arm of government is en­titled to infringe on the function of the other except in recognized situations where one exceeds or abuses its constitutional powers.

This separation of powers usually arises in or as a political question as regards the relationship between the judiciary and the coordinate branches of the Government: see Baker v. Carr 369 U.S. 186 (1962) at 210. In that case at page 217, the Supreme Court of the United States said:

“Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commit­ment of the issue to a coordinate political department or a lack of judicially discoverable and manageable standards of resolving it; or the impossibility of deciding without an initial policy determi­nation of a kind clearly for non-judicial discretion; or the impos­sibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of govern­ment ……….”

I think the above shows why the courts should not do anything unduly to stand in the way of the other arms of Government in the performance of their constitutional duties. The present case demonstrate that why­

I entirely agree with the judgment of my learned brother Oguntade, J.C.A. and endorse the orders he has made.

CHIGBUE, J.C.A. (Dissenting): This is an appeal against the ruling of Obiesie, J., dated September 17, 1988 at Awka High Court of Anambra State whereby the learned trial Judge prohibited the appellants, their ser­vants and agents from investigating the Chieftaincy Dispute at Achina in Aguata Local Government Area of Anambra State pending the determina­tion of 2 suits in the High Court of Awka, based on the Administrative Panel of Inquiry set-up by the 1st appellant. Having had the advantage of renting in draft the lead judgment of my learned brother, Oguntade, J.C.A., I regret with due respect, to have not assented to his views and conclusion reached, save, of course, on issues 1 & 2 as set out in his lead judgment, issues which bordered on question of jurisdiction of the trial court to have entertained the substantive matter. On the other remaining issues, I have a different opin­ion. My reasons for such are hereunder expressed. Indeed, the action itself raises an interesting and important question whether the exercise of powers of a quasi-judicial body would not fail within the control and influence of the superior courts of record, especially, where ones legal rights and safeguards are affected, notwithstanding the facts that such quasi-judicial body is a cre­ature of a statute empowered by the Government of the day to exercise its function.

The material facts of the case are as follows:­

The respondent is at all the material time the recognized Paramount Tradi­tional Ruler – the Igwe of a town called and named Achina in Aguata Local Government Area of Anambra State of Nigeria. Following his recognition in 1977 he was issued with a Certificate – Exhibit 2 and since the inception of his recognition the town Achina had enjoyed a considerable peace and prog­ress and in terms of social amenities as the followings were built:- Girls Sec­ondary School, Post Office, Churches, an ultra-modem Hospital; a bore­hole for water supply and rural electrification were established. Later rumours started to spread against his reign. The perpetrators of such rumours which were under the banners of Achina Patriotic Union (A.P.U.), include Michael Z.C. Okpala, Emmanuel Akabuogu, Godwin Kpachu, Francis Ezcobi and others. There were no specific allegations made against him but the collaborators of those rumours seemed not to have the blessings of the then current Achina Progressive Union Executives which belonged to the young age-group named “ANYIBUOFU AGE GRADE.” Those col­laborators wrote false petitions against the respondent and later, one God­win Ogbuozebe, who was the A.P.U. Chairman Care-Taker Committee, was in 1987 relieved of his position by the Igwe-in-Council.

The principal disputant to the respondent’s throne was one Michael Z.C. Okpala, supra, who was alleged to be a close friend of one G.C. Maduka, the then incumbent Administrator of Aguata Local Government who was alleged to be the brain behind the setting up of an Administrative Inquiry into the respondent’s chieftaincy matter, an act, which according to the respondent, was in bad faith because he, the respondent, had no money to throw about.

In the meantime 2 suits calling for declaratory orders were preferred at Awka High Court against the respondent. In the earlier suit No. AA/83/84 the respondent and his Palace secretary were sued by two of the three vil­lages of Achina over the celebration of “Idegwu Festival” to the effect that it was the prerogative of Achina Progressive Union (A.P.U.) to fix the date of such celebration and not the respondent.

