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Alhaji Awwal Ibrahim v Galadima Shuaibu Barde & Ors. (1996) – SC

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➥ CASE SUMMARY OF:
Alhaji Awwal Ibrahim v Galadima Shuaibu Barde & Ors. (1996) – SC

by Branham-Paul C. Chima

➥ COURT:
Supreme Court – SC.74/1995

➥ JUDGEMENT DELIVERED ON:
Friday, the 6th day of December, 1996

➥ AREA(S) OF LAW
Appointment of Emir.

➥ PRINCIPLES OF LAW
⦿ THE WORDS OF THE STATUTES BEST DECLARES THE INTENTION OF THE LEGISLATORS
It is a cardinal rule of the construction of statutes that statutes should be construed according to the intention expressed in the statutes themselves. If the words of the statutes are themselves precise and unambiguous, then, no more is necessary than to expound the words in their natural and ordinary sense. The words of the statutes do alone, in such a case, best declare the intention of the lawmaker – See Ahmad v. Kassim (1958) SCNLR 58;  (1958) 1 NSCC II; Capper v. Baldwin (1965) 2Q.B. 53 at p. 61; Cargo ex Argos, (1873) L.R. 5 P.C.134 at p. 153. In the case of Barnes v. Jarvis. (1953) 1 W.L.R. 649. — Uwais, CJN.

⦿ WHEN STATUTE MAY BE CONSTRUED RETROSPECTIVELY
The retrospective nature of a statute may concern the whole provisions of the Statute, as where the commencement date so indicates; or may concern only a section of the statute – see Lauri v. Renad. (1892) 3 Ch. 402 at p. 421; Pardo v. Bingham, (1868 -69) 4 L.R.Ch. App. 735 at p. 739 and West v. Gwynne (1911) 2 Ch. 1. Where a statute is passed for the purpose of supplying an obvious omission in a former statute, the subsequent statute has relation back to the time when the prior Act was passed – see p. 395 of Craies on Statute Law. 7th Edition. Where a statute is in its nature declaratory, the presumption against construing it retrospectively is inapplicable – See A – G v. Theobald. (1890) 24 Q.B.D. 557. If by necessary implication from the language employed that the legislature intended a particular section to have a retrospective operation, the courts will give it such an operation- Lane v. Lane (1896) P. 133.

⦿ EVERYTHING IS PRESUMED TO BE RIGHTLY PERFORMED
The maxim here is omnia praesumnutur rite et solemniter esse acta donec probetur in contrarium (everything is presumed to be rightly and duly performed until the contrary is shown). — Onu JSC.

⦿ TO TAKE CARE OF THE APPOINTMENT OF THE EMIRSHIP
Thus, the effect of making Exhibit 7, a subsidiary legislation with retrospective effect, to take care of the appointment process of the Emirship of Suleja, which as I earlier pointed out, has the force of law and now over-rides customary law. This is the moreso, in the instant case where confusion characterising the kingmaker’s body charged with the selection process and which was not helped by declaring what role the customary law vis-a-vis Exhibit 10 (the chronicle of Abuja) played in that process needed to be formalised and codified. — Onu JSC.

⦿ DOCUMENTARY EVIDENCE SHOULD BE A HANGER TO ACCESS ORAL TESTIMONY
“No doubt the legal proposition that where there is oral as well as documentary evidence, documentary evidence should be as a hanger from which to assess oral testimony is a sound one.” – per Nnaemeka Agu, J.S.C. in Kimdey & Ors. v. Military Governor of Gongola State & Ors. (1988) 2 NWLR (Pt.77) 445; (1988) 1 NSCC 827, 851. — Ogundare, JSC.

➥ LEAD JUDGEMENT DELIVERED BY:
Uwais, C.J.N.

➥ APPEARANCES
⦿ FOR THE APPELLANT
Kehinde Sofola, SAN.

⦿ FOR THE RESPONDENT
Chief A.T. Ajala, SAN.

➥ CASE FACT/HISTORY
The 5th respondent approved the selection of the appellant. He was appointed with effect from 23rd September, 1993 as the new Emir of Suleja and was traditionally installed by being turbanned by the 1st respondent who stated under cross-examination that he so acted under coercion.
In the meanwhile a bill titled “Chiefs (Appointment and Deposition) Law (Amendment) Law”, was presented to the House of Assembly of Niger State. After going through the prescribed procedure the bill was passed into law and was assented to by the 5th respondent on 2200 October, 1993. (Exhibits SC 1 and SC2).
The 1st, 2nd, 3rd and 4th respondents felt aggrieved by the appointment of the appellant as Emir of Suleja. They, therefore, filed a writ of summons together with an ex-parte motion on 22nd September, 1993 in the High Court of Niger State holden at Suleja. The motion ex parte was for an injunction to restrain all the defendants, as respondents “jointly and severally from nominating, approving and or appointing any person to the vacant stool of the Emir of Suleja. Secondly to restrain the respondents either by themselves their agents or privies from doing any act calculated to jeopardise the function of the applicants as the traditional kingmakers of Suleja.”

