ISSUES

Whether a "meeting" constituted an "inquiry" for the purposes of Section 3(2) of the Chiefs (Appointment and Deposition) Law, 1963?

Whether the appellant was given a fair hearing before being deposed as the Bale of Oro Town?

FACTS

The plaintiff was generally recognised as the Bale of Oro Town from the date of his installation in August 1980 until June 1982, when the defendants withdrew his recognition. They appointed another party in his stead - who had since died. The plaintiff alleged that this happened without having afforded him a fair hearing, or any hearing at all.

He sought a declaratory order in the High Court for his recognition as the Bale of Oro by first, second and third defendants, that the withdrawal of the recognition accorded him and the consequent recognition of the other party be declared void, and that the latter be restrained from acting as though he were the legitimate Bale of Oro Town.

The defendants argued that the Oloro of Oro had conveyed his misgivings about the legality of the plaintiff's appointment as Bale to the Governor who had agreed to the plaintiff's removal and the appointment of the other party as Bale of Oro Town in accordance with native law and custom.

The plaintiff succeeded in the trial court and the defendants appealed against the finding.

The Court of Appeal, in upholding the appeal, found that the defendants had complied with the provisions of Section 3(2) of the Chiefs (Appointment and Deposition) Law, 1963, which require the holding of an inquiry in chieftaincy disputes. The court held that the meetings held in this instance constituted "an inquiry"for purposes of the legislation. The Court of Appeal, in reaching this conclusion, held that "an inquiry" meant nothing other than an investigation and that the latter could take on many forms, including "meetings", as had been held here.

The plaintiff/appellant accordingly appealed to the Supreme Court against the finding of the Court of Appeal.

HELD (Unanimously allowing the appeal)

1.      On natural justice and the right to a fair hearing

Any administrative body acting in a judicial capacity as when deciding upon chieftaincy is under an obligation to hear both sides before reaching its findings. Nnaemeka, JSC, at pages 486 and 487.

2.      On want of hearing not having been pleaded

Not having afforded the appellant an opportunity to be heard constituted a "fundamental vice". In view thereof the court will still go into the question, even if not raised in the pleadings, if it is possessed of sufficient material fact to come to that conclusion without the need for further evidence on the point. Nnaemeka, JSC, at page 487.

3.      On estoppel

By having recognised the appellant as Bale for almost two years, allowing him to receive a salary during that time and having written to him in that capacity during that period, the defendants had, through their conduct, raised an estoppel in the appellant's favour. Nnaemeka, JSC, at page 489.

4.      On whether an appointment would have been lawful without an inquiry and on whether an inquiry had been held

The wording of Section 3(2) of the Chiefs (Appointment and Deposition) Law, 1963 was quite clear on this issue: the Governor was to conduct a proper inquiry, in consultation with all those concerned with the selection, before deciding that a particular appointment had been made improperly. If the decision was reached without such inquiry, the decision would be invalid. The evidence by the appellant that no accusations had been levelled against him, that he was never called to answer any questions, clearly showed that he had not been given a hearing at all. Nnaemeka, JSC, at page 490.

5.      On the meaning of the word "inquiry"

It is an important principle of the interpretation of statutes that words must not be construed in isolation. Rather, they should be read within their immediate surrounding context, as well as within the broader context of other clauses in the legislation, to be able to come to the right conclusion as to the legislature's intention. Nnaemeka, JSC, at page 491.

Chief W Olanipekun, SAN with him A Awomolo and A Adediji for the Appellant

I Adewumi, Solicitor-General, Kwara State for the Respondents

The following cases were referred to in this judgment:

