Exparte v Olakunrin

THE STATE

EX PARTE JOSEPH AJIDASILE

OLAKUNRIN

AND

1.CHIEF JOSEPH AJIDASILE ur

     OLAKUNRIN

OSERE OF ELUNOGBE-OWO

2.CHIEF ADAFIN DARAMOLA

AKOWA OF ILORO-OWO

3.CHIEF ABRAHAM OJO,

ELEREWO OF IGBOROKO-OWO                 …                            APPELLANTS

4.CHIEF JULIUS BALEYINU

OKORO, ARAGWAGBAIYE OF IGBOROKO-OWO

5.CHIEF EGBEWA, ARAGWAGBAIYE

    OF IGBOROKO OWO

6.CHIEF H. A. ASHARA,

    ARAGWARAGBAIYE OF IJEBU-OWO

7.CHIEF SULE OMAMA, IMARA OF ISAEGBE-OWO

V.

1.OBA ALAIYELUWA OGUNOYE

    THE OLOWO OF OWO

2.TITILAYO ARAGW AGBAIYE

3.OLOGO ARAGWAGBAIYE

4.         ALADUGBO ADEBAYO RESPONDENTS

    ARAGWAGBAIYE

5.OLANIPEKUN OSERE

6.OLANREWAJU ELEREWE

7.OLATUDUNIJALUMOYE IMARAN

SUPREME COURT OF NIGERIA

SC. 98/1984

MOHAMMED BELLO, J.S.C. (Presided)

ANDREWS OTUTU OBASEKI, J.S.C.

AUGUSTINE NNAMANI, J.S.C. (Read the Lead Judgment)

CHIEFTAINCY – Deposition of a Chief- Due inquiry – Nature of inquiry – Section 21 of the Chiefs Law of Ondo State.

CHIEFTAINCY – Deposition of a minor Chief – Ondo State Chiefs Law Sections 21 and 22 – Exercise of power thereunder.

CONSTITUTIONAL LAW – Section 33(1) of the 1979 Constitution – Prescribed Authorities (Delegation of Powers) (No. 1) Notice 1967 of Ondo State – Constitutionality of.

NATURAL JUSTICE – Application to quasi-judicial bodies.

NA TURAL JUSTICE – Removal of its application by statute or necessity.

Issues:

1.Whether an Oba can sit in judgment over his traditional Chiefs for disloyalty for attacking him by calling for his removal by the Governor.

2.Whether the conditions precedent to the deposition of a Chief under the Chiefs Law of Ondo State were satisfied before the Olowo of Owo deposed the appellants.

3.Whether the powers of suspension and deposition of a minor Chief conferred on the Olowo of Owo by the Governor of Ondo State under the Prescribed Authorities (Delegation of Powers) (No. 1) Notice 1967 are contrary to Section 33(1) of the 1979 Constitution.

Facts:

The appellants were minor Chiefs of Owo having been appointed by the Ex-Olowo of Owo, Sir Olateru Olagbegi. The 1st Respondent, Oba Ogunoye, on his installation in 1968 still accepted the Appellants as traditional office holders. Relationships appeared cordial for sometime, for the 1st appellant appears to have played a dominant role in the installation of the 1st Respondent. Relationships between the 1st Respondent and the appellants however soon deteriorated and the appellants on 5th April, 1980 addressed a joint letter to the Governor of Ondo State praying for the removal of the 1st Respondent and for an enquiry into the deposition of Sir Olateru Olagbegi. On the 11th April, 1980, the 1st Respondent, in reaction to the appellants’ letter, sent to them a letter of warning charging them of disloyalty and dereliction of duties. The 1st Respondent, by the letter, further gave the appellants up to a month from the date of the letter to mend their ways, failing which he said he might be compelled to exercise the powers conferred on him as Prescribed Authority and to impose upon them appropriate disciplinary measures. The Appellants caused their Solicitor to react to the 1st Respondent’s letter by the Solicitor’s letter dated 29th April, 1980 in which several allegations were made against the 1st Respondent including an allegation that his installation was wrong in law and fact apart from the irregularities which in fact characterised his selection. Whereupon the 1st Respondent on 15th May, 1980 addressed a letter to each of the

ADOLPHUSGODWIN KARJBI-WHYTE, J.S.C. (Dissented)

SAIDU KAWU, J.S.C.

FRIDAY, 17TH MAY, 1985

ADMINISTRATIVE LAW – Delegation of powers – Compliance with enabling statute by delegate.

appellants deposing them as Chiefs and traditional office holders. Soon after the deposition, the 1st Respondent appointed other Chiefs and traditional office holders in their place and they are the 2nd – 7th Respondents in this appeal.

In their appeal, the appellants alleged breach of the principles of natural justice by the 1st Respondent and non-compliance with the provisions of Sections 21 and 22 of the Chiefs Law of Ondo State in that no enquiry was carried out before the deposition and that the conditions precedent to a deposition were not satisfied. The appellants also contended that the powers of suspension and deposition conferred on the Olowo of Owo by the Governor through the Prescribed Authorities (Delegation of Powers) (No. 1) Notice 1967 are contrary to the provisions of Section 33(1) of the 1979 Constitution as amended by the Constitution (Modification and Suspension) Decree No. 1 of 1984.

Section 22 of the Chiefs Law of Ondo State empowers the Governor to suspend or depose a Chief “if he is satisfied that such suspension or deposition is required according to customary law or is necessary in the interests of peace, order or good government”. The Governor has delegated his power under the Section to the 1st Respondent in respect of minor Chiefs in the Owo District. Section 21 of the law provides that the Governor-in-Council “may cause such inquiries to be held at such times and in such places and by such persons as he may consider necessary or desirable for the purpose of this Law”.

Held:

1.The principles of natural justice equally apply to quasi-judicial type situations such as in the instant case as well as to administrative law situations.

2.The Common Law had disqualified an adjudicator from adjudicating whenever circumstances point to a real likelihood that he will have a bias by which is meant “an operative prejudice, whether conscious or unconscious”. (State Civil Service Commission v. Buzugbe (1984) of S.C. 19 at 42, 43 considered).

3.In the instant case there was a real likelihood of bias.

4.The Common Law disqualification for interest and bias may be waived. They may also be removed by statute by express words or necessary intendment although Courts tend to uphold the Common Law tradition if the statute is open to another construction. The instant case deals with a disqualification removed by subsidiary legislation namely the Prescribed Authorities (Delegation of Powers) (No. 1) Notice 1963, W.S.L.N. 63 of 1967; at least by necessary intendment and there is no room for a contrary construction.

5.It is settled that a person who is prima facie disqualified for interest or bias may be held, on grounds of necessity, competent and obliged to adjudicate if no other duly qualified tribunal can be constituted.

6.Section 33(2)(a) of the 1979 Constitution protects the powers of suspension and deposition of Chiefs conferred on the Olowo of Owo by the Prescribed Authorities (Delegation of Powers) (No. 1)

Notice 1963 W.S.L.N. 63 of 1967.

7.On a proper interpretation of Section 22 of the Chiefs Law of Ondo State, three conditions must be satisfied before the Governor can exercise the power to depose a Chief conferred on him thereof. The conditions are

(a)he must give notice of the misconduct complained of;

(b)he must furnish particulars of the misconduct and

(c)he must give the Chief opportunity to defend himself.

8.If the conditions precedent must be observed by the Governor, his delegate, the “Prescribed Authority” (who is the 1st Respondent in this case) cannot be in a stronger position. Those conditions precedent must be also observed before the Prescribed Authority deposes a minor Chief.

9.The due inquiry in Section 21 of the Chiefs Law lies in the discretion of the Governor. It is settled that the inquiry need not be a public one. It is sufficient that the party has opportunity of being heard in defence of the allegations made against him.

10.Although the 1st Respondent did not specify the particulars of the alleged dereliction of traditional duties but a calm appraisal of the circumstances of this case shows that the appellants were fully aware of the duties involved. That clearly explains why they did not deem it necessary to ask for particulars in order to make their defence. Anyone who was minded to reply to a charge of dereliction of traditional duties would have asked for the particular duties in respect of which his conduct was being impugned.

11.It ought to be appreciated that in the circumstances of the traditional chieftaincy institution in this country, there is a sense in which disloyalty by a minor Chief to the traditional ruler can be regarded as a breach of his traditional duty as a Chief.

Nigerian Cases Referred to in the Judgment:

Alakija v. M.D.C. (1959) 4 F.S.C. 38.

Ariori v. Elemo (1983) 1 S.C. 13.

Falomo v. P.S.C. (1972) 5 S.C. 51.

Gokpa v. Inspector-General of Police (1961) 1 All N.L.R. 423.

Hart v. Governor, Rivers State (1976) 11 S.C. 211.

Lagunju v. Olubadan-in-Council 12 W.A.C.A. 406.

Mohammed v. Kano. N.A. (1968) 1 All N.L.R. 424.

Obadara v. C.O.P. (1965) N.M.L.R. 39.

Okupe v. Federal B.I.R. (1974) N.M.L.R. 422.

Orisakwe v. Governor, Imo State (1982) 3 N.C.L.R. 743.

Oyelade v. Araoye (1967) 1 All N.L.R. 321.

Queen v. Administrator, W/N., Ex parte Adebo (1962) W.N .L.R. 83.

Queen v. Governor-in-Council (1962) 1 All N.L.R. 300.

Shitta-Bey v. F.P.S.C. (1981) 1 S.C. 40.

S.C.S.C. v. Buzugbe (1984) 7 S.C. 19.

Foreign Cases Referred to in the Judgment:

Allison v. General Council of Medical Education and Registration.

Annamuathodo v. Oilfield Workers Trade Union (1963) 3 W.L.R. 650.

Banaker v. Evans (1850) 16 Q.B. 162.

Ceylon v. Fernandopo (1960) 1 W.L.R. 223.

Dickason v. Edwards (1911) 10 C.L.R. 243.

Dime v. Grand Junction Canal (1852) 3 H.L. CAS. 759.

Franklin v. Minister of Town & Country Planning (1948) A.C. 87.

Fumell v. Whegarei Schools Board (1974) 2 W.L.R. 92.

General Medical Council v. Spackman (1943) A.C. 627.

Kanda v. Government of Malaya (1962) A.C. 322.

Leeson v. G.M.C: (1890) 43 CH. D. 366.

Maclean v. Workers’ Union (1929) 1 CH. 602.

R. v. Allan 4 B. & S, 915.

R. v. Barnsley Justices (1960) 2 Q.B. 167.

R. v. Lee (1882) 9 Q.B.D. 394.

R. v. Queen’s Country J.J. (1908) 21.R. 285.

Ridge v. Baldwin (1964) A.C. 40.

Rice v. Commissioner of Stamp Duties (1954) A.C. 216.

The Seistan (I960) 1 W.L.R. 186 P.D.

Tolputt v. Mole (1911) 1 K.B. 87.

Wong Reun Cheuk v. M.C.H.K. (1964) H.K.L.R. 47.

Nigerian Statutes Referred to in the Judgment:

Chiefs Law Cap. 19, Laws of Western Nigeria, Sections 18(1), (5); 21; 21(1); 22; 22(3)(B),(C).

Chiefs (Amendment) Edict No. 1 of 1976, Ondo State.

Constitution of the Federation, Sections 31(1); 33(2), (A); 33(2), (B); 213(3).

Prescribed Authorities (Delegation of Powers) No. 1 Notice 1967 (W.S.L.N. 63 of 1967).

Books Referred to in the Judgment

Annual Review of Commonwealth Law, 1966.

De Smith: Judicial Review of Administrative Action 4th Edition Ch.5.

Appeal:

This was an appeal against the decision of the Court of Appeal Benin Division (Omo-Eboh, Okagbue and Pepple, JJ.C.A.) affirming the decision of the High Court of Akure delivered by Akintan, J. in this case. The appellants were minor Chiefs in Owo in Ondo State and were deposed by the Olowo of Owo for attacking him by calling for his removal by the Governor. The appellants applied to the High Court of Ondo State for an order of Certiorari and of prohibition. The High Court dismissed their application. They then appealed to the Court of Appeal which also dismissed their appeal. Being dissatisfied with the decision of the Court of Appeal, they have appealed to the Supreme Court. The Supreme Court by a majority of four Justices to one dismissed the appeal.

History of Case:

Supreme Court:

Appeal No.: SC. 98/1984

Date of Judgment: 17th day of May, 1985

Names of Justices in the Appeal: Bello, J.S.C., Obaseki, J.S.C.,

Nnamani, J.S.C. (Read the Lead Judgment), Karibi-Whyte,

J.S.C., Kawu, J.S.C.

Court of Appeal:

Division of the Court of Appeal from which the appeal was brought: Court of Appeal, Benin.

