ALBERT AFEGBAI VS ATTORNEY-GENERAL EDO STATE
June 20, 2025S. N. IBE v. PETER ONUORAH
June 20, 2025Legalpedia Citation: (2001) Legalpedia (SC) 71313
In the Supreme Court of Nigeria
HOLDEN AT ABUJA
Thu Jul 12, 2001
Suit Number: SC.112/96
CORAM
SALIHU MODIBBO ALFA BELGORE
MICHAEL EKUNDAYO OGUNDARE
JUMMAI HANNATU SANKEY JCA
PARTIES
CHIEF ABUBAKAR ZIBIRI ODUGBO APPELLANTS
1. CHIEF ALIU ABU (Representing Obuo Quarters, Ebese-Ivbiaro)2. CHIEF ALASA OSHIOKEDE3. CHIEF KADIRI ARUNA (Representing Afosortor Quarters, Ebese-Ivbiaro)4. CHIEF ISA OSAYA5. ALHAJI BRIAHAM UMORU RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
Following a dispute as to who was the rightful Village Head, and upon a report made to the then Bendel State Executive Council, the Owan Traditional Council was directed to enquire into the dispute. However, the Owan Traditional Council went further to select the 1st Defendant as the Village Head. The Plaintiffs then commenced this action as they contended that the enquiry itself was devoid of any fairness and against the customary law of their community with the appointment of the 1st Defendant not being a titled man or chief, an Odion-Ejere. The trial Court held that the purported appointment and approval of the 1st Defendant by the Executive contained in Exhibit 46 are irregular, invalid, and illegal and is contrary to Ivbiaro Customary Law and provision of Edict No. 16 of 1979 and therefore null and void. Furthermore, the 1st Defendant was restrained from parading and/or holding himself out as the village and clan head of lvbi-Ada Obi, injunction was also granted restraining him (1st Defendant) from conferring on any Ivbiaro person any customary title and or receiving any customary perquisites connected thereto. The 1st Defendant being very dissatisfied with the judgment and orders of the trial court, appealed to the court below. That court after due consideration of all the points raised before it dismissed the appeal in its entirety. The 1st Defendant, still dissatisfied with the judgment of the court below has further appealed to this court.
HELD
Appeal Dismissed
ISSUES
Whether the trial court was vested with the jurisdiction to hear and determine the complaints of the plaintiffs.
RATIONES DECIDENDI
ORDER FOR CERTIORARI -THE NATURE AND EFFECT OF AN ORDER FOR CERTIORARI
“And also after considering whether the respondent could properly have relief sought by a declaratory action rather than seeking for an order of certiorari to quash the order of an inferior tribunal, His Lordship, Karibi-Whyte at pp. 24-25 of his judgment said as follows:
“The nature and effect of an order for certiorari is clearly different from a declaration. An order for certiorari corrects errors of inferior tribunals and quashes erroneous decisions. A declaration as to right already determined by the inferior tribunal does not correct the errors, if any, of the tribunal but leaves it as it is. It declares what court regards as the true legal position. The effect is that both any wrong decision of the inferior court, and the declaration remain.
This was the situation which Denning L.J. pointed out in Healey v. Minister of Health (1955) 1 QB. 221, when he said that:
‘there would then be two inconsistent findings, one by the Minister and the other by the court. That would be a most undesirable state of affairs’.
It is indeed described as a legal curiosity. The effect of the decisions of the courts below which granted the declaration sought is to create the undersirable situation stated above.”
RULE OF INTERPRETATION – WHETHER A SUBSEQUENT ACT AFFECTS THE PROVISION OF PRIOR, SPECIAL OR PRIVATE ACT
“The general rule of interpretation is that a subsequent act does not affect the provision of prior, special or private Act, unless it is expressly provided; in other words, a subsequent general act will not interfere and modify or repeal the provision of a special or private act, unless that intention is clearly manifested in the general act. See Baker v. Edger (1987) AC 748 at 7554 (PC). But this general rule is not without exception. Where a special or a private act is absolutely inconsistent and repugnant with a subsequent general act, the courts are bound to declare the prior special or private act of any of their provisions repealed by the subsequent general act. See Bramston v. Colchester Corps: (1856) 6 E & B 246 and Great Central Gas Consumers Co. v. Clarke (1863) 13 CB. (N.S.) 838. See also pages 381-2 of Graig on Statute Law (Seventh Edition) by S.G.G. Edgar CBE, M.A. (Can tab) and Military Governor, Ondo State v.Adewumi (1988) 3 NWLR (Pt.82) 280.”
