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ADU JIBRILU-THE OLUKARE
V.
THE OWA ALE OF IKARE
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
12TH DAY OF MAY, 1950
2PLR/1950/37 (WACA)
OTHER CITATION(S)
2PLR/1950/37 (WACA)
(1950) XIII WACA PP. 72-75
LEX (1950) – XIII WACA 72-75
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BEFORE THEIR LORDSHIPS:
BLACKALL, P.
AMES, Ag. C.J., NIGERIA
LEWEY, J.A.
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BETWEEN:
ADU JIBRILU-THE OLUKARE – Defendant-Appellant
AND
THE OWA ALE OF IKARE – Plaintiff-Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court, W.A.C.A. CIV. APP. 3224/50
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REPRESENTATION
Sir Adeyemo Alakija with Egbuna and Moore — for Appellant
Thomas with Williams, Awolowo and Kayede — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CUSTOMARY LAW — CHIEFTAINCY:- Claim to Chieftainship — Validity of appointment of another Chief challenged Assertion of subsidiary claims also — precedence and privilege having a monetary value — Jurisdiction of Court to entertain action considered
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CASE SUMMARY
The appellant was the defendant.
This was an appeal against· a declaratory judgment of Pollard, Ag. J., and an injunction against the defendant. By his writ of summons the plaintiff sought against the defendant a declaration that he was, by native customary law, the natural Oba and ruler of the whole of Ikare.
The question at issue was whether the Judge had jurisdiction to entertain the suit or whether he was precluded from doing so by section 2 of the Appointment and Depositions of Chiefs Ordinance (Cap. 12).
This section provides (inter alia) that the appointment of a chief is to be made by these persons entitled by native law and custom to appoint chiefs and, in the event of dispute, the Governor, after due enquiry, shall be the sole judge as to whether any appointment of a Chief has been duly made.
Counsel for the plaintiff argued that the question of the appointment was not in dispute, but only that of precedence. He further contended that the plaintiff was entitled to certain privileges having a monetary value and asserted that on these grounds the Court had jurisdiction to entertain the claim.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
1. The plaintiff’s claim was that he was the only rightful chief of Ikare by native law and custom, and that the defendant was not. In other words, he challenged the validity of the appointment of the defendant as not being in accordance with native law and custom and that is precisely the kind of dispute of which the Governor is made sole judge by section 2(2) of the Appointment and Deposition of Chiefs Ordinance.
2. In so far as the claim included a dispute as to precedence, the Court will not entertain an action to establish title to a Chieftaincy only, where it is a mere dignity, or a position of honour or of primacy among a particular section of the community, unless it can be shown that definite material rights are also involved.
3. The evidence of privilege having a monetary value was unsatisfactory and rejected. The Court had no jurisdiction to entertain the action.
Cases referred to:
(1) Adanji v. Hunvoo, 1 N.L.R. 75.
(2) Cowley v. Cowley (1901), A.C. 446.
(3) Aminu Abasi v. Olubadan-in-Council, W.A.C.A. Judgments, 4th December, 1949.
(4) Laoye & Others v. Oyetunde (1944), A.C. 170.
(5) Akinwande Thomas & Others v. The Alake & Others, W.A.C.A. Judgments, November, 1946, 82.
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MAIN JUDGMENT
The following Judgment was delivered:
BLACKALL, P.
This is an appeal against a declaratory judgment of Pollard, Ag. J., and an injunction against the appellant. The question at issue is whether the acting Judge had jurisdiction to entertain the suit or whether he was precluded from doing so by section 2 of the Appointment and Deposition of Chiefs Ordinance (Cap. 12). Section 2 (1) of the Ordinance empowers the Governor to approve a successor of a chief. The appointment of any chief is to be made by those persons entitled by native law and custom so to appoint in accordance with native law and custom, and sub-section 2 provides that in the case of any dispute, the Governor, after due enquiry, shall be the sole judge as to whether any appointment of a chief has been made in accordance with native law and custom. To determine whether the subject matter of the present action concerns such a dispute, the first step, it seems to me, is to examine the pleadings.