In the second suit NO. AA/127/84 the Achina Community sued the re­spondent for a declaration as null and void the document headed “ACHINA OBISHIP ON CHIEFTAINCY REGULATIONS, 1960″ as it was alleged in the suit that the respondent was the brain behind the authorship of the said document with a view to perpetuating himself and his descendants into the office and position of the Traditional Head of the people.

While the two suits were pending in the court the Anambra State Gov­ernment pursuant to S. 17 of the Chiefs Law of 1981 set-up the Administra­tive Board of Inquiry into the Chieftaincy Dispute between the respondent and one Michael Z.C. Okpala, appointing one A.N.C. Oleleagu as the Sole Inquirer. The following are the terms of reference:­

“(a)    To enquire into the Chieftaincy dispute in Achina Community and determine whether or not the present Traditional Ruler should have been recognized ab initio.

(b)     To enquire into and determine the effect of the recognition of the Traditional Ruler or the Community and if the Traditional Ruler Chief Job Ezemuokwe still enjoys the popular support of his Town/Community.

(c)     To enquire into and determine any other issue relevant to the petition and make recommendations to the Commissioner.”

In consequence of the above Inquiry the 1st and 2nd respondent in this matter tiled the instant application asking for an order of prohibition from holding the inquiry against the State Government and the Sole Inquirer.

At first an ex-parte application was heard and the trial court granted an injunction pending the final determination of the two suits mentioned above. Later the appellants brought an application to vary the order but was refused. On the 27th September 1988 following a motion on notice for pro­hibition the trial court on 29th September 1988 granted the order prohibiting the Sole Inquirer and his agents from holding the inquiry.

Aggrieved by the above order the appellants appealed to this court fil­ing 7 grounds of appeal. Later 7 issues for determination as set-here under were formulated, namely:­

“1.     Whether having regard to Decree No. l and 13 of 1984 and No. 18 of 1977 which exclude the jurisdiction of the courts in relation to acts, things or matters done under a Decree or Edict or to an In­quiry under the Tribunals of Inquiry Decree, the learned trial Judge was right in holding that he has jurisdiction to hear and determine the suit which arose pursuant to the act of the respondent in setting up of an inquiry under Edict No. 14 of 1981?

2. Whether the unlimited jurisdiction granted to a High Court by S.6(6)(b) and S.236 of the Constitution cannot be excluded or li­mited by a Decree particularly where the provision of a Decree limiting or excluding the courts jurisdiction is clear and unam­biguous and the validity of the Edict which the Decree sought to protect was not challenged or impugned by the applicant? 3. Whether having regard to the relief or claim in suits No. AA/83/ 84 and AA/127/84 the learned trial Judge was right in holding that the suits Nos. AA/83/84 and AA/127/84 raise chieftaincy issue or dispute which operates to abate the inquiry tha s enabling him to grant the order of prohibition?
3. Whether the evidence of bias before the court was sufficient to enable the learned trial Judge to prohibit the inquiry on the basis of bias? Put the other way did the evidence before the court dis­close a real likelihood of bias or was it imaginary?
4. Whether the learned trial Judge was right in resolving the conflict in the affidavit of Ezeanyaji and that of the 3rd respondent by crediting the applicant and discrediting the 3rd respondent with­out oral evidence?
5. Whether having regard to the grounds for the application the learned trial Judge was right in granting prohibition absolute in­stead of prohibition quos que?
6. Whether having regard to the evidence before the court there was any allegation of fraud and if there is, which is denied, whether such allegation of fraud can operate to enable the court to prohibit the inquiry?

The respondents, who were the applicants in the lower court, set out 2 issues for determination, namely:­

“(a)    Whether the court below had jurisdiction to entertain the appli­cation of the respondent above in the first instance; and

(b)     if the court had jurisdiction whether it made the order of prohib­ition on wrong principles or took into account irrelevant consid­eration.”

