OLANIYI V. AROYEHUN

• Pages: 198-233

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NIGERIAN SUPREME COURT CASES

[1991] 2 N.S.C.C.

For the above reasons and the reasons articulated in the judgment of my

learned brother,

Karibi-Whyte, J.S.C.,

I hold that the appeal fails. It is accordingly

dismissed. The judgment of the Court of Appeal substituting order of dismissal

for the order of non-suit by the trial court is accordingly affirmed. I assess the cost

of this appeal at N500.00 in favour of the respondent.

Appeal dismissed.

OLANIYI V. AROYEHUN

ALHAJI SALAMI OLANIYI



APPELLANT

V.

1.

GBADAMOS1AROYEHUN

2.

EYINNOYE YEYE

3.

CHIEF RAJI AKEWUSOLA

(ESA OF IRA)

4.

CHIEF ELISHA ODULEKE

(OJOMU OF IRA)

5.

CHIEF RAJI FELO



RESPONDENTS

(EKERIN OF IRA)

6.

CHIEF SALAMI SERIKI

(BALOGUN OF IRA)

7.

CHIEF SALAMI OLAGUNJU

(OPAWOYE ESINKIN OF IRA)

8.

CHIEF JOSEPH MORONFOYE

(ONIRA OF IRA)

APPEAL NO. SC.

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989.

SUPREME COURT OF NIGERIA

BELLO,



C.J.N.

KARIBI-WHYTE,



J.S.C.

NNAEMEKA-AGU, J.S.C.

WALL,



J.S.C.

OMO,



J.S.C.

5th July, 1991

Appeals - Issues - Formulation of - Purpose - Fresh points not considered in the courts

below - Whether can be raised in the Supreme Court for the first time.

Chieftaincy Matters relating thereto - Jurisdiction of Courts to determine - Ouster - S.3,

Chieftaincy Disputes (Preclusion of Courts) Ordinance, 1948.

Constitutional Law - Ouster clause - S.3, Chieftaincy Disputes (Preclusion of Courts)

Ordinance, 1948 - Whether inconsistent with section 49 of the Constitution, 1960 -

Fundamental rights - Whether include Chieftaincy right - Jurisdiction - When

determine..

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Words and Phrases- "Chief" - Meaning of - S.3 Interpretation Ordinance, Cap.94, Laws of

Nigeria.

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OLANIYI V. AROYEHUN

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199

ISSUE:

Whether section 3 of the Chieftaincy Disputes (Preclusion of Courts) Ordinance

1948 ousted the jurisdiction of Court to entertain Chieftaincy Matters despite

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the existence of section 49(3) of the 1960 Constitution of Northern Nigeria.

FACTS:

According to the plaintiff's/appellant's statement of claim, the 1st to 7th defen-

dants/respondents on the 23rd February, 1963, appointed and installed the 8th

10 defendant/respondent as the Onira of Ira, on the death of the former Chief. They

also took the 8th defendant to the Emir of llorin where he was formally turbaned.

In 1984, the plaintiff, who was a prince and a member of the Oyenike Ruling

House of Ira, instituted the suit in the High Court of Kwara State, challenging the

validity of the appointment and installation of the 8th defendant.

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The defendants admitted that the 8th defendant was appointed as the Onira of

Ira, but denied the plaintiff's claim that the appointment and installation was

contrary to the native laws and custom of Ira. According to them, the 8th defendant

was appointed by virtue of his status as a prince and the wishes of the people of

Ira and kingmakers in accordance with the native laws and custom and other

20 relevant laws. They further raised preliminary objection that the trial court lacked

jurisdiction to hear and determine the suit on the grounds that the action was

statute barred and that the court's jurisdiction was ousted by the relevant law since

it was a chieftaincy matter involving the election and appointment of a chief.

The trial judge, after having considered the submission of learned counsel on

25 the preliminary objection, held that an action relating the right to be a chief could

not be barred by the Limitation Act, 1886 as no prescription period or time limit

had been made applicable to such cases under the Act. The trial judge also

overruled the preliminary objection that the Court had no jurisdiction. The case

was therefore ordered to proceed to full hearing.

