AFOLABI & ORS. V. GOVERNOR OF 0Y0 STATE & ORS
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AFOLABI & ORS. V. GOVERNOR OF OYO STATE & ORS.
1151
AFOLABI & ORS. V. GOVERNOR OF OYO STATE
5
& ORS.
1.
MR. SALAMI AFOLABI
2.
MR. LASISI ADEBOYE
APPELLANTS
3.
ALHAJI GBADAMOSI OLANIYAN
V
1.
GOVERNOR OF OYO STATE
2.
ATTORNEY-GENERAL OF OYO
RESPONDENTS
STATE & ORS
SUIT NO. SC 251/1984
SUPREME COURT OF NIGERIA
BELLO,
J.S.C.
OBASEKI,
J.S.C.
ESO,
J.S.C.
ANIAGOLU,
J.S.C.
UWAIS,
J.S.C.
KARI BI -WHYTE,
J.S.C.
OPUTA,
J.S.C.
20th September, 1985
Interpretation of Statutes - Retrospective operation Presumption against in absence
of express or necessarily implied intention to contrary - Chiefs Law of Oyo
State and declaration made thereunder embodying customary law regulating
selection of successor to particular chieftaincy title - Amendment of existing
declaration - Neither principal law nor amending declaration manifesting intention
to impair vested rights - Sections 11(2), 15(1) Chiefs. Law No. 2, Cap. 21,
Laws of Oyo State, 1978, Chieftaincy Declaration, 1957, Amended Chieftaincy
Declaration, 1982. Section 13; interpretation law Western Nigeria.
ISSUES:
1.
Whether an individual can be deprived of his rights merely because the law
existing when the rights vested has been amended or repealed.
2.
What should be the attitude of a court in interpreting a statute that is capable of
being construed as having either prospective or retrospective effect?
3.
When is a statute deemed to have retrospective effect?
4.
Whether the presumption against retrospectivity of a statute can be rebutted in
the absence of clear and unambiguous words of the statute that it is to have
retrospective effect as to limit or extinguish existing rights, or in the absence of
a clear manifestation that retrospective effect cannot be avoided without doing
violence to the language of the statute.
5.
When is a law said to have retrospective effect?
6.
What is the guiding principle of interpretation in cases where there is ambiguity
about the extent to which a statute has derogated from common law rights?
FACTS:
This appeal arose out of a chieftaincy matter in Oyo State and the chieftaincy
title concerned was the "Olubagun of Obagun". The chieftaincy stool had been
vacant since 26th July, 1981, the date the former incumbent had died. Since then
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NIGERIAN SUPREME COURT CASES
[1985] 2 N.S.C.C.
there had been a battle for succession. As at this date, i.e. 26th July, 1981, suc-
cession to the vacant stool was regulated by the customary law declared in the
Olobagun of Obagun Chieftaincy Declaration on the 17th October, 1955 by the
Ifelodun District Council (as it then was) passed by the Governor-in-Council in
1956 and approved in 1957. In the Declaration, only three ruling houses were rec-
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ognised and the stated order of rotation was: Kayode Ruling House, Olubakin Rul-
ing House and Oduoye Ruling House. This was common ground between the
parties.
By Section 11 of the Chiefs Law as amended by the Chiefs (Amendment) (No.
2) Law, 1978 now section 15(1)(a) of the Chiefs Law Cap. 21 Laws of Oyo State,
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1978, it is provided that where a vacancy occurs in a ruling house chieftaincy and
a declaration has effect with respect to that chieftaincy - (a) the secretary of the
competent council shall not later than 14 days after the occurence of the vacancy
announce the name of the ruling house entitled according to customary law to pro-
vide a candidate's to fill that vacancy, and (b) not later than 14 days after the an-
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nouncement by the secretary, the members of the ruling house, acting in
accordance with the declaration, shall submit the name of a candidate/s to the
kingmakers.
According to the 1957 Declaration it was the turn of the Kayode ruling house
to produce a candidate for the Obaship. One of the complaints of the appellants
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was the failure of the secretary of the Ifelodun Council to comply with the provi-
sions of section 15(1)(a) of the Chiefs Law. His failure to comply with this section
made it impossible for the Kayode ruling house to comply with section 15(1)(b) of
the Law.
Following the repor: of an administrative inquiry, the Governor approved the
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recommendation of the said inquiry that the Iwolode family be included in the Dec-
laration of 1957 as the fourth ruling house and accordingly by a letter dated 14th
December, 1981 directed the Chieftaincy Committee of the Ifelodun Central Local
Government to amend the 1957 Declaration; this was done on 20th January, 1982
by the Chieftaincy Committee. The appellants thus instituted these proceedings in
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the High Court claiming 3 declaratory reliefs, an order of perpetual injunction and
an order of mandamus on the 1st and 3rd defendants/respondents to comply with
the Chieftaincy Law.