Names of Justices in the Appeal: Omo-Eboh, J.C.A., Okagbue, J.C.A., Pepple, J.C.A. (Read the lead judgment)

Date of Judgment: 7th day of September, 1983.

Appeal No.: FCA/B/82

High Court:

Name of the High Court: High Court Akure.

Name of Judges: Hon. Justice Dr. S. A. Akintan.

Date of Decision: 23rd July, 1980.

Suit No.: AK/M/7/80.

Counsel:

Chief Afe Babalola (with him Prof S. A. Adesanya and Mr B. Aribido) – For the Appellants.

O. A. Olutunfese,- For the Respondents.

NNAMANI, J.S.C. (Delivering the Lead Judgment): The facts of this suit are that the appellants were traditional office holders having been appointed by the Ex-Olowo of Owo, Sir Olateru Olagbegi. The 1st Respondent, Oba Ogunoye, on his installation in 1968 still accepted the Appellants as traditional office holders. Relationships appeared cordial for some time, indeed the 1st appellant, Joseph Ajidasile Olakunrin, appears to have played a dominant role in the installation of the 1st Respondent. Matters soon deteriorated however and the appellants on 5th April, 1980, addressed a joint letter to the Governor of Ondo State praying for the removal of the 1st Respondent and for an enquiry into the deposition of Sir Olateru-Olagbegi. On the 11th April, 1980, the 1st Respondent, obviously reacting to the letter of 5th April, sent to the appellants a letter of warning charging them of disloyalty and of dereliction of duties. That letter was tendered in these proceedings as Exhibit “A”. The appellants caused their Solicitor, Chief Afe Babalola, to react to the 1st Respondent’s letter by his own letter dated 29th April, 1980. That letter was accepted in evidence as Exhibit “Y”. Whereupon the Olowo of Owo on the 15th May, 1980, addressed a letter to each of the 7 appellants deposing them as Chiefs and traditional office holders. Some of these letters were tendered in evidence as Exhibits “B” – “B6”. It is pertinent to add that soon after the depositions! the appellants, the 1st Respondent appointed other Chiefs and traditional office holders in their place and they are the 2nd – 7th Respondents in this appeal.

The appellants thereupon started proceedings in the Ondo State High Court. The Suit AK/N7/80 was in these terms –

“IN THE MATTER OF APPLICATION FOR

CERTIORARI AND PROHIBITION

IN THE MATTER OF DEPOSITION

OF THE APPLICANTS BY

THE OBA ALAIYELUWA OGUNOYE,

THE OLOWO OF OWO

In the matter of Application of (1) Chief Joseph Ajidasile Olakunri, Osere of Elunogbe-Owo (2) Chief Adafin Daramola Akowa of Iloro-Owo (3) Chief Abraham Ojo, Elerewo of Igboroko-Owo (4) Chief Julius Baleyinu Okoro, Aragwagbaiye of Igboroko-Owo (5) Chief Amodu Egbewa, Aragwagbaiye of Igboroko Owo (6) Chief H. A. Ashara, Argwaragtyaiye of Ijebu-Owo (7) Chief Sule Omama, Imara of Isaegbe-Owo for an Order for leave to apply for ORDERS OF CERTIORARI AND PROHIBITION TO ISSUE-

            BETWEEN:

THE STATE AND

(1)Oba Alaiyeluwa Ogunoye

    The Olowo of Owo

(2)Titilayo Aragwagbaiye

(3)Ologo Aragwagbaiye

(4)Aladugbo Adebayo Aragwagbaiye

(5)Olanipekun Osere

(6)Olanrewaju Elerewe

(7)Olatudun Ijalumoye Imaran

MOTION EX PARTE

Under Sections 2(2) and 5(2)

Administration of Justice

Crown Proceeding Law 1960

TAKE NOTICE that this Honourable Court will be moved on Thursday the 5th day of June 1980 at the hour of 9 O’clock in the forenoon or so soon thereafter as Counsel for the applicants can be heard for an order for leave to apply for order of certiorari directed against Oba Alaiyeluwa Ogunoye, the Olowo of Owo, for the purpose of quashing his order purporting to depose the applicants as (1) Osare of Elunogbe Owo (2) Akowa of Iloro Owo (3) Elerewe of Igboroko-Owo (4) Aragwagbaiye of Igboroko-Owo (5) Aragwagbaiye of Igboroko-Owo (6) Aragwagbaiye of Ijebu-Owo (7) Imara of Isaegbe-Owo respectively under Section 22 of the Chiefs Law Cap 19 and for order of prohibition restraining … (the 7 respondents) ….. jointly and severally parading themselves as … respectively and for such further and other orders as this Honourable Court may deem fit to make in the circumstances.”

       The appellants filed a 36 paragraph affidavit, a 35 paragraph further.

affidavit and several other further affidavits in support of their application as well as a statement in which they stated their grounds of Relief as –

  “(1)      That Oba Ogunoye the Olowo of Owo acted without jurisdiction illegally and in excess of his powers as a prescribed authority by purporting to depose the 1st to 6th applicants who are recognised chiefs under Part II of the Chiefs Law Cap 19 of the Western Region of Nigeria applicable in Ondo State when such powers could only be exercised by the Governor in Council.

(2)That in the alternative, Oba Ogunoye violated the rules of Natural Justice and the conditions precedent to the exercise of the powers of deposition under Section 22 of the Chiefs Law Cap 19 of the Western State applicable in Ondo State which by the composite effect of Sections 21 and 22 of the said law necessarily imposes a duty of conducting an inquiry and or acting judicially.

(3)That Oba Ogunoye the Olowo of Owo acted ultra vires his powers under the Chieftaincy Law by failing to comply with the conditions stipulated by Sections 21 and 22 of the Chieftaincy Law.”

On the 5th June, 1980 Dr. S. A. Akintan, Judge granted leave to the applicants to apply for an order of certiorari directed against Oba Ogunoye the Olowo of Owo and leave to apply for an order of prohibition restraining the other 8 respondents herein from parading themselves as holders of various chieftaincy titles. Pursuant to this leave, the appellants on 9th June 1980, filed a motion praying for orders of Court for Certiorari directed to the 1st respondent and for an order of prohibition restraining the rest of the respondents. This application was also supported by an affidavit. The 1st respondent filed a 42 paragraph counter-affidavit as well as several other counteraffidavits by other Chiefs of Owo. At the hearing of the application, the applicants did not lead any oral evidence while the respondents called a witness from the office of the Secretary to the State Government to tender documents.

After taking this evidence and addresses of Counsel, the learned trial Judge refused the application. In his ruling he concluded in these terms –

“I am satisfied that by the letters of warning, the 1st respondent gave notice of his displeasure of the acts of the applicants and requested them to mend their ways. Instead of changing their attitude, they wrote Exhibit ” Y” through their Solicitors in which they did not only admit the charges made against them in the letters of warning regarding their acts of disrespect to the 1st respondent but went further by repeating that the 1st respondent was not entitled to hold the office of Olowo of Owo. In other words, they manifestly told him that the question of displaying their loyalties to him (1st respondent) was out of the matter. With these facts well established, I do not know what else the 1st Respondent, as prescribed authority or any authority for that matter, would want to establish by holding any further enquiries. I believe therefore that the applicants had been given the opportunity of being heard and have in fact been heard.”

The appellants appealed to the Court of Appeal which in a unanimous judgment (Omo-Eboh, Okagbue and Pepple, JJ.C.A.) dismissed the appeal. The appellants have now come to this Court.

Although the appellants filed 7 grounds of appeal, only grounds 2, 3, 4 and 6 were accepted as proper grounds of appeal before this Court. In any case in his brief of argument, learned Counsel to the appellants, Chief Afe Babalola, identified the questions for determination as these –

“(1)  In view of the fact that the 1st Respondent was the person aggrieved by the call of the appellants for his removal and the fact that he was the one alleging that the appellants did not perform their traditional duties, was the 1st respondent not disqualified by the rule against bias from sitting in judgment in a disciplinary capacity over the appellants?

“(2)  If the answer to that first question is in the affirmative was the 1st Respondent not obliged to hold a judicial inquiry having regard to Sections 21 of the Chiefs Law and Section 33 of the Constitution of the Federal Republic of NIGERIA before exercising his disciplinary powers over the appellants? 

 (3)    If there is no need for a judicial inquiry, are the appellants not entitled to be accorded fair hearing before the 1st Respondent could exercise his disciplinary power of deposition under Section 22 of the Chiefs Law? 

(4)  Can it be said that in the circumstances of this case, there was fair hearing particularly when:

(a)By the fact of warning as contained in the letter Exhibit “A” the Olowo had already found the appellants guilty without hearing them ;

(b)by the letter of deposition Exhibit “B1”-“B3” and paragraph 27 of Olowo’s affidavit the matter of disloyalty did not form part of the reason for the deposition of the appellants.

(4)In view of paragraph 27 of the affidavit of Olowo and the letter of deposition Exhibit “B”-“B3″ was it proper for the Court of Appeal to uphold the judgment on a matter which did not operate on the mind of the OIowo”

In his oral argument before this Court, Chief Babalola reduced the questions to two crucial issues: Firstly, whether the lst Respondent who was the subject of the attack in the letter of 5/4/80 and who wrote Exhibit “A” alleging disloyalty to him can sit in judgment over the appellants, and secondly whether the conditions precedent to the deposition of a Chief under the Chiefs Law have been satisfied. Dealing with these issues. Chief Babalola referred to Sections 21 and 22 of the Chiefs Law, Cap. 19 Laws of Western Nigeria applicable to Ondo State. He also referred to the power granted to the 1st Respondent to depose a chief by the Prescribed Authorities (Delegation of Powers) No. 1 Notice 1967 (W.S.L.N. 63 of 1967). In his further submission, Chief Babalola contended that the power so conferred on the prescribed authority was delegated power and that if this delegated power was read together with the substantive law i.e. Section 22 of the Chiefs Law, it could not empower the 1st Respondent to exercise more powers than the Governor who delegated could exercise. The Governor he submitted had to satisfy 3 conditions before exercising the power of deposition. These were (a) he must give notice of the misconduct complained of (b) he must furnish particulars of the misconduct and (c) he must give the Chief

opportunity to defend himself. He contended that the 1st Respondent had done none of these – that Exh. A was a warning letter and that it presupposed that the appellants were guilty. He further said that if Exh. A was requesting for explanation it should have contained particulars of the misconduct alleged against the appellants. He referred to Furnell vs Whegarel Schools Board (1974) 2 W.L.R. 92.

As regards the second issue, Chief Babalola submitted that the 1st Respondent was prosecutor and judge and that he violated the principles of Natural Justice. There was clear bias having regard to the facts of the case. He referred to State Civil Service Commission vs. Buzugbe (1984) 7 S.C. 19 at pages 25, 26 and 27. Finally, he submitted that the law which gave the 1st Respondent the power with which he acted was inconsistent with Section 33(1) of the Constitution of the Federal Republic of NIGERIA.

In reply, Mr. Olutunfese learned counsel to the Respondents, referred to Section 33(2) (a) and (b) of the Constitution as well as Sections 18(5) and (6) and 22(3)(c) of the Chiefs Law. This is as regards the contention that the 1st Respondent was a person aggrieved and yet took a decision in the matter of deposition. He drew attention to the fact that the law allowed the appellants opportunity to make representations to the Governor-in-Council against their deposition. Rather than use it, they instructed their Solicitor to write Exhibit Y. As regards the issue of bias he referred to De Smith: “Judicial Review of Administrative Action” 4th Edition Chapter 5 p.248 at p.251. He also submitted that disqualification on grounds of bias was removed by the Chiefs Law which delegated power to the Prescribed Authority. Exhibit A he contended gave the appellants adequate notice of the complaints against them. In response the appellants never asked for further and better particulars but rather caused Exhibit Y to be written. In his view the three conditions referred to by Chief Babalola were complied with on fair hearing he referred to the case of Memudu Lagunju vs. Olubadan in Council 12 W.A.C.A. 406, 410,

The facts of this case are not really in dispute. They were set down in the judgment of the learned trial judge and have been repeated in argument before us. It would be cumbersome in the extreme to set down the affidavits, further affidavits, counter affidavits and further counter affidavits of the parties on which this suit was fought. I shall merely use material in them which I consider useful in the course of my consideration of the issues raised before this Court. I however consider it useful, at least for immediate understanding of the case, to set down the three most important letters between the parties – that is the letter of warning written by the 1st Respondent to each of the appellants and tendered in evidence as Exhibit A; the reply of the Appellants through their Solicitor tendered in evidence as Exh. Y and the letter of deposition written by the 1st Respondent to each of the appellants tendered in evidence as Exhibit B-B2 and B3-B6. I intend also to set down the relevant legislation to which reference has been made. Exhibit A was in these terms:

“Ondo State of Nigeria

11th April, 1980

Chief       

u.f.s. The Secretary,

Owo Local Government,

Owo.