The appellant in this case was the 7th defendant in the High Court. The 5th, 6th, 7th, 8th, 9th and 10th respondents were respectively the 1st, 2nd, 3rd, 4th, 5th and 6th defendants in the High Court. The plaintiffs were the 1st, 2nd, 3rd and 4th respondents herein.
The plaintiffs’ claims against the defendants were as follows, inter alia:- “(1) A declaration that the purported rejection of the nomination and or appointment of Bashir Suleiman Barau as the new Emir of Suleja by the 1st defendant as being against the tradition and custom of the people of Suleja is illegal ultra vires the first defendant, unconstitutional and void.”

Available:  Bashiru A. O. Rosenje v. Madam Salamotu Bakare (1973)

With regard to the substantive action the learned trial Judge (Oyewo J.) entered judgment for the plaintiffs.

The appellant herein together with the 5th to 10th respondents herein appealed to the court below. At the hearing of the appeal in that court, the “Chiefs (Appointment and Deposition) Law (Amendment) Law, 1993 N.S.L.N. No.3 of 1993 was produced and admitted. The Court of Appeal by majority of 2 to 1 (Mahmud Mohammed and Opene, JJ.C.A. with Abdullahi, J.C.A. dissenting) dismissed the appeal. The appellant herein alone decided to appeal further before us against the decision of the Court of Appeal.

➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]

I. Whether the majority of the court below were right when they upheld the trial court’s decision that the Chiefs (Appointment and Deposition) Law (Amendment) Law, 1993, NSLN 3 of 1993 was illegal, null and void?

RULING: IN APPELLANT’S FAVOUR.
A. “The question here is whether the Chiefs (Appointment and Deposition) Law (Amendment) Law, 1993, NSLN No.3 of 1993 is illegal, null and void. The Court of Appeal based its decision on the fact that the 1993 Law was not assented to by the Governor of Niger State; the date it was assented to was not clear, the name of the Governor was not stated in the Law nor was the name of the Clerk to the House of Assembly also clear in the certification to the Law. With the admission of Exhibits SCI to SCII as additional evidence all the doubts entertained by the Court of Appeal have been removed. It is very clear from the Exhibits that the proper procedure for passing bills in the House of Assembly of Niger State had been followed and that the Law was assented to by the then Governor of Niger State on 22nd October, 1993. All the learned counsels in the case have conceded that the 1993 Law was properly passed and assented to by the Governor and, therefore, it is a valid Law. Consequently, I will set aside the decision of the Court of Appeal in this respect which upheld the decision of the trial Court that the Law was illegal, null and void.”
.
.
II. Whether the 1993 Order was validly made by the Governor?

RULING: IN APPELLANT’S FAVOUR.
A. “Now, it is no more in dispute that the Chiefs (Appointment and Deposition) Law (Amendment) Law, 1993, N.S.L.N. No.3 of 1993 was passed by the House of Assembly of Niger State and was given assent by the Governor of Niger State and that the Law came into operation on the 22nd day of October, 1993. The question now is whether the Chiefs Appointment and Deposition (Appointment of Emir of Suleja) Order, 1993, N.S.L.R. No.2 of 1993 is valid. There is no doubt whatsoever that the 1993 Order was made by the Governor of Niger State on the 20th day of September 1993 and it was intended to have retrospective operation, with effect from 16th September, 1993. These facts are contained in Niger State of Nigeria Gazette No.1 Volume 18 of 20th September, 1993. By Section 113 of the Evidence Act, Cap. 112 of the Laws of the Federation of Nigeria 1990, the Laws of a State may be proved by the production of the State Gazettes in which the Laws are published. Such Gazettes are prima facie proof of any fact of a public nature which the laws are intended to notify. What needs to be ascertained is whether the Governor of Niger State had in fact the power to make the Order. If he had the power, the Order would be valid. On the other hand if he did not have the power the Order would be invalid unless of course theres is another legislation which validates the action of the Governor in making the Order.”

B. “The preamble to the 1993 Order, which is quoted above, states that the governor was exercising the powers conferred upon him by section 4(2) of the Chiefs (Appointment and Deposition) Law of Niger State, and any other powers enabling him in that behalf, to make the 1993 Order. Section 4 subsection (2) of the Chiefs (Appointment and Deposition) Law, Cap. 19 has been quoted above. It is common ground between the parties that the provisions of section 4 sub-section (2) of Cap. 19 have no application to the Order because the Chieftaincy contemplated under the section is different from the Emirship ofS uleja. It is, therefore, clear from that angle that the Governor had no power under section 4 subsection (2) of Cap. 19 to make the order. It then becomes necessary to examine whether he had the power under any enabling legislation.”

