Adigun v. Attorney-General of Oyo State (1987)

678
Adigun v. A.-G. of Oyo State
6 April 1987

1.
PRINCE YAHAYA ADIGUN

2.
PRINCE ALADE LAMUYE

3.
PRINCE N. O. ABANIKANDA

V.

1.
THE ATTORNEY-GENERAL OF OYO STATE

                        
 
    
2.
               
THE SECRETARY, IWO CENTRAL LOCAL GOVERNMENT

3.
CHIEF ADIATU AMAO

4.
GBADAMOSI ADIO

5.
CHIEF ASIFATU AJANI

6.
CHIEF OSA

7.
CHIEF ARO

8.
CHIEF OLUKOSI

9.
CHIEF AGORO

10.
CHIEF JAGUN

11.
CHIEF ASOPE

12.
CHIEF OLUKOTUN

13.
CHIEF OLOSI

14.
CHIEF ORINTO

15.
CHIEF ODOFIN

16.
CHIEF OLOYA

17.
CHIEF ONJU

18.
CHIEF ESIKI

19.
CHIEF BALOGUN

SUPREME COURT OF NIGERIA

SC. 98/1986

ANDREWS OTUTU OBASEKI, J.S.C. (Presided and Read the Lead Judgment)

KAYODE ESO, J.S.C.

AUGUSTINE NNAMANI, J.S.C.

DAHUNSI OLUGBEMI COKER, J.S.C.

ADOLPHUS GODWIN KARIBI-WHYTE, J.S.C.

SAIDU KAWU, J.S.C.

CHUKWUDIFU AKUNNE OPUTA, J.S.C.

FRIDAY, 20TH MARCH, 1987

ADMINISTRATIVE LAW – Administrative Tribunals – Observance of Natural Justice – Scope of duty – Effect of breach.

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ADMINISTRATIVE LAW – Administrative tribunals – Oral hearing given to one party and denied the other – Effect thereof.

ADMINISTRATIVE LAW – Ministerial Powers – Interference by courts.

ADMINISTRATIVE LAW – Valid act slated to be done under wrong law – Effect thereof.

CHIEFTAINCY LAW – Amendment of Declaration – S. 10 Chiefs Law of Oyo State – When invoked – Effect on Civil right of party affected.

CHIEFTAINCY LAW – Declaration of proper Riding House – Jurisdiction of Court.

CHIEFTAINCY LAW – Selection of Chiefs – Declaration of applicable Customary Law – Nature of power of court.

CHIEFTAINCY LAW – Selection of Chiefs – Registered – Declaration – Evidential value of.

CONSTITUTIONAL LAW – Existing laws – Modifications of – S. 274 of the 1979 Constitution – Applicable principles.

CONSTITUTIONAL LAW – Right of action – Effect thereof.

CONSTITUTIONAL LAW – Right to fair hearing – Test of ‘reasonable man’ – Who is a ‘reasonable man” – Applicable principles.

CONSTITUTIONAL LAW – Separation of powers.

DECLARATORY JUDGMENTS – Nature of – Jurisdiction of Court – Applicable principles.

EVIDENCE – Proof of Customary law – Whether corroboration required – Evidential value of registered declaration of applicable customary law.

INTERPRETATION OF STATUTES – Construction of statutes – Duty of Court.

INTERPRETATION OF STATUTES – Existing laws – Modification to bring in conformity with the Constitution – Power of Court.

JURISDICTION – Chieftaincy matters.

JURISDICTION – Exclusion of – How done.

NATURAL JUSTICE – Applicable principles – Test of ‘reasonable man’.

Issues:

1.
Whether in view of the Chiefs’ Law of Oyo State the High Court has no original jurisdiction to grant a declaration as to the existing customary law relating to the existence of a ruling house?

2.
Whether the Court of Appeal was right in refusing to hold that the appellants were not given a fair hearing before Dr. Agiri?

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3.
Whether where a person alleges the denial of a fair hearing the law requires him to go further and show the injury suffered?

4.
Whether in the circumstances of this case, the declaration dated 28th day of July, 1981 could have been validly made under section 9(A) (3) of the Chiefs’ Law if the appellants were not given fair hearing before the declaration was made?

5.
Whether the Evidence Act requires the evidence of a witness with regard to traditional history and/or the evidence of customary law to be corroborated?

Facts:

After the death of the Oluwo of Iwo, the then Military Administrator of Oyo State made a Declaration in July 1979 declaring the Ogunmakinde Ande family as the only Ruling House recognised and being in existence in Iwo.

The declaration was registered on 19th July 1979 and tendered in this suit as exhibit. D. The declaration however evoked a spate of protests from other families in the town. Meanwhile in October 1979 the Civilian Government came into power and acting on the protests, a sole Commissioner one Dr. Agiri was appointed to carry out investigation into the chieftaincy and produce a report for consideration by the Government.

The Sole Commissioner conducted his investigation and submitted a report to the Government. Acting on the report of the Sole Commissioner the Government made a new Declaration of the customary law regulating the selection of Oluwo of Iwo wherein three Ruling Houses were identified and declared and they were: Ala Wusa; Adagunodo; and Gbase. Ogunmakinde Ande family was then dropped as a Ruling House. The new Declaration was registered in July 1981 and tendered in this suit as exhibit K.

The plaintiffs/appellants who are members of Ogunmakinde Ande family then commenced the present action challenging the validity of exhibit K. They also sought a declaration that their Ruling House is the only Ruling House from which appointment to the Oluwo of Iwo Chieftaincy is to be made.

At the trial in the High Court it was revealed in evidence that in conducting his investigation Dr. Agiri took oral statements of members of the three families declared in exhibit K but did not take any oral statement from members of the Ogunmakinde Ande family. Rather, the Sole Commissioner relied on minutes of a meeting containing views expressed by members of the Ogunmakinde Ande family some years back. In the course of the investigation, it was also revealed that Ogunmakinde Ande family was a branch of the Alawusa family.

On the customary law governing the Ruling House in existence in Iwo, only one witness testified for the plaintiffs.

Counsel to the plaintiffs attacked exhibit K on the ground that it was expressed to have been made under section 9A(3) of the Chiefs Law of Oyo State by the Governor-in-Council, a body that did not exist at the material time. The chiefs Law had, meanwhile, been amended, and section 9A(3) was re-enacted in section 10 of the amended Law.

The trial Judge dismissed the plaintiffs’ claims on the grounds that it could not grant the claim that Ogunmakinde Ande family is the only Ruling House in Iwo and that even if the claim could be granted the evidence of the plaintiffs’ witness on that claim had not been corroborated by another witness. On fair-hearing the court held that the plaintiffs were not entitled to an oral hearing by

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the Sole Commissioner being an administrative body. Plaintiffs’ appeal to the Court of Appeal was dismissed. Being dissatisfied, the plaintiffs/appellants have further appealed to the Supreme Court.

Held (Unanimously Allowing the Appeal in Part):

1.
The courts will not by themselves exercise, primarily, jurisdiction with respect to those powers conferred expressly by the legislature on bodies other than the courts outside their judicial authority under sections 6 and 236 of the Constitution.

2.
There is no distinction between a claim for a “declaration” and a claim for a “declaratory Order.”

3.
The High Courts in Nigeria have the jurisdiction to make a declaration in all cases where the plaintiff conceives he has a right, even if there is no complete and subsisting cause of action.

4.
An action for declaration; as this is, is a procedural device for ascertaining and determining the rights of parties or for the determination of a point of law.

5.
Where the administrative, or quasi judicial powers of the Minister are concerned, the courts would be very slow to exercise their discretion in granting declarations.

6.
Where the declaration sought from the court does not affect the exercise of any authority or institution of powers under an enabling statute, there is no legal obstacle in the court exercising its jurisdiction.

7.
It is not the business of the courts to make declarations of customary law relating to the selection of chiefs under the Chiefs Law. But it is the business of the Court to make a finding of what the Customary Law is and apply the law for the purpose of the claims for declarations.

8.
Per OBASEKI, J.S.C.:

“What the appellants seek is a declaration that Ogunmakinde Ande is under the Customary Law of Iwo the only Ruling House. In carrying out this judicial task, the court will from the evidence adduced ascertain and find whether there is customary law on the matter, what the customary law is and then decide whether on the evidence, Ogunmakinde Ande is the only Ruling House in Iwo from which OIuwo of Iwo can be selected and appointed. It cannot, in my view, be correctly and legally argued that the High Court cannot entertain and adjudicate on such a claim in exercise of its unlimited jurisdiction vested in it by section 236(1) of the Constitution of the Federal Republic of Nigeria 1979.”

9.
Per KARIBI-WHYTE, J.S.C.:

“The declaration sought is under section 6(6)(b) and section 236(1) of the Constitution 1979. It is an exercise of judicial power between persons for the determination of questions as to the Civil rights and obligations of

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such persons. It is also a Civil proceeding in which the existence of a legal right falls for determination. See Attorney-General of Bendel State v. A. -G. of Federation & Ors. (1982) 3 NCLR 1.”

10.
Access to the Courts is such a fundamental requirement of our democracy that the Constitution has provided in its section 4(8) that the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of judicial tribunal established by law. Accordingly, if the law cannot expressly exclude the jurisdiction of the court, it cannot impliedly do so by the mere vesting of the exercise of certain powers on another authority or institution.

11.
The jurisdiction of the courts can only be excluded by clear provisions of the Constitution or by the dear words of a Decree.

12.
The making of declarations in respect of Customary Law relating to the selection of chiefs is purely administrative under section 4 of the Chiefs Law (Cap. 21) Laws of Oyo State 1978 and not a function exercisable by the court.

13.
If there is a registered declaration of the customary law regulating the appointment to a particular chieftaincy, the evidence in support thereof is straight forward and would consist in the production of the Registered Declaration in which case a single witness would suffice. If there is no registered declaration, cogent evidence of the custom must be adduced through credible witnesses in which case prudence demands that more than one witness be called.

14.
Where evidence of custom is cogent and reliable, the veracity of the testimony not in dispute, the credibility of the witness accepted by the court, and there is no other evidence to the contrary, the fact that evidence of custom was by a witness alone will not affect its proof.

15.
The Evidence Act does not require corroboration of the evidence of a witness as to custom.

16.
The exercise of embarking on the making of a declaration or amendment of a declaration of the applicable customary law under section 10 of the Chiefs Law of Oyo State is not to be carried out just for its own sake. This is expressly stated in section 10 of the Chiefs Law. It is not to satisfy the whims and caprices of those in power. It can only be embarked on when the Governor is satisfied that a registered declaration does not contain a true or sufficiently clear statement of the Customary law which regulates the selection of a person to a recognised chieftaincy.