LETTER OF WARNING

You will remember that in March, 1976 you were deposed following your persistent failure to perform the traditional duties attaching to your office as Chief Elerewe even though you have regularly received your monthly stipend as a traditional Chief. Your Deposition Order was subsequently revoked in October that year when you promised to repent and to perform the traditional functions of your office as Chief Elerewa. I regret to observe that since that time you have failed to fulfil your promise and you have failed to perform your traditional duties.

2.The matter of your continued failure to honour your obligations as Chief Elerewa reached the point when the Special Adviser on Chieftaincy Matters, Chiefs. A. Okeya came to Owo to reason with you on Thursday, 29th January, 1980. It is unfortunate that his appeal fell on deaf ears and you continued to defy and breach Owo custom and tradition.

3.To crown this long and persistent act of dereliction of traditional duties, you joined in sending an Open Letter to the Governor of Ondo State calling for my removal as the Olowo of Owo. This letter was published in the Daily Times Issue of Saturday, 5th April, 1980. I consider this an act of disloyalty to me as your paramount traditional ruler.

4.By this letter, I hereby give you a final warning to desist from acts of disloyalty to me and dereliction of your traditional duties. I am willing to give you up to a month from the date of this letter to mend your ways, failing which I may be compelled to exercise the powers conferred on me as Prescribed Authority and to impose upon you appropriate disciplinary measures as may be deemed necessary for peace, order and good government in the Owo community.

Sgd. Oba Ogunoye II J.P.

The Olowo of Owo

Prescribed Authority”

Exhibit Y was worded thus:

“His Highness,

Oba Adekola Ogunoye,

The Olowo of Owo,

Olowo’s Palace,

Owo.

Kabiyesi,

Letter of Warning to Chiefs Osere, Akowa, Elerewe,

Aragwagbaiye Okoro, Aragwagbaiye Erhowa, Aragwagbaiye

Ankara.

and Imara, all of Owo

We are Solicitors to the above-named Traditional Chiefs and Kingmakers of Owo who have passed on to us for our action your respective letters dated 11th of April, 1980 addressed to them and warning them to desist from acts of disloyalty to you and dereliction of their traditional duties.

Our instruction is that your letters of warning to the said Chiefs was a reaction to a recent press release by our clients, which was published in the Daily Times of 5th April, 1980 in which they called for an Inquiry to the Olowo of owo Chieftaincy with a view to restoring to the throne the former Olowo of Owo, Sir Olateru Olagbegi who in their view, was illegally, wrongfully, and unconstitutionally removed from office by the former Military Administration of the defunct Western State of Nigeria, which, in their contention, also installed you into office contrary to the Customs and Traditions of Owo.

There can be no doubt that in the circumstances, your letters of warning, giving our clients ultimatum to mend their ways is infact a blackmail, aimed at coercing and oppressing them with a view to silencing them and ensuring that they no longer exercise their constitutional right to freely express their views on a matter of public interest in which they are particularly interested and concerning Traditional Chiefs and Kingmakers in Owo.

It is the contention of our clients that the former Olowo, Sir Olateru Olagbegi was removed from office for no just cause and on the flimsy excuse that an infinitely (sic) number of political antagonists in Owo demonstrated their opposition to him and engaged the service of thugs to cause confusion in Owo. It is also their contention that Sir Olateru Olagbegi was not given opportunity to know the allegation levied against him and given facility to defend them. This undoubtedly was in violation of the well known principle of audi alteram, partem (let no one be condemned unheard). As a follow-up of the last point I am sure that you would agree that if the deposition of Sir Olateru Olagbegi was irregular, null and void, your installation would obviously be wrong in law and fact, apart from the irregularities which infact characterised your selection which our clients consider to be a rape of the customs and traditions of Owo which our clients hold dearly and feel obliged to protect.

In the view of our clients, your allegations that our clients have failed, to perform their traditional duties is a ruse to divert the attention of the Government and the generality of the people from the real issues which are those of the legality or otherwise of the deposition of Sir Olateru Olagbegi and the legality or otherwise of your installation.

Our clients believe that it is now necessary for the government to look into the matter and settle it once and for all. They believe that a Judicial Commission of Enquiry to look into the matter in all its ramification is the most appropriate measure for

the government to take. They have consistently called for justice from the various Governments from the time of the deposition of Sir Olateru Olagbegi. Now that there is an elected government which is responsive to the feelings and aspirations of the people, they consider it opportune to review their plea with the hope that something will be done to resolve the issue, hence their call to the Executive Governor to institute a Judicial Commission of Enquiry to look into the matter.

Our clients are strenghtened in their hope by the recent action of the Ondo State Government in instituting Judicial Commission of Enquiry into the Owa of Idanre Chieftaincy the facts of which are similar in all respects to that of Olowo of Owo. We believe that you are as concerned as our clients that the matter be resolved once and for all and that you would support their call for an enquiry to go into the root of the matter. We are sure that after receiving this letter, you would realise that joining our clients in making spirited efforts to get the government to intervene and resolve the issue would be more advisable than coercing our clients and intimidating them into changing their stand.

We are directing our call to the Governor of Ondo State to take prompt steps to institute a Judicial Commission of Enquiry into the matter and henceforth, we hope that we can count on your co-operation and support.

Meanwhile, we believe that you would refrain from any acts of harrassment, operation (sic) and victimisation directed against our clients and calculated to coerce and intimidate them into compromising their stand. We may however add that if any steps are taken which are detrimental to their interests and attempt to deprive them to their constitutional or customary or other rights and privileges as traditional chiefs and individual citizens, we shall be forced to seek the aid of the law in protecting their legal rights and privileges. Of course we are sure that you would not allow this situation to arise.

We look forward to your co-operation in this matter.

Yours faithfully,

(Sgd.) Chief Afe Babalola & Co.”

Exhs. B-B6 read

“THE AFIN-OBA-OLOWO

OWO

Ondo State of NIGERIA 15th May 1980

Chief …       

u.f.s. The Secretary,

Owo Local Government,

Owo.

THE LETTER OF DEPOSITION AS CHIEF ARAGWARA1YE OF

Please refer to my letter of warning No. OL.336/120 of 11th April, 1980 in respect of which there has been no change of attitude as regards the performance of your traditional duties.

2.Therefore, in the exercise of the powers conferred on me by the Prescribed Authorities (Delegation of Powers) No. 1 Notice 1967, and by virtue of all other powers enabling me in that behalf, IOBA ALAIYELUWA OGUNOYE II THE OLOWO OF OWO hereby depose you … from the Chieftaincy of … in Owo Local Government Area.

3.Dated this 15th day of May, 1980.

4.Copies of this letter are being endorsed to the Secretary Ondo State Government and the Secretary, Owo Local Government for their information and necessary action.

(Sgd.) OBA ALAIYELUWA

OGUNOYE II J.P.

The Olowo of Owo

Prescribed Authority”

A. 18(1) “The Governor in Council may appoint in respect of thearea, (which expression shall in this Part and Part IV be deemed to include a reference to part of an area) of any local government council or group of council an authority (in this part referred to as the prescribed authority) consisting of one person or of more persons than one, who may be chairman and other members of a committee established by Section 5 to exercise the powers conferred by this section in respect of the office of any minor chief whose chieftaincy title is associated with a native community in that area.”

B. 18(5) of Chiefs Law as amended by Section 3 of Chiefs (Amendment) Edict No. 1 of 1976 i.e. Ondo State.”

“Any person aggrieved by the decision of the prescribed authority in exercise of the powers conferred on the prescribed authority by subsections (2), (3) and (4) of this section may, within 21 days from the date of the decision of the prescribed authority make representations to the Commissioner to whom responsibility for chieftaincy affairs is assigned that the decision be set aside and the Commissioner may, after considering the representation confirm or set aside the decision.”

(this relates to appointment of minor chiefs)

C.Section 22

“(1) The Governor in Council may suspend or depose any chief whether appointed before or after the commencement of this Law, if he is satisfied that such suspension or deposition is required

according to customary law or is necessary in the interest of peace, order or good government.

…………………………………………………………………………………………………………………..

……………………………………………………………………………………………………………………

(3)(a) Where a prescribed authority is appointed in accordance with Section 18, the Governor in Council may by notice in theGazette delegate to that authority the powers conferred by subsections (1) and (2) of this section with respect to minor chiefs whose chieftaincy titles are associated with a native community in the area for which the prescribed authority is appointed.

(3)(b) Any such delegation shall be revocable by the Governor inCouncil and no delegation shall prevent the exercise by the Governor in Council of any power.”

D.The Prescribed Authorities (Delegation of Powers) (No. 1) Notice1967. W.S.L.N. 63 of 1967

“1. This Notice may be cited as the Prescribed authorities (Delegations of Powers (No. 1) Notice 1967.

2. The powers conferred by sub-sections (1) and (2) of Section 22 of the Chiefs Law are hereby delegated to the prescribed authorities specified in the second column of the Schedule hereto with respect to minor Chiefs whose chieftaincy titles are associated with the native communities in areas specified opposite such authorities respectively in the third column of the said schedule.

                                                                SCHEDULE

Serial                                                        Prescribed                                            Area

                                                                 Authority

                                                      The Olowo of                                     The Owo

                                                 Owo                                                   District

                                                                                                            … Iyere

Having set down some of the relevant documents and laws, it can be seen as previously stated that the facts in this matter are not in dispute. The seven undisputed facts urged on this court during argument by Chief Babalola agree substantially with those, summarised by the learned trial judge in his judgment and upheld by the Court of Appeal. I think it is also beyond dispute that the 1st Respondent, the Olowo of Owo, had Legislative power to do what he did. The two main issues as earlier set down are whether he complied with the conditions precedent to the exercise of that power and whether in doing so he had violated the principles of natural justice.

As regards the first issue, I have no difficulty in accepting the submission of Chief Babalola that on a proper interpretation of Section 22 of the Chief s Law the conditions precedent to which he made reference, and which I have set down earlier, ought to be fulfilled before the Governor in Council can depose a Chief. Those preconditions to me accord with fairness and more specifically with one of the principles of natural justice – that no man ought to be condemned without hearing his own account of the dispute or matter in issue. I would also agree that if the conditions precedent must be observed by the Governor, his delegate, the Prescribed Authority, can

not be in a stronger position. Those conditions precedent must be observed before the Prescribed authority deposes a minor Chief. Opportunity to defend oneself is to my mind the same thing as opportunity of being heard. Although learned counsel to the respondents had referred to the case of Lagunju in his submission before us, I did not find it necessary to discuss the issue of Inquiry as prescribed by Section 21(1) of the Chiefs Law as the point on inquiry was not specifically taken in argument before us. Chief Babalola in my view indirectly dealt with it since this third precondition before deposition is opportunity of being heard in defence of the allegations. If I have to deal with Section 21 of the Chief’s Law under which the Governor in Council “may cause such inquiries to be held at such times and in such places and by such persons as he may consider necessary or desirable for the purposes of this law” I would say that what ever is its intendment is equally binding on the Prescribed Authority in the instant case. But having said that, I think it has to be pointed out that the inquiry postulated in Section 21 lies in the discretion of the Governor. More important, is that it is settled that the inquiry need not be a public one. It is sufficient in my view that the party has opportunity of being heard in defence of the allegations made against him. As Lord Normand said in Lagunju v. Olubadan-in-Council 12 W.A.C.A. 406 410

“The enquiry is not necessarily public enquiry, but it does imply that the parties to the dispute should be given an opportunity of being heard by the Governor as Judge between them that they be invited to attend and state their case.”

I am however not persuaded that in the instant case the 1st Respondent, Oba Ogunoye the Olowo of Owo, did not comply with those conditions. In a suit such as this in which there were no pleadings and issues were joined in various affidavits and counter-affidavits one must wade carefully through all the documents in order to come to a just decision. In this part of the case, Chief Babalola has concentrated his fire power on Exhibit “A”. But a careful study of that exhibit shows it does much more than warn the appellants to mend their ways. It drew attention to their misconduct both in relation to their failure to discharge their traditional duties as Chiefs and their disloyalty to the Olowo. Admittedly, it did not specify the particulars of the dereliction of traditional duties, but I am satisfied from a calm appraisal of the circumstances of this case that the appellants were fully aware of the duties involved. That clearly explains why they did not deem it necessary to ask for particulars in order to make their defence. Anyone who was minded to reply to a charge of dereliction of traditional duties would have asked for the particular duties in respect of which his conduct was being impugned.