“It is clear from the foregoing that the object of passing the 1993 Law was to enable the Governor or Niger State to have powers which he did not previously have with regard to the method of appointing chiefs.  It is settled that where the main object and intention of a statute are clear it must not be reduced to a nullity by the draftsman’s unskillfulness. Beside, it has always been accepted that a statute should be so construed as to achieve the object it was intended to serve- See Cramas Properties Ltd. v. Connaught Fur Trimmings Ltd. (1965) 1 WLR 892; Nokes v. Doncaster Amalgamated Collieries Ltd . (1940) A.C. 1014; Nafiu Rabiu v. Kano State, (1980) 8 – 11 SC. 130; (1982) 2 NCLR 117 and F.C.S.C  v. Laoye (1989) 2 NWLR (Pt. 106) 652 at p. 686 C – F.”

Available:  Abdul Majeed Nasiru v. Commissioner Of Police (1980)

C. “There is no doubt that the opening provisions are inelegantly drafted. If Section 3(1) (A) is to be inserted, it is not stated under which section of the principal law. But since there is Section 3(1) in the principal law, I think it is a matter of common sense that the new section 3(1)(A) is meant to come under Section 3 of the principal law by following Section 3(1) of the principal law. In other words section 3(1)(A) is meant to be subsection (1)A of Section 3 of the principal law. By virtue of Section 3 subsection (1)A (ii) of the principal law, as amended, the Governor was empowered to prescribe a method of appointment of the Emir of Suleja.”

D. “It seems to me both from the meaning of the word “prescribe” and the intendment of Section 31 of the Interpretation Law, that the Governor of Niger State had the power to make the 1993 Order and I so hold.”

E. “The fact that the 1993 Order had been produced and had been printed by the Government Printer of Niger State since it is contained in Niger State Gazette No. 2 Volume 18 of 20th September, 1993 is by virtue of Section 27 of the Interpretation Law, Cap. 61, prima facie evidence that it was duly made. The word “duly” according to the Concise Oxford English Dictionary means “rightly, properly made.” The evidence being prima facie is, therefore, rebuttable. The question then is: has the 1993 Order been shown to have been unduly or improperly made The answer is in the negative. I, therefore, hold that the 1993 Order was properly made.”
.
.
III. Whether the court below was not in error in not ordering the dismissal in the entirety of all the claims made by the 1st to 4th respondents in the High Court in so far as they affect the rights of or relate to the appellant?

RULING: IN APPELLANT’S FAVOUR.
A. “Learned Senior Advocate, for the appellant, based his argument on the proposition that if this Court holds that the 1993 law, was a valid and subsisting law and that the 1993 Order was validly made; then, all the claims by the 1st to 4th respondents before the trial Court against the appellant had failed and should have been dismissed. It is obvious that the submission has force. I have already held, while considering issue No.2 above, that the 1993 Order was validly made by the Governor who had the authority to make subsidiary legislation under the Chiefs (Appointment and Deposition) Law, Cap. 19 as amended by the 1993 Law. The Court of Appeal was, therefore, in error when it failed to dismiss the appellant’s appeal and it also refused to set aside the decision of the learned trial Judge.”
.
.
.
✓ DECISION:
“I hold that the selection of the 4th respondent by the purported kingmakers for appointment as Emir of Suleja was wrongfully done since the kingmakers were not properly constituted in accordance with the native law and custom of the people of Suleja as contained in the Chronicle of Abuja (Exhibit 10). I hold that the Chiefs (Appointment and Deposition) Law (Amendment) Law, 1993, N.S.L.N. No.3 of 1993 was properly enacted, having been passed by the House of Assembly of Niger State and assented to by the Governor of Niger State. I also hold that the lower courts were wrong in declaring the Appointment and Deposition of Chiefs (Appointment of the Emir of Suleja) Order, 1993, N.S.L.N. No.2 of 1993 illegal, null and void … In the circumstances of this case no declaration can be granted. I hereby allow the appeal and set aside the decisions of the High Court and the Court of Appeal. I disallow, in their entirety, the declarations sought by the 1st to 4th respondents. The appellant is hereby awarded N1,000.00 costs against the 1st, 2nd, 3rd and 4th respondents, jointly and severally.”