Now, in the writ of summons the plaintiff seeks against the defendant, a declaration that he is, by native customary law, the natural Oba and ruler of the whole of Ikare. He alleges that the defendant has been wrongfully ruling the Ikare people and he seeks an injunction restraining the defendant from wearing a crown and performing the functions of Oba and ruler. Turning to the statement of claim, we find in paragraph 13 an allegation that the defendant has been wrongfully ruling the people and enjoying the privileges and emoluments attached thereto.
In paragraph 17 it is stated that the plaintiff by the assumption by the defendant of the office of ruler of Ikare, has been wrongfully deprived of and ousted from his office as ruler of the whole of lkare, and consequently the privileges and emoluments thereto attached, and at the end of the case we find the learned Counsel for the plaintiff stating that his client asks for a declaration that he is the natural ruler of Ikare, and an injunction to restrain the defendant from acting as a natural ruler and enjoying the emoluments, which, he said, include the drawing of the salary as President of the Native Court.
Before proceeding further I should like to make an observation upon the expression “natural ruler”. That is a popular, not a legal term; it is used in local parlance as a somewhat grandiloquent appellation for native chiefs, but it has no legal significance whatever. The only native ruler is a person who has been appointed by native law and custom, and who is vested with such powers of administration as the law provides. There is no other kind of native ruler, natural or otherwise; it is, therefore, unfortunate that the acting Judge should have made use of an expression which is incorrect, because it gives credence to the argument put forward that there is a distinction between those chiefs to whom section 2 of Cap.12 applies, and so-called natural rulers, as though the former were mere Government appointees and the latter the genuine article. Now, it is true that in the early days of British occupation in the Oil Rivers there was a class of chief known as Warrant Chiefs, who might be correctly described as Government nominees, though that is not said in derogation of them, for they included some fine types. But it is true to say that they held office by virtue of their warrants and not by native law and custom. But that is not the position with which we are dealing, for under Cap. 12 the Governor appoints only if those in whom the power of appointment is vested under native law and custom, fail or neglect to do so. In all other cases the Governor merely approves, and in the present case there was evidence that the defendant was appointed Olukare by native law and custom, and that his appointment was approved by the Governor.
But the plaintiff’s claim is that he is the only rightful chief of Ikare by native law and custom and that the defendant is not; in other words, he challenges the validity of the appointment of the defendant as not being in accordance with native law and custom, and that, it seems to me, is precisely the kind of dispute of which the Governor is made sole judge by section 2 (2) of Cap. 12.
Mr Thomas sought to get over this difficulty by arguing that the question of appointment is not in dispute, but only that of precedence. In my opinion, that argument is inconsistent with his pleadings, but apart from this it has been held in the case of Adanji v. Hunvoo (1), that the Courts will not entertain an action to establish title to a chieftaincy only, that is, where it is a mere dignity, or a position of honour or of primacy among a particular section of the native community. But this is what the learned acting Judge did in paragraph 2 of his judgment, where he declared that the plaintiff ranks higher than the defendant or any other chief among the chieftaincies (sic) in Ikare. The decision in Adanji v. Hunvoo accords with the well-known English case of Cowley v. Cowley (2), where it was decided that a peer could not prevent his former wife from using the title she attained on marriage because the law of England allows a person to assume any name he wishes. In the same way there is nothing to prevent anybody walking along Piccadilly wearing a coronet – if he is prepared to incur ridicule – but if on the strength of wearing it he attempts to take his seat in the House of Lords, he will not be allowed to do so. So also the wearing of a crown in this country is not a matter for the Courts to adjudicate upon unless it can be shown that by virtue of wearing it, definite material rights are derived.