In Exhibit A, the 1st Respondent also referred to the disloyalty of the appellants in sending an open letter to the Governor of Ondo State requesting for his deposition – a petition which was published in a national newspaper. I do not wish to make too much of this point but it ought to be appreciated that in the circumstances of the traditional chieftaincy institution in this country, there is a sense in which disloyalty by a minor chief to the traditional ruler can be regarded as a breach of his traditional duty as a chief. Further, in Exhibit A, the 1st Respondent gave the appellants one month within which to mend their ways. This in my view gave them ample

opportunity to perform their traditional duties as chiefs or if it was their contention that there was no question of their not performing these duties, to defend themselves of the charge that they were not. The appellants in my judgment had adequate notice of the allegations of misconduct against them as well as ample opportunity to make a defence. Rather than take this opportunity they replied through their Solicitor in the terms of Exhibit Y. It can be said that they put up their own conception of a defence. In effect they not only dubbed the allegation that they are guilty of dereliction of their traditional duties as a ruse, but in challenging the legality of the Olowo’s installation, they in effect suggested that he had no right to expect the performance of traditional duties or loyalty to his person. Even at the risk of repetition the salient portion of Exhibit Y said –

“In the view of our clients your allegations that our clients have failed to perform their traditional duties is a ruse to divert the attention of the government and the generality of the people from the real issue which are those of the legality or otherwise of the deposition of Sir Olateru Olagbegi and the legality or otherwise of your installation”

I find no basis for upholding the first complaint of the appellants.

The second complaint which is that the 1st Respondent violated the principles of natural justice is clearly more serious and more substantial. The principles of natural justice are part of the pillars that support the concept of the Rule of Law. They are an indispensable part of the process of adjudication in any civilised society. The twin pillars on which they are built are – the principles that one must be heard in his own defence before being condemned and that, put shortly, no one should be a judge in his own cause. As Lord Denning put it in the Privy Council case of Kanda vs. Government of Malaya (1962) A.C. 322 at 336, 337

“… Much of the argument before their Lordships and indeed before the courts in Malaya proceeded on the footing that this depended on this further question: Was there a “real likelihood of bias” that is “an operative prejudice, whether conscious or unconscious on the part of the adjudicating officer … In the opinion of their Lordships, however, the proper approach is somewhat different. The rule against bias is one thing. The right to be heard is another. Those two rules are the essential characteristics of what is often called natural justice. They are the twin pillars supporting it. The Romans put them in the two maxims: Nemo judex in Causa Sua: and Audi alteram partem. They have recently been put in the two words, Impartiality and fairness. But they are separate concepts and are governed by separate considerations”

I have already dealt with the question of the appellants being given a hearing and hold that they had ample opportunity. As regards bias or likelihood of bias, the common law has disqualified an adjudicator from adjudicating whenever circumstances point to a real likelihood that he will have a bias, by which is meant “an operative prejudice, whether conscious” R v. Queen’s Country JJ (1908) 2 I.R. 285, 294. This matter was extensively considered by this Court in State Civil Service Commission and Anor. and A. I. Buzugbe (1984) 7 S.C. 19 at 42,43 the circumstances of which are in some

ways analogous to the present case. There Aniagolu, J.S. C. concluded –

“The Head of Service was clearly a judge in his cause. He had breached the rule of natural justice that a person may not be a judge in his own cause (nemo judex in causa sua). And being a judge in his cause there was, in this case, a real likelihood of bias. The laws of all civilised countries accept this to be true. In OBADARA AND OTHERS VS COMMISSIONER OF POLICE (1964) N.M.L.R. 39 at 44 Brett, Ag. C.J.N. delivering the judgment of the Supreme Court, stated that –

‘The principle that a judge must be impartial is accepted in the jurisprudence of any civilised country and there are no grounds for holding that in this respect the law of Nigeria differs from the law of England or for hesitating to follow English decisions. In determining the likelihood of bias the Court looks at the impression which would be given to other people. In the instant appeal there was no positive evidence of the Head of Service being biased. This however, is not necessary. The facts and circumstances of the instant case on appeal impel me to conclude that it would be super-humanly impossible for the Head of Service to be free from bias”

Most of the cases considered in that judgment admittedly related to the judicial type situation i.e. proceedings in Court, but there is no doubt that the principles equally apply to quasi-judicial type situations such as in the instant case as well as to administrative law situations. In the latter case, if the adjudicators can normally be expected to preserve a detached attitude towards the parties and issues before them then “a departure from the standard of even handed justice which the law requires from those who occupy judicial office or those who are commonly regarded as holding a quasi-judicial office such as an arbitrator” ought not to be and will not be countenanced.

Franklin vs. Minister of Town and Country Planning 1948 A.C. 87, 103. To return to the facts of the instant case, there was clearly a real likelihood of bias. Indeed, the Olowo would have been super human if he was not biased. From the facts of the case the appellants had been challenging even the legality of his installation. They wrote an open letter to the authorities praying for his deposition. When he wrote them a letter of warning, back came a devastating reply totally refusing to acknowledge his authority.

In ordinary circumstances all these would have been enough to hold that he could not properly act in this case. But the law which empowered him to act i.e. W.S.L.N. 63 of 1967 seems to have been fully aware of such an eventuality yet the delegation was made. It is accepted that the common law disqualification for interest and bias may be waived. They may also be removed by statute by express words or necessary intendment, although courts tend to uphold the common law tradition if the statute is open to another construction. See Rice vs Commissioner of Stamp Duties 1954 A.C. 216, 234. It seems to me that we are here dealing with a disqualification removed by subsidiary legislation at least by necessary intendment and I see no room for a contrary construction. Besides, it is also settled that a person who is prima facie disqualified for interest or bias may be held on grounds of necessity, competent and obliged to adjudicate if no other duly qualified tribunal can

be Constituted.

In this case although Section 22(3) (b) of the Chiefs Law recognised the right of the Governor in Council to act notwithstanding the delegation, the Governor appeared unwilling to act if one examines the reply sent to the appellants from his office on this Chieftaincy dispute dated 13th May 1980. Indeed, in that letter the Governor wrote that –

“This is purely a matter between a Prescribed Authority and his Chiefs over whom the Prescribed Authority exercises authority under the law.”

Finally, learned Counsel to the Appellants, Chief Babalola contended that the powers conferred on the Olowo of Owo by the Prescribed Authorities (Delegation of Powers) (No.l) NOTICE 1967 are contrary to the provisions of Section 33(1) of the Constitution of the Federal Republic of NIGERIA 1979 as amended by the Constitution (Modification and Suspension) Decree No. 1 of 1984. Section 33(1) of the Constitution provides as follows.-

      “In the determination of his civil rights and obligations including any question or determination by or against any government or authority a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality”. (Italics mine)

The argument is clearly that in adjudicating on the rights of the appellants in the instant case the 1st Respondent can hardly be said to be independent or impartial. It was therefore contended that the appellants have been denied fair hearing guaranteed by that provision of the Constitution.

The short answer to this complaint I am afraid can be found in Section 33(2)(a) of the Constitution. That subsection provides as follows:

“(2)  Without prejudice to the foregoing provisions of this Section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may effect the civil rights and obligations of any person if such Iaw- (a) provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person”

There is hardly any need to repeat the decision I have read that such an opportunity was given to the appellants in the instance case.

It remains for me to add, purely for avoidance of any doubt, that this judgment is not concerned with the merit or otherwise of the case of the deposed Ex-Olowo of Owo, Sir Olateru Olagbegi, nor is my decision concerned with the intensity of feelings of the appellants in this matter. One is concerned with the peripheral question whether the appellants ought to remain in office as traditional Chiefs of Owo and yet refuse to acknowledge the authority of the 1st Respondent who at least for now is the Olowo of Owo recognised by the appropriate authorities, and the main question whether the 1st Respondent has in accordance with the correct principles of law exercised the powers given him under W.S.L.N. 63 of 1967 such that orders of certiorari and Prohibition ought not to be granted.

Nothing that the appellants have urged before this Court has persuaded

me that the Ondo State High Court and the Court of Appeal, Benin Judicial Division, were wrong in their decisions in this suit. In the result, this appeal must fail and it does fail. It is accordingly dismissed. I award N300 costs to the Respondents.

BELLO, J.S.C. (Presided): I have had the advantage of reading in draft the judgment just delivered by my learned brother, Nnamani, J.S.C. For the reasons so ably stated therein, I would also dismiss the appeal and it is dismissed with N300 costs to the Respondents.

I would only reiterate that in ordinary circumstances the rule of natural justice that a person may not be a judge in his cause would disqualify/the Olowo of Owo from exercising the powers conferred on him by the Prescribed Authorities (Delegation of Powers) (No. 1) Notice 1967 to depose the Appellants as chiefs. The evidence clearly shows that the appellants had been disloyal to him and had challenged his appointment as the Olowo of Owo. Hence there was a real likelihood that he would have a bias against the Appellants and would not be an impartial adjudicator. However, because of the special circumstances of the instant case, the rule of natural justice must give way to the rule of necessity. By virtue of section 22(3)(b) of the Chiefs Law and the Prescribed Authorities (Delegation of Powers) (No. 1) Notice 1967 only the Governor in Council and the Olowo of Owo have the power to take disciplinary action against the Appellants for their dereliction of traditional duties as Chiefs. The letter of 13th May, 1980, Exhibit X, discloses that the Governor in Council was not willing to intervene as the Governor was of the view that the matter was purely between the Olowo of Owo and his Chiefs over whom the Olowo of Owo exercises authority under the Laws. That being the case, if the Olowo of Owo had disqualified himself from taking action on the ground that he ought not be a judge in his cause, the dereliction of traditional duties as Chiefs by the Appellants and their recalcitrant indiscipline would have continued unabated. The rule of necessity permits an adjudicator to be a judge in his cause if his participation is absolutely necessary to arrive at a decision. Thus in its decision of 15th December, 1980 the Supreme Court of the United States of America invoked the rule of necessity and nullified as unconstitutional two statutes by which Congress had reduced the salaries of Federal judges including the Justices of the Supreme Court: see Handout Court Administration Divider 14 (Watts) reported in San Francisco Chronicle of 16th December, 1980. The official report is not available, here yet.

OBASEKI, J.S.C.: I have had the advantage of a preview of the draft of the judgment just delivered by my learned brother, Nnamani, J.S.C. I agree with him that the appeal lacks merit and should be dismissed.

The deposition of Sir Olateru Olagbegi from the High Office of Olowo of Owo, the traditional ruler of Owo by the Government of Western Nigeria left a bitter taste in the mouth of the appellants who are traditional chiefs of the Olowo of Owo in Owo. They however did not retire from their traditional chieftaincy titles when the 1st respondent was appointed and installed as Olowo of Owo in succession to Sir Olateru Olagbegi. They were however unable to conceal their displeasure. They became non-co-operative, discontinued

performance of their traditional duties and exhibited behaviours bordering on disloyalty to the 1st respondent who was their Oba. Peace initiative by the 1st respondent yielded temporary result but by 5th April, 1984, the respondents addressed a joint letter to the Government of Ondo State praying for the removal of the 1st respondent and for an enquiry into the deposition of Sir Olateru Olagbegi.

When the letter of warning Exhibit A calling for a change of heart failed to soften their attitude but instead hardened their resolve the 1st respondent who had been appointed the Prescribed Authority exercised his disciplinary power and deposed each of the 7 appellants by letter Exhibits B, Bl, B2, B3, B4, B5 and B6 and appointed the 2nd to 7th respondents to the traditional offices rendered vacant by the deposition. The appellants then instituted these proceedings for Orders of Certiorari and Prohibition against the respondents in the High Court. As the facts have been fully set out in the judgment of my learned brother, Nnamani, JSC. I need not go further into the details. The grounds for the two reliefs claimed are:

(1)That Oba Ogunoye, the Olowo of Owo acted without jurisdiction, illegally and in excercise of his powers as a prescribed authority by purporting to depose the 1st to 6th applicants who are recognised chiefs under Part II of the Chiefs Law Cap 19 of the Western Region of Nigeria applicable in Ondo State when such powers could only be exercised by the Governor in Council.

(2)That in the alternative, Oba Ogunoye violated the rules of Natural Justice and the conditions precedent to the exercise of the powers of deposition under section 22 of the Chief Law Cap 19 of the Western State applicable in Ondo which by the composite effect of section 21 and 22 of the said law necessarily imposes a duty of conducting an inquiry and or acting judicially.

3.That Oba Ogunoye the Olowo of Owo acted ultra vires its powers under the Chieftaincy Law by failing to comply with the conditions stipulated by sections 21 and 22 of the Chieftaincy Law.

Dr. Akintan, J., dismissed the applications in a well considered judgment. The appeal to the Court of Appeal was equally unsuccessful and hence this appeal. The two main issues for determination in the Court of Appeal and before this Court are:

(1)whether the 1st respondent who was the subject of the attack in the letter of 5/4/80 and who wrote Exhibit A alleging disloyalty to him can sit in judgment over the appellants;

(2)whether the conditions precedent to the deposition of a chief have been satisfied.