Nigeria

Ademola II & others v Akinwale Thomas & others 12 WACA 81

Adigun & others v Attorney-General of Oyo State (1987) 1 NWLR (Part 53) 678

Chief Edewor v Chief M Uwegba (1987) 1 NWLR 313

Deduwa & others v Okorodudu & others (1976) 10 SC 329

Edewor v Uwegbe (1987) 1 NWLR (Part 50) 313

Federal Capital Development Authority v Naibi (1990) 5 SCNJ 186

Joe Iga & others v Ezekeil Amakiri & others (1976) 11 SC 1

Hart v Military Governor of Rivers State & others (1976) 2 FNLR 215

Ojo v Governor of Oyo State (1989) 1 NWLR (Part 5) 1

Rowrafric & Far Eastern Limited v John Chief Avbenake & others (1958) WRNLR 92

Wilson v Attorney-General of Bendel State (1985) 1 NWLR (Part 4) 572

Foreign

Midland Bank Ltd v Conway BC (1965) 1 WLR 1165

Broadbent v Rotherham Corporation (1917) 2 Ch.31

Canada Sugar Refining Co Ltd v R (1898) AC 735

Cooper v Wandsworth Board of Works 14 CBNS 180

Fleet Mortgage & Investment Co Ltd v Lower Maisonette 6 Eaton Place Ltd (1972) 1 WLR 765

Grimshaw v Dunbar (1953) 1 QB 408

Mayor of Westminister v London & North Western Railway Coy (1905) AC 426

Midland Bank Ltd v Conway BC (1965) 1 WLR 1165

R v Chancellor of Cambridge (1923) Str 557

Turquand v Board of Trade (1886) 11 AC 286

The following statutes were referred to in this judgment:

Nigeria

Chiefs (Appointment and Deposition) Law, Cap 20:Laws of Northern Nigeria Ss 3(2), 6

Constitution of 1979: S 33

Constitution of 1989: S 35

Court of Appeal Act 1976: S 16

Evidence Act, Cap 62 of the Laws of the Federation 1958: S 150

Law Reform (Miscellaneous provisions) Act of 1934

Nnaemeka-Agu, JSC (Delivered the Leading Judgment):- This is an appeal by the plaintiff, against the judgment of the Court of Appeal, Kaduna Division, which had allowed an appeal by the defendants against the judgment of Orilonise, J, sitting in an Ilorin High Court. The Court of Appeal had also made a consequential order of non-suit against the plaintiff.

The plaintiff had, in the High Court, claimed for a declaration that he was recognised as the Bale of Oro by the first, second and third defendants, that their purported withdrawal of the recognition and subsequent recognition of the fifth defendant was null and void. He also claimed an order of injunction restraining the fifth defendant from parading himself as the Bale of Oro Town.

Plaintiff's case, in a nutshell, was that he was duly nominated by Bale Egin Orunmila ruling house, presented to the Kingmakers of Oro by the Asanlu of Aro and Aro of Oro and was duly installed as the Bale of Oro on 1 August 1980. He was duly recognised by the first to fourth defendants. He acted in that capacity and defendants' functionaries addressed correspondences to him as such, until 14 June 1982, when the defendants purported to withdraw his recognition as Bale, without a hearing. The third defendant by Exhibit 'D', dated 7 December 1982, conveyed the recognition of the fifth defendant by the local government.

I should mention at this stage that the fifth defendant died before this appeal came up for hearing. An attempt in a motion filed by his brother, one Alhaji Mustapha Atoyebi, to be substituted for the fifth defendant as a respondent in this appeal, was refused by this Court on the ground that claims numbered 5 and 6 in the suit were personal actions against the fifth defendant. The applicant had no interest in the subject matter of the suit. The rule for substitution in such cases is governed by the application of the maxim: actio personalis moritur cum persona, a personal right of action dies with the person. It postulates that an action based on the personal rights of a deceased person dies with the person. Examples of such actions are those not being ex contractu for breach, debt, covenant or other similar duty to be performed, which can be maintained or continued by or against the deceased person's personal representatives, or actions brought by or against the deceased person as sole or one of the representatives of a group of people where the cause of action survives the death of the deceased. The maxim applied to all actions, by or against a deceased person, which were founded on malfeasance or misfeasance to the person or property of the deceased as well as to his person or personal right, such actions died with the deceased. Although, in England, the rule has been substantially modified by the Law Reform (Miscellaneous provisions) Act of 1934, that Act does not apply in Nigeria, and we have not been referred to any law applicable in Kwara State which has similar provisions as the Act of 1934 in England. On the principle, we held the view that the right, if any, of the fifth defendant to the chieftaincy stool, died with him. I shall, therefore, consider this appeal on the basis of the right of the plaintiff (appellant) against the remaining defendants (first to fourth respondents).