In his argument, Mr. Onwugbufor, learned counsel for the appellants, adopted his brief filed on 25th July 1989 and further authorities filed sub­sequently namely – the case of A.G. Federation v. Sode (1990) 1 NWLR (Pt. 125) at 500/518. He conceded that Decree No. 1 of 1984 and 18 of 1977 are inapplicable in the circumstances of his case but relied on Decree No. 13 of 1984. He submitted that the Governor had no power to set-up a Commis­sion of Inquiry under 8.16 of the Traditional Rulers Law, 1981 but the Com­missioner for Local Government and Chieftaincy Matters under S.17-citing the case of Military Governor of Into State v. Orisakwe suit No. FCA/168/82 delivered on 12/12/85. He submitted that the jurisdiction of the trial court was ousted by the provision of Decree No. 13 of 1984 as the court cannot de­termine whether “the act or thing done” in pursuance to the Edict otherwise it would amount to involving in the matter the Statute has expressly ousted its jurisdiction -citing once again the case of A. G. Federation v. Sode supra. Referring to page 6 of paragraphs 16 & 17 of the respondent’s brief where the respondent used the word “bribe” – he contended that none of such issue arose at the trial court.

On the issue of bias, he submitted that particular act of an individual should be examined before such accusation should be held against him and that the 3rd appellant, was only an Administrator of a Local Government Area. He finally submitted that the 2 suits mentioned in the matter had no relevance to the Inquiry and urged the court to allow the appeal and set­ aside the order made by the trial court.

Mrs. Izuora, learned counsel for the respondent, adopted her brief dated the 8th February, 1990 and filed on the 12th February, 1990 and by way of emphasis referred to the 2 suits – namely, suits Nos. AA/83/84 and AA/127/84 and submitted that they touched and concerned the validity and recognition of the respondent because the functions of a Traditional Ruler include his advice on Traditional matters. In respect of the latter suit – it was submitted that the respondent could not rule the town without the constitu­tion as he was selected as per it.

On question of ouster of jurisdiction and more specially Decree No. 13 of 1984 – counsel submitted that the Panel of Inquiry could not take cover under it so as to oust the jurisdiction of the court.

It was her further submission that there was serious breach of the prin­ciples of natural justice and fair hearing in that the respondent was never served with any prior notice as to when the so-called Enquiry was to be held.

On the issue of bribe, counsel admitted that although the word was never mentioned simpliciter by such name at the trial court but such infer­ence could be deduced from the facts of the case by reference made to the ef­fect that “much water” had passed under the bridge. She finally urged that the appeal be dismissed.

In approaching this matter I will deal with issues for determination as they are tied with the grounds of appeal as set out in the appellant’s brief. The 1st & 2nd issues postulate questions on jurisdiction of the trial court to have entertained the matter as the relevant Decree No. 13 of 1984 provided an ouster. To my mind the issue of ouster is very crucial for if it succeeds, it will be otiose to proceed to determine the other issues. In the case of Kasikwu Farms Ltd. v. A.-G. Bendel State (1986) 1 NWLR (Pt. 19) pages 695/697 it was held that:­

“It is in the interest of parties to a case to first of all decide the issue of jurisdiction once it arise. To do otherwise will in many cases, lead to unnecessary exercise of taking and evaluating evi­dence and to finally come to the iron wall that all that exercise had been wasteful and unjustified as the court had no jurisdiction to look into the matter from the beginning.”

Further a court is said to have jurisdiction with regard to a suit or pro­ceeding when it has power to hear and determine it or exercise any judicial powers therein. In the case of Barclays Bank of Nigeria Ltd. v. Central Bank of Nigeria Ltd. (1975 it was further held that:­

“In considering whether a court has jurisdiction to entertain any claim, it is our view that whilst a person’s right of access to the courts may be taken away or restricted by Statute, the language of any such Statute will be watched by the court and will not be extended beyond its onerous meaning unless clear words are used to justify Belch extension. That it is why it is now well estab­lished that a provision in a Statute ousting the ordinary jurisdic­tion of the court must be construed strictly. This means that if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserve the ordinary jurisdic­tion of the court”

– see also the case of Shodeinde v. Registered Trustees (1980) 1-2 S.C. 225, a case which provided that an ouster clause must be clear, precise and unam­biguous before ones right sought in the court is banned. Undoubtedly, a court is said to have jurisdiction to decide whether or not it has jurisdiction to deal with a matter – see Kasikwu Farms Ltd. v. Bendel State supra.