17.
In the instant case, since exhibit D, the 1979 Declaration had declared Ogunmakinde Ande family as the only Ruling House, any determination by the Sole Commissioner, Dr. Agiri, at variance with that declaration was bound to at affect adversely the Civil rights of the Ogunmakinde Ande Ruling House to the Chieftaincy.

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18.
In the instant case, Dr. Agiri’s Commission qualifies as an Administrative Tribunal.

19.
An administrative tribunal is bound to observe the Rules of Natural Justice. The fact that it is an administrative tribunal does not exempt it from observing the principles of audi alteram partem and nemo judex in causa sua enshrined in the Rules of Natural justice. The principles constitute the bastion of fairness and are equally enshrined in section 33(1) of the Constitution of the Federal Republic of Nigeria 1979.

20.
In an inquiry by an administrative tribunal the hearing can be on oral evidence or written documents submitted by the parties interested in the inquiry or whose civil rights and obligations will be affected the inquiry. Thus a hearing of parties to a dispute need not be oral: [Hart v. Military Governor, Rivers State Public Service Commission & Attorney-General (1976) 11 SC 211; Adedeji v. Police Service Commission (1968) NMLR 102 considered.]

21.
Where an administrative tribunal conducting an inquiry decides to have in addition to written documents, an oral hearing, all the parties affected must be given an opportunity of an oral hearing. Where the parties cannot adequately, due to illiteracy, put their thoughts into writing an oral hearing may be beneficial.

22.
The opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard. Written submissions are an unrealistic option for most recipients who lack the educational attainment necessary to write effectively and who cannot obtain professional assistance.

23.
Where two parties are each subjected to different types of hearing, it cannot be said that there was a fair hearing.

24.
In the instant case, since it was the right of Ogunmakinde Ande family Ruling House to rule that was under attack by all except members of that family and their friends, it behoves Dr. Agirito give them the same type of hearing as he gave to the elders and representatives of Adagunodo; Gbaseand Alawusa Ruling Houses.

25.
Although an oral hearing is not necessarily of higher quality than hearing on written briefs and documents, gleaning facts from minutes which were made at a time when the hearing before the tribunal which made use of the minutes was not in contemplation cannot match the quality of an oral hearing in the search for the true customary law.

26.
To accord with the principle of natural justice each party to a dispute must have notice of the case he has to meet and be given an opportunity of stating his case and answering, if he can, any arguments put against it.

27.
Per OBASEKI, J.S.C.:

“It is said that the appellants have not shown that they suffered any injury by the denial of fair hearing. Do they really have to show injury or prejudice? It is

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implicit in the very act of denial because the denial is an injury to the right of fair hearing guaranteed by the Constitution and rules of natural justice the instant appeal, an examination of exhibit D, the 1979 Declaration and exhibit K, the 1981 Declaration, will leave one in no doubt that the right to the monopoly of providing the candidates for appointment as Oluwo of Iwo has been taken away from the appellants and diluted into insignificance in Alawusa family Ruling House to which Ogunmakinde Ande belongs along with others. If that is not an injury, I do not know what else can be more painful.”

28.
The right to fair hearing being a fundamental constitutional right guaranteed by the Constitution, the breach of it in any trial or investigation or inquiry nullifies the trial, investigation or inquiry and my action taken on them is also a nullity. In the instant case, the basis of satisfaction before exhibit K, the 1981 Declaration was made is no longer there, consequently exhibit K is a nullity.

29.
Denial of fair hearing is denial of Justice and it is a prejudice to any man to be denied justice.

30.
Per ESO, J.S.C.:

“One may then ask – why measure justice by the standard of the common man or the ordinary reasonable citizen’ It is not in vain that English law invented the standard of the man in Clapham Omnibus in describing the ordinary reasonable citizen. But then, except one has been to England, and appreciated the man that goes to work in an omnibus in Clapham area in London as against the executive who drives in his Rolls-Royce in Mayfair, the phrase “Clapham Omnibus” is completely lost to him. And so, in this country, in trying to find out the level of justice, the yardstick of the “reasonable person” has been taken … A reasonable person here, may be a peasant housewife, shopping for meal in Sangrouse, and not the wife of an executive, Shopping for her grocery in Moloney Supermarket; he may be the ordinary worker in the Kano native City, living on his “TWo”, and not the Senior Assistant Secretary cruising in his officially produced Air-conditioned Peugeot 505 SR to his air-conditioned office; or he is the plain woman in Okrika dress and not the voile-laced fashion enthusiast. It is what this reasonable “man” sitting as an impartial observer, thinks of the Agiri report that would matter.”

31.
If the principles of natural justice are violated in respect of any decision, it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.

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32.
Per ESO, J.S,C.:

“Natural Justice demands that a party must be heard before the case against him is determined. Even, God gave Adam an oral hearing despite the evidence supplied by his act of covering his nakedness, before the

case against his continued stay in the Garden of Eden was determined against him.”

33.
Per ESO, J.S.C.:

“Once an appellant shows that there is an infringement of the principle of natural justice against him, it is my view that he needs show nothing more. The finding that there is an infringement of the principle is sufficient to grant him a remedy. This is not a case where one, after showing injuria would need to proceed further to show damnum. The injuria herein, is proof positive of the damnum”

34.
Per KARIBI-WHYTE, J.S.C.:

“Section 33(2)(a) which applies without prejudice to the right to fair hearing in section 33(1) 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; … “Section 33(2) speaks of conferring “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 … “The sub-section does not speak of lis inter partes, and in fact concerns powers conferred on “government” or “authority” and not necessary a court. Thus the constitutional protection of fair hearing in the determination of civil rights and obligations is not limited to the exercise of judicial powers. It includes exercise of administrative discretions.”

35.
The injury, if any is sought for, in a breach of the right to fair hearing, is the deprivation of the right itself. It is not quantifiable and so incalculable injury. Hence the only remedy is to nullify the resulting proceedings.

36.
The provision of section 274(1) of the 1979 Constitution imposes an exercise on the courts in its interpretative jurisdiction in order that effect shall be given to an existing law without prejudice to their powers to declare invalid any provision of an existing law on the ground of inconsistency with the provisions of any other law. In order to bring an existing law into conformity with the constitution, the modifications envisaged by section 274(1) of the Constitution, include, by the definition in section 274(4)(c), addition; “alteration; omission or repeal.

38.
The court has an obligation to construe an existing law in such a way as to make it have effect, and if need be, to apply such modification necessary to make that law effective.

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39.
Having regard to section 5(2) of the 1979 Constitution which vested executive powers in the Governor and the fact that the functions imposed by section 10 of the Chiefs Law of Oyo State on the Executive Council which has ceased to exist were Executive functions, it seems reasonable, proper and desirable to modify the section (S. 10 of the Chiefs Law) by substituting ‘Governor’ for ‘Executive Council’ to execute the functions thus imposed and conform with the Constitution. In the instant case, exhibit K made pursuant to section 9A(3) (now section 10(3)) of the Chiefs Law by the Governor cannot be declared a nullity on the ground that it was signed by the Governor. The declaration at the top that it was made by the “Governor-in-Council” cannot affect the validity of the Declaration when instead of being signed by the “Governor- in-Council” it was signed by the Governor: [Eso, J.S.C had a different reasoning, while Nnamani, J.S.C dissented].

40.
Section 274(1) of the 1979 Constitution gives far wider powers to the courts than section 274(2) of the Constitution which only allows changes in the text of the existing law being modified to bring it in conformity with the provisions of the Constitution.

41.
Where an existing law does not require any textual changes or modification in its application and is otherwise not inconsistent with the provisions of the Constitution, it applies proprio vigore. If on tine other hand the provisions of an existing law require minor alterations to bring it into conformity with the provisions of the constitution, the existing law shall be red with such modifications and when so read shall be deemed a law of the National Assembly or a Law of a House of Assembly as the case may be.

Where however it is necessary to make any textual changes in the existing law to bring the law into conformity with the provisions of the Constitution, the “appropriate authority” will make such textual changes by way of an adaptation order.

42.
The validity of an act is not affected by its being erroneously or A mistakenly described as having been done under the wrong law: [Falobi v. Falobi (1976) 1 NMLR 169 at 177 applied],

43.
The courts always lean against a construction which will either produce an absurdity or produce an avoidable invalidity.

44.
The appellants in this ease have not proved that the Ogunmakinde Ande family is the only Ruling House existing In Iwo under the applicable customary law.

Nigerian Cases Referred to in the Judgment:

A.-G., Bendel State v. A.-G., Federation (1982) 3 NCLR 1

Adedeji v. Police Service Commission (1908) NMLR 102

Adesanya v. President of Nigeria (1981) 5 SC 112

Angu v. Attah PC 1874-1928 43

Gaji v. State (1975) 5 SC 61

[1987] 1 .
Adigun v. A.-G. of Oyo State
687

Garba v. University of Maiduguri 1985)

Giwa v. Erinmolokun (1961) 1 All NLR 294

Government of Kaduna State v. Kagoma (1982) 6 SC 87

Hart v. Military Governor Rivers State Public Service Commission & A.-G., (1976) 11 SC 211

Kano NA v. Obiara (1959) 4 FSC 226

L.P.D.C. v. Fawehinmi (1985) 2 . (Pt. 7) 300

Merchants Bank Ltd.v. Federal Minister of Finance (1961) All NLR 598

Mohammed v. Kano NA. (1968) 1 All NLR 422

Obadara v. C.O.P. (1967) NMLR 39

Obiyan, Ex Parte(1973) 12 SC 23

Queen v. Director of Audit (WR)(1961) All NLR 659

Queenv. Ozogula 11 Ex Parte Chief Lewis Epenga (1962) WNLR 136

Foreign Cases Referred to in the Judgment:

Abbot v. Sullivan (1952) 1 KB 189

Annamuthodo v. Oilfields Workers Trade Union (1961) AC 945

Board of Education v. Rice (1911) AC 179

Brook, Re (1864) 16 CB & NS 403

Bull v. A.-G., New South Wales (1916) 2 AC 564

Carltona Ltd. v. Commissioner of Works (1943) All ER 560

Cooper v. Wands worth Board of Works 14 CB&NS 180; (1863) 32 UCP 185

Durayappah v. Fernando (1967) 2 AC 337

General Medical Council v. Spackman (1943) AC 627

Golberg v. Kelly 397 US 254 at 268 to 269 (1970)

Guaranty Trust Co. of New Work v. Hannay (1915) 2 KB 536

Harris v. Knight (1890) 15 PD 170

Kanda v. Govt, of Malaya (1962) AC 322

Local Govt. v. Arlidge (1915) AC 120

Mallock v. Aberdeen Corporation (1976) 1 WLR 1578 (1971) 1 All ER 1278 (HL)

Maxwell v. Dept, of Trade and Industry (1974) 2 All ER 126-127

Pillai City Council of Singapore (1968) 1 WLR 1238 (PC.)

