IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 13TH DAY OF FEBRUARY, 2015
BEFORE THEIR LORDSHIPS
IBRAHIM T. MUHAMMAD
JOHN A. FABIYI
JUSTICE, SUPREME COURT
MUSA D. MUHAMMAD
JUSTICE, SUPREME COURT
CLARA B. OGUNBIYI JUSTICE, SUPREME COURT
KUDIRAT M. O. KEKERE-EKUN
JUSTICE, SUPREME COURT
1. ESLY YILBUK) ……………………………
2. ATTORNEY GENERAL OF
PLATEAU STATE) …………………………………
3. PANKSHIN LOCAL GOVERNMENT ……………….DEFENDANT/RESPONDENT
The law is well settled on the question of jurisdiction of a court which is so fundamental that the absence of same renders any proceeding conducted as null and void and without any legal effect whatsoever. The locus classicus case of Madukolu v. Nkemdilim (1962) SCNLR 31; SPDC Mg. Ltd. v. Isaiah (2001) 5 S.C. (Pt. II) 1 and Peenok Investment Ltd. v. Hotel Presidential Ltd. (1982) 12 S.C. (Reprint) 1 are all well in point. See also Mozie v. Mbamalu (2006) 7 S.C. (Pt. II) 154. Absence of jurisdiction therefore is fatal and consequential and renders a proceeding of non effect. It is the Plaintiff’s claim in a matter that determines the jurisdiction of the court. See: Rt. Hon. Chibuike Rotimi Amaechi v. INEC (No. 1) (2007)7 S.C. 172. See also Akinfolarin v. Akinnola (1994) 3 NWLR (Pt. 335) 659 and Adeyemi v. Opeyori (1976) 9- 10 S.C. 31 at 51; (1976) 9- 10 S.C. (Reprint) 18.
The learned counsel representing the Appellant restated the features that must exist before a court can properly be constituted for the exercise of its jurisdiction; that the trial court lacked the requisite capacity to entertain the Plaintiffs’ suit, as its jurisdiction was completely ousted in respect of matters, relating the determination as to whether or not the selection of the 1st Defendant/Appellant is in accordance with the customary law of the people.
The Appellant’s submission is anchored on the provision of Section 3 of the Chiefs (Appointment and Deposition) Law, Cap 20 Laws of the Federation of Nigeria 1963, which section confers power on the Governor to conduct an inquiry for the purpose of determining whether the appointment of a Chief is in accordance with native law and custom. It is the submission by the Appellant further that the Governor is not expected to initiate the inquiry except a dispute is invoked by an aggrieved party; that this provision deprives the court of its competence and jurisdiction to hear a matter, to which Section 3 of the Chiefs law is applicable, without evidence of compliance with the law, by inviting the Governor to exercise his powers as a sole judge.
The cases of Babalola v. Oshogbo Local Government (2003) 10 NWLR (Pt 829) 465 CA and Oladoye v. Administrator, Osun State (1996) 10 NWLR (Pt 475) 38 were cited as a precondition necessary before instituting an action in court, in respect of the appointment of a Chief, as it relates to the question whether the appointment is in accordance with native law and custom. Also, in re-iterating the purport of Section 3 of Chiefs Law as a provision, the counsel informs that an exclusive power is conferred on the Governor, as the prescribed authority, to determine the question as to whether the selection of a chief is made in accordance with native law and custom; that the condition precedent to invoking the jurisdiction of the court, is an evidence that the Governor has resolved the dispute whether the selection is in accordance with such native law and custom.
It is further submitted by counsel that where such power is exercised by the Governor, the jurisdiction of the court can only be invoked in its supervisory capacity by way of proceedings initiated by means of judicial review of the decision of the Governor; that the jurisdiction of the court is therefore completely ousted until the Governor makes his findings which must be predicated on the review of his decision. The case of Ogologo v. Uche (2005) 7 S.C. (Pt. III) 165 a decision of this court was cited in support.
In response on behalf of the 1st Respondent, the counsel related copiously to the constitutional provision which vests unlimited jurisdiction in the State high court to hear and determine any civil proceeding in which the existence of a legal right, power, duty, liability, interest, obligation or claim is in issue, and that any law which tends to limit the jurisdiction of the State high court or vests the judicial powers of the Federation on a State Governor is null and void.
It is the submission of counsel therefore that Section 3(2) of the Chiefs (Appointment and deposition) Law Cap 20, Laws of Northern Nigeria 1963 which purports to oust the unlimited jurisdiction of the State high court and confer same on the Governor is no doubt unconstitutional, null and void; that the law cannot be relied upon for the proposition that the State high court has no jurisdiction to determine chieftaincy dispute; that none of the cases cited by the learned counsel for the Appellant, deal with the interpretation of Section 3(2) of the Chiefs Law in question and which is the existing applicable law in Plateau State and governing appointment and deposition of chiefs.
In summary, it is the submission of counsel that the high court did not lack the jurisdiction to entertain Suit No. PLD/J.192/ 87 because by virtue of Section 236(1) of the 1979 Constitution, now Section 272(1) of the 1999 Constitution, Section 3(2) of the Chiefs (Appointment and Deposition) Law of Northern Nigeria 1963 which purports to oust the jurisdiction of the State high court with respect to Chieftaincy dispute is unconstitutional, null and void.