Learned counsel for the appellants highlighted the position of the 1st respondent as prosecutor and judge thereby breaching the Rules of Natural Justice that man shall not be judge in his own cause nemo judex in causa sua protest as well as section 33(1) of the Constitution of the Federal Republic of Nigeria.

This Court has considered extensively this issue recently in the case of State Civil Service Commission v. Buzugbe (1984) 7 SC. 19 at pages 25, 26 and 27.

Mr. Olutunfese, learned counsel for the respondents submitted that the

performance of their traditional duties and exhibited behaviours bordering on disloyalty to the 1st respondent who was their Oba. Peace initiative by the 1st respondent yielded temporary result but by 5th April, 1984, the respondents addressed a joint letter to the Government of Ondo State praying for the removal of the 1st respondent and for an enquiry into the deposition of Sir Olateru Olagbegi.

When the letter of warning Exhibit A calling for a change of heart failed to soften their attitude but instead hardened their resolve the 1st respondent who had been appointed the Prescribed Authority exercised his disciplinary power and deposed each of the 7 appellants by letter Exhibits B, Bl, B2, B3, B4, B5 and B6 and appointed the 2nd to 7th respondents to the traditional offices rendered vacant by the deposition. The appellants then instituted these proceedings for Orders of Certiorari and Prohibition against the respondents in the High Court. As the facts have been fully set out in the judgment of my learned brother, Nnamani, JSC. I need not go further into the details. The grounds for the two reliefs claimed are:

(1)That Oba Ogunoye, the Olowo of Owo acted without jurisdiction, illegally and in excercise of his powers as a prescribed authority by purporting to depose the 1st to 6th applicants who are recognised chiefs under Part II of the Chiefs Law Cap 19 of the Western Region of Nigeria applicable in Ondo State when such powers could only be exercised by the Governor in Council.

(2)That in the alternative, Oba Ogunoye violated the rules of Natural Justice and the conditions precedent to the exercise of the powers of deposition under section 22 of the Chief Law Cap 19 of the Western State applicable in Ondo which by the composite effect of section 21 and 22 of the said law necessarily imposes a duty of conducting an inquiry and or acting judicially.

3.That Oba Ogunoye the Olowo of Owo acted ultra vires its powers under the Chieftaincy Law by failing to comply with the conditions stipulated by sections 21 and 22 of the Chieftaincy Law.

Dr. Akintan, J., dismissed the applications in a well considered judgment. The appeal to the Court of Appeal was equally unsuccessful and hence this appeal. The two main issues for determination in the Court of Appeal and before this Court are:

(1)whether the 1st respondent who was the subject of the attack in the letter of 5/4/80 and who wrote Exhibit A alleging disloyalty to him can sit in judgment over the appellants;

(2)whether the conditions precedent to the deposition of a chief have been satisfied.

Learned counsel for the appellants highlighted the position of the 1st respondent as prosecutor and judge thereby breaching the Rules of Natural Justice that man shall not be judge in his own cause nemo judex in causa sua protest as well as section 33(1) of the Constitution of the Federal Republic of Nigeria.

This Court has considered extensively this issue recently in the case of State Civil Service Commission v. Buzugbe (1984) 7 SC. 19 at pages 25, 26 and 27.

Mr. Olutunfese, learned counsel for the respondents submitted that the

obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person;

(b)contains no provision making the determination of the administering authority final and conclusive.

And subsection 1 reads:

“in the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

Exhibit A. the letter of warning served on each of the appellants is not a conviction as contended by the appellants. It drew the attention of the appellants to the allegations against each of them and advised each of them to mend his default. This is obvious from paragraph 4 of Exhibit A where the prescribed authority said:

“By this letter, I hereby give you a final warning to desist from acts of disloyalty to me and dereliction of traditional duties. I am willing to give you up to a month from the date of this letter to mend your ways failing which I may be compelled to exercise the powers conferred on me as Prescribed Authority and to impose upon you appropriate disciplinary measures as may be deemed necessary to peace, order and good government in the Owo community.”

There is no doubt about the need to observe the audi alteram partem rule. A letter issuing from the prescribed authority drawing attention to the charges against the appellants is sufficient notification of the charges and the 30 days period given to mend their ways is an offer of an opportunity to be heard. Exhibit Y written by the appellants’ solicitor fulfils no role than that of a defence in the matter. It is only unfortunate that the content of Exhibit Y was a challenge as to the competence of the 1st respondent to sit on the throne and to be the prescribed authority instead of setting out facts constituting a defence to the allegations of dereliction of duty and disloyalty to the throne. There was a total failure to realise that the traditional offices or chieftaincy titles are a creation of the Olowo of Owo. The appellants totally failed to make representation envisaged under section 33(1) of the Constitution of the Federal Republic of Nigeria 1979.

Unlike the State Civil Service Commission and Anor. v. A.I. Buzugbe (1984) 7 SC. 19, the appellants have been offered an opportunity of a hearing. I would say they were given a hearing.

For the above reasons and the reasons so ably stated by my learned brother, I would and I hereby dismiss the appeal and affirm the decision of the Court of Appeal with costs to the respondents fixed at N300.00.

KARIBI-WHYTE, J.S.C.: I have had a preview of the judgment of my learned brother Nnamani, JSC., in this appeal. I am unable to agree with the conclusions reached on the interpretation of the agreed facts and their application to the well settled rules of natural justice, entrenched in S. 33 of the

Constitution 1979. Our views, being irreconcilably different, I consider it desirable to express mine at some length. This, I now proceed to do.

This is an appeal from the judgment of the Court of Appeal, Division Benin City dismissing the appeal of the present appellants against the ruling of the Hon. Justices. A. Akintan at Akure, delivered on the 3rd day of July, 1980. Appellants were the applicants in the Akure High Court, where leave was sought to apply for an order of certiorari to quash the order of deposition issued by Oba Alaiyeluwa Ogunoye, the Olowo of Owo, made under Section 22 of the Chiefs Law, Cap. 19. The application also asked for an order of prohibition restraining certain other persons appointed in their places from parading themselves as minor chiefs in place of the appellants/ applicants. The application ex parte for leave to bring the application for certiorari and prohibition were granted. The application was after argument refused. Applicants appealed to the Court of Appeal. The Court of Appeal unanimously dismissed the appeal.

The points of law involved in this appeal are of considerable practical importance. The several grounds of appeal filed fall within two well settled principles, namely:

(a)whether section 22 of the Chiefs Law, Cap. 19 is not affected by the provision of the Constitution requiring fair hearing.

(b)whether the 1st respondent was not guilty of bias in the exercise of powers vested in him under S. 19 of the Chiefs Law.

The most important evidence in this appeal are the letters Exhibits A, “B1”- “B3” written by the 1st respondent purporting to warn and subsequently to depose the appellants. It is also critically relevant and for a better understanding of the issues involved in the argument to set out the other undisputed salient facts which led to the action of the appellants. The 1st respondent was appointed and installed Olowo of Owo after the deposition of his- predecessor Sir Olateru-Olagbegi. All the applicants/appellants are minor chiefs who received monthly stipends and were loyal, and from the averments in their affidavit, are still loyal to the deposed Olowo of Owo. All the applicants/appellants are still minor chiefs under the 1st respondent who is now the Olowo of Owo. The appellants wrote on 5/4/80, an open letter published in the Daily Times which is a National Newspaper to the Governor of Ondo State, demanding inter alia the removal of the 1st respondent as the Olowo of Owo, on the ground that his installation was contrary to the customs and tradition of Owo having been made in the lifetime of another Olowo. On the 11/4/80,1st respondents issued letters of warning (Exhibit A) individually to each of the appellants. ‘The letter accused appellants of acts of disloyalty and dereliction of traditional duties. On the 29/4/80, the seven appellants through their Solicitor sent a reply presumably, to the warning by the 1st respondents; (Exhibit Y). On the 15th May, 1980, the 1st respondent wrote to each of the appellants (Exhibits B to B3) conveying to appellants his decision that they have been deposed from their respective chieftaincy titles.

It is not disputed that the Olowo of Owo, is the Prescribed Authority within the meaning of section 18 of the Chiefs Law, Cap. 19 and has disciplinary powers over all the appellants. (See W.S.L.N. 63 of 1967, and by virtue of S.22(l)(2) of the Chiefs Law, Cap. 19). Before the High Court, the appellants sought by certiorari to quash the letters of deposition (Exhibit A) on

the grounds that the 1st respondent acted without jurisdiction, and in excess of his authority as a Prescribed Authority, when such powers in respect of appellants can only be exercised by the Governor-in-Council. It was also contended that the 1st respondent violated the rules of natural justice and the conditions precedent to the exercise of the powers of deposition under section 22 of the Chiefs Law, Cap. 19.

A total of eight grounds of appeal were filed and argued in the Court of Appeal. The grounds argued range from the High Court taking judicial notice of respect and loyalty of a subordinate chief to his Oba, reliance on book of authority not tendered in Court, issue of fair hearing, bias and jurisdiction. The Court of Appeal after hearing argument of Counsel dismissed the appeal.

The Court of Appeal held that on the evidence before him, the learned Judge correctly held that appellants were afforded fair hearing, that is, they were given the opportunity of being heard, and had in fact been heard. The Court accepted the view of the learned Judge that the letter of warning by the 1st respondent to the appellants (Exhibit B – B3) asking them to mend their ways constituted an opportunity for them to answer the allegations against them. Furthermore, the reply to 1st respondent by the appellant (Exh. Y) was regarded an answer to the charges. Consequently, in the absence of any procedure prescribed in S.21(l) of the Chiefs Law, the Court of Appeal accepted the view of the trial Judge that the provisions of S.21(l) have been satisfied and that constituted compliance with-the rules of natural justice.

On ground 2, the Court of Appeal held that the question of disloyalty of the appellants was an issue in the deposition of the appellants having been mentioned in the letter of warning to them by the 1st respondent.

On grounds 3 and 6 which concerned the issue of bias, the Court of- Appeal agreed with the trial Judge that lack of cordiality did not necessarily result in bias. It was however not found in actual fact in this case on the facts whether1 there was a likelihood of bias. On ground 4, it was held that the learned trial Judge was right to take judicial notice of the ordinary rule of loyalty between the subordinate chief and his Oba. Ground 5 concerned the question of the jurisdiction of the 1st respondent to depose appellants. It was held that the power vested in the 1st respondent by S. 18(1) and S.22(3)(c) of the Chiefs Law included the power to remove them in respect of such offices. On ground 6 which complains of the absence of a hearing, the Court of Appeal held that in the appeal in hand an ordinary inquiry was not necessary. The Court of Appeal accepted the view of the trial Judge that “the only conditions which can be required are that the Oba or Prescribed Authority should acquaint the minor chiefs of the charges against them and give them an opportunity of defending themselves”. Appellants have filed seven grounds of appeal against the judgment.

Counsel to the respondents in this Court, raised a preliminary objection seeking to strike out grounds 1,3 and 7 of the grounds of appeal as consisting of either entirely of facts or mixed law and facts, without leave having first been obtained incompliance with section 213(3) of the Constitution. After arguments on the objection, we ruled that grounds 1, 5 and 7 offend against the provisions of the Constitution and should be and were accordingly struck out. Consequently, grounds 2, 3, 4 and 6 survive for the purposes of this.

appeal. The grounds of appeal are reproduced below for ease of reference –

“2.       The learned appellate Judges erred in law in the interpretation they placed on sections 18 and 21 of the Chiefs Law and Section 33(1) and (3) of the constitution to the effect that only the commissioner is expected to hold a public enquiry in a matter affecting a Chief when the combined effect of the said sections lead only to the conclusion that such public enquiry should be held by the commissioner or any person to whom the powers of the commissioner have been delegated.

“3.         The appellate Judge erred in law in holding that by the letter of warning EXHS A and AD, the 1st respondent gave opportunity to the appellants to defend themselves on charges of disloyalty or non-performance of traditional duties when in the said letters of warning the 1st respondent had pre-determined the guilt of the appellants and there were no particulars given of the charges of disloyalty and traditional duties alleged.

“4.         The learned appellate Judges erred in law when they held as follows:

“I do not for a moment think that in the process of effecting discipline among Iris minior chiefs, the Olowo can be said to be exercising a quasi judicial function stricto sensu. If the answer is otherwise who are the parties between whom he is expected to adjudicate? If an authority is expressly empowered to exercise supervisory control and maintain discipline among his subordinates it is absurd to expect that authority to abdicate the very function which is perhaps one of the reason why he is given the power and authority simply because in exercising that function he may be said to be acting in a judicial capacity. In administrative law situations, the decision maker is not necessarily in the position of a detached arbiter. The administration of internal discipline is apt to present special problems. Those who have to make decisions can hardly be expected to insulate themselves from the general ethos of the Mileu in which they operate. When 1st respondent as a Prescribed Authority was in -law bound to comply with section 21 of the Chiefs Law which imposes a duty to act judicially or quasi judicially.