R. v. Birmingham City Justices (1970) 3 All ER 945, (1970) 1 WLR 1428, 1433

R. v. Laity of Melbourne, Ex Parte Whyte (1960) Victorian Law Report 257

Ridge v. Baldwin(1964) AC 40

Spackman v. Commissioner of Public Works (1885) 10 App Cas 229

Stafford v. Minister of Health (1946) 1 KBD 621

University of Ceylon v. Fernando(1960) 1 All ER 631,637

Wednesbury Corporation v. Min. of Housing and Local Government No. 2 (1966) 2 QB 275

Nigerian Statutes Referred to in the Judgment:

Chiefs Law Cap. 19, Laws of Western Nigeria, Ss. 4(4), 9A(3), 9B, 9(1) (3) and 10(3)

Chiefs Law Cap. 21 Laws of Oyo State, 1978, Ss. 4,4( 2)(a)&(4),7(l), (2) & (3), 9 and 10(1) & (3)

Commissions of Enquiry Law, Cap. 25, Laws of Kaduna State, S. 2 Constitution (Basic Provisions) Decree 32 of 1975, S. 7(1)

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Constitution (Suspension and Modification) Decree, No. 17 of 1985

Constitution (Suspension and Modification) Decree, 1984, Ss. 2(3)

Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals etc.) Decree, 1979

Constitution of the Federal Republic of Nigeria, 1963 Constitution of the Federal Republic of Nigeria, 1979, S. 1(3), 4(7), 5(2), 6(6)(b) and 33(1) & (2) 14(1), 171(1) & (5), 162(2) 173, 236(1), 274(1) & (2) 274(4)(a) & (11) and 274(4)(c)

Evidence Act, Cap. 62

High Court Law of Oyo State, S. 9

Interpretation Law, Cap. 52 Vol. Ill

Laws of Oyo State S. 21(1)

Local Govt. Law of Kaduna State, 1976, Ss. 98(1) and 109

Nigeria (Constitution) Order-in-Council, 1960 Ss. 34 and 38

Foreign Statute Referred to in the Judgment:

Food and Drugs Act, 1955 of the United Kingdom

Nigerian Rules of Court Referred to in the Judgment:

High Court of Oyo State Civil Procedure Rules

Books Referred to in the Judgment:

Nwabueze Prof. Presidential Constitution of Nigeria, pp. 119-120. Lloyd

P. C. Dr. Notes of Dr. Lloyds Comparative Study of Political institutions in some Yoruba Kingdoms 1952 (B. Lit thesis Oxford)

Appeal:

This was an appeal against the decision of the Court of Appeal, Ibadan Division, which upheld the dismissal of the appellants’ claims by the trial court. The Supreme Court unanimously allowed the appeal in part.

History of the Case:

Supreme Court:

Names of Justices that sat on the appeal:Andrews Otutu Obaseki, J.S.C. (Presided and Read the Lead Judgment); Kayode Eso, J.S.C.; Augustine Nnamani, J.S.C.; Dahunsi Olugbemi Coker, J.S.C., Adolphus Godwin Karibi-Whyte, J.S.C.; Saidu Kawu, J.S.C., Chukwudifu Akunne Oputa, J.S.C.

Appeal No.:SC.98/1986

Date of Judgment: Friday 20th March 1987,

Names of Counsel:Chief F.R.A. Williams, S.A.N. (with him,Chief Sobo Sowemimo, SAN, Dr. L. O. Aremu, G. O. Sofunde, C. J. Aremu [Mrs.] Dr. Hamed Kusamotu and Mr. M Oyetunde) – for Appellants O. A. Boade, Esq. (Senior State Counsel, Ministry of Justice Oyo State) – for 1st, 6th and 19,h Respondent

Chief J. O. Fawole (with him O. Ojutiku, Esq.) – for 3rd, 4,h and 5th Respondent

[1987] 1 .
Adigun v. A.-G. of Oyo State
(Obaseki, J.S.C.)
689

A

B

C

D

E

F

G

H

Court of Appeal:

Division of the Court of Appeal from which the appeal was brought: Court of Appeal Ibadan

Names of Justices that sat on the appeal: John Hezekiah Omololu-Thomas, J.C.A. (Presided and Read the Lead Judgment);Ibrahim Kolapo Sulu-Gambari, J.C.A.; Sylvester Umaru Onu, J.C.A.

Appeal No.:CA/I/154/84.

Date of Judgment: Thursday 5th day of December 1985

Names of Counsel:E. O. Sofunde Esq. – for Plaintiffs/Appellants

O.A. Boade, Senior State Counsel (Oyo State – for 1st Respondent

M. L. Ladapo Esq. – for 2nd Respondent

Messrs.J. O. Fawole & O. Ojutiku – for the 3rd – 5th Respondent

        High Court:

Name of the High Court:High Court of Justice Oyo State Oshogbo

Name of the Judge:S. A. Oloko – Judge

Suit No.:HOS/15/82

Date of Judgment: Friday 16thJuly 1982

Names of Counsel: E. O. Sofunde for the plaintiffs

J. O. Jegede – for the 1st, 6th – 19th Defendants

J.O.Fawole (with him, M.L. Ladapo) – for the 2nd Defendant

J. O. Fawole (with him, Ojutiku ) – for 4th and 5th Defendants

3rd Defendant reported dead.

Counsel:

Chief F.R.A. Williams, S.A.N. {with him, Chief Sobo Sowemimo, SAN, Dr. L. O. Aremu, G. O. Sofunde, C. J. Aremu [Mrs.] Dr. Hamed Kusamotu and Mr. M Oyetunde) – for Appellants

O. A. Boade, Esq. (Senior State Counsel, Ministry of Justice Oyo State) – for , 6th and 19th Respondent

Chief J. O. Fawole (with him O. Ojutiku, Esq.) – for 3rd, 4th and 5th Respondent

OBASEKI, J.S.C. (Presiding and Delivering the Lead Judgment): This appeal has raised the important question of Fair Hearing in its widest context in a Chieftaincy matter. The matter has its genesis in the steps taken by the Government of Oyo State to ascertain the customary law governing the appointment of the Oluwo of Iwo in Iwo. In the continuing search one Declaration made by the Chieftaincy Committee of the Iwo Local Government area on the 4th day of January, 1979 approved on the 17th day of July, 1979 by the Military Administrator was registered on the 19th day of July, 1979. It was admitted in evidence at the High Court as exhibit D. In that declaration, only one Ruling House that is Ogunmakinde Ande was identified and declared as being in existence. This evoked a spate of protest and protest petitions poured into the office of the Governor of the State. This led the Government to appoint Dr. Agiri as sole Commissioner to carry out discreet investigation into the chieftaincy and produce a report for the consideration of the government. The assignment was carried out. The investigation was conducted and a Report on the investigation

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(Obaseki, J.S.C.)

A

B

C

D

E

F

G

H

and findings submitted to government. Oyo State Government duly considered the reports and came out with a new Declaration of the customary law regulating the selection to the Oluwo of Iwo chieftaincy, exhibit K, It was signed by the Governor of Oyo State on the 28th day of July, 1981 and registered on the following day, the 29th day of July, 1981. In the Declaration, three Ruling Houses were identified and declared as

    (1)        Alawusa

    
(2)
Adagunodo and

    
(3)
Gbase

Ogunmakinde Ande was dropped as a Ruling House on the ground that Ogunmakinde Ande family is a branch of Alawusa Ruling House, The plaintiffs/ appellants who are members of Ogunmakinde Ande decided to go to court and on the 3rd of March, 1982 commenced this action in Oshogbo Judicial division of the High Court of Justice of Oyo State of Nigeria. The claims endorsed on the writ of summons are straight-forward and simple and read:

“The plaintiffs claim against the defendants jointly and severally:

“(1)
a declaration that (under) the customary law prevailing in Iwo, the Ogunmakinde Ande Ruling House is the only Ruling House from which appointment to the Oluwo of Iwo Chieftaincy is to be made (word in bracket supplied)

(2)
a declaration that the instrument dated the 28th day of July, 1981 is in so far as it purports to declare the customary law prevailing in Iwo with respect to the Oluwo of Iwo chieftaincy, is wrong and accordingly illegal and void,

(3)
an injunction restraining all servants officers and agents of the Government of Oyo State or of the Iwo Central Local Government from acting pursuant to or taking any steps to implement the aforesaid declaration registered on 29th July, 1981.”

Pleadings on the order of the court were filed and delivered and at the close of pleadings, the matter went to trial before Oloko, J. After hearing evidence and addresses of counsel, the learned trial Judge delivered a considered judgment dismissing the appellants’ claim in its entirety.

The issue of fair hearing was raised, the learned trial Judge gave due consideration to the question and said:

“Learned counsel for the plaintiffs Mr. B. O. Sofunde submitted that the plaintiffs were not given a hearing at the enquiry. Learned counsel further submitted that before the Governor-in-Council can exercise its powers under section 9(A) 3 all parties likely to be affected by the exercise of that power must be given an opportunity of being heard.

Whilst I concede to the learned counsel that the doctrine audi alteram partem must be in appropriate cases the absence of an oral hearing, or of an opportunity to be heard orally, before an administrative tribunal does not necessarily amount to a denial of the principles of natural justice.