The bone of contention of the appellants’ counsel is that by virtue of the provision of Decree No. 13 of 1984 -S.2(b)(c) – the jurisdiction of the court had been ousted. That section provides as followings:­

No civil proceedings shall be or be instituted in any court for or on account of or in respect of any act matter or thing done or pur­ported to be done under or pursuant to any Decree or Edict and if any such proceedings are instituted before on or after the com­mencement of this Decree the proceedings shall abate, be dis­charged and made void.”

My view is that Decree No. 13 of 1984 reenacts the supremacy of De­crees as the ground-num or the organic law of the land and the competence of the Federal Ministry Government to promulgate them cannot be chal­lenged nor would their validity or invalidity be impugned in any court. They lend efficacy and potency to Edicts promulgated by State Government as an Edict cannot stand in itself -see the case of the Military Governor Ondo State v. Adewumi (191;8) 3 NWLR (Pt.82) page 280 where Eso, J.S.C., put it as follows:­

“The Edict is not a bean stock planted by Jack. It cannot grow it­self. It remains puny vis-à-vis the constitution or portion of the constitution or portion thereon unsuspended and any Decree. As for Decree No. 13 of 1984, like its predecessor Decree No. 28 of 197() – nothing therein stops an attack of an Edict if it is inconsis­tent with a Decree.”

Chieftaincy Law No. 14 of 1981 under which the Administrative Inquiry in question was set up, is a law promulgated by Anambra House of Assem­bly, the effective date being 22nd December 1981 and that was during the Civilian regime of our Second Republic. It cannot be called or regarded as an Edict. It is an existing law under S. 276 of 1979 Constitution. S. 1(2) (b)(i) of Decree No. 13 of 1984 which provides an ouster stipulates that no civil pro­ceedings shall be or he instituted in any court or on account of or in respect of any act, matter, or thing done or purported to be done under or pursuant to Decree or Edict. Decree No. 13 of 1984 cannot be said to have covered the Chieftaincy Law No. 14 of 1981 which is not an Edict. I think it is a pure mis­conception on the part of the appellants to have so submitted. An Edict should be distinguished from State Laws or enactments promulgated during the civilian regime. In Adewumi’s case above, it was held that an Edict or State Enactment purporting-to oust the jurisdiction of the court on Chief­taincy matters will be inconsistent with Decree No. 13 of 1984. In that case the aim in promulgating an Edict over a matter pending in court was to whit­tle down the effects of SS.6 and 236 of 1979 Constitution which provided the powers and judicial functions of the court.

I am mindful of the fact that some Decrees provide ouster of jurisdic­tion for example, Decree No. 17 of 1984- see the case of Osita Nwosu v. The Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) page 688.

In the instant case the respondent was asking the court to enquire whether the conduct of the Inquiry conformed with the rules of natural jus­tice in that he was not notified of the case facing him thereto and that the holding of the Inquiry pending the two cases in the court would be subjudice as the two suits touched and concerned the main purpose of the Inquiry. To me such an action is maintainable in order to ensure that the rules of natural justice are safeguard – see the cases of R. V. v. Criminal Inquiries Compensa­tion Board Ex-parte Lain (1967) All E.R. 770; Re Liverpool Taxi Owners’ Association (1972) 2 All E.R. 589 C.A. I say that if something is being done which is contrary to natural justice or certain things required by law are not done, the court will intervene, especially where the right of a citizen is being interfered with and there is no law to justify such interference -see the cases of Queen v. The Resident, Ijebu Province – Ex Parte J.A.C. Oshulaja (1957) W.N.L.R. 173 and Henshall v. Porter (1923) 2 K.B. 193; S.17 of the Chief­taincy Law No. 14 of 1981 it provides as follows:­

“Where the selection or appointment of a Traditional Ruler is disputed in a town or Community, the Commissioner may take step to reconcile the disputants or cause administrative Inquiry to be held in respect of such disputes.”