IMPLIED REPEAL OF STATUTE -WHETHER A NEW STATUTE REPEALS A PREVIOUS LAW
“In Garnett v. Bradley (1878) 3 APP CAS 944 at 966, commenting on the issue of implied repeal of a statute by another, Lord Blackburn stated thus-
“I shall not attempt to recite all the contrarieties which make one statute inconsistent with another. The contraria which make second statute repeal the first. But there is one rule, a rule of common sense, which is found constantly laid down in these authorities to which I have referred, namely that when new enactment is couched in a general affirmative language and the previous law, whether a law of custom or not, can well stand with it for the language used is all in the affirmative, there is nothing to say that the old law shall be repealed… But when the new affirmative words are, as was said in Stradling v. Mayor (1560)1 P. Law 199 at P. 206 such as by their necessity to import a contradiction, that is to say, where one can see that it must have been intended that the two should be in conflict, the two could not stand together, the second repeals the first.”
To return to the circumstances of the case in hand, the wordings of the provisions of sections 22(4) and 32 of Edict No. 16 of 1979 of Bendel State are clearly inconsistent with the provisions of sections 6(1) and (2), (6)(a) and (b), and 236(1) of 1979 Constitution as at 1st October 1979. And by virtue of section 274(1) and (4)(b) and (c) of the said Constitution as at 1st October 1979, these provisions were deemed to have been modified either by implied repeal or by modification so as to bring the law into conformity with the Constitution, long before the enactment of Decree No.1 of 1984″.
May I also draw attention to the judgment of Mohammed JSC where reference was made to Eguamwense v. Amaghizemwen (1993) 9 NWLR (Pt.315) 1 said at page 444, thus:-
“On the second issue, after the decision of the “prescribed authority” to wit, the Olu of Warri, it is open to the party wishing to challenge the decision to either take the matter to the Executive Council of the Military Governor or go to court for redress. See section 22(3) and (4) of Edict No. 16 of 1979 of Bendel State. Having chosen to go to court whose decision shall be binding on the executive council, it is an error to question why the respondents chose to take their matter into court. From the wording of the statute, it is clear that going to the Executive Council of the Governor is an alternative remedy. Even if that is so since under the provisions of sections 6 and 236 of 1979 Constitution, chieftaincy disputes, among others are matters within the jurisdiction of the High Court the respondents are right in seeking redress in the High Court. The alternative remedy which a party can resort to in order to pursue his right does not exclude his inalienable right to seek redress in the courts.
I will refer to an English case which was decided on similar grounds. It is the case of Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government (1958) 1 QB 554. In that case a statute made provision for determination of a dispute by the Minister and his decision was expressly made “final”. The Pyx Granite Company had a dispute and instead of going to the Minister, the Company went to the High Court and sought for a declaration. The Minister said that the High Court had no jurisdiction to entertain the claim for a declaration. Lord Denning, in his judgment, held that the High Court had jurisdiction, and added that it was settled law that the jurisdiction of the High Court to grant declaration was not to be taken away except by clear words. In the House of Lords, Lord Simons agree with Lord Denning and concluded that even if there is an alternative remedy for a subject, his inalienable right to seek redress in her Majesty’s courts cannot be taken away. See the case of Eguamwense v.Amaghizemwen (1993) 9 NWLR (Pt.315) 1 at 35.”
The second case is: Chief S. C. Osagie II & Anor. V. Chief Eugine C. Offor & Anor. (The Ajeh of Ekuoma) (1998) 3 NWLR (Pt.541) at 205. “
DECISION OF COURTS – BINDINGNESS OF THE DECISIONS AND JUDGMENTS OF COURTS IN THE HIERARCHY OF COURTS.