A decision reached after a full inquiry without an oral hearing does not violate such principles. See the case of the Queen v. Director of Audit (WR.) & Ors. (1961) All NLR page 659 at page 660 …

[1987] 1 .
Adigun v. A.-G. of Oyo State
(Obaseki, J.S.C.)
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Referring to exhibit ‘F’ it is clear that on its pages 2 and 3, Dr. Agiri stated his source of information. Plaintiffs participated effectively in the proceedings of the minutes of meeting held by the Commissioner of Local Government and Chieftaincy Affairs on 19th day of July 1974 which is exhibit ‘W’ in these proceedings and the exhibit forms part of the material used by Dr. Agiri in the assignment of the discreet research into Oluwo of Iwo Chieftaincy. I cannot by any stretch of imagination see how the plaintiffs was prejudiced in compiling the report exhibit ‘F’ I therefore reject the submission of learned counsel for the plaintiffs that the requirements of natural justice were not met or that the doctrine of audi alteram partem was not involved in compiling Exhibit ‘F’. From the evidence before me, I find myself unable to make the declaration sought in the first leg of the plaintiffs’ claim …

Assuming I am wrong in the above conclusion, I am prepared to hold further that even on evidential requirement, the plaintiff must fail in the first leg. It is settled law that custom must be strictly proved. And it has also been held that in proving a custom, it is not enough that one who asserts the custom should be the only witness. In other words, for a custom to be acceptable, it must be proved by at least two witnesses, see the case of The Queen v. Chief Ideliaguahan Ozogula II Ex-Parte Chief Lewis Epenga (1962) WNLR 136 at 137 …

The only witness who testified before me in favour of the plaintiffs is the second plaintiff. No other witness confirmed the customs that Ogunmakinde Ande should be the only recognized ruling house for the appointment to the stool of Oluwo of Iwo.”

The learned trial Judge also considered the second leg of plaintiffs’ claim and said:

“The instrument referred to above is exhibit K in these proceedings. In my view, the plaintiffs have the onus of proving that exhibit K was made in violation of the Chiefs Law or rather exhibit K was not made in accordance with the Chiefs’ law. Learned counsel for the second defendant, Mr. M.L. Ladapo submitted that the government having considered the report of Dr. Agiri, i.e. exhibit F was of the view that exhibit ‘D’ is faulty. Learned counsel further submitted that by making exhibit K, Governor is acting according to section 9A of the Chiefs’ Law …”

On the other hand, learned counsel for the plaintiffs, Mr. E.O. Sofunde contended that that exhibit K does not represent the customary law and referred the court to section 9A(3) of the Chiefs’ Law …”

The learned trial Judge after referring to sections 9A and 9B of the Chiefs’ Law said:

“I am satisfied from the above provisions of the Chiefs Law that exhibit K is validly made and duly represents the customary law regulating the selection to the Oluwo of Iwo Chieftaincy, I therefore refuse the second leg of plaintiffs’ claim.”

Being dissatisfied with the decision the plaintiffs appealed to the Court of Appeal three grounds of appeal were filed along with the notice of appeal and as they are

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relevant to the consideration of the complaint of the plaintiffs/appellants, I set them out hereunder. They read:

“1.
The learned trial Judge erred in law when he held that the declaration sought by the plaintiffs that by the customary law prevailing in Iwo, the Ogunmakinde Ande Ruling House is the only ruling house from which appointment to the Oluwo of Two Chieftaincy is to be made can only be obtained administratively and only under the Chiefs’ Law, when under the provisions of the Constitution the High Court has unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue.

2.
The learned trial Judge erred in law when he held that the plaintiffs were given a fair hearing before the Agiri Report was issued because there was evidence that Dr. Agiri relied on minutes of a meeting in which the plaintiffs participated, as part of his sources of information, when in fact there was ample evidence that the plaintiffs were not given the opportunity of being heard by the said Dr. Agiri but the 3rd – 5th defendants were called upon and were heard, before Dr. Agiri wrote his report.” (Italics mine)

3.
The learned trial Judge erred in law in holding that the declaration dated the 28th of July, 1981 was validly made under section 9(a)(3) of the Chiefs Law, in spite of the fact that the plaintiffs were not given an opportunity of being heard before the said declaration was made.

Particulars of Error

   (i)
Under the rules of natural justice and section 33 of the constitution, every person is entitled to a fair hearing in the determination of his civil rights and obligations;

   (ii)
The making of the declaration dated the 28th day of July, 1981 involved a determination of the plaintiffs’ civil rights and obligations;

   (iii)
In view of (i) and (ii) above, the learned trial Judge ought to have held that the said declaration was null and void.”

After hearing the submissions of counsel both written and oral on the issues raised in the grounds of appeal, the Court of Appeal, by a unanimous decision of the three justices (Omololu-Thomas, Sulu-Gambari and Onu, JJCA) dismissed the appeal.

On the issue of fair hearing, Omololu-Thomas, JCA, in his lead judgment (concurred in by Sulu-Gambari and Onu, JJCA.) said:

“It has long been settled that natural justice does not necessarily (require that the hearing should be oral (vide Local Government v. Arlidge(1915) AC 120). It can also in my view be said by way of general principle that there is no right to an oral hearing, unless the refusal of an oral hearing would prejudice the applicant.

A statute may take away the right or provide expressly or by necessary implication for such right (vide for example Requies v. I Birmingham City Justice, Ex. Parte Chris Foreign Foods (wholesales) Ltd.)where it was held that a justice acting under a procedure of the U. K. Food and Drugs Act, 1955 even though

[1987] 1 .
Adigun v. A.-G. of Oyo State
(Obaseki, J.S.C.)
693

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in an administrative or executive capacity was obliged to act fairly and impartially. In essence, he is obliged to do so … This case however decided that notwithstanding that an inquiry is administrative natural justice requires a fair hearing.

In the case in hand, it has not been shown by the appellants that the absence of an oral hearing had prejudiced the appellants …

The evidence indeed was that Dr, Agiri was to conduct a discreet research and he collected materials from all the families concerned including Alawusa and Ogunmakinde Ande families the latter of which as the evidence and findings disclosed, is a section of Alawusa family (refer to exhibit ‘F’). The three ruling houses recommended were Alawusa, Adagunodo and Gbaase and the case of the appellants appeared to have been considered under the umbrella of Alawusa family.

The position of the appellants, having been established already in exhibit ‘D’, and considering the scope of the inquiry conducted by Dr. Agiri was there really any further need for oral hearing of what has been established by a declaration? In view of the existing materials in favour of the appellants, the inquiry is not as though Dr. Agiri was conducting a lis proceedings in view of the various claims, complaints, petitions, Reports and other inclusive inquiries before 1979.

The question is not that they were not heard but that they were not heard orally and it seems to me that in view of the representations which were taken into account, the appellants’ case could not have been prejudiced. If they were, there is no evidence before the trial court. They cannot now complain.

I do not therefore for the foregoing reasons think that substantial justice requires the oral hearing of the appellants before an enquiry of the type instituted under Dr. Agiri.

In the evidence of 1st appellant, before the High Court which I find significant, he is reported to have said:

‘Adagunodo was the 3rd Oluwo of Iwo, … Alawusa succeeded his father Gbaase At the death of Alawusa his son Ogunmakinde Ande succeeded him

This clearly makes Ogunmakinde-Ande only a section of Alawusa family.”

On the issue of the promulgation of the declaration exhibit K by the Governor-in-Council and the provision of the Chiefs Law, the learned justice said at p. 196:

“Counsel then in view of the foregoing reasons and submissions further submitted that any act of the Oyo State Governor tending to render exhibit D invalid, as in this case the making of exhibit K is an usurpation of the function of the State Legislature and as it does not fall within the permitted legislation, it is void.

Counsel’s submission overlooks the point that there are two distinct modes of modification provided by section 274 of the Constitution …

   The operative words in section 274(1) of the Constitution before any existing law is deemed to be the law of legislature of a State

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(as in this case on appeal, the Chiefs Law and in particular section 9 thereof) the law shall have effect with such modifications as may be necessary to bring it into conformity with the Constitution. It is obligatory that the modifications must be made. My reading of the provision is that as at the time effect is given to it, such law must at least be read with the necessary modifications.

The next modification provision is under section 274(2) enabling “the appropriate authority” in his discretion to make such textual amendments as he considers necessary or expedient. In the absence of any such textual amendments, the law retains its character as an existing law unless it is inconsistent with the provisions of the constitution. If the law is not thus inconsistent, its validity as an existing law cannot be questioned on the ground merely that it had not been textually amended.

The common ground in the submission of both sides is that it is the “Governor” and not the “executive council” upon which is vested all the executive powers under section 5 of the Constitution. He is the repository of all the executive functions under the Chiefs’ Law and as indeed decided in Kagoma’s case. That being the case, the executive functions under section 9 of the Chiefs’ Law on the “Governor-in-Council” by the operation of section 274(1) of the Constitution since 1st October, 1979 vested in the “Governor” in the absence of a textual modification under section 274(2) of the Constitution. The law empowering the Governor to make the declaration under section 9 of the Chiefs’ Law is thus saved as an existing law …

    The section does not require express textual modifications to be effective as an existing law. This reading of the section will bring it into conformity with the constitution in order to give full effect to the provisions and so as to enable the exercise of the powers conferred thereunder to continue (see Kagoma’s case supra).”

On the issue of jurisdiction of the court to make the declaration of customary law regulating the appointment of Oluwo of Iwo in Iwo, the learned justice (Omololu-Thomas, JCA.) said:

“The trial Judge was of course correct in holding in effect that the primary object of the section of the Chiefs’ Law is, by setting out the procedure for the making of declarations on customary law, derived from that law, and it is not a function exercisable by the courts. To make the point clearer, “exercisable” should read “primarily exercisable.”

It is not the business of the courts to make declarations of customary laws relating to the selection of Chiefs under that law: The exercise of such functions is not directly related to the general jurisdiction of the courts under section 236(1) of the Constitution of 1979 so long as the power exercisable under or to be exercised under the law is within its four corners and is exercised in good faith as being a power lawfully conferred by the legislature. (Caltona Ltd. v. Commissioner of Works (1943) 1 All ER 560 at 564 per Lord Greene, M.R.). In the exercise of the court’s judicial functions under section 236 of the Constitution, orders

[1987] 1 .
Adigun v. A.-G. of Oyo State
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declaratory of the functions or powers under the law can be made for example with a view to determining the validity or otherwise of the existence of a particular custom, in contradistinction from the making of “Declaration” as a form of sub-legislation under the law.

The jurisdiction of the courts in that respect is unfettered and unlimited in terms of the said section 236 of the Constitution.

Indeed, the correct view as respects the court’s powers vis-a-vis those under the Chiefs’ Law is as conceded by the learned counsel, and the courts will not by themselves exercise, primarily, jurisdiction with respect to those powers conferred expressly by the legislature on bodies other than the courts outside their judicial authority under sections 6 and 236 of the Constitution. At any rate, the appellants’ claim did not speak of a “declaratory order” as such, but just a declaration simpliciter, which may suggest to any reader the exercise of an administrative (or executive) or legislative functions under the law.”

Against the decision of the Court of Appeal, the plaintiffs have further appealed to this court. Six grounds of appeal were filed along with the notice of appeal. They are:

1.
The learned justices of the Court of Appeal erred in law in failing to hold that the learned trial Judge held that he had no jurisdiction to make a declaration that by the customary law prevailing in Iwo, the Ogunmakinde Ande ruling house from which appointment to the Oluwo of Iwo Chieftaincy is to be made.