➥ MISCELLANEOUS POINTS
***DISSENTING
**Ogundare, JSC:
“It is abundantly clear, and this is not disputed by any party to these proceedings, that the Emir of Suleja title is not a creation of any statute or administrative act of any competent authority but has its origin in the customary law of Suleja. That being so, the Governor would have no power to make an order as in Exhibit 7 pursuant to sub-section (2) of section 4. The parties were agreed on this in the Court below. One can, therefore, not fault the decisions of the two Courts below in this respect.”

“Again, it is crystal clear, and this also is not being disputed by the parties in their respective submissions, that the Governor could not have validly made Exhibit 7 under section 3(1) which only required him to appoint anyone appointed by those entitled by customary law so to do, or in default of an appointment being made by such people within a given interval, he the Governor, to make such appointment Exhibit 7 was not for such a purpose as is envisaged in the Law. The result is that Exhibit 7 even under section 3(1) is invalid. To this extent, also, I agree with the Court below in the view it (majority) held on the validity of Exhibit 7. As our attention has not been drawn to any other law empowering the Governor to make Exhibit 7, I have come to the conclusion that at the time he made Exhibit 7 he had no power to make it Exhibit 7 was therefore invalid.”

Available:  Mrs. Florence Omotayo Labode v. Dr. Godfrey Otubu & Anor (2001)

“The sum total of all I have been saying is that, viewed from whichever angle, Exhibit 7 does not come within the contemplation of section 2 of NSLN No.3 of 1993 and it is, therefore, in my respectful view, not validated by section 3 thereof. Acts validated by section 3 of NSLN No.3 of 1993 are acts which could lawfully and validly have been done under sub-section (1)(A) of section 3 of Cap. 19 (as amended). It is, therefore, my view, and I so hold, that the Appointment and Deposition of Chiefs (Appointment of Emir of Suleja) Order 1993 (Exhibit 7) remains invalid, notwithstanding section 3 of the Chiefs (Appointment and Deposition) Law (Amendment) Law, No.3 of 1993 which in my respectful view has not validated the said order. This is not a case where a valid legislation which is in conflict with customary law has abrogated the latter. This is a case where a valid legislation gives a power to be exercised in a particular contingency. Unless that power is exercised in that contingency, the exercise is invalid.”

➥ REFERENCED (STATUTE)
Section 14 subsection (2) of the Evidence Act. Cap. 112 of the Laws of the Federation of Nigeria 1990 must exist. The subsection provides:- “(2) A custom may be judicially noticed by the court if it has been acted upon by a court of superior or co-ordinate jurisdiction in the same area to an extent which justifies the court asked to apply it in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration.”

Section 3 subsection (1) of Chiefs (Appointment and Deposition) Law, Cap. 19 of the Laws of Niger State of Nigeria, 1989 provides:- “3(1) “3(1) Upon the death, resignation or deposition of any chief or of any head chief other than a chief of a kind referred to in section 4, the Governor may appoint as the successor of such chief or head chief, any person appointed in that behalf by those entitled by customary (sic) so to appoint in accordance with customary law; and if no appointment is made before the expiration of such interval as is usual under customary law, the Governor may himself appoint such person as he may deem fit and proper to carry out such duties incidental to the chieftaincy as it may be necessary to perform.”
Similarly section 4 subsections (1) and (2) of the same Law, Cap. 19 provides: “4(1) The provisions of section 3 shall not apply to the office of a chief or head chief which – (a) has not originated from customary law but has been created by legislation or administrative act of a competent authority; (b) is recognised as such by the Governor; but the provisions of subsections (2) and (3) of this section shall apply thereto. (2) Upon the death, resignation or deposition of any chief or head chief of a kind described in subsection (1) the Governor may approve as the successor of such Chief or head chief, as the case may be, any persons appointed in that behalf by those entitled to appoint in accordance with the provisions of any order made by the Governor prescribing the method of appointment of such a chief or head chief; and if no appointment is made before the expiration of any such order the Governor may himself appoint such person as he may deem fit and proper to carry out such duties incidental to the chieftaincy as it may be necessary to perform.”

➥ REFERENCED (CASE)
⦿ COMMON SENSE SHOULD BE APPLIED IN CONSTRUING STATUTES
In the case of Barnes v. Jarvis. (1953) 1 W.L.R. 649. Lord Goddard CJ. stated that a certain amount of common sense must be applied in construing statutes and the object of the statute has to be considered.

⦿ DECLARATORY JUDGEMENT IS DISCRETIONARY
In the case of Egbunike v. Muonweokwu (1962) 1 All NLR 46 Taylor, FJ. held as follows on p. 51. “A declaratory judgment is discretionary. It is a form of judgment which should be granted only in circumstances in which the Court is of opinion that the party seeking it is, when all the facts are taken into account, fully entitled to the exercise of the Court’s discretion in his favour.”

➥ REFERENCED (OTHERS)

End

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