Mr. Thomas endeavoured to surmount this obstacle by relying upon the evidence of the witness Bayode, who said that the plaintiff “as an Owa Ale would have to perform many ceremonies. He would, as a consequence, receive many gifts, oil, fowls and so on.” The ceremonies were not specified and the rights seem to be rather nebulous, but apart from this, that witness, who is a retired Native Court clerk, asserted that the plaintiff is, according to native law and custom, President of the Native Court, which he must know perfectly well is a statutory office. I am not, therefore, disposed to attach any value to his evidence.
To sum up. The plaintiff, in my view, was asking the Court for a decision on the validity of the defendant’s appointment as Chief of Ikare and it was held by this Court in Aminu Abasi v. Olubadan-in-Council (3), that the Courts are precluded from deciding whether the appointment of a chief has been made in accordance with native law and custom. The acting Judge, by a peculiar process of reasoning, conceived himself entitled to disregard that decision, but the decision is binding on all Courts in this Colony, unless and until it is overruled by higher authority, which term does not include an acting Judge sitting alone. The learned Judge also made a somewhat unorthodox order for costs by purporting to award them to the plaintiff whatever the final result of the action might; be. The Court below has, of course, no power to tie the hands of this Court in that manner.
In my opinion, this appeal should be allowed with costs.
AMES, AG. C.J.
I agree that this appeal should be allowed, for the reasons stated by the President. I should like to make one comment only.
The respondent, who was the plaintiff in the Court below, had to face two difficulties, which lay in the way of his instituting this action. The first was the Appointment and Deposition of Chiefs Ordinance, No. 20/1945 (as it then was). He tried to get over this difficulty by including in his claim a right to wear “a crown”. (During the argument before us, Mr. Thomas, on behalf of the respondent, said that it was a specific crown; so apparently the claim should have been about” the crown” and not “a crown”.
The second difficulty was the principle of law referred to, and applied, in the case of Adanji v. Hunvoo (1) by the Full Court of the Supreme Court of this country in 1908. The principle is that the Courts cannot entertain claims ID establish a claim to a bare title, dignity or chieftaincy, apart from any rights to property or pecuniary rights connected therewith. The plaintiff tried to get over this difficulty by claiming “privileges” which be claimed were attached, the wearing of the crown and the ruling of the people of Ikare
In the Ogbomosho case of Laoye & Others v. Oyetunde (4), which went to the Privy Council, although there was a dispute as to a chieftaincy which was held to be outside the limits of the Ordinance as it was at the time, there was a claim for possession of the house or palace (I think it was called the Sobun) which by tradition and custom was possessed by the chief while he was chief.
In the Abeokuta case of Akinwande Thomas & Others v. The Alake & Others (5) the statement of claim alleged that the holder of the office or chieftaincy was entitled to certain fees and rents.
In this present case before us the claim is about “privileges”. These were unspecified in the statement of claim, and Mr Thomas explained that they are traditional privileges of monetary value, “moneys and perquisites estimable money” as the learned Judge stated in his judgment. The only evidence about the actual money was about official salary of the District Head and President of the Native Court. The claim is quite untenable as to this, as it is not a traditional privilege but salary paid from Native Treasury funds to the holder of these offices. Apart from that there was mention at the very end all the evidence for the plaintiff that as Owa Ale (as the plaintiff claimed himself to be) “he would as a consequence receive many gifts, oil, fowls and so on”. That is the evidence of the privileges on which his case rests, and by which he might to overcome the second difficulty. To my mind, this is quite unreal and is no more than an attempt to hang on to the tails (so to speak) of the Ogbomosho and Abeokuta cases and so get over this second difficulty.
It was said by the great Francis Bacon that “consequence does not draw consequence, but the extension should stop within the next cases; otherwise there will be a gradual lapse into dissimilar cases, and sharpness of wit will have pater authority than law”.
That was said over three hundred years ago, but it is still true to-day, and tile ingenuity of lawyers in drafting their claims cannot be allowed to override the authority of law.
As I said before, I agree that the appeal should be allowed.
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ARTHUR LEWEY, J.A.
I concur.
Appeal allowed.
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