I do not think that S.17 above enjoys the protection of Decree No. 13 of 1984 and does not cover it.

That being so, the argument of the appellants on jurisdictional defects looks to me untenable. This ground of appeal fails.

The 3rd relates to the contention that suits No. AA/83/84 and AA/127/ 84 did not raise any chieftaincy issues or dispute as to abate the Inquiry and that the trial court erred by granting the order of prohibition. I have gone through the record of proceedings including the pleadings in suit No. AA/83/ 84 and the terms of enquiry as reproduced hereunder:­

“(a)    To enquire into the Chieftaincy dispute in Achina Community and determine whether or not the present Traditional Ruler should have been recognized ab initio;

(b)     To enquire into and determine the effect of the recognition of the Traditional Ruler on the Community and if Chief Job Ezemuokwe still enjoys the popular support of his town/com­munity;

(c)     To enquire into and determine any other issues relevant to the petition and make recommendations to the Commissioner.” In suit No. AA/83/84 the following were pleaded in the Statement of Claim: ­paragraph 15 –

In the late seventies a very serious chieftaincy dispute broke out at Achina between two contestants to wit – 1st Defendant sup­ported by his village Ebele and one Chief Michael Z.C. Okpala, the Ezeuda II of Achina supported by the Village of Eleke and Ezeiyi. The contest resulted in the Agbakoba Commission of En­quiry the result of which did not see the light of the day.

16. To the astonishment and disenchantment of the great majority of Achina Community, the 1st defendant was announced as the Government recognized Chief of Achina. In view of the Chief­taincy dispute there was no time the accredited representatives of Achina and in accordance with their custom even met to draw up a Chieftaincy Constitution and a code of conduct as required by law.
17. …… ……………………
18. As soon as the 1st defendant was recognized as a Chief, he de­veloped unhealthy dictatorial tendencies and conceived an idea of controlling every facet of life in Achina and dabbled into the running the affairs of Achina Patriotic Union and in every re­spect regarded himself as the Alpha and Omega.”

And in suit No. AA/127/84 the following averments were made in the State­ment of Claim, paragraph reads:

“10.   Following this presentation the Ministry of Local Government & Social Development published a comprehensive list of persons recommended for recognition as Chiefs and Traditional Head of their respective Towns/Communities. This list contains the name of Chief M.Z.C. Okpala as a person presented by Achina Com­munity. By this letter dated the 2nd of November, 1976 and ad­dressed to Chief M.Z.C. Okpala, The Secretary, Local Govern­ment Aguata called for the Chieftaincy Constitution under which he was selected and requested same to be forwarded to him. 11. Following the presentation of Chief M.Z.C. Okpala, the 1st de­fendant and his henchmen inundated the Government with peti­tions and protests and created an atmosphere of dispute over the selection and presentation of a candidate by Achina Community and constituted themselves into a vocal majority.

12. By his letter dated the 17th March 1987 addressed to the selected candidate Chief M.Z.C. Okpala, the Secretary, Aguata Local Government intimated that a committee appointed by His Excel­lency, the Military Governor to enquire into dispute chieftaincy selection in the state shall visit Achina Community to look into the chieftaincy dispute in Achina.

(13)   The Committee so appointed and popularly known and com­monly referred to as Justice Agbakoba Commission of Inquiry visited Achina and sat at Achina Town Hall where it took evi­dence for a mammoth crowd that gathered. It became obvious there and then that Chief M.Z.C. Okpala commenced over­whelming and majority support and Achina Community re­garded the inquiry as a mere formality.

