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LALEYE OEYUMI, ETC.
V.
LIEUTENANT-GOVERNOR, WESTERN REGION AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
15TH DAY OF NOVEMBER, 1954
APPEAL NO. 124 of 1954
2PLR/1954/79 (WACA)
OTHER CITATION(S)
2PLR/1954/79 (WACA)
(1954) XIV WACA PP. 624-627
LEX (1954) – XIV WACA 624-627
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
DE COMARMOND, Ag. C.J., NIGERIA
COUSSEY, J.A.
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BETWEEN:
LALEYE OEYUMI, ETC. – Appellants
AND
1. LIEUTENANT-GOVERNOR, WESTERN REGION
2. OGBOMOSO DISTRICT NATIVE AUTHORITY – Respondents
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ORIGINATING COURT(S)
Appeal of trial Court’s decision by the plaintiffs:
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REPRESENTATION
Olowofoyeku — for the Appellants
F. Williams — for first Respondent
C. O. Ogubanjo — for second Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CUSTOMARY LAW – CHIEFTAINCY:- Recommendation that certain modifications in native law and custom relating to the succession to the office of Bale – Expanding succession line as to include a son or grandson –Validity of
ADMINISTRATIVE AND GOVERNMENT LAW:- Administrative directive regarding succession line to a customary law position –Native Authority Ordinance (Cap. 140) — Section 30(2) and (3) — Order thereunder administrative — Where not challengeable in Court
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CASE SUMMARY
The text of the above section 30(2) and (3) is given in the judgment infra. Briefly, sub-section (2) enables a native authority to recommend a modification of native law and custom if it considers it expedient for the good government and welfare of the area, and sub-section (3) provides that “if the Lieutenant-Governor is satisfied that … such modification is expedient and … not repugnant to justice, equity or good conscience nor incompatible … with any Ordinance, he may by order direct such modification to be the native law and custom,” etc.
An order was published in the Gazette of the Western Region of 26th February, 1953, stating that the second respondent recommended certain modifications in native law and custom relating to the succession to the office of Bale, the relevant one here being that instead of confining it to a son of a previous Bale, it should be extended to a son or grandson, and directing that it be so thereafter. The order was made strictly in accordance with the terms of the sub-sections aforesaid.
The plaintiffs (now appellants) sued claiming a declaration that the order was ultra vires, and an injunction. The statement of claim and the defences extended it to a Chieftaincy dispute, and the trial Judge dismissed the action summarily on the ground that the Court had no jurisdiction in Chieftaincy disputes in view of Ordinance No. 30 of 1948. The plaintiffs appealed on the ground that the object of their action was to test the validity of the order, whilst their action was dismissed on a ground outside the scope of their claim.
The plaintiffs were sons of a former Bale and their complaint (on which they wished to call evidence) was that the widening of the succession to include grandsons was detrimental to their interest and contrary to justice, there being an ulterior motive to benefit someone else as a candidate, and that the Lieutenant-Governor made the order without holding an inquiry and hearing their views to satisfy himself of the expediency of the order.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
1. The section did not provide for a statutory inquiry but left it to the Lieutenant-Governor to satisfy himself of the expediency of making an order adopting a modification recommended to him, as a purely administrative matter.
2. At no stage was there anything in the nature of a lis inter partes before him, and an order made under the section was not impeachable in Court on the grounds on which a judicial or quasi-judicial decision might be impeached; therefore there could be no question of calling evidence to challenge the order.
Cases cited:-
(1) Municipal Council of Sydney v. Campbell, (1925). A.C. 448
(2) Roberts v. Hopewood, (1925), A.C. 578
(3) Smith v. The Queen, (1873), A.C. 614
(4) Nakkude Ali v. Jayarante, (1951), A.C. 66
(5) Franklin v. Minister of Town Planning, (1947), 2 All E.R. 289
(6) Miller v. Minister of Health, (1946), K.B. 626
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MAIN JUDGMENT
The following Judgment was delivered:
COUSSEY, J.A.