“Before answering the question I have earlier posed as to whether the case of Eguamwense v. Amaghizemwen (supra) is applicable to the instant case on appeal, I think it is necessary to advert to the settled principle concerning the bindingness of the decisions and judgments of our courts in the hierarchy of courts. But for such decisions and/or judgments of the Supreme Court to be applicable and binding, the facts and issues pronounced upon by the Supreme Court must be on all fours with the case under consideration by the lower court. The earlier decisions and/or judgments of this court are also generally binding on later cases for determination in this court when such cases are on all fours with the earlier decisions and/or judgments of this court. These are general principles. But it is desirable to mention that there are recognised exceptions to this general rule. In this respect may I refer to the decision of the Court of Appeal in England, in the case of Young v. Bristol Aeroplane Co. (1944) All ER 293, at page 298.”
DECISION OF COURT – INSTANCE WHERE THE PREVIOUS DECISION OF A COURT WILL NOT BE FOLLOWED
“It is one of the settled principles of this court that in the absence of conflicting decisions on the same point this court would follow and apply its previous decision where the facts and the issues of law settled in the previous decision are on all fours with the facts and issues calling for determination in a subsequent case and/or matter. However, where the previous decision defers both as to the facts and the issues of law raised thereon in the subsequent case calling for determination, that previous decision will not be followed.”
JURISDICTION OF COURT- DETERMINANT OF THE JURISDICTION OF COURT
“It is my further view that the trial court was vested with the jurisdiction to entertain the suit based upon their statement of claim, having regard to the settled principle of law that it is the claim of the plaintiff that determines the jurisdiction of the court to entertain a suit before it. See Barclays Bank v. Central Bank (1976) 6 SC. 175 at 193; Adeyemi v. Opeyori (1976) 9-10 SC. 31 at pages 51-52.”
RATIO DECIDENDI – EFFECT OF RATIO DECIDENDI
“The principle of law upon which a particular case is decided is called the ratio decidendi, and the effect of this is to serve as basis of the doctrine of judicial precedent in subsequent cases with similar facts see Ofunne v. Okoye (1966) ANLR 94. The Supreme Court, like the House of Lords in England, is bound to follow its own earlier decisions, but can depart from such decisions in the interest of justice, if and when circumstances so dictate see Bucknor Maclean v. Inlaks Ltd. (1980) 8-11 SC 1. I must note that we have not been called upon to depart from any of our earlier decisions.”
CLAIMS – WHETHER A PARTY CAN PROSECUTE HIS CLAIM BY MEANS OTHER THAN THOSE PRESCRIBED BY STATUTE
“The case of Barraclough v. Brown (1897) AC 615; 1895-1899 All ER (Rep) 239 establishes the principle that where a party claims to recover by virtue of a statute, he cannot at the same time prosecute his claim, by means other than those prescribed by the statute which alone confers the right. That principle is extended to situation such as in this case where the whole system of nomination, appointment and installation of chiefs has become massively regulated by statute.”
CUSTOMARY LAW – WHETHER A DECLARATION AS TO THE CUSTOMARY LAW IS A MATTER WITHIN THE JURISDICTION OF THE COURT
“A declaration as to the customary law is a matter within the exclusive jurisdiction of those on whom it is conferred by the Traditional Rulers and Chiefs Law. It is however within the jurisdiction of the court to ascertain, as a matter of fact, what the customary law is and to decide whether the declaration sought is permitted by that law.”
EXERCISE OF DISCRETION -WHETHER QUESTION ON PROPER EXERCISE OF A COURT’S DISCRETION GOES TO THE JURISDICTION OF THE COURT TO ENTERTAIN SUCH AN ACTION
“Whether a court exercises its discretion properly in a declaratory action goes to the issue of the merit of the case and not to the jurisdiction of the court to entertain such an action.”
CASES CITED
Not Available
STATUTES REFERRED TO
Bendel State Traditional Rulers and Chiefs Law 1979|Chiefs Law, 1978 of Oyo State|Constitution of the Federal Republic of Nigeria, 1979|Traditional Rulers and Chiefs Edict No. 16 of 1979 of Bendel State|