Particulars omitted

2.
The learned justices of the Court of Appeal erred in law in failing to hold that the learned trial Judge had original jurisdiction to make the declaration referred to in ground 1.

Particulars:

(a)
Under the provisions of the Constitution of the Federal Republic of Nigeria 1979, the High Court has unlimited jurisdiction to hear and determine any civil proceedings in which the existence or intent of a legal right, power, duty, liability, privilege, interest obligation or claim is in issue.

(b)
The fact of not claiming a “declaratory order” but a “declaration” as contended by the Court of Appeal is only a play on words and judging from the context in which the case was prosecuted and addresses made, the learned trial Judge ought to have known that what was sought from him was a declaratory order and not a document termed a ‘declaration’ under the Chiefs’ Law.

3.
The learned justices of the Court of Appeal erred in law in failing to hold that the appellants were not given a fair hearing before the Agiri inquiry and that such a lack of fair hearing vitiated the inquiry.

Particulars of Error

(a)
The provisions of the Constitution, the Chiefs’ Law and the rules of natural justice require a fair hearing to be

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given to a party whose rights are likely to be affected as a result of such an inquiry.

(b)
The instructions to Dr. Agiri by the Oyo State Government show that the respective claims of the appellants and other contesting parties were to be examined for a determination as to which of the competing claims was correct;

(c)
In the process of deciding which of the competing claims was correct, Dr. Agiri, the Commissioner gave the Adagunodo, Gbaase and Alawusa families an oral hearing whilst the appellants were not given the opportunity of being heard orally;

(d)
Contrary to the decision of the Court of Appeal, that the appellants were heard under the umbrella of Alawusa, the learned trial Judge never based his decision that the appellants had a fair hearing on that ground, and there was no cross-appeal or notice to support the decision on that ground.

(e)
In any event, the appellants could not have been heard under the umbrella of the Alawusa family when it was clear that the contest was between the Ogunmakinde Ande family on the one hand the Alawusa, Gbaase and Adagunodo families on the other hand.

(f)
The decision of the learned trial Judge that the appellants were given a fair hearing in view of the minutes of a meeting containing views expressed by the appellants and which were used by the Commissioner cannot be right, as those minutes also contained the views of the other parties who were in addition given oral hearing.

(g)
In the alternative, these minutes could not have afforded the appellants the opportunity of properly putting forward their case as the contents were not made in contemplation of any inquiry,

(h)
Contrary to the decision of the Court of Appeal that the appellants have not shown how they have been prejudiced by their having been denied an oral hearing, once that denial amounted to a denial of fair hearing, it is presumed that the appellants could have been prejudiced and the law does not require that a party denied a fair hearing should show that he was prejudiced.

(i)
In any event, the fact that if they had been given an oral hearing like the other parties, it is not known what decision Dr. Agiri would have reached is the prejudice suffered.

4.
The learned justices of the Court of Appeal erred in law in failing to hold that the learned trial Judge was wrong in holding that exhibit ‘K’ was validly made under section 9(a) (3) of the Chiefs’ Law.

        Particulars of Errors

(a)
The appellants were not given a fair hearing before exhibit ‘K’ was made;

[1987] 1 .
Adigun v. A.-G. of Oyo State
(Obaseki, J.S.C.)
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 (b)
The provisions of the Constitution of the Federal Republic of Nigeria 1979 and the Chiefs’ Law and the rules of natural justice require that they be given a fair hearing;

 (c)
Exhibit ‘K’ was made pursuant to section 9(a)(3) of the Chiefs’ Law by the Governor-in-Council a body that did not exist at the material time,

(d)
Section 9(a)(3) of the Chiefs’ Law is void in so far as it authorises the Governor-in-Council to make any such declaration as it is in conflict with the provisions of the 1979 Constitution to the extent that there is no body known as the Governor-in-Council in the said Constitution.

(e)
Exhibit D which was purportedly altered by the making of exhibit ‘K’ contains the prevailing customary law as at the 1st day of October, 1979 and to that extent it became the existing law which could only be amended in substance or repealed or-done away with by the Oyo State Legislature.

5.
The learned justices of the Court of Appeal erred in law in failing to hold that the learned trial Judge was wrong in failing to evaluate the evidence of P.W. 1 because the evidence as to customary law was not corroborated.

Particulars of Error

   (a)
The learned trial Judge though not using the word “corroboration”, did require corroboration of the evidence of the PW. 1 and because of this did not evaluate his evidence;

   (b)
There is no rule of law that the evidence of a witness in relation to customary law must be corroborated;

   (c)
The only requirement in law is that the evidence of such a witness must be credible.

6.
The learned justices of the Court of Appeal erred in law in assuming the role of the trial court and holding that the trial court could not have been satisfied with the scanty evidence on custom and that the relevant ground of appeal relate to the failure to evaluate the evidence of the 1st appellant who never testified.

Particulars of Errors

   (a)
There was no scanty evidence as to custom and the learned trial Judge never complained that the evidence was scanty;

   (b)
Though the appellants solicitors wrongly made reference to the 1st appellant in the relevant ground of appeal it is clear that this was purely descriptive of the person who testified as P.W. 1;

  (c)
The fact that P.W. 1 was not the 1st appellant does not remove the fact that there was a P.W. 1 who testified and whose evidence was not evaluated;

  (d)
The real complaint in the relevant ground of appeal is that P.W. 1 ‘s evidence was not evaluated.”

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Ten ‘issues’ were formulated as questions for determination in this appeal by the appellants in their briefs of arguments. These questions are:

“(1)
whether the learned trial Judge declined jurisdiction to grant the relief sought by claim (1)?

 (2)
whether in view of the Chiefs’ Law, the High Court has no original jurisdiction to grant a declaration as to the existing customary law relating to the existence of a ruling house?

 (3)
whether the Court of Appeal was right in refusing to hold that the appellants were not given a fair hearing before Dr. Agiri?

 (4)
whether where a person alleges the denial of a fair hearing the law requires him to go further and show the injury suffered?

 (5)
if question 4 is in the affirmative, whether it is correct that the appellants have not shown the injury suffered?

 (6)
whether in the circumstances of this case, the declaration dated 28th day of July, 1981 could have been validly made under section 9(A)(3) of the Chiefs’ Law if the appellants were not given fair hearing before the declaration was made?

(7)
whether there was in existence a body known as the Governor-in- Council which could have validly made exhibit K?

(8)
whether the Evidence Act requires the evidence of a witness with regard to traditional evidence and/or the evidence of customary law to be corroborated?

(9)
whether having regard to the facts and circumstances of this case and the relevant law the Court of Appeal was right in coming to the conclusion that the lower court could have been satisfied with the evidence of custom led before it? and

(10)
whether the Court of Appeal was right in using the fact that the 1st appellant never testified as a ground for dismissing ground 5 of the appellants’ ground of appeal?

On the 1st question, learned counsel for the appellants, Chief F.R.A. Williams, SAN, submitted that the judgment of the learned trial Judge, Oloko, J. bears no other interpretation than that the learned judge declined jurisdiction to grant the relief sought by claim 1. It is true that the learned trial Judge made copious reference to the provisions of the Chiefs’ Law particularly to the provisions of sections 4, 9 and 10. It is also true that he distinguished the powers exercisable under the Chiefs’ Law from the powers exercisable by the courts in exercise of its jurisdiction. I do not gather or form the impression that he declined jurisdiction in respect of claim (1), Otherwise he would not have said:

“From the evidence before me, I find myself unable to make the declaration sought in the first leg of plaintiffs’ claim to wit:

‘A declaration that by the customary law prevailing in Iwo, the Ogunmakinde Ande Ruling House is the only Ruling House from which appointment to the Oluwo of Iwo Chieftaincy is made.

Assuming I am wrong in the above conclusion, I am prepared to hold further that even on the evidential requirement, the plaintiffs must fail in the first leg of the claim,”

This conclusion of the learned trial Judge was arrived at after detailed consideration of the complaints about the validity of exhibit K, portion of Dr.

[1987] 1 .
Adigun v. A.-G. of Oyo State
(Obaseki, J.S.C.)
699

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Agiri Report exhibit F and submission of learned counsel for the plaintiffs, Mr. O. Sofunde that plaintiffs were not given a fair hearing.

From the wording of the claim, it is clear that the plaintiffs were not seeking a declaration as to the customary law, but a declaration that by the customary law prevailing in Iwo, the Ogunmakinde Ande Ruling House is the only ruling house from which appointment to the Oluwo of Iwo Ghieftaincy is to be made.

There is no doubt that before this declaration can be granted, there must be evidence establishing the customary law in Iwo as a question of fact. If there is a registered declaration of the customary law regulating the appointment, the evidence is straight forward and would consist in the production of the Registered Declaration in which case a single witness would suffice. If there is no registered declaration, cogent evidence of the custom must be adduced through credible witnesses in which case prudence demands that more than one witness be called.

From the evidence adduced, the exercise of declaring whether Ogunmakinde Ande is or is not the only Ruling House is straight forward. The function of the judge, the learned trial judge, is to ascertain and make a finding of fact of what the customary law applicable is and decide whether the declaration sought is permitted by that law.

The learned trial Judge was perfectly justified to have referred to the procedure for making declarations of customary law regulating the appointment of Chiefs under the Chiefs’ Law by bodies other than the court. The Court of Appeal quite properly held that “it is not the business of the courts to make declarations of customary law relating to the selection of Chiefs under the Chiefs’ Law. But it is the business of the court to make a finding of what the customary law is and apply the law for the purpose of the claims for declarations.

The Court of Appeal was also of the correct view when it held that as respects the courts’ powers vis-a-vis those under the Chiefs’ Law, the correct view is that the courts will not by themselves exercise, primarily, jurisdiction with respect to those powers conferred expressly by the legislature on bodies other than the courts outside their judicial authority under sections 6 and 236 of the Constitution.

The Court of Appeal, however, in my respectful view, misdirected itself when it said that the appellants’ claim did not speak of a declaratory order as such. When a ‘declaration’ is claimed in an action in court, the claim is indistinguishable from a claim for “a declaratory order.”

The opinion expressed above covers also the second question for determination. The issue of fair hearing covered by questions 3, 4, 5 and 6 is a Major issue in these proceedings. It is the main plank on which the 2nd and 3rd legs of the appellants’ claim are based and before dealing with the issue, a brief reflection on the facts is necessary.