The contention of the plaintiffs-appellants at the hearing of this appeal is that their action was dismissed on a ground outside the scope of their claim and that, consequently, there has been no determination of the issues raised by the writ of summons. The claim was for:-
(a) a declaration that an order made by the first defendant at the recommendation of the second defendant and published in the Western Region Gazette of 26th February, 1953, namely, public notice No. 24 of 1953, is ultra vires;
(b) an injunction to restrain the second defendant from utilising the said order for the improper purpose of depriving any of the plaintiffs of his natural rights and advantages.
Pleadings were filed by the parties.
Mr. Olowofoyeku, counsel for the appellants, does not dispute that their claim was extended by the statement of claim and the defences thereto to a chieftaincy dispute, but he submits that the learned trial Judge erred in rejecting the suit, as he did, on a preliminary objection that the object of the action was to invite the Court to determine a question as to the appointment of a Chief, a matter which the Court held was beyond the jurisdiction of the Court by the express provisions of section 3 of Ordinance No. 30 of 1948. That section enacts, in effect, that the Court shall not have jurisdiction to entertain any civil cause or matter instituted for the determination of any question relating to the selection, appointment, installation, deposition or abdication of a Chief.
The object of the action, Mr. Olowofoyeku submits, was to test the validity of the order of the Lieutenant-Governor in the writ of summons referred to. This is an important question and, as it was not expressly determined in the Court below, this Court proposes to consider it.
The plaintiffs are sons of a former Bale or Chief of Ogbomoso. They claim that by native custom one of their number was entitled to succeed their father as Bale on his death, but that the second defendant to defeat that right recommended to the first defendant that the succession by native custom should be widened, the effect of which extension was to include and make eligible the grandson of a former Bale, and that the first defendant had confirmed that recommendation and issued his order in terms thereof to the plaintiffs’ detriment.
In his statement of defence the first defendant avers that by virtue of section 30(3) of the Native Authority Ordinance (Cap. 140), the second defendant as the Ogbomoso Native Authority, in the interest of progress and good government, recommended the modification of the native law and custom referred to, and that, being satisfied that the modification is expedient, that it was an accurate statement of the native law and custom on the subject and not contrary to justice, equity and good conscience, he directed, by his order, that effect be given to the said modification.
Mr. Olowofoyeku argues that by the summary dismissal of the suit he has been denied the opportunity to lead evidence to show that the order was made without proper consideration on the part of the first defendant; that the views of the plaintiffs in opposition were not obtained and that there was an ulterior purpose namely, to benefit a particular person as a candidate for the office of Bale. He further contends that the first defendant acted contrary to justice in making the order without holding any inquiry to satisfy himself as to the expediency of the order, and that it is competent for the Court to investigate these matters.
He cited Municipal Coumil of Sydney v. Campbell (1); Roberts v. Hopewood (2); Smith v. The Queen (3); and Nakkude Ali v. Jayarante (4). In my opinion the cases cited are of no assistance to the appellants because they tum on provisions in various Acts unlike the one under consideration.
The relevant provisions of the Native Authority Ordinance are as follows:-
“Section 30(2) A native authority may if it considers it expedient for the good government and welfare of the area of its authority submit for the consideration of the Governor a recommendation for the modification of any native law or custom, whether or not a declaration has been recorded and the order made under the provisions of this section in respect of such native law or custom, relating to any subject either as applying throughout the area of its authority or in any part thereof or as affecting certain specified persons or classes of persons or any part thereof.
“(3) If the Lieutenant-Governor is satisfied that such declaration accurately records the native law or custom with respect to the subject to which it relates or that such modification is expedient and that such native law or custom or such modification is not repugnant to justice, equity or good conscience nor incompatible in its terms or by necessary implication with any Ordinance, he may by order direct such declaration or such modification to be the native law and custom in respect of the subject to which it relates and to be in force in the area concerned.”