The counsel has urged, in the circumstance that the issue be resolved against the Appellant and hold that the high court had the jurisdiction to entertain and hear Suit No. PLD/J.192/87.
The 1st issue is challenging the jurisdictional competence of the trial court in entertaining the Suit and ultimately the propriety of the lower court which the Appellant submits did err in entertaining an appeal against a judgment which is a nullity. For the determination as to whether or not the trial court had jurisdiction, recourse must be had to the provision of Section 3(2) of the Chiefs (Appointment and Deposition) Law of Northern Nigeria 1963 vis-à-vis the constitutional provision and its supremacy.
It is apparent that the cause of action in this matter arose long after the coming into force of the Constitution of the Federal Republic of Nigeria 1979 and it therefore governs the case. Section 6 of the 1979 Constitution is in
pari materia with Section 6 of the 1999 Constitution and vests the judicial powers of the Federation in the courts while Section 5 of both constitutions vest the executive powers of the Federation and state in the President and Governor respectively.
The Constitution is very clear and specific on separation of the powers between the arms of government to wit the executive, legislature and the judiciary at both federal and state levels; thus, the executive cannot
exercise or usurp the powers of the Judiciary and vice versa.
By the provisions of Section 236(1) of the 1979 Constitution which is same as Section 272(1) of the 1999 Constitution, the high court of a state has unlimited jurisdiction to hear and determine any civil proceeding in which the existence of a legal right, power, duty, liability, interest, obligation or claim is in issue. The Constitution is also held as supreme by virtue of Section 1(i) of the 1979 provision which is also same in the 1999 Constitution. The effect is, if any law is inconsistent with the provisions of the Constitution, the other law shall to
the extent of the inconsistency be void while the Constitution shall prevail.
In view of the supremacy of the Constitution therefore, any law which tends to limit the jurisdiction of the state high court or vests the judicial powers of the Federation on a state Governor is null and void. In other words, no law other than the Constitution itself can limit the unlimited jurisdiction of the State high
court or vest the judicial powers of the Federation on the State Governor. Several authorities were referred to by the learned counsel for the 1st Respondent. In particular the case of Balogun v. Ode (2007) 1-2 S.C. 230 at 242-
243, which held thus:
“Any law (including a Chieftaincy declaration) of a state which amounted to a
removal or purported to remove chieftaincy questions or matters from the jurisdiction of a State high court was inconsistent with the provision of Section 236(1) of the 1979 Constitution of the Federal Republic of Nigeria.”
The reproduction of Section 3(2) of the Chiefs law provides as follows:- “…In the case of any dispute, the Governor, after due inquiry and consultation with the persons concerned in the selection, shall be the sole judge as to whether any appointment of a Chief has been made in accordance with native law and custom.”
It is elementary but pertinent to state that the provision of the Chiefs Law came into effect in 1963 while the Constitution governing the cause of action came into effect 1979 with Section 1(3) giving it the effect of supremacy over all other laws, without any exception. The Chiefs Law, without more, is subordinate and must bow to the constitutional supremacy.
As rightly submitted by the learned counsel for the 1st Respondent, Section 3(2) of the Chiefs law which purports to oust the unlimited jurisdiction of the State high court and confer same on the Governor is no doubt unconstitutional, null and void. It follows therefore that all the cases cited by the counsel for the Appellant as authorities for the proposition that the high court of a state has no jurisdiction to entertain Chieftaincy matters are clearly distinguishable and inapplicable to the case at hand. This is primarily because none of the cases cited by the learned counsel deal with the interpretation of Section 3(2) of the Chiefs Law in question.
For instance, the issue of jurisdiction raised in the case of Babalola v. Osogbo Local Government (2003) 10 NWLR (Pt. 829) 465 CA, cited by the Appellant’s counsel relates to the failure to serve pre-action notice and not absence of jurisdiction in Chieftaincy dispute. It is also intriguing but relevant when the other side of the coin is taken into consideration had the supremacy of the Constitution not overruled as a determining factor.
In other words, whether the said Section 3(2) of Chiefs 0Law would have applied and ousted the trial court’s jurisdiction. The determination will have to take into consideration the background situational circumstances of the case right from the time the stool of the village head of Somji became vacant and the Appellant was duly selected, installed and subsequently presented with a letter of appointment. The steps taken and which progressively led to the development preceding the institution of the cause of action will determine whether or not the condition for the court to assume jurisdiction in the case existed.
These steps have been well spelt out in the Appellant’s brief of argument.
For all intent and purpose therefore, Section 3(2) of Chiefs Law of Northern Nigeria, 1963 is not only unconstitutional, but it also offends the Constitution in seeking to place the governor a judge in his own case. Plethoras of decided authorities are trite and have declared such stands as null and void.
The 1st issue is, in the result resolved against the Appellant and I hold that the trial court had jurisdiction to entertain the case before it. Hence, the appeal from its decision was properly brought before the lower court.
Issues 2 and 3 are closely related and will be treated together. While the former alleges that the lower court erred in awarding the first Respondent the reliefs not claimed, the latter issue poses a question whether the 1st Respondent now before us did prove his assertion that the stool of the village head of Somji is rotational?
In summary, the Appellant’s counsel submitted succinctly the following arguments in support of the said two issues; that the reliefs awarded by the lower court were not sought by the
Plaintiffs in the trial court in their statement of claim; that the Plaintiffs as Appellant in the lower court made a claim totally different from that canvassed in the trial court.