So, I need to refer only to those findings of fact by the learned trial Judge which relate to the first to fourth respondents. The learned trial Judge found, inter alia, as follows:-

(i) That there are two ruling houses in Oro town, and that the plaintiff belongs to one of them.

(ii) That the plaintiff was installed as the Bale of Oro on 1 August 1980.

(iii) That the Kwara State Government recognised the appointment of the plaintiff as the Bale and that he continued to receive his salary as Bale from 2 August 1980, till 14 June 1982. It is useful to refer to the evidence of DW3, the Oloro of Oro on this question of recognition of the plaintiff as the Bale. He testified as follows:-

"I know Alhaji Adamu Atta, one time Governor of Kwara State. After the recognition of the plaintiff by the third defendant as the Bale of Oro and before I installed the fifth defendant in accordance with Ekumosan Oro native law and custom, I protested to the Governor that the appointment of the plaintiff was not proper and he agreed that I should install another Bale.

I can remember 17 June 1982, That was the day the fifth defendant was installed as Bale of Oro by me".

Under cross-examination the Oloro of Oro went further to say:-

"I am aware that the plaintiff was recognised on 4 December 1980 as the Bale of Oro by the Irepodun Local Government (third defendant). I went and complained to the then Governor of Kwara State about the recognition accorded the plaintiff as Bale of Oro in June, 1982. My complaint to the Governor was verbal."

(iv) Importantly, the learned trial Judge, after listening to the evidence, found as a fact, that contrary to the provisions of Section 3(2) of the Chiefs (Appointment and Deposition) Law, 1963, when the Governor received complaints about the allegedly wrongful appointment and installation of the plaintiff as the Bale of Oro, he did not hold any inquiry before he withdrew the recognition.

Based on the above findings, among others, the learned trial Judge gave judgment for the plaintiff. On appeal to the Court of Appeal, that court held that Exhibit 'J' evidenced an inquiry. In the lead judgment of Ogundere, JCA, to which Aikawa and Achike, JJCA concurred, he held as follows:-

"Wole Olanipekun Esq, learned Counsel for the respondent, finally submitted that the Governor could only act in the case of a chieftaincy dispute, after holding due enquiries under Section 3(2) of the Chiefs (Appointment and Deposition) Law. In this case, granted there is a dispute between the fifth appellant and the respondent on the Bale of Oro Chieftaincy, can the meetings cited in Exhibit 'J', a letter under the hand of the Permanent Secretary, Ministry of Local Government to the Irepodun Local Government, aimed at resolving the chieftaincy dispute be characterised as an enquiry, and an "Act" of the Governor under Section 3 Cap 20? An inquiry means no more and no less than an investigation, whether by setting up a board or committee with terms of reference and a Secretary, or at meetings at which the parties are present or represented, as indicated in Exhibit 'J'. I therefore hold that the Governor conducted an inquiry and acted rightly in issuing a declaration that no person has been recognised as the Bale of Oro. One may ask why was this exercise of power not notified in a Legal or Gazette Notice. The answer may lie in the fact that a negative appointment is never notified by Government. Were I to be held wrong in this reasoning, the result will be the same as neither of the two candidates were duly appointed and installed as Bale of Oro under the relevant native law and custom.

In the circumstances and in exercise of the powers conferred on this Court under Section 16, Court of Appeal Act 1976, and of all other powers enabling it in that behalf, this appeal succeeds. The judgment of the lower court is set aside and order of non-suit is substituted therefore with N350 costs in favour of each appellant."