14. Achina Community one morning thereafter woke up and was stunned and dumb-founded to learn and hear that 1st defendant who had a minority support was recognized as the Chief of Achina to the entire community it was a mystery and has so re­mained ever since.”

There is no doubt from the pleadings that the main grievance in the above two suits stems from the chieftaincy disputes which also form the sub­ject-matter of the Inquiry. The plaintiffs in both cases are mainly the same, representing the APU who were the petitioners against the recognition of the 1st respondent as the Igwe.

1. 15(1)(c) and (d) of the Traditional Rulers Law 1981 provided that one of the important functions of a recognized traditional ruler is to preside over community festivals and to act as the custodian of culture, custom and trad­ition of his community. “Idegwu” festivities relate to the custom and tradi­tion of Achina Community and nothing could be discussed about such fes­tivities without active engagement of the Traditional^– Ruler.

In the later suit in which the Traditional Ruler was accused of the au­thorship of the Constitution, there is no doubt that his conduct would be cal­led in question. In my opinion, it is apparent from the facts of those cases that the result of the Inquiry set-up to examine whether the Traditional Ruler still enjoyed the popular support of his people would affect the 2 cases pending in court – cases in which the respondent was a party. The 2 cases are inter-related with the subject-matter of the Inquiry. They cannot be di­vorced from each other. The cases were aimed at undermining the respon­dent whilst the import of Inquiry was to remove him. I appreciate that the Administrative Body of Inquiry in question as set up is creature of the sta­tute and an executive act of the Government in exercise of its Statutory power under the 1981 Chieftaincy Law and that such policy decision to set it could not be interfered with, but the court could or should intervene to en­sure that such body of Inquiry acts fairly – see the case of Reg. Liverpool Cor­poration, Exparte Taxi Fleet CA (1972) 2 QB 299. I think to proceed with the conduct of the Inquiry would be subjudice to the 2 cases pending in the court and that a writ of prohibition would lie on behalf of the respondent who is an interested person and whose interest may be prejudicially affected by what was taking place – A.-G. Gambia v. N’jle (1961) A.C. 617 and Maurice v. London County Council (1964) 2 QB 362/378.

On the Issue of Bias: Appellants’ contention is that there were irrecon­cilable conflict in the Affidavits of Basil Ezeanwuyiji – one of the respon­dents’ supporters and A.N.C. Obeleagu – the Sole Inquirer. The main theme in Ezeanyji s Affidavit was that the Sole Inquirer rather than proceeding with the Inquiry went to the house of one of the contestants to the stool (M. Z. C. Okpala) to wine and dine with him and that such attitude was quite a sufficient likelihood of a baised mind. If that was so, it would have gave consequence rendering him unfit to preside over the Inquiry. Although A.N.C. Obeleagu denied it later in his counter-affidavit when in his 15 paragraph counter-affidavit he deposed in paragraph 5 the following:­”(5) That paragraph 13 of the affidavit is not true in that the petition was based on valid and substantiated facts of which no reasona­ble man will impugn. It is not true that the agitators are acting in bad faith.”

From the above facts there is no gainsaying that the deponent had pre­judged the issue when he held that the accusations heaped against the re­spondent were “substantiated and that no reasonable man will impugn.” That might be the reason why the trial court did not consider it material to call for oral evidence to reconcile any conflict in the affidavit as Obeleagu’s mind was already biased from such a statement.

The word BIAS was defined in Black Law Dictionary (5th Edn.) as an inclination, bent, a preconceived opinion or predisposition to decide a cause or an issue in a certain way which does not leave the mind perfectly open to conviction – R v. Mccarthy (Sussex Justices) (1924) 1 K.B. 256 – see Aniagolu, J. S. C., in the case of Legal Practitioner Disciplinary Committee v. Chief Fawehinmi (1985) 2 N.W.L.R. (Pt.7) page 300. From the above evi­dence a strong inference of likelihood of bias may be drawn – Obadara do Ors. v. L. G. Council (1965) N.M.L. R. 40; Grace Akinfe v. The State (1988) 7 S.C.N.J. (Pt.11) pages 2261244; (1988) 3 NWLR (Pt.85) 729.