6.The learned Judges of appeal erred in law to have dismissed grounds 5 and 6 of the appear when they held that appellants had waived their rights to complain about bias on the ground that the appellants did not clearly object to adjudication by the 1st Respondent or that the standard of impartiality imposed on an independent tribunal is inapplicable to the 1st respondent in deposing the appellants whom they equated with an administrator exercising internal discipline.

Counsel to the parties in this appeal have filed their briefs of arguments which they relied upon before us. They have where necessary elaborated by oral addresses on their briefs of argument. The questions for determination in this appeal as formulated in the briefs of argument consist of the issues of

(a)Bias on the part of the 1st respondent who is the centre of controversy;

Whether appellants were given a fair hearing before they were deposed;

(c)Whether 1st respondent was obliged to hold an inquiry before there can be a compliance with section 21 of the Chiefs Law in view of S.33 of the Constitution.

It is pertinent to bear in mind, that this appeal originated from an application for a certiorari seeking to remove into the High Court and to quash the exercise of the 1st respondent of the power vested in him by S.22 of the Chiefs Law to depose the appellants as minor chiefs. It is therefore concerned with errors on the face of the authority exercised. The letter of deposition issued by the 1st respondent is reproduced hereunder as follows –

“OBA ALAIYELUWA OGUNOYE II, J.P.

THE OLOWO OF OWO

Please quote our Ref. No.

Your Ref  ………………….

Our Ref. No. CL.336/126

THE AFIN-OBA-OLOWO

OWO

Ondo State of Nigeria.

15th May, 1980

Chief Joseph Ajidasile Olakunori,

The Oshere of Ehin-ogbe Quarters,

Owo.

u.f.s.             The Secretary,

Owo Local Government,

Owo.

LETTER OF DEPOSITION AS CHIEF OSHERE OF

EHIN-OGBE QUARTERS

Please refer to my letter of warning No. OL.336/115 of 11th April, 1980 in respect of which there has been no change of attitude as regards the performance of your traditional duties.

2.Therefore, in the exercise of the powers conferred on me by the Prescribed Authorities (Delegation of Powers) No. 1 Notice 1967, and by virtue of all other powers enabling me in that behalf, I, OBA ALAIYELUWA OGUNOYE II THE OLOWO OF OWO hereby depose you Joseph Ajidasile Olakunori from the Chieftaincy of Oshere, Ehin-Ogbe Quarters, in Owo Local Government Area. You are also commanded to vacate the Official residence of the Oshere of Ehin- Ogbe Quarters, Owo immediately.

3.Dated this 15th day of May, 1980.

4.Copies of this letter are being endorsed to the Secretary, Ondo State Government and the Secretary, Owo Local Government for their information and necessary action.

(SGD.) OBA LAIYELUWA OGUNOYE II J.P.

The Olowo of Owo

Prescribed Authority

    This is the Exhibit B1 referred to in the further affidavit sworn to by Chief Joseph Ajidasile Olakunri this … day

of ……. 1980

BEFORE ME

COMMISSIONER FOR OATHS

CR.116175 26/5/80.”

By virtue of S.18(l) of the Chiefs Law Cap. 19, the 1st respondent was appointed the Prescribed Authority in respect of appointment and deposition of minor chiefs within his authority. Apart from the functions of approving the appointments of minor chiefs, – S.18(l), and determining in cases of dispute whether a person has been appointed to a minor chieftaincy in accordance with customary law, – S. 18(3), the Prescribed Authority is vested with the powers of the governor, of suspension and deposition, according to customary law of minor chiefs whose chieftaincy titles are within the area of his authority. – See the Prescribed Authorities (Delegation of Powers) (No. 1) Notice, 1963, W.S.L.N. 63 of 1967 made under the powers conferred by S.22(3)(a) of the Chiefs Law.

It is not disputed that 1st respondent is the Prescribed Authority for the native communities in which all the appellants are minor chiefs. It is therefore incontestable that 1st respondent is vested with legal authority to exercise the powers of suspension and deposition under S.22(l) delegated to him by virtue of the Prescribed Authorities (Delegation of Powers) (No. 1) Notice, 1967. What appellants challenge is the correct exercise of the power.

I think it is convenient for the purpose of this judgment to consider together grounds 2&3 of the grounds of appeal which deal with the issue of audi alteram partem. I have already reproduced the grounds of appeal. Counsel to the appellant has relied on section 33(1) and (3) of the Constitution 1979 and has submitted that there is nothing in the language of the constitutional provision which exempts the Prescribed Authority from its observance. Counsel argued that the responsibility of holding a public hearing envisaged by section 33 is not excluded by sections 18 and 21 of the Chiefs Law. It was submitted that the provisions of section 18(5) and (6) of the Chiefs Law relied upon by the Court of Appeal applied to situations where a deposed chief petitions the Commissioner against his deposition by the Prescribed Authority; appellants contention relate to acts of the Prescribed Authority precedent to their deposition. Finally, it was submitted that since the Prescribed Authority was exercising a delegated power he is obliged by law to exercise the power in the same manner as the donor of the power. Counsel cited and relied upon Chief Eze Orisakere v. Imo State Governor & Ors. (1982) 3 NCLR. 743; The Queen v. Administrator of Western Nigeria, Ex parte Adebo (1962) WNLR. 83.

Counsel to the respondents in his submission supported the judgment appealed against. He contended that the Prescribed Authority was not expected to hold an inquiry of a Public Nature since the question of inquiries is by S.18(5) and (6), the duty of the Commissioner. It was submitted that the 1st respondent acquainted appellants with the charges against them and gave them an opportunity to defend themselves. This it was argued satisfied the requirements of natural justice. Furthermore, it was submitted that S.33(2)(a)(b) of the Constitution provides for the cases where representation

can be made in respect of the decision challenged, and appellants still had the opportunity to make such representations in accordance with section 22(3)(c) of the Chiefs Law. Finally, it was submitted that S.21 of the Chiefs Law having not prescribed the procedure for holding of the inquiry, the section is satisfied if the parties to the dispute are given an opportunity of being heard. – Lagunju v. Olubadan-in-Council, 12 WACA. 406, Queen v. Ex parte Kasali Adenaiya (1962) 1 All NLR 300 were cited.

A proper understanding of the application of the provision of S.33 of the Constitution relating to fair hearing requires a careful interpretation of tile provisions of the Chiefs Law with respect to the exercise of the Prescribed Authority of his powers actual and delegated. It is clear from S.18(2)(3)(4) that the powers of the Prescribed Authority with respect to minor chiefs is limited to the approval of their appointment, and determining disputes whether a person has been appointed in accordance with customary law to a minor chieftaincy.

Section 18(2)(3)(4) provide as follows –

“(2) Where a person is appointed, whether before or after the commencement of this Law, to fill a vacancy in the office of a minor chief by those entitled by customary law so to appoint and in accordance with customary law, the prescribed authority may approve the appointment.

(3)  Where there is a dispute whether a person has been appointed in accordance with customary law to a minor chieftaincy the prescribed authority may determine the dispute.

(4)  The decision of the prescribed authority –

(a)to approve or not to approve an appointment to a minor chieftaincy; or

(b)determining a dispute in accordance with sub-section (3) of this section,

shall be final and shall not be questioned in any court.”

The power of suspension and deposition of any chief is vested in the Governor-in-Council or the appropriate Minister as the case may be.

These powers have now been delegated to the Prescribed Authority who can now in respect of minor chiefs suspend or depose such chiefs in accordance with Section 22(1) and (2) of the Chiefs Law.

I am persuaded by the submission of Counsel to the appellants that the Prescribed Authority exercising a delegated power was expected to exercise such powers in the manner the donor would have exercised it. The Court of Appeal held that it is the Commissioner and not the Prescribed Authority that is required to hold an inquiry of a public nature and that “it cannot be presumed that two sets of inquiry are predicated by the Chiefs’ Law in respect of the same subject matter.” This is a clear misunderstanding of the provisions. It seems obvious from my analysis above of the scope of the powers of the Prescribed Authority that the only power to suspend or depose a minor chief exercised is one under delegation. It follows therefore that Unless otherwise provided the exercise of such power must be in accordance with the power vested in the donor of such power. By section 21 of the Chiefs Law, it is provided that in respect of the suspension or deposition of chiefs, that such inquiries may he held at such-times and in such places and by such person or persons as may be considered necessary or desirable for the purpose of the law.


I must add in clarification that S.18(5) relied upon by the Court of Appeal is inappropriate and unmistakeably relate to grievances concerning appointments of minor chiefs and disputes with respect to whether a person has been appointed in accordance with customary law. The provisions of section 18(2)(3)(4) already reproduced and discussed are unambiguous in respect of the matters intended. The question involved in the application for certiorari before the learned judge is not whether appellants were validly appointed as minor chiefs, or whether they have been appointed in accordance with customary law. The issue is whether they have been validly deposed in compliance with the provisions of the Chiefs Law. It is unarguable on the interpretation of the provisions that whether a minor chief or a chief has been validly suspended or deposed can only be determined by ascertaining whether there has been compliance with the provisions of section 21 of the Chiefs Law which prescribes an inquiry as a condition precedent to such suspension or deposition. It was argued by Counsel for the respondents relying on Queen v. Governor-in-Council, Western Nigeria, Ex parte Kasali Adenaiya (1962) 1 All NLR. 300, 306 and Lagunju v. Olubadan-in-Courtcil 12 WACA. 406 that since S. 21 has laid down no special procedure for holding inquiry, it was sufficient if the principles of natural justice was observed. This view seems to me quite correct and accords with the contention of appellants. Section 21(1) provides for the holding of inquiries. Section 21(2) makes the provisions of the First Schedule to the Local Government Law applicable in relation to an inquiry under that Law applicable to this case. The provisions of the First Schedule to the Local Government Law are concerned with the powers of the person appointed to hold an inquiry to procure evidence and call witnesses and matters related thereto. The presumption therefore is that the person implicated in the inquiry is to be heard before a finding adverse to him is made. There is no doubt that the appointments or offices held by appellants are subject to rights, the deprivation of which extinguishes such right. A decision to deprive appellants of their appointments is a determination of their civil rights in respect of which they are entitled to be heard in accordance with the provisions of the Constitution. The right to fair hearing is entrenched in Section 53 of our Constitution. The relevant part of Section 33 of the Constitution provides as follows –

“33(1)    In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

(2)       Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law –

   (a)provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person;

(b)contains no provision making the determination of the administering authority final and conclusive.

(3)   The proceedings of a court of the proceedings of any tribunal relating to the matters mentioned in subsection (1) of this section (including the announcement of the decisions of the court or tribunal) shall be held in public.”

It was the contention of the respondents that due inquiries is not necessarily public inquiry. It was however submitted that the letter of warning (Exh. A) which was written to the appellants by the 1st respondent contained the charges against them, and their joint reply to the warning (Exh. Y) was their answer. It was accordingly concluded that the appellants were given opportunity to be heard, and had made their answer to the allegations against them, even if their answer was a reaffirmation of the allegations against them.

The principles enshrined in section 33 above represent an indispensable corner stone of the well settled rules of the principles of natural justice which must be observed in every determination affecting the rights of citizens. See Ridge v. Baldwin (1964) AC. 40, 75 – 76, Hart v. Military Governor, Rivers State (1976) 11 SC. 211 at p. 238, Falomo v. Lagos State Public Service Commission (1977) 5 Sc. 51 at p. 61. In Bonaker v. Evans (1850) 16 QB. 162 at p. 171 Baron Parke stated the rule as follows –

“No proposition can be more clearly established than that a man cannot incur the loss of liberty or property for an offence by a judicial proceeding until he has had a fair opportunity of answering the case against him, unless indeed the Legislature has expressly or impliedly given an authority to act without that necessary preliminary.” See also Gokpa v. IG. of Police (1961) 1 All NLR. 423 Ariori & Ors. v. Elemo & Ors. (1983) 1SC. 13 at pp. 22, 24.

It seems obvious from the provisions of section 21 of the Chiefs Law that the Legislature did not intend that the decision to depose a chief should be taken without the person affected, being heard in defence of the reasons for his deposition. Section 21 of the Chiefs Law Cap. 19 provides as follows

“The Executive Council or the Commissioner, as the case may be, may cause such inquiries to be held at such times and in such places and by such person or persons as it or he may consider necessary or desirable for the purposes of this Law.”

It is fairly difficult, if not impossible, to accept the proposition by the learned trial judge and the Court of Appeal, and strongly relied upon by the 1st respondents that the letter of warning to the appellants advising them to be of good behaviour was in itself the letter of information accusing them of the offences in respect of which they were found guilty and subsequently deposed. This reasoning is clearly in conflict with the known and accepted semantic meaning of the word “warning”. A warning presupposes guilt of some wrong doing, and clemency in lieu of the requisite penalty, a proper understanding of the purport of the letter of warning requires a cursory reading of the warning letter dated 11th April, 1980 which is reproduced hereunder.