The amended Chieftaincy Declaration was registered on 25th February, 1982,
i.e. one month and five days after the commencement of the action to bring it into
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force. According to the provisions of section 11 of the Chiefs Law, no declara-
tion under section 10, amended or new, would come into effect until registered or
re-registered in accordance with subsection (1) of the said section 11, and upon
such registration such declaration would be deemed to contain the customary law
regulating the selection of a person to be holder of the recognised chieftaincy to
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which it relates to the exclusion of any other customary usage or rule or under any
other declaration which may have been made or registered under any written law.
The
learned trial Judge granted all the reliefs sought and declared that only the
three ruling houses mentioned in the 1957 Declaration i.e. Kayode, Olubakin and
Oduoye houses had the right to provide candidates for the vacant Obagun stool;
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that the relevant declaration applicable to the matter was the 1957 Declaration exist-
ing at the time of the death of incumbent on 26th July:1981; that the Kayode rul-
ing house was, according the customary law of Olobagun of Obagun chieftaincy
contained in the 1957 Declaration, the ruling house to provide a candidate to fill
the vacancy. The trial judge also restrained the 1st defendant/respondent from
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calling on lwolode family to provide a candidate to fill the vacancy stool and also
ordered the 1st defendant/respondent, his agents, etc. to comply with the Chiefs
Law by announcing the name of Kayode ruling house as the ruling house entitled
to provide a candidate to fill the vacant stool.
AFOLABt & ORS. V. GOVERNOR OF WO
STATE & ORS.
1153
The 4th defendant/respondent appealed to the Court of Appeal and the decla-
rations and orders of the trial judge
were
set aside. The kernel of the judgment of
the Court of Appeal was that the Governor had power to do what he did in amend-
ing the declaration of 1957 with that of 1982, and that the intention of the legisla-
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ture under the Chiefs Law was it should have that power and should affect an
accrued right by such amendment.
Being dissatisfied with the judgment of the Court of Appeal the appellants ap-
pealed to the Supreme Court. The main issue for determination was whether the
amendment to the 1957 Declaration (Exh. A. in the proceedings) by the enactment
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of the 1982 Declaration (Exh. L. in the proceedings) expressly or by implication
affected the rights of the appellants which had become vested before the passage
of the said Exh. L., i.e. whether Exh. L. had retrospective effect so as to quash the
rights of the Kayode family under Exh. A.
HELD:
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1a. From all decided cases, it is clear that our laws do not permit the deprivation,
from an individual, of his vested rights merely because the law existing when
the rights vested has been repealed or amended, unless the legislature
categorically, in a clear and unambiguous language, in the repealing or
amending of the statute, declares that the right be divested, or that a necessary
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and distinct implication arises that it was the intention of the legislature that the
right be divested.
1 b.Though the power of the Governor to make the addition of lwolode family by
Exh. L. is not disputed, Exh. L. only became an effective law declaring the
customary law it embodies on 25th February, 1982. From this date therefore,
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the Iwolode family became one of the now four families entitled at the
appropriate time, to present candidates. But nothing on the face of Exh. L.
made it retrospective as it does not mention Exh. A., the 1957 Declaration,
whether expressly or by implication. Therefore, by express enactment, Exh. L.
made no mention of the vested rights of the Kayode ruling house in the Obagun
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Chieftaincy.
1c. Based upon the presumption that a legislature does not intend what is unjust,
the courts have always loaned against giving statute retrospective effect and
usually regard them as applying to facts and matters which come into existence
after the statutes were passed unless it is clearly shown that a retrospective
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effect was intended by the legislature. There is nothing on Exh. L. either
expressly or giving rise to an implication that the rights of the Kayode family
had been affected.
2.
If a statute is expressed in language that is fairly capable of being given either
a prospective or retrospective interpretation, it ought to be construed as
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prospective and not as retrospective. This means that before the presumption
against retrospectivity is resorted to the court will have to be satisfied that the
statute in question is in fact retrospective.
3.
A statute is retrospective which takes away by clear and unambiguous words
or impairs any vested right acquired under the existing laws, or creates new
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obligations, or imposes a new duty, or attaches a new disability in respect to
transactions or considerations already past. Even if Exh. L. was open to the
constructions, it ought to be construed as prospective.
4.
It is a fundamental rule of our laws in Nigeria that no statute shall be construed
so as to have retrospective operation unless its language is such as plainly to
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require such construction. No rule of construction is more firmly established
than that a statute is not to be given retrospective operation as to impair an
existing right or obligation otherwise than as regards matters of procedure
unless that effect cannot Le avoided without doing violence to the language of
the enactment. Since Exh. does not manifest an intention to have retrospective
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