On the issue that the order of prohibition should have been made quos­ que rather than absolute – my answer is that having regard to the facts of the case, and that the respondent had made out a clear case, an outright rather than a conditional grant, was necessary.

On the issue of Fraud as canvassed in Ground 7- there is no doubt that although the word fraud was never used simpliciter in all the protest letters against the recognition of the Respondent as the Igwe of Achina but a strong inference could be drawn from the facts and circumstances of the case, for instance, in the petition of APU dated the 3rd November, 1986 addressed to the Commissioner of Local Government, Rural Development & Chief­taincy Matters, referred to at page 12 of the records the following expression were made:­

“Even when Agbakoba Report had not been announced, Chief Job Ezemuokwe and his minority supporters went round and bragged that fold would win justice and fair play notwithstand­ing. As if they were confident of their boasting, Chief Ezemuokwe’s name was miraculously and surprisingly an­nounced by the then Government – situation which very much suggested that a lot of water went under the bridge. It was indeed an unbelievable news which left the entire community benumed, frustrated and embarrassed. Chief Job Ezemuokwe’s wealthy supporters went round with the news that they were instrumental to the removal of Chief M.Z.C. Okpala’s name from the list of recognized chief with a ‘biro pen’ on the night before the names of recommended people could be announced.”

And at page 77 of the record, in the same petition it was further stated:-

This was not the case with Chief Job Ezemuokwe whose recogni­tion by Government is still a mystery to the good people of our town.”

The above petition received the blessings of 17 signatories.

Further, in his counter-affidavit, denying allegations of partiality in the conduct of the Inquiry, the Sole Inquirer, A.N.C. Obeleagu, made it quite clear that one of his main objects in the inquiry was to investigate allegations of Fraud against the Igwe as to how his name surfaced for the recognition of the post. In paragraph 5 of his counter-affidavit at page 88 of the records he deposed:­

“The petitions raised the fundamental question as to whether the plaintiff should have been recognized ab initio. The petitioners imputed fraud on the part of the plaintiff and questioned the con­tinued validity of the recognition, having regard that the people of Achina nor presented to the Senior Divisional Officer . . . . It became expedient to determine whether the plaintiffs recogni­tion was tainted by fraud and whether he enjoys the majority sup­port of his people following the dispute which engulfs the com­munity.”

In paragraph 13 of the said counter-affidavit he deposed thus:­

“The essence of the inquiry being to give the plaintiff ample op­portunity to answer to the allegation of fraud made against him. In Re Patrick and Lyon Ltd. Ch. D. 786/790- Mungham, J. put it:

No Judge, I think, has ever been able to define “Fraud” and I am attempting no definition.”

In my opinion the word “fraud” may be construed according to the facts and circumstances of each case and in this case it is a term reserved for some thing dishonest and morally wrong replete with mischief and most painful where it connects illegality.

Those are the aspects the sole Inquirer had set out to investigate, mean­ing that some one else’s conduct would be called to question and most prob­ably criminal proceedings might be set in motion against those who had in­fluenced the appointment and recognition of the Igwe of Achina. As part of the Executive arm of the Government, the Inquirer would be sitting over a cause he had interest and caught by Latin maxim – nemo judex in causa sua – (one should not be a judge in his own cause). In all the circumstances of this case, the accusation of fraud one or the other was a sufficient ground for the trial Judge exercising his discretion in prohibiting the Inquiry from taking place. In the whole, all the grounds of appeal canvassed in this case fail. The appeal is dismissed and I affirm the decision of the trial court. I award N800.00 as costs in favour of the respondents.

Appeal allowed in part.