The plaintiff has appealed to this Court. For the appeal, the following issues have been formulated for determination by the learned Counsel for the plaintiff (appellant):-

"4.1. Whether the second respondent conducted any inquiry before with drawing the recognition of the appellant as the Bale of Oro Town, alternatively;

4.2.    Whether or not the appellant was afforded a fair hearing or any hearing at all, before the second respondent withdrew the recognition accorded him as the Bale of Oro Town.

4.3.    Did the Governor of Kwara State ever recognise the appellant as the Bale of Oro Town?

4.4.    If the answer to issue 4.3 (supra) is in the negative, can the said Governor withdraw a recognition which he never gave?

4.5.    Whether the Court of Appeal was right in holding that the appellant's appointment as the Bale of Oro was inchoate.

4.6.    Based upon credible evidence adduced before the learned trial Judge and the thorough and well-considered judgment of the same Judge, whether the Court of Appeal was right in setting aside the said judgment.

The four issues formulated by the respondents are not materially different from those of the appellant.

I shall first consider the question whether the second respondent conducted any inquiry before withdrawing the recognition of the appellant as the Bale of Oro Town. Then I shall consider other issues, including whether the appellant was given a hearing before the second respondent withdrew his recognition as the Bale of Oro Town.

Learned Counsel for the appellant submitted that on the evidence, the appellant was duly installed as the Bale of Oro Town and was so recognised by the respondents. He acted in that office for about two years before his recognition, as such, was withdrawn by the second respondent without his being heard. Even if, as the respondents contend, his selection and appointment turned out to be defective or inchoate, which the appellant does not concede, he was still entitled to be heard before his recognition could be withdrawn. He had acquired an accrued or vested right or at least, an interest. In support, he cited the following cases, namely:- Edewor v Uwegbe (1987) 1 NWLR (Part 50) 313; Ademola II v Thomas 12 WACA 81; and Ojo v Governor of Oyo State (1989) (Part 95) 1 NWLR 1.

He pointed out that when he was first appointed and recognised as the Bale, he was taken to court along with the Governor of Kwara State, as shown by Exhibit 'F'. The Governor defended the action on oath as per Exhibit 'G', he pointed out. He cannot now be allowed to resile from that position.

In the respondents' brief, which was adopted in argument, it was contended that the issue of breach of natural justice was not specifically raised on the pleadings, and so does not arise in this appeal. Reliance was placed on the case of Federal Capital Development Authority v Naibi (1990) 5 SCNJ 186, at page 196. So, it was submitted that the Court of Appeal was wrong to have gone into the point at all.

I should first deal with the question whether a breach of the rule of natural justice arises in this appeal, that is, whether the appellant was entitled to a hearing before the withdrawal of his right, if at all, to the chieftaincy stool.

Now the principle has been, for long, incorporated in our jurisprudence that a man cannot be condemned without his being heard. As Fortescue, J, put it in Dr Bentley's case (R v Chancellor of Cambridge (1923) Str 557) at page 567:-

"The laws of God and man, both gave the man the opportunity to make his defence if he has any."

This principle, which obliges us to hear a man before his right or interest can be taken away in any judicial or quasi-judicial proceedings or even in purely administrative proceedings in which the right of the person is to be taken away or his interest interfered with, has been reiterated in numerous cases. (See eg Cooper v Wandsworth Board of Works, 14 CBNS 180, at page 194; also Broadbent v Rotherham Corporation (1917) 2 Ch 31). Indeed, God heard Adam before he found him guilty and sentenced him. This principle, often expressed by the Latin maxim: audi alteram partem (hear the other side) is applicable in all cases in which a decision is to be taken in any matter involving a person's interest in a property, right or personal liberty. It has been applied in numerous Nigerian cases, and even includes all those cases which, for want of appropriate explanation, are explained away by the well-known judicial acronym: ex debito justitia. See for these: Deduwa & others v Okorodudu & others (1976) 10 SC 329, page 347; Adigun & others v Attorney-General of Oyo State (1987) 1 NWLR (Part 53) 678 and so many other cases.