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The defendants were dissatisfied with the trial judge's decision and they

appealed against it to the Court of Appeal. The Court of Appeal did not consider

the issue of limitation, but allowed the appeal. The Court held,

inter alia,

that the

Chiefs (Appointment and Deposition) Law, 1963 Laws of Northern Nigeria ousted

the jurisdiction of the trial court in determining any question relating to the

35 installation and appointment of the 8th defendant as the Onira of Ira.

Not satisfied with the judgment of the Court of Appeal, the plaintiff/appellant

appealed to the Supreme Court on grounds,

inter alia,

that the learned Court of

Appeal erred in law in holding that the Chiefs (Appointment and Deposition) Law

of 1948 (Northern Nigeria) which became void as a result of its inconsistency with

40 the provisions of Ss. 1 and 31(2) of the 1960 Constitution of Nigeria, had ousted

the jurisdiction of the High Court of Justice, Offa, to entertain this matter, when the

law was no longer in operation on the 23rd February, 1963, at the time the cause

of action arose in this case.

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HELD :

1. The Chieftaincy Disputes (Preclusion of Court) Ordinance, 1948 was an

existing law and was in force in the Northern Region when the 1960

Constitution came into operation, and section 3 of the Ordinance ousted the

jurisdiction of the courts from the determination of any question relating to a

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chief. Although, prima facie the High Court, by virtue of section 49(3) of the

1960 Constitution, was a superior court of record with unlimited jurisdiction,

but by the saving clause of the subsection it was rendered impotent on any

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NIGERIAN SUPREME COURT CASES [1991] 2 N.S.C.C.

matter for which its jurisdiction was ousted by any law in force in the Region.

(Seep. 211 lines 14 - 22).

2.

Under section 3 of the Interpretation Ordinance Cap. 94, 1948 Laws of Nigeria,

as amended by the Interpretation Ordinance 1956, "Chief" means any native

whose authority and control is recognised by a native community.

In the instant case, the 8th defendant was not only recognised by his people

but also by the then Ilorin Native Authority as headed by the Emir of Ilorin.

Thus, the Oba or Onira of Ira was a chief within the meaning of the Interpretation

Ordinance. It therefore followed that the court was precluded from

adjudicating any question relating to the appointment of the 8th

defendant/respondent as the Oba or Onira of Ira by virtue of the Chieftaincy

Disputes (Appointment and Deposition) Ordinance. (See p.

209 lines 35 -49).

Per

KARIBI-WHYTE, J.S.C.:

3.

The purpose of formulating issues is to enable counsel to limit the arguments

to issues material in the determination of the appeal. Hence, having formulated

issues, counsel is neither expected nor required to return and refer to and rely

on the grounds of appeal in his argument.

(See p. 215 lines 11 -

15).

4.

Chieftaincy is not a matter of fundamental rights, and cannot be enforced under

the provisions of the Constitution dealing with fundamental rights. It cannot

be seriously argued that there is a fundamental right to be a "chief". It is not

a human right even though it is a privilege claimed by human beings in an

organised society to bring order into their mutual relationship. It is not such

right which the law can enforce by virtue merely of the claimant being a human

being. (See

p. 219 lines 1 - 6).

Per

NNAEMEKA-AGU, J.S.C.:

5.

The principles upon which a party can be allowed to raise in the Supreme Court

for the first time a new question not considered by the courts below is that, the

party will not be allowed to raise such a point unless it involves a substantial

point of law, substantive or adjectival, and it is clear from the record that no

further evidence could have been adduced on the point which could have

affected the decisions in the courts below and that to raise them in this court

will accord with the ends of justice.

(See p. 224 lines 3 - 9)

6.

Although, normally, leave to take such a new point is usually refused when to

allow it will give an entirely new character to a party's case, yet it will be allowed

where the point raises a constitutional issue which goes to the foundation of

the action.

(Seep. 224 lines 18 - 19 & 21 - 22).

7.

It is not competent for a party to institute an action after October 1, 1979 when

the 1979 Constitution came into force to challenge an act which he could not

have competently challenge before the promulgation of the 1979 Constitution.

In the instant case, although the 1979 Constitution by its promulgation vested

the jurisdiction to adjudicate over Chieftaincy Matters in our courts, the

plaintiff/appellant did not acquire the right to challenge a chieftaincy issue the

cause of action over which arose in February, 1963.

(See

p.

228 lines 38 - 41,

29 - 33).

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