“OBA ALAIYELUWA OGUNOYE II J.

THE OLOWO OF OWO.

Please quote our Ref. No.

Your Ref …….. 

” Our Ref. 01.336/117

THE AFIN-OBA-OLOWO OWO

Ondo State of Nigeria

11th April, 1980

Chief Abraham Ojo Olakunori,

The Elerewe of Igboroko Quarters,

Owo.

The Secretary,

Owo Local Government,

Owo.

LETTER OF WARNING

You will remember that in March, 1976 you were deposed following your persistent failure to perform the traditional duties attaching to your office as Chief Elerewe even though you have regularly received your monthly stipend as a traditional Chief. Your Deposition Order was subsequently revoked in October that year when you promised to repent and to perform the traditional functions of your office as Chief Elerewa. I regret to observe that since that time you have failed to fulfil your promise and you have failed to perform your traditional duties.

2.The matter of your continued failure to honour your obligations as Chief Elerewe reached the point when the Special Adviser on Chieftaincy Matters, Chief S.A. Okeya came to Owo to reason with you to Tuesday, 29th January, 1980. It is unfortunate that his appeal fell on deaf ears and you continued to defy and breach Owo custom and tradition.

3.To crown this long and persistent act of dereliction of your traditional duties, you joined in sending an Open Letter to the Governor of Ondo State calling for my removal as the Olowo of Owo. This letter was published in the Daily Times issue of Saturday, 5th April, 1980. I consider this an act of disloyalty to me as your paramount traditional ruler.

4.By this letter, I hereby give you a final warning to desist from acts of disloyalty to me and dereliction of your traditional duties. I am willing to give up to a month from the date of this letter to mend your ways, failing which I may be compelled to exercise the powers conferred on me as Prescribed Authority and to impose upon you appropriate disciplinary measures as may be deemed necessary for peace, order and good government in the Owo community.

(Sgd.) Oba Ogunoye II J.P.

The Olowo of Owo

Prescribed Authority.

This is the Exhibit A referred to in the further affidavit sworn to by Chief Joseph Ajidosile Olakunri this 26th day of May. 1980.

BEFORE ME

(SGD.) B. AFOLABI

COMMISSIONER FOR OATHS

CR. 116175

26/5/80.

(Exhibits B1-B3, are in respect of the other appellants).

Exhibit A which is self explanatory complains of alleged wrong doings of the appellants accepted as such by the 1st respondent, and concluded by threatening as follows – in paragraph 4.

4.By this letter, I hereby give you a final warning to desist from acts of disloyalty to me and dereliction of your traditional duties. I am willing to give you up to a month from the date of this letter to mend your ways, failing which I may be compelled to exercise the powers conferred on me as Prescribed Authority and to impose upon you appropriate disciplinary measures as may be deemed necessary for peace, order and good government in the Owo Community.”

It is clear from the above that 1st respondent was at this point, before hearing appellants, satisfied that appellants were guilty of acts of disloyalty and of dereliction of their traditional duties. There is no evidence that before 1st respondent became so satisfied he had formally accused appellant of these wrong doings and had heard their answers in their own defence. The words of the warning letter do not suggest that appellant were required to clear any doubts, (if any, and it did not disclose any) which 1st respondent then had of their guilt of the allegations against them. It is accepted that where the Prescribed Authority, is satisfied after hearing appellants in defence of the allegations against them, that grounds exist of their guilt, of course he is within his powers to depose them if such deposition is required by customary law or is necessary in the interests of peace or order or good government. In my opinion, the satisfaction that such grounds exist is a condition precedent to the exercise of the power of deposition. The power of deposition can in my opinion be only validly exercised where –

(a)after a determination of the existence of grounds which admit of specification of particulars in respect of the chief. When the deposition is alleged to be required by customary law, it is fairly easy to spell out such contraventions of customary law, or the rule of customary law which requires his deposition. Similarly, where a deposition is justified in the interests of peace, order and good government, how he has so offended,

(b)that his explanation of the allegations against him are not satisfactory and not acceptable. In Ariori & Ors. v. Elemo & Ors. (1983) 1 SC. at 24, Obaseki. J.S.C. said, “Fair hearing, therefore must mean a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause.”

If it is otherwise, and if the Prescribed Authority can depose a chief without observing the rules relating to fair hearing, it tantamounts to the suggestion that the chief holds his appointment at the will of the Prescribed Authority, and could be deposed without any wrong doing. This is clearly in conflict

with the rights of the citizen entrenched in S. 33(1) of the Constitution to which the exercise of the powers are subject. The crucial question in this appeal is whether appellants were heard in accordance with the constitutional provisions? It has been submitted, and I accept that due inquiry did not necessarily connote a public inquiry. Accordingly, the reply to the letter of warning Exh. A, it is suggested is an answer to the allegations, I do not think this is the correct view. I reproduce the letter Exh. Y for ease of reference –

“CHIEF AFE BABALOLA & CO.                                                                  TEL. 02-410340

BARRISTERS & SOLICITORS

…………………………………………………………….

ASSOCIATES:

CHIEF AFE BABALOLA, B.Sc. (Econs),                                  EMMANUEL CHAMBERS

LL.B. (Hons) Lond B.L.                                                              NW4/183A, Oyo Bye-Pass,

ABOLADE OYINADE ADEPOJU-(Miss),                                Ekotedo, Ibadan,

LL.B. (Hons)(Ife)B.L.                                                                  P.O. Box 1594,

MAKANJUOLA ESAN, LL.B. (Hons) (Ife)                               Ibadan, Nigeria.

D.E.S. (Dun.), B.L. A.M.M.I.M.A.I.P.M.

Our Ref …………………                                                                    29th April, 1980

Your Ref ………………………                 

Oba Alayeluwa Ogunoye II J.P.

The Olowo of Owo,

Olowo’s Palace,

Owo.

Kabiyesi,

Letter of Warnings to Chiefs

Osere, Akowa, Elewere, Aragwagbaiye

Okoro, Aragwagbaiye Egbewa, Aragwagbaiye

Ashara and Imara, all of Owo

We are Solicitors to the above-named Traditional Chiefs and Kingmakers of Owo who have passed on to us for our action your respective letters dated the 11th of April, 1980 addressed to them and warning them to desist from acts of disloyalty to you and dereliction of their traditional duties.

Our instruction is that your letters of warning to the said Chiefs was a reaction to a recent press release by our clients, which was published in the Daily Times of 5th April, 1980 in which they called for an Inquiry to the Olowo of Owo Chieftaincy with a view to restoring to the throne the former Olowo of Owo, Sir Olateru Olagbegi who, in their view, was illegally, wrongfully and unconstitutionally removed from office by the former Military Administration of the defunct Western State of Nigeria, which, in their contention, also installed you into office contrary to the Customs and Traditions of Owo.

There can be no doubt that in the circumstances, your letters of warning, giving our clients ultimatum to mend their ways is in fact a blackmail

aimed at coercing and oppressing them with a view to silencing them and ensuring that they no longer exercise their constitutional right to freely express their views on a matter of public interest in which they are particularly interested and concerning Traditional Chiefs and Kingmakers in Owo.

It is the contention of our clients that the former Olowo, Sir Olateru Olagbegi was removed from office for no just cause and on the flimsy excuse that an infinitely (sic) number of political antagonists in Owo demonstrated their opposition to him and engaged the service of thugs to cause confusion in Owo. It is also their contention that Sir Olateru Olagbegi was not given opportunity to know the allegation levied against him and given facility to defend them. This undoubtedly was in violation of the well known principle of audi alteram partem (let no one be condemned unheard).

As a follow-up of the last point, I am sure that you would agree that if the deposition of Sir Olateru Olagbegi was irregular, null and void, your installation would obviously be wrong in law and facts, apart from the irregularities which infact characterised your selection which our clients consider to be a rape of the customs and traditions of Owo which our clients hold dearly and feel obliged to protect.

In the view of our clients, your allegations that our clients have failed to perform their traditional duties is a ruse to divert the attention of the government and the generality of the people from the real issues which are those of the legality or otherwise of the deposition of Sir Olateru Olagbegi and the legality or otherwise of your installation.

Our clients believe that it is now necessary for the government to look into the matter and settle it once and for all. They believe that a Judicial Commission of Enquiry to look into the matter in all its ramification is the most appropriate measure for the government to take. They have consistently called for justice from the various Governments from the time of the deposition of Sir Olateru Olagbegi. Now that there is an elected government which is responsive the feelings and aspirations of the people, they consider it opportune to review their plea with the hope that something will be done to resolve the issue, hence their call to the Executive Governor to institute a Judicial Commission of Enquiry to look into the matter.

Our clients are strengthened in their hope by the recent action of the Ondo State Government in instituting Judicial Commission of Enquiry into the Owo of idanre Chieftaincy the facts of which are similar in all respects to that of Olowo of Owo. We believe that you are as concerned as our clients that the matter be resolved once and for all and that you would support their call for an enquiry to go into the root of the matter. We are sure that after receiving this letter, you would realise that joining our clients in making spirited efforts to get the government to intervene and resolve the issue would be more advisable than coercing our clients and intimidating them into changing their stand.

We are directing our call to the Governor of Ondo State to take prompt steps to institute a Judicial Commission of Enquiry into the matter and henceforth, we hope that we can count on your co-operation and support.

Meanwhile, we believe that you would refrain from any acts of harassment, operation and victimisation directed against our clients and calculated to coerce and intimidate them into compromising their stand. We may however add that if any steps are taken which are detrimental to their interests

and attempt to deprive them of their constitutional or customary or other rights and privilege as traditional chiefs and individual citizens, we shall be forced to seek the aid of the law in protecting their legal rights and privileges. Of course, we are sure that you would not allow this situation to arise.

We look forward to your co-operation in this matter.

Yours faithfully,

(Sgd.) CHIEF AFE BABALOLA & CO.”

It is well settled that due inquiry necessarily implies that the parties to the dispute should be given an opportunity of being heard. – See Lagunju v. Olubadan-in-Council (1952) 12 WACA at p. 410. Hence a decision arrived at without the appellants having first known the allegations against them and made their defence is a decision without fair hearing. I adopt the formulation by the Court in Queen v. The Administrator, Western Nigeria & Anor. (1962) WNLR. at page 316 of the meaning of “due inquiry” where it was said that “By due inquiry is meant .an inquiry conducted in the manner and according to any procedure specifically by law for it, or, in the absence of any such specific prescription, an inquiry conducted in accordance with the principles of natural justice. The latter requirements permit an inquiry to be conducted in such a manner as is best suited to its object and subject matter and to the circumstances of the case, provided that all of the following rules are observed.

(a)A person who may be adversely affected by any decision based on the inquiry must be informed that he may be so affected; of the way in which he may be so affected; and of the substance of the complaint against him, or of the grounds upon which he may be so affected, with sufficient particularity as will enable him to answer them, if he can.

(b)Such person also must be informed of all relevant evidence or statements adduced in support of the complaint or grounds alleged against him.

(c)Such person must be given a fair opportunity to make a statement relevant to the inquiry and to correct or controvert any relevant statement or report adduced to his prejudice. Ceylon University v. Fernando (1960) 1 WLR. 223, at pages 231-3 and the quotations therein from other authorities. Kanda v. The Government of Malaya (supra).”

The above seems to suggest that there must be a formal inquiry regarding the allegations against the appellants. The Federal Supreme Court in Queen v. The Governor-in-Council, Western Region, Ex parte Kasalu Adenaiya (1962) 1 All NLR. 300 at 306, in construing the provisions of S. 16(3) of the Chiefs Law in pari materia with the provision before us said,

“Section 16(3) of the Chiefs Law (Western Region) does not contemplate an inquiry; no enquiry is needed by the Governor-in- Council. On a written protest being submitted the Governor-in-Council is enjoined to consider the representation so submitted, and in so doing regard should be had to the four points already mentioned. How he arrives at his decision and means of communicating it appears to be the sole business of the Governor-in-

Council as it was not provided for under the Chiefs Law … The Chiefs Law, to my mind, clothes the Governor-in-Council with absolute discretion as to how he arrives at its decision as long as it cannot be established that it was arrived at “mala fide”.

What is meant here is that although no formal enquiry is necessary, the Governor-in-Council is obliged to consider the representations made. This invariably requires the Governor-in-Council to hear the answers of the person accused of the allegations before determining whether the allegations are proved. – See Lesson v. General Medical Council (1890) 43 Ch. D. .366, 383 General Medical Council v. Spackman (1943) AC. 627.