Learned Counsel for the appellant, however, took the matter too far when he implied that the appellant was entitled to a fair hearing in the context of Section 33 of the Constitution of 1979. Section 33 of the Constitution applies to determination of one's civil rights and obligations by a court or tribunal. On the other hand, an administrative body acting judicially, such as the one inquiring into a chieftaincy dispute, is obliged to hear both sides before deciding.

No doubt, breach of either the rules of natural justice involving either of the twin pillars of justice: audi alteram partem or nemo judex in sua causa - could be raised substantively and formally, particularly in circumstances in which such a breach impinges on the constitutional right to fair hearing enshrined in Section 33 of the Constitution of 1979 (now Section 35 of the Constitution of 1989). But, sometimes, the breach could arise incidentally in the course of the proceedings. For example, part of a proceeding could be vitiated by want of hearing, even though a good part thereof is properly conducted. When such is the case, a court of justice cannot shut its eyes to the breach of the rule or fail to give effect to its implications simply because it has not been raised on the pleadings. Rather, being a fundamental vice, the court will, yet, go into the matter though it has arisen incidentally, provided that, if in an appeal, there is sufficient material upon which it can reach a fair decision in the matter without any need for further evidence and that both parties to the conflict have had due notice of the material facts from which the alleged breach has arisen.

On the above principles, even if the contention of learned Counsel on behalf of the respondents, that the issue of want of hearing has not been raised on the pleadings is correct, I should still go into it if I am satisfied that it has now arisen incidentally in the proceedings. But, I very much doubt whether that contention is correct. For it is pleaded in paragraphs 17 and 18 of the statement of claim, thus:-

"17. The plaintiff avers that he still enjoys the support of all the Kingmakers of Oro Town and all the traditional Chiefs, and also the support of the people of Oro Town and has never committed any chieftaincy offence/or any offence at all since his appointment and recognition as Bale of Oro Town.

18.     The plaintiff was surprised when on or about 16 June 1982 he received from the third defendant a letter reference No. IRLG/CA/S/13/92 dated 16 June 1982, together with an endorsed letter reference No. MLG/S/LGA/242/S.1/733 dated 14 June 1992 from the first defendant therein, the first, second and third defendants wrongfully and unlawfully withdrew the recognition of the plaintiff as the Bale of Oro Town and stopped paying him the salary attached to the office of Bale when the plaintiff had not committed any offence and no offence had been levied against him by the first, second and third defendants. The plaintiff had not been paid his salary since March, 1982, and shall rely on these letters at the trial.

Thereafter, he pleaded, in paragraph 23 of the statement of claim that the withdrawal of the recognition was wrongful, null and void and of no effect. The defence, which did not ask for particulars of the grounds why the withdrawal was said to be wrongful, null and void and of no effect merely denied the averments in the above paragraphs of the statement of claim. At the trial, the question whether the Governor of Kwara State held an enquiry, as required by the Chieftaincy Law was very much in issue. The learned trial Judge on the evidence before him found as follows:-

"I hold that the then Governor, Alhaji Adamu Atta, exceeded his powers by ordering that a new Bale be installed by the Oloro, without holding any inquiry into the selection, appointment and installation of the plaintiff and that it amounted to an executive misdirection to write Exhibit 'J'".

Later he continued:

"There was no evidence of who summoned, or not, the meeting and worst still, none of the important dignitaries who attended the meeting gave evidence. There was no evidence either that the plaintiff was invited or notified of the meeting. (See Ademola II & others v Akinwale Thomas & others 12 WACA 81)"

The Court of Appeal went into the issue and reversed the decision of the learned trial Judge. It concluded that there was an inquiry in view of Exhibit 'J'. I have already fully set out their Lordships view on the point. On the above stated of the facts, it appears to me rather untenable, to suggest that there was no proper issue of whether or not the plaintiff had a hearing before his recognition as the Bale of Oro was withdrawn. The proper questions should, in my view, be whether the Court of Appeal was right to have held that there was an inquiry and what, if their Lordships were wrong, is the effect of want of hearing.