Sub-section (2) is incompletely drafted but that is immaterial to the question to be determined.
Sub-section (3) must be considered by reference to its own language. The legislation by its nature presumes that the Lieutenant-Governor will act in good faith. It provides that the first defendant as a safeguard on the Native Authority must satisfy himself that the modification is expedient. In doing so he necessarily weighs up all matters that he considers relevant and he is guided by public policy. But in so acting he is not exercising a judicial or quasi-judicial function for at no stage is there anything in the nature of a lis inter partes before him. An order made under the section therefore is not, in my view, impeachable in Court on the grounds on which a judicial or quasi-judicial decision might be impeached; therefore there can be no question of calling evidence to challenge the order.
The important thing is that in carrying out an order under the section the first defendant exercises administrative functions as an executive officer of government. He, alone, is the judge of the circumstances in which his powers will be exercised. He is responsible to the Administration and his decision cannot be controlled by the Court. If Mr. Olowofoyeku’s argument were acceded to, it would involve substituting the opinion of the Court as to what is expedient for the opinion of the first defendant himself whilst the section makes the opinion of the Governor decisive as to what is expedient for the good government and welfare of the area concerned.
In Franklin v. Minister of Town Planning (5) the House of Lords had before it for consideration section 1 (1) of the New Towns Act, 1946, which provides:-
“If the Minister is satisfied after consultation with any local authorities who appear to him to be concerned that it is expedient in the national interest that any area of land should be developed as a new town by a corporation established under this Act, he may make an order designating that area as the site of the proposed new town.
“Objection was taken to the order on the grounds that:-
“(i) the Minister had forejudged or foreclosed his mind by declaring, before considering the appellants’ representations, that he would make the order.
“(ii) the inquiry did not comply with the statutory requirements as no evidence in support of the draft order was led on behalf of the Minister.”
The House of Lords settled finally in this case that the Act imposed no judicial or quasi-judicial duty on the Minister; that any reference in the case to “bias” was irrelevant, and that the Minister’s duties under the section of the Act were purely administrative.
The similarity between the above section and the section we are considering is clear. It should be noted that there is no provision in section 30 of the Native Authority Ordinance for a statutory inquiry.
In Miller v. Minister of Health (6), Henn Collins, J. (at page 628) employed language which I would respectfully adopt, as it seems applicable in this case:-
“I think one must remember in approaching these matters that the question what a Minister shall or shall not do when acting administratively is not one that can be determined on any principle of law, nor yet on any principle, as I see it, of natural justice, as between the Minister and any one member of the community. The Minister acting in his administrative capacity is governed by considerations of expediency only. He has to decide-ultimately, I suppose, subject to the review and governance of Parliament-what in his view is best for the community.”
The rest of the passage is not in point because the learned Judge went on to hold that in that case, at a certain stage of the matter, a Minister of Health acting under the Housing Acts must consider judicially the matters brought before him. And there lay the distinction in England, depending upon the language of the Acts, between the Minister of Town and Country Planning under the Act of 1946 and the Minister of Health under the Housing Acts. The former’s duties were purely administrative while the latter exercised quasi-judicial functions. The cases illustrate the importance of looking to the language of the enactment itself in each case.
There is no justification therefore for the claim that the order in this case is ultra vires. A perusal of it shows that it is framed strictly in accordance with section 30: I must hold that the first defendants duties thereunder are purely administrative and cannot therefore be challenged or criticised in Court by the action taken.
Having come to this conclusion in my opinion the action should have been dismissed on these grounds and it was unnecessary for the learned trial Judge to consider whether the action related to a chieftaincy dispute, although it may very well have done so and, on that ground also, the Court was incompetent to adjudicate in the matter.
As in the result the plaintiffs’ suit must in any event fail, I would dismiss this appeal with costs.
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FOSTER-SUTTON, P.
I concur.
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DE COMARMOND, AG. C. J.
I concur.
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Appeal dismissed.
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