Although the Prescribed Authority is free as to how he arrives at his decision, he is subject to the observance of the rules of natural justice. I do not think that the rule relating to fair hearing was complied with in this case. There was no evidence that 1st respondent or any other person or authority made any allegations against the appellants and there was no evidence either that the allegations of wrong doing against appellants were submitted to them to answer. I do not think the requirement of fair hearing is one which can be satisfied by implication. – See Mohammed v. Kano N.A. (1968) 1 All NLR. 424, The Seistan (1960) 1 WLR. 186 PD. Accordingly, absent the due inquiry required by S. 22(1), the decision which resulted in the deposition of the appellants was given without jurisdiction and is therefore a patent nullity. – See Kanda v. Government of Malaya (1962) 2 WLR. 1153, Annamuathodo v. Oilfields Workers Trade Union (1963) 3 WLR. 650.1 am of the opinion, and from the authorities cited in this judgment I hold that 1st respondent exercised the powers vested in him to purportedly depose appellants without satisfying the provisions of S.33(l)(3) of the Constitution relating to fair hearing. The deposition of the appellants is therefore a nullity.

It was argued that the non-compliance with the provision was saved by paragraph (a) of sub-section 33 which provides –

“(2) Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law –

(a)provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person.”

It is clear that counsel for the respondents misunderstood the purport of the provisions relied upon. The essential effect of section 33(1) is to render any legislation which infringes its provisions invalid. Section 33(2)(a) saves any legislation where there is opportunity for persons affected by a determination to make representation to the administering authority before the decision affecting that person is taken. There is no challenge as to the Validity of the legislation in this case. What is challenged is the exercise of the Prescribed Authority of the powers to depose a minor chief delegated to him. Where the exercise of the power is.in itself invalid, by virtue of bias, it is in my opinion incurable by any subsequent act of another which as in this case is not required to go through the same process. There is a wide gulf of difference

between the invalidity of the exercise of a delegated power, and the invalidity of the legislation conferring the power. The latter may be, and is in this case valid, whereas the former may, as in this case, be invalid. Thus where the decision to depose appellants is a nullity there was no decision extant for appellants to challenge before the Commissioner.

I now turn to the subject matter of grounds 4 and 6 of the grounds of appeal which concern the important issue of bias and its waiver. I have already stated the facts giving rise to this case. It is however relevant to reiterate the important facts that the 1st respondent, is the Olowo of Owo,. and he is also the Prescribed Authority in whom the exercise of the power to appoint and depose minor chiefs is vested by delegation. All the appellants are minor chiefs. Further, the wrong doings alleged for which appellants were deposed having been accused of disloyalty were all acts committed against the Olowo of Owo. It was also alleged that they were in dereliction of their traditional duties. It is in my view desirable and possible to separate the issues relating to the call by the appellants for the removal of 1st respondent as the Olowo of Owo, or the personal loyalty of appellants to him, and the more fundamental issue of their dereliction of their traditional duties. The question which the situation raises is whether in such a complicated situation where the personal interest of the 1st respondent is inextricably involved with his official status, the principles of natural justice is very likely to be infringed if the 1st respondent determined the allegations against the appellants on personal attacks of him. Counsel for the respondents has submitted that the 1st respondent was exercising a statutory function to determine questions affecting minor chiefs, he is not bound to observe the rules of natural justice. -Tolputt v. Mole (1911) 1 KB. 87. It was submitted that the Prescribed Authority was exercising an administrative and not a judicial function. – Franklin v. Minister of Town & Country Planning (1948) AC. 87. It was also submitted that the 1st respondent was not obliged to hold or conduct a public enquiry under section 21 of the Chiefs Law, and that it was the Commissioner who under s. 18(6) is obliged to conduct inquiry in accordance with section 21 of the Chiefs Law.

In his submission, counsel to the appellants’ main plank was the ground of bias against the 1st respondent. He argued that the Court of Appeal was wrong when it held that in exercising its powers to depose appellants, the 1st respondent, acting as Prescribed Authority was not exercising a quasi judicial function stricto sensu. Counsel submitted that in this case 1st respondent was not only an aggrieved person, but also an accuser and the judge. Counsel stressed the strained relationship between 1st respondent and the appellants and submitted that it was inconceivable that there could be fair hearing in the circumstances. It was submitted that the fact that 1st respondent was empowered by law to exercise disciplinary powers over minor chiefs did not oust the duty to act fairly or dispense with the rule against bias.

It is a fundamental requirement of the principles of natural justice that the person to decide the rights of two contending parties should not be one of the parties to the dispute, or indeed a person interested either financially or otherwise in the result of the dispute. See Dimes v. Grand Junction Canal (1852) 3 H.L. Cas. 759, Dr. Alakija v. Medical Disciplinary Committee (1959) 4 FSC. 38. Where the judge is also a party to the dispute, he violates 

the sacred maxim of nemo judex in causa sua. It is a disqualification for a judge to have interest or be seen to be biased in a matter before him. Such disqualification as there is may be waived, or removed by statute by express words or necessary intendment. The rule is not confined to decisions by judicial bodies; administrative authorities which act judicially are also required to observe the principles. In Allinson v. General Council of Medical Education and Registration (1894) 1 QB. 750 at p. 758 Lord Esher M.R. said,

“The question is not, whether in fact he was or was not biased. The Court cannot inquire into that. There is something between these two propositions. In the administration of justice, whether by a recognised legal court or by persons who, although not a legal public court, are acting in a similar capacity, public policy requires that in order that there should be no doubt about the purity of the administration, any person who is to take part in it should not be in such a position that he might be suspected of being biased. To use the language of Mellor J. in Reg. v. Allan, 4 B & S. 915 at p. 926, “It is highly desirable that justice should be administered by persons who cannot be suspected of improper motives.”

In Dickason v. Edwards (1910) 10C.L.R. at p.259, Isaacs J., discussing the question of bias in the administration of justice, referred to a disqualification arising from what he termed “incompatibility.” He said,

“If it is incompatible for the same man to be at once a judge and occupy some other position which is really has in the case, then prima facie, he must not act as a judge at all. That is a fundamental and essential principle of justice. Aliquis non debet esse judex in propria causa; so it is put in Co. Litt. 141a, or as it has been otherwise expressed nemo debet esse judex et pars.

It seems to me accepted that if the participation of any person in the determination of the dispute is challenged on the grounds of a personal interest in the result of the determination or that because of some pre-conceived views he has about the issues to be resolved, he ought not to act, he will be disqualified from doing so-in the absence of statutory provision relieving him from such disqualification. – See State Civil Service Commission v. A.I. Buzugbe (1984) 7 SC. 19, 42, 43.

I find no words either in the provisions of the Chiefs Law, or in S.33 of the Constitution which excludes the Prescribed Authority from observance of the rules of natural justice. It was argued that the 1st respondent being the Prescribed Authority the powers vested in him can be exercised even where he is the complainant. I am unable to accept such a preposterous contention. A careful reading of the relevant enabling statutory provisions discloses it did not so contemplate where the 1st respondent is a party to the dispute and in fact is the person aggrieved. – See R. v. Lee (1882) 9 QB.D. 394. In Dickason v. Edwards (supra) the whole proceedings in which Dickason was expelled from his club, that is, the Ancient Order of Foresters of the United Melbome District, was set aside as invalid because of the presence of the District Chief Ranger on the tribunal. The charge brought against Dickason was conduct calculated to bring disgrace on the society. The conduct complained of was personal abuse of the Chief Ranger and other officers of the Society. The District Chief Ranger presided at the tribunal which heard the

charge, but took no active part in the proceedings. Discussing the disqualification of the Chief Ranger, Griffiths C.J. said, at p. 252 –

“I think it is clear that in as much as the District Chief Ranger is a member of both these committees, and is head of the District Executive, and as a charge may be brought by the District Executive against a member, it was not intended that he should be disqualified merely by the fact that he is formally a party to a charge brought against a member. But if he is not merely a formal party but is in substance an individual complaining of an offence against himself, then I think very different considerations apply. Then it becomes his own cause, not in a technical sense, but substantially. He is a person complaining of a grievance. Is he a person who ought to be allowed to try the alleged offender?”

   After discussing the capacity in which the charge was brought, His Lordship continued,

“It is said the District Chief Ranger did not take part in the proceedings. I am willing to give the fullest credit to that, but I do not think it is material. He was a member of the tribunal that tried the case; he was present when it was heard, and applying the ordinary rules, I cannot say that his being there did not vitiate the proceedings altogether.”

O’Connor and Isaacs JJ. expressed identical views at pages 256-7,262-263- See also Wong Rem Cheuk v. The Medical Council of Hong Kong & The A.G. (1966) at p. 158. Oyelade v. Arooye (1967) 1 All NLR. 321 at p. 328. In the appeal before us, the Olowo of Owo as Prescribed Authority is expected to exercise disciplinary powers and is in such a situation merely a formal party in the dispute over minor chiefs. For this purpose it is necessary to distinguish the situation where the Prescribed Authority is merely a formal or nominal party in the dispute from the situation where his personal position and interest makes him an actual party and an aggrieved complaint in the dispute. It is not arguable that he can ordinarily be accused of bias where the issues before him do not affect his person. For instance where he is called upon to decide issues affecting the deposition of minor chiefs for reasons other than insult or disloyalty to himself. Even if the reason for his action is founded on rules of customary law which touch and concern the dignity of his exalted office, the accusation of bias will scarcely vitiate the exercise of his power. But where the action of the 1st respondent is founded on attacks of his person, and not his office, namely his fitness, thereby making him an aggrieved complainant, his exercise of his power as a Prescribed Authority in such a situation will be the clearest case of his being a judge in his own cause. I do not think our egalitarian and democratic Constitution, contemplated that any remains of our decaying feudalism should survive the provisions of its Chapter IV. The spirit of the Constitution revolts at the very suggestion of the idea. It is regrettable that an argument suggesting that a person can| be judge in his own cause can be urged at the eve of the twentieth century. In my view there is nothing in our law which enables the 1st respondent

to exercise his powers when the facts are overwhelming in favour of his bias against the appellants and to protect his interest. I agree that mere personal hostility is not sufficient to vitiate any power properly exercised and will not constitute bias. See Maclean v. Workers’ Union (1929) 1 Ch. 602, 625. The facts of the case demonstrate without any doubt that the 1st respondent’s attitude is beyond ordinary hostility. I have no doubt that on the evidence 1st respondent did not exercise the power vested in him in good faith and for the purpose for which it was granted. He therefore acted in excess of his jurisdiction. – See Okupe v. Federal Board of Inland Revenue (1974) 1 NMLR. 422; R. v. Barnsley Justices (1960) 2 QB. 167. The fact that he has acted as a judge in his own cause, and the deposition of appellants arises from that decision, the decision being invalid, the deposition is also a nullity.

Finally, I now turn to the question of waiver suggested by counsel to the respondent. I have pointed out earlier, in this judgment that the issue of infringing the provisions of S.33 with respect to fair hearing arose before the warning letter Exhibit A was written The purported reply was not a reply or an answer to any charges made because there were no charges. Stricto sensu, there was no procedure towards compliance of section 21 of the Chiefs Law which any waiver can cure. Waiver presupposes the existence of the violation of a right the exercise of which right is ignored for the purpose of the proceeding. In the circumstances of this case the first occasion there was opportunity to raise any objection was when the letter of deposition was received by appellants. It is on record in the affidavit in support of the application that the issue of the bias of the 1st respondent was promptly raised., That was the earliest opportunity. The point of waiver taken by the respondents is not supported by the facts before the Court. I accordingly reject the submission that appellants waived their right to object to 1st respondent acting as judge in his own cause. Since there was no statutory exception of Prescribed Authorities from the operation of section 33 of the Constitution, and the said S.33 of the Constitution being an entrenched provision, appellants cannot waive such a fundamental provision which is the corner stone of the administration of justice. – See Ariori & Ors. v. Elemo & Ors. (1983) 1 SC. 13 at p. 26, 48-51.

For the reasons I have given in this judgment, I will allow the appeal and set aside the judgment of the Court of Appeal and the ruling of the trial judge dismissing the application for certiorari. I therefore hold that the letters of the 15th April, 1980 deposing appellants from their positions as chiefs are a nullity. I hereby order that appellants having never vacated their offices are deemed never to be removed. – See Shitta-Bey v. F.P.S. C. (1981) 1 SC. 40. 1st respondent shall pay to appellant costs of this appeal, which I assess at Nl,050, N350 and N300, in the High Court, Court of Appeal and in this Court respectively.

KAWU, J.S.C.: I have had the advantage of reading in draft the judgment which has just been read by my learned brother, Nnamani, J.S.C. I entirely

 agree with the reasons and conclusion therein. I too will dismiss the appeal and confirm the decisions of both the Ondo State High Court and the Court of Appeal, Benin Judicial Division with N300.00 costs awarded to the respondents.

Appeal Dismissed

Decision of the Court of Appeal and the High Court Confirmed.

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