I cannot but agree with the learned Counsel for the appellant, that the fact that the appellant had been selected, appointed and ostensibly recognised as the Bale of Oro and earned a salary therefore for a period of nearly two years, gave him sufficient interest for which he was entitled to be heard, before his recognition or appointment could be withdrawn. Having dealt with the appellant as the Bale of Oro and written letters such as those dated 1 December 1980, 29 September 1981, 5 April 1982 and 1 June 1982 to the appellant which had to be withdrawn by Exhibit 'E' dated 14 June 1982, and in view of the express recognition conveyed to the appellant by the third respondent by a letter dated 4 December 1980, which also conveyed to him his annual salary, the non-recognition of the appellant as the Bale of Oro became a non-issue. Quite apart from the fact that there is a presumption of regularity, which is howbeit rebuttable, of his appointment, the above letters and dealings between the appellant and the respondent raise an estoppel in his favour. As this Court observed in Joe Iga & others v Ezekiel Amakiri & others (1976) 11 SC 1, at pages 12-13.

"If a man, by his words or conduct, wilfully endeavours to cause another to believe in a certain state of things which the first knows to be false, and if the second believes in such state of things and acts upon the belief, he who knowingly made the false statement is estopped from averring afterwards that such a state of things does not exist at the time; again, if a man, either in express terms or by conduct, makes representation to another of the existence of a state of facts which he intends to be acted upon in a certain way, in the belief of existence of such a state of facts, to the damage of him who so believes and acts, the first is estopped from denying existence of such a state of facts. Thirdly, if a man, whatever his real meaning may be, so conducts himself that a reasonable man would take his conduct to mean a certain representation of facts and that it was a true representation, and that the latter was intended to act upon it in a particular way, and he with such belief, does act in that way to his damage, the first is estopped from denying the facts as represented."

See also Rowrafric & Far Eastern Limited v John Chief Avbenake & others (1958) WRNLR 92.

Indeed, it has never been disputed by the respondents that he was entitled to a hearing at any inquiry. Their case, which was upheld by the Court of Appeal, is that an inquiry was, in fact, held and that, in any event, the appointment of the appellant as the Bale of Oro was not in accordance with the custom of the people and was inchoate. In my respectful opinion, these are matters which could have been duly established at an inquiry, if one was held. It is enough to refer to the provisions of Section 3(2) of the Chiefs (Appointment and Deposition) Law of Northern Nigeria, applicable in Kwara State, which provides as follows:-

"(2)    In the case of any dispute, the governor, after due inquiry and consultation with 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." (My emphasis.)

The intention of these provisions is clear. They contemplate that the Governor ought to hold an inquiry and hold consultation with the persons concerned with the selection, before he can judge whether or not the appointment of any particular Chief was made in accordance with custom. If, without an inquiry, he jumped into the conclusion that it was not, such a decision would be contrary to the letters of the Law and therefore invalid. This view is in consonance with decided cases. (See, for an example, Chief Edewor v Chief M Uwegba (1987) 1 NWLR (Part 50) 313).

Evidence on record shows that there was, in fact, no inquiry. PW3, the Aro of Oro Town, testified as follows:-

"I do not know why the recognition of the plaintiff as Bale of Oro was withdrawn, because the first - third defendants did not adduce any reason for the withdrawal."

Evidence given by the appellant himself, in support of his pleading that no accusation was levelled against him, was positive that he was not heard at all. There was no evidence in rebuttal. The learned trial Judge was therefore entitled to find that he was entitled to be heard but was not heard before the recognition was withdrawn.

But their Lordships of the Court of Appeal in reversing the learned trial Judge held that Exhibit 'J', a letter written by the Permanent Secretary Ministry of Local Government and dated 14 June, 1982, shows that there was an inquiry. In coming to that conclusion, their Lordships, per Ogundere, JCA, stated:-

"An inquiry means no more and no less than an investigation, whether by setting up a board or committee with terms of reference and a Secretary, or at meetings at which the parties are present or represented, as indicated in Exhibit 'J'."