The plaintiffs/appellants are members of Ogunmakinde Ande Ruling House of the Oluwo of Iwo Chieftaincy. The Oluwo of Iwo chieftaincy institution came into being many years ago – in fact more than three centuries ago. It is common ground among the parties that Parin was the first Oluwo of Iwo. It is alleged that he reigned for 90 years according to P.W. 1 i.e. the 2nd appellant. He was succeeded by his son Layilumi as 2nd Oluwo. Adagunodo was the 3rd Oluwo of Iwo. Gbaase succeeded him as 4th Oluwo. Gbaase was succeeded by his son Alawusa as 5th Oluwo. Alawusa was succeeded by his son Ogunmakinde as sixth Oluwo. He reigned for 82 years and was succeeded by his son Mohammed Lamuye as the 7th Oluwo of Iwo, he reigned for 90 years, 1816-1906. Since the

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reign of Ogunmakinde which ended in 1816, eight Oluwos have reigned in Iwo. According to P.W. 1 i.e. 2nd appellant, they have been sons and great sons of Ogunmakinde Ande. This is controverted by the respondents. Only one witness, the 2nd plaintiff testified for the plaintiffs. He is a member of Ogunmakinde Ande Ruling House. The 1st and 3rd plaintiffs are his uncles. His testimony was short and mainly consist of the genealogy of those who have been occupants of the stool on Oluwo chieftaincy. According to him in his testimony:

“The Ogunmakinde/Ande Ruling House is the only Ruling House at Iwo in connection with the appointment of Oluwo of Iwo chieftaincy.”

This is the only oral evidence led in proof of the customary law that Ogunmakinde Ande is the only Ruling House from which, according to the customary law of Iwo, the Oluwo of Iwo is entitled to be appointed. It is true that P.W. 1 gave evidence that the past 8 Oluwos of Iwo since Ogunmakinde Ande reigned have been chosen from Ogunmakinde Ande Ruling House. But it was not in the testimony that their appointments were in accordance with the customary law of Iwo regulating the appointment.

The respondents, contrary to the stand of the appellants, contended that Adagunodo, Gbaase and Alawusa were not father, son and grandson but brothers who reigned in turn.

It appears that the search for are registered declaration of customary law regulating the appointment of Oluwo of Iwo is of long standing. The various attempts since 1955 to get a declaration made yielded no result until 1979 when exhibit D which declared Ogunmakinde Ande as the only ruling house was made. Before exhibit D was made, Government set up Apara Commission to enquire into the chieftaincy and the Report of the Commission influenced government in no small measure to the making of exhibit D. However, exhibit D evoked a wave of protests to government. This led to the appointment of Dr. B.A. Agiri to conduct discreet research into the chieftaincy. Dr. Agiri produced exhibit F, a report of the result of his research. This was acted on by government and influenced by the findings the Oyo State Governor made exhibit K a declaration identifying Adagunodo, Gbaase and Alawusa as the ruling houses from which according to the customary law of Iwo, Oluwo of Iwo is appointed. It is inevidence that Ogunmakinde Ande house is a constituent branch of Alawusa Ruling House. Members of Ogunmakinde Ande Ruling House naturally aggrieved at having been submerged in Alawusa Ruling House commenced these proceedings in the High Court of Oyo State, Oshogbo Judicial Division. The main contention of the appellants are brought out in paragraphs 11 and 19 of the amended statement of claim which read:

“11.
The plaintiffs will contend at the trial that the proceedings of the Agiri Inquiry are contrary to natural justice, unconstitutional, illegal, null and void for the following reasons:

‘The plaintiffs were never notified of such inquiry and consequently were not given the opportunity of being heard at the inquiry.’

19.
The plaintiffs will contend at the trial that the purported declaration referred to in paragraph 17 above is ultra vires the Chiefs’ Law as amended by Edict No. 16 of 1975 null and void and of no effect whatsoever, because:

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  (i)
section 9(a)(3) of the Chiefs’ Law as amended by Edict No. 16 of 1975 does not make provision for the Governor to make any declaration;

  (ii)
it does not represent the customary law prevailing.”

It appears that no Oluwo of Iwo has ever been appointed under any registered declaration of customary law regulating the appointment. According to the defendant’s 1st witness, Adesunpe Sanusi in his testimony:

“To the best of my knowledge, the late Oluwo, Oba Abimbola II was never appointed under a registered declaration. He became Oba in December, 1957. He died on the 22nd March, 1982 and since then the chieftaincy has been vacant.”

The action in the High Court in this matter was filed on the 3rd day of March, 1982 almost 3 weeks before Oba Abimbola II died. According to exhibit F produced by Dr. Agiri,

“The main issue raised by the Oluwo of Iwo chieftaincy dispute is whether or not succession to that title before the nineteenth century was primogeniture. The controversy centres specifically on whether succession from Paarin (the first Oluwo to rule at the present site of Iwo) to Ogunmakinde Ande (who ruled in the 1820s) was direct from father to his first son. There is no dispute that this alleged mode of succession did not apply to Ande’s rule.”

Narrating the source of his information, he said:

“In attempting to resolve the problem of the mode of succession from Paarin to Ogunmakinde Ande, I have relied very much on information obtained from Mr. Adeyemi Aremu, lie OOsa, Kajola, Iwo at an interview on Thursday, 1st May, 1980 … I obtained the information from him in the presence of his eldest son who introduced me to his father and refused to participate Other sources of information available to me included:

(i)
E.N.C. Dickinson Intelligence Report on Iwo District dated 1st February, 1939;

(ii)
Minutes of meeting held by the Commissioner for Local Government and Chieftaincy Affairs with the Oba, Chiefs and people of Iwo on the Oluwo Chieftaincy Declaration on Friday, 19th day of July, 1974 at 10 a.m. at the Western House of Assembly Chambers;

(iii)
Notes on Dr. P.C. Lloyd’s “A comparative study of the Political Institutions in some Yoruba Kingdoms 1952 (B. Lett, thesis Oxford), which includes a study on Iwo Political institutions in Dr. Lloyd collected his information between 1948 and 1950;

(iv)
Brief on the Oluwo of Iwo Chieftaincy from the office of the Governor, Oyo State reference CB 141/8/13/049 of 1st April, 1980; and

(v)
My interview with the elders and representatives of the Adagunodo, Gbaase and Alawusa sections of the Iwo ruling lineage in Iwo on 26th April, 1980.

The appellants have made heavy weather of the 5th source of information as it shows that the Ogunmakinde Ande Ruling House was not heard before Dr. Agiri made his findings and recommendations which reads in exhibit F:

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“12.
Recommendation – Any male descendant of Adagunodo, Gbaase and Alawusa (who were direct sons of Olayilumi and who held the title of Oluwo of Iwo in rotation) could, with valid justification, be appointed Oluwo. This would remove the distortion of the mode of succession to the Oluwo title caused by the reigns of Ande and Lamuye during the nineteenth century.”

The Governor, after the receipt of the Report exhibit F, directed the Iwo Chieftaincy Committee to make another declaration to reflect the three Ruling Houses. When the Iwo Chieftaincy Committee failed to make a new declaration, the Governor made the Declaration exhibit K dated 28th July, 1981 under section 9(A)(3) of the Chiefs’ Law now section 10(3) of the Chiefs’ Law Cap. 21 Laws of Oyo State 1978. The Declaration exhibit K was subsequently registered the following day, i.e. 29th July, 1981.

Two important submissions were made by the learned Senior Advocate of Nigeria, Chief F.R.A. Williams appearing for the appellants. They are:

(1)
That exhibit K is void for having been made by a non existent body, the Governor-in-Council. He further submitted that no adaptation of the Chiefs’ Law has been made by the appropriate authority as required by section 274(2) of the Constitution of the Federal Republic of Nigeria 1979. Consequent upon this failure, he submitted that section 10(3) of the Chiefs’ Law (formerly section 9A(3)) Cap. 21 Laws of Oyo State 1978 is void there being no provision for an equivalent Executive Council under the 1979 Constitution. He cited and relied on the case of Governor of Kaduna State & Ors. v. Kagoma (1982) 3 NCLR 1032 at 1069;

(2)
That exhibit K is void as it was made on the basis of the result of the inquiry conducted by Dr. Agiri which enquiry was conducted in breach of section 33(1) of the Constitution.

He complained and contended that the Ogunmakinde Ruling House of which the appellants are members were not given a hearing or an opportunity of being heard. He submitted that although Ogunmakinde Ande Ruling House is a branch of Alawusa Ruling House and representatives and elders of Alawusa were given a hearing, those elders and representatives could not be expected to present the case of Ogunmakinde Ande Ruling House against whom they were protesting. He contended further that a study of the minutes of the meeting held by the Commissioner for Local Government and Chieftaincy Affairs with the Oba, Chiefs and people of Iwo on the Oluwo Chieftaincy Declaration on 19th July, 1974 cannot be a hearing of members of Ogunmakinde Ande Ruling House.

Mr. Boade, learned senior State counsel who appeared for the 1st and 6th to the 19th respondents submitted that the Executive Council in the Interpretation Law Cap. 52 vol. 3 Laws of Oyo State is not the same as Executive Council defined by this Court in Kagoma’s case (1982) 6 SC 87 at page 90. He contended that the Executive Council in Oyo State in the Chiefs’ Law in 1977 is as in Kagoma’s case (supra) and referred to the dictum of Fatayi-Williams, CJN (as he then was) at p. 107. He then submitted that as under section 5 of the Constitution of the Federal Republic of Nigeria 1979 the executive authority of Oyo State was vested in the Governor. The Governor of Oyo State had the power to make exhibit K.

He then urged the court to read Governor-in-council as Governor as Exhibit K was signed by the Governor. In conclusion, he referred to pages 119-120 of the

[1987] 1 .
Adigun v.A.-G. of Oyo State
(Obaseki, J.S.C)
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Presidential Constitution of Nigeria by Professor Nwabueze. On the issue of fair hearing, learned counsel cited the case of Maxwell v. Department of Trade and Industry (1974) 2 All ER 126-127 particularly the dictum of Lord Denning. He contended that the appellants, i.e. Ogunmakinde Ande Ruling House were heard as members of Alawusa Ruling House,

On the issue of jurisdiction, learned counsel submitted that the making of declarations in respect of customary law relating to selection of Chiefs is purely administrative under the provisions of section 4 of the Chiefs Law Cap. 21 Laws of Oyo State 1978 and that it is not a function exercisable by the Court or vested in the court. The exercise of such functions is not directly related to the general jurisdiction of the courts under section 236(1) of the Constitution of the Federal Republic of Nigeria, 1979. He then referred to:

Merchants Bank Ltd. v. Federal Minister of Finance (1961) All NLR598;

Carltona Ltd. v. Commissioner of Works (1943) 1 All ER 560 at 564;

              Bull v. Attorney General for N.S.W. (1916) 2 AC.564 .

Learned counsel therefore urged the court to hold that in respect of chieftaincy matter, the courts have only supervisory or appellate jurisdiction on the making of declarations as to customary laws relating to the selection of traditional chiefs under the law.

It is clear from the Chiefs’ Law that the court cannot assume the functions the Chieftaincy Committee as regards the making of declarations of customary law governing the selection and appointment of traditional chiefs. The appellants have not by their claim asked for that declaration. What the appellants seek is a declaration that Ogunmakinde Ande is under the customary law of Iwo the only Ruling House. In carrying out this judicial task, the court will from the evidence adduced ascertain and find whether there is customary law on the matter, what the customary law is and then decide whether on the evidence, Ogunmakinde Ande is the only Ruling House in Iwo from which Oluwo of Iwo can be selected and appointed. It cannot, in my view, be correctly and legally argued that the High Court cannot entertain and adjudicate on such a claim in exercise of its unlimited jurisdiction vested in it by section 236(1) of the Constitution of the Federal Republic of Nigeria 1979.1 prefer Chief F.R.A. Williams’ submission on this point. Chief Fawole who appeared for the 3rd, 4th and 5th respondents submitted that exhibit K was validly made, that the Governor had constitutional powers to make it and that the appellants were given fair hearing by Dr. Agiri before he compiled his report and made his recommendation on which exhibit K was based.

In reply, Chief F.R.A. Williams submitted that as an executive body with state executive functions Executive Council is not provided for in the 1979 Constitution of the Federal Republic of Nigeria.

I shall now proceed to examine the two constitutional points. These are:

(1)
whether section 10(3) of the Chiefs’ Law Cap. 21 is in conflict with the 1979 Constitution and therefore void; and

(2)
whether there has been a breach of fair hearing under section 33(1) and (2) of the 1979 Constitution by Dr. Agiri to render his report void and nullify exhibit K.

        Along with the 1st issue raised above is the issue of whether exhibit K was made by a non-existent body having regard to the fact that it was signed by

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Chief Bola Ige, the then incumbent Governor and Chief Executive of the State as Governor. Section 10 of the Chiefs’ Law appears to me to be the focal point of this dispute. It is the power provided by subsection 3 of the section that the governor purported to have exercised in making the Declaration in exhibit K. I will therefore set out the provisions of the section in full. It reads:

“10(1)
Where the Executive Council is satisfied that a registered declaration –

    (a)
does not contain a true or sufficiently clear statement of the customary law which regulates the selection of a person to be the holder of a recognised chieftaincy;

    (b)
does not contain a sufficient description of the method of selection of the holder of such a chieftaincy; or

    (c)
contains any error whether as to its form or substance; or

    (d)
is otherwise defective, faulty or objectionable having regard to the provisions of this law. The Executive Council may require the chieftaincy committee which made the declaration to amend such declaration in any respect that it may specify, or to make a new declaration according as it may consider necessary or desirable in each case;

(2)
The Executive Council may approve or refuse to approve a registered declaration amended or a new declaration made by a chieftaincy committee under subsection (1) of this section.

(3)
Where a chieftaincy committee fails to amend a registered declaration in the respects specified by the Executive Councilor to make a new declaration within a reasonable period of its being required so to do in accordance with subsection (1) of this section, the Executive Council, may amend the registered declaration in respect of a recognised chieftaincy concerned in accordance with the powers conferred on the committee under this law.

(4)
The provisions of section 6 shall apply mutatis mutandis in respect of any amendment to a registered declaration or to any new declaration made by a chieftaincy committee under subsection (1) of this section.”

When the Constitution of the Federal Republic of Nigeria 1979 came into force on 1st October, 1979, the Chiefs’ Law was an existing law. It was a law in force on the 30th day of September, 1979. Existing law has been defined in section 274(4) (b) to mean

“any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date comes into force after that date.”

It is also deemed to have been made by the Oyo State House of Assembly as it is a law with respect to a matter the House of Assembly was empowered by the Constitution to make law. See section 4(7) of the 1979 Constitution of the Federal Republic of Nigeria. Subsection 7 of section 4 at the material time reads:

“The House of Assembly of a State shall have power to make laws for the peace order and good government of the State or any part thereof with respect to the following matters, that is to say –

[1987] 1 .
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(a)
any matter not included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to the Constitution;

(b)
any matter included in the Concurrent Legislative List set out in the first column or Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto;

(c)
any other matter with respect to which it is empowered to make laws in accordance with the provision of this Constitution.”

Chieftaincy matter is neither in the Exclusive nor in the Concurrent Legislative List. This power is now under Decree No. 1 of 1984 Constitution (Suspension and Modification) Decree 1984 as amended by Decree No. 17 of 1985. Constitution (Suspension and Modification) (Amendment) Decree 1985 vested in the Military Governor of a State (see section 2(3) of Decree No. 1 of 1984). The law being an existing law was not repealed by the Constitution. Section 274(1) of the Constitution provides that:

“Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be

(a)

 (b)
a law made by a House of Assembly to the extent that it is a state law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.”

It should be noted, however, that section 274(2) of the Constitution gave power to the Appropriate Authority to make by order from time to time such changes in the text of any existing laws as the Appropriate Authority considers necessary or expedient to bring the law into conformity with the provisions of the 1979 Constitution. It was the failure of the Governor of Kaduna State to utilise this power to effect textual changes in the Kaduna Local Government Law that led this court to declare section 98(1) of that law inconsistent with the Constitution and therefore void in the case of Governor of Kaduna State and 2 Others v. Kagoma (1982) 6 SC 87.

Mr. Boade has submitted that the Governor of Oyo State was the Chief Executive of the State and by section 5(2) of the Constitution had subject to the provisions of the Constitution vested in him the executive powers of Oyo State. I agree with him that by section 5(2), the executive powers of Oyo State were vested in the Governor of Oyo State then Chief Bola Ige. These executive powers extend to:

“(i)
the execution and maintenance of this Constitution and all laws made by the House of Assembly; and

(ii)
to all matters with respect to which the House of Assembly has for the time being power to make laws,”

These executive powers may subject to the provisions of the Constitution and to the provisions of any law made by the House of Assembly, be exercised by the Governor of the State either directly or through the Deputy Governor and Commissioners of the Government of that State or officers in the public service of the State.

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The function exercised by the Executive Council before 1979 October 1st, learned counsel submitted, have been transferred to the Governor of the State and in order to bring the Chiefs’ Law into conformity with the Constitution, this Court has been urged to use its interpretative jurisdiction to alter Executive Council in section 10 of the Chiefs’ Law to read Governor for Executive Council. There is a body known as Executive Council provided for in section 171(1) of the Constitution. The only constitutional function assigned to that body is to declare in time of ill-health whether the Governor or Deputy Governor of a State is incapable of discharging the functions of his office. In subsection (5), it is stated that reference to Executive Council is a reference to the body of Commissioners of the Government of the State, howsoever called, established by the Governor and charged with such responsibilities for the functions of government as the Governor may direct. It is to be observed that in Decree No. 32 of 1975 Constitution (Basic Provisions) Decree, the Executive Council established included the Military Governor and later the Military Administrator. See section 7 of the Constitution (Basic Provisions) Decree 1975, Decree No. 32 of 1975 and the Constitution (Basic Provisions) Transitional Measures) Decree 1978, Decree No. 15 of 1978.

According to section 7 of the Decree No, 32 of 1975,

“There shall be for each State an Executive Council which shall

consist of:

(a)
The Military Governor as Chairman;

(b)
one senior officer each from the Nigerian Army, Navy and Air Force in the State;

(c)
the most senior officer of the Nigeria Police in the State;

(d)
such other members (to be known as Commissioners) as the Military Governor in his discretion may from time to time appoint.”

Decree No. 15 of 1978 substituted the “Military Administrator” for the “Governor” as head of the Executive Council.

This Executive Council ceased to exist on the 30th day of September, 1979 with the repeal by Decree No. 105 of 1979 of Decree No. 32 of 1975 and Decree No. 15 of 1978.

I am of the opinion that the provision of section 274(1) of the Constitution imposes an exercise on the courts in its interpretative jurisdiction in order that effect shall be given to an existing law without prejudice to their powers to declare invalid any provision of an existing law on the ground of inconsistency with the provisions of any other law.

Modification has been defined in section 274(4) (c) of the Constitution as including addition, alteration omission or repeal. In other words, in order to bring an existing law into conformity with the Constitution, the modification envisaged include addition, alteration, omission or repeal.

        The question therefore arises whether the repeal of section 10 will bring the Chiefs’ Law into conformity with the Constitution or whether the alteration of Executive Council to Governor will be more likely to bring it into conformity with the Constitution.

It seems to me that having regard to section 5(2) of the Constitution which vested executive powers in the Governor and the fact that the functions imposed by section 10 on the Executive Council which has ceased to exist were executive functions it seems reasonable, proper and desirable to modify the section by

[1987] 1 .
Adigun v. A.-G. of Oyo State
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substituting Governor for Executive Council to execute the functions thus imposed and conform with the Constitution. See The Presidential Constitution of Nigeria 1982 Edition page 172.

Exhibit K made pursuant to section 9 A(3) now section 10(3) of the Chiefs’ Law by the Governor, in my view, cannot be declared a nullity on the ground that it was signed by the Governor. The declaration at the top that it was made by the Governor-in-Council cannot affect the validity of the Declaration when instead of being signed by the Governor-in-Council it was signed by the Governor.

If section 274(1) of the Constitution had made no provision for modification, the absence of adaptive legislation would have been fatal to the legislation section 10 of the Chiefs’ Law and it would have been declared void.

It appears to me that section 274(1) of the Constitution gives far wider powers than section 274(2) of the Constitution which only allows changes in the text.

It appears the Declaration exhibit K has survived the onslaught so far and rescued from nullification by section 274(1).

Will it survive the issue of fair hearing? This question raises the issue of essential rather than formal validity of the Declaration. There is no doubt that the Declaration exhibit K with particular reference to the declaration of the 3 Ruling Houses – Adagunodo, Gbaase and Alawusa was based wholly on the report of the inquiry carried out by Dr. Agiri. If therefore Dr. Agiri failed to give Ogunmakinde Ande Ruling House a hearing or fair hearing before compiling his report on the issue which touches the very existence of Ogunmakinde Ande House as a ruling house, the least that can be said is that the inquiry is incomplete.

It has been the contention of the respondents that Ogunmakinde Ande Ruling House was given a hearing. The hearing consisted in

   (1)
interview of the elders and representatives of Alawusa family;

   (2)
examination of the minutes of the meeting of the Commissioners for Local Government and Chieftaincy Affairs with the Oba, Chiefs and people of Iwo in 1974.

It must not be overlooked that the inquiry was ordered by government as a result of a dispute over the right of Ogunmakinde Ande Ruling House to be declared the only Ruling House the Oluwo of Iwo Chieftaincy as shown in exhibit D. The exercise of embarking on the making of a Declaration or amendment of a Declaration of the applicable customary law is not to be carried out just for its own sake. This is expressly stated in section 10 of the Chiefs Law. It is not to satisfy the whims and caprices of those in power. It can only be embarked on when the Governor is satisfied that a registered declaration does not contain a true or sufficiently clear statement of the customary law which regulates the selection of a person to a recognised chieftaincy.

Where does the Governor get the required satisfaction from? and what steps does he take to get the satisfaction? These are not spelt out by the Chiefs’ Law. What is spelt out is what the satisfaction must consist of. This is where an inquiry comes in. It could be an administrative inquiry or a judicial inquiry.

In this instant appeal, the evidence shows that the Government decided on administrative inquiry and Dr. Agiri was the Commissioner or officer appointed to conduct the inquiry described as discreet. Exhibit D the 1979 Declaration had declared Ogunmakinde Ande as the only Ruling House. Any determination by the Commissioner, Dr, Agiri at variance with that declaration was bound to affect adversely the civil rights of Ogunmakinde Ande Ruling House to the Chieftaincy. Not having given that Ruling House a hearing or opportunity of being heard, it

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cannot be said that the Ogunmakinde Ande Ruling House has been given a fair hearing.

By section 33(1) of the Constitution of the Federal Republic of Nigeria, 1979, it is provided that:

“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 ensure its independence and impartiality.”

Learned counsel for the appellants contended very vigorously that the constitutional provision has been breached by the 1st respondent. He contended that the appellants were entitled to not only a hearing but a fair hearing and that the consideration of the 2nd appellant’s petition to the government together with the minutes of a meeting in which the appellants participated exhibit W did not amount to a fair hearing. Boade, learned counsel for 1st, 6th to 19th respondents conceded that the appellants were entitled to a hearing and to a fair hearing but contended that they were given a fair hearing as their petition and the minutes of the meeting they participated in were considered by Dr. Agiri.

A hearing can be on oral evidence or written documents submitted by the parties interested in the inquiry or whose civil rights and obligations will be affected by the inquiry.

Dr. Agiri’s Commission qualifies as an Administrative Tribunal (see Wednesbury Corporationv. Ministry of Housing and Local Government No. 2 (1966) 2 QB 275) and is bound to observe the Rules of Natural Justice.

      The fact that it is an administrative tribunal does not exempt it from observing the principles of audi alteram partem and nemo judex in causa sua enshrined in the Rules of Natural Justice. The principles constitute the bastion of fairness and are equally enshrined in section 33(1) of the Constitution of the Federal Republic 1979.

Audi alteram partem or Hear the other side is a very dominant principle and pervades the systems of adjudication in dispute both primitive and civilised world. I agree with counsel for all parties that a hearing of parties to a dispute need not be oral. It could be on written document. See:

(1)
The Queen v. Director of Audit (W.R.) and Ors.(1961) All NLR 659 at 660.

(2)
Hart v. Military Governor, Rivers State Public Service Commission & Attorney-General (1976) 11 SC 211

(3)          Adedeji v. Police Service Commission (1968) NMLR 102

But all the parties must be heard on written documents. If the tribunal decides to have in addition an oral hearing, all the parties affected must be given an opportunity of an oral hearing. There is no doubt that where parties cannot adequately due to illiteracy put their thoughts into writing an oral hearing may be beneficial. In this context, I agree with the views of the U.S. Supreme Court in the case of Goldberg v. Kelly 397 US 254 at 268 to 269 which reads:

“The opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard written submissions are an unrealistic option for most recipients who lack the educational attainment necessary to write effectively and

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(Obaseki, J.S.C.)
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who cannot obtain professional assistance. Moreover, written submissions do not permit the recipient to mould his arguments to the issues the decision maker appear to regard as important particularly where credibility and veracity are at issue written submissions are a wholly unsatisfactory basis for decision.”

The argument that the appellants were heard under the umbrella of Alawusa Ruling House cannot hold since Ogunmakinde Ande family is not the sole constituent family of Alawusa Ruling House. Indeed, it was the right of Ogunmakinde Ande family/Ruling House to rule that was under attack by all except members of that family and their friends.

It therefore behoves Dr. Agiri to give them the same type of hearing as he gave to the elders and representatives of Adagunodo, Gbaase and Alawusa Ruling Houses. It is said that the appellants have not shown that they suffered any injury by the denial of fair hearing. Do they really have to show injury or prejudice? It is implicit in the very act of denial because the denial is an injury to the right of fair hearing guaranteed by the Constitution and rules of natural justice.

In the instant appeal, an examination of exhibit D, the 1979 Declaration and exhibit K the 1981 Declaration will leave one in no doubt that the right to the monopoly of providing the candidates for appointment as Oluwo of Iwo has been taken away from the appellants and diluted into insignificance of Alawusa family Ruling House to which Ogunmakinde Ande belong along with others. If that is not an injury, I do not know what else can be more painful.

Dr. Agiri’s Report, exhibit F, clearly shows on the face of it that the appellants were not given oral hearing but that Adagunodo Gbaase and Alawusa Ruling Houses by their elders and representatives were given oral hearing. It also shows that it was the minutes of a meeting held in 19/4 and not the minutes of a meeting held at Dr. Agiri’s request that formed a vital source of his information.

From these two facts, it is clear that the appellants were not heard by Dr. Agiri and more importantly, they were not given a fair hearing. The submission of Chief F.R.A. Williams, SAN, learned counsel for the appellants that:

“Had Dr. Agiri relied upon minutes of a meeting as well to gather facts relating to the 3rd to the 5th respondents’ side of the story, the appellants would have conceded that they were given fair hearing.”

is well founded.

        I agree with him that where two parties are each subjected to different types of hearing, it cannot be said that there was a fair hearing.

I am however unable to accept the generalisation that an oral hearing is of higher quality than heating on written briefs and documents although I agree that gleaning facts from minutes which were made at a time when the hearing before the tribunal which made use of the minutes was not in contemplation cannot match the quality of an oral hearing in the search for the true customary law. See Reg.v. Birmingham Justices(D.C.) (1970) 1 WLR 1428 at 1433.

 The appellants were entitled to be heard in the same manner as others. See Stafford v. Minister of Health (1946) 1 KB 621 at 623-624; Durayappah v. Fernando (1967) 2 AC 337 at 348; Ridge v. Baldwin(1964) AC 40. Denial of fair hearing is denial of justice and it is a prejudice to any man to be denied justice. See Annamuthodo v. Oilfields Workers Trade Union (1961) AC 945 at 954.

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In Ridge v. Baldwin (supra) Lord Hodson at page 128 emphasised the need for hearing as follows:

“… but in my opinion, it will not do to say that the case was so plain there was no need for the appellant to be heard and therefore, the claim of natural justice were satisfied.

I do not find that the answer put by counsel for the watch committee to your Lordships that the case was as plain as a pikestaff is an answer to the demand for natural justice.”

Even in purely administrative inquiries as that conducted by Dr. Agiri opportunity to be heard must be given to all parties involved and likely to be affected (see Wednesbury Corporation v. Ministry of Housing and Local Government (No. 2) (1966) 2 QB 275 at 298. It makes no difference whether the body charged with the inquiry is judicial, quasi judicial or administrative. See Reg. v. Birmingham Justices (D.C.) (supra).

Having failed to give an oral hearing to the elders and representatives of Ogunmakinde Ande Ruling House, Dr. Agiri did not complete his investigation before writing his Report. The right to fair hearing being a fundamental constitutional right guaranteed by the Constitution, the breach of it in any trial or investigation or inquiry nullifies the trial investigation or inquiry and any action taken on them is also a nullity. In the instant case, the basis of satisfaction before exhibit K was made is no longer there. If the principles of natural justice are violated in respect of any decision it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.

(See General Medical Council v. Spackman (1943) AC. 627.

The appeal succeeds on the dismissal of claim No. 2 but fails in respect of the dismissal of claims 1. It is desirable that the appellants, i.e, Ogunmakinde Ande Ruling House along with others be heard in an inquiry to ascertain the relevant customary law. The decision of the Court of Appeal is hereby set aside and in its stead, I hereby order that

(1)
Claim 1 be dismissed; Ogunmakinde Ande has not been proved to be the only Ruling House at Iwo from which Oluwo of Iwo is appointed under the customary law of Iwo;

(2)
Claims 2 and 3 be granted

Therefore, the Declaration of the Customary law of Iwo regulating the appointment of Oluwo of Iwo contained in exhibit K is hereby declared null and void.

A proper inquiry to be the basis of a new and proper declaration should be set in motion so that the stool vacancy can be filled with a minimum of delay.

The appellants are entitled to costs assessed at N300.00.

ESO, J.S.C.: This is a very important case. The Oluwo of Iwo Chieftaincy is a very important chieftaincy in Yorubaland. Iwo itself, being a very important town in the land. Prince Yahaya Adigun, Prince Alade Lamuye and Prince N.O. Abanikanda, representing the Ogunmakinde Ande Ruling House in Iwo, had brought a declaratory action against the Attorney-General of Oyo State, representing the Government of Oyo State and eighteen others, seeking –

(i)
A declaration that by the customary law prevailing in Iwo, the Ogunmakinde Ande Ruling House is the only Ruling House from which appointment to the Oluwo of Iwo Chieftaincy is to be made

[1987] 1 .
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(ii)
A declaration that the instrument dated the 28th day of July, 1981 is in so far as it purports to declare the customary law prevailing in Iwo with respect to the appointment to the Oluwo of Iwo Chieftaincy illegal and void.

(iii)
An injunction restraining all Servants, Officers and Agents of the Government of Oyo State or of the Iwo Central Local Government from acting pursuant to or taking any steps to implement the aforesaid declaration registered on 29th of July, 1981.

Pleadings were ordered by the learned trial Judge, Oloko J, and delivered. To appreciate the issues that were in controversy before the trial court, it is pertinent to obse…

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