I wish to point out, with respect, that one serious flaw in this definition is that it defines the word "inquiry" in the abstract, that is, without reference to the nature and meaning of the context in which it was used, to wit, an inquiry in chieftaincy dispute. Deriving from the fact that most English words have different shades of meanings, the courts have evolved an important principle of interpretation, to wit: that every word or clause in the enactment must be read and construed, not in isolation but with reference to the context and other clauses in the statute in order, as much as possible, not only to reach at the proper legislative intention, but also to make a consistent enactment of the whole statute. (See on this: Canada Sugar Refining Co Ltd v R (1898) AC 735, page 741; also Midland Bank Ltd v Conway BC (1965) 1 WLR 1165; and Turquand v Board of Trade (1886) 11 App. Cas. 286). This principle is of more material relevance in the instant case in which the main issue under discussion is whether or not there was in fact a hearing as contemplated by the Chieftaincy Law. For, as I observed in the case of Alhaji Abdullahi Baba v. Nigerian Civil Aviation Training Centre & another (1991) 5 NWLR (Part 192) 388 there are not some general forms and standards of hearing applicable in all cases. It is not necessary to insist that a standard or a form of hearing in a Court must be applied in an administrative inquiry even if it acts judicially in the sense that it determines the rights of the parties. It is, however, necessary in such a case that there be an identifiable person or body of persons empowered and capable of going into the issues in disputation, that the person who is to be adversely affected by such an administrative decision, act, or proceedings be given adequate notice of what is proposed and any allegations against him so that he will be afforded the opportunity to know the case against him, to make representations by himself or through someone else on his behalf, to appear at the hearing or inquiry, if he likes, and to effectively prepare his defence and answer the case against him.

It is from these premises that I shall now consider whether the meeting evidenced by Exhibit. 'J'. amounts to a hearing. Now Exhibit. 'J'. runs thus:

"Ref: No. MLG/S/LGA/242/S.I/733 Ministry of Local Government, P.M.B. 1407,

Ilorin,

Kwara State, 14th June, 1982.

The Secretary,

Irepodun Local Government, Omu-Aran.

DISPUTE OVER THE APPOINTMENT OF BALE ORO WITHDRAWAL OF LETTERS

You are aware that sometimes ago, some leaders within Oro Community approached His Excellency, Alhaji Adamu Atta the Executive Governor of Kwara State, to use one of his good offices to personally intervene in the Chieftaincy dispute which had led to the position of 'stand still' in the social and economic development of their community. Though it is not the responsibility of the respected office of the Governor to intervene in minor Chieftaincy disputes, yet His Excellency, Alhaji Adamu Atta, did honour the above request by inviting some traditional rulers and important dignitaries of Oro Community to Government House for series of informal meetings. The resultant effect of such meetings were letters: Ref. No. MLG/S/LGA/242/S, I/575 of 1 December 1980 MLG/S/LGA/242/S. I/VOL, IV/106 of 29 September 1981, MLG/S/LGA/242/S, I/VOL, IV/711 of 5 April 1982, and MLG/S/LGA/242/S, I/VOL, IV/730 of 1 June 1982 which were addressed and dispatched to you by my Ministry for onward endorsement to the parties concerned.

2.      It is very sad to note that the good intentions of His Excellency, the Governor, have now been misconstrued and or mis-interpreted which has consequently led to the non-implementation of the major decision reached at such meetings.

3.      I am, therefore, writing on the directives of His Excellency, Alhaji Adamu Atta, Executive Governor of Kwara State, to withdraw all the letters connected with the Oro Baleship dispute. This means that, as far as this Government is concerned, no person has been recognised for any position in the Oro Community Baleship dispute. It would, however, be noted that any person or group interested in, or selected/appointed to any title or traditional position should adhere strictly to the customary procedure of ascending to such positions. Thereafter, the establishment administration process should be employed in processing your recommendation through your "Traditional Council" to this Ministry for consideration and or approval.

4.      It is hoped that your Local Government would ensure that peace, order, and good government prevail within Oro Community, in particular, and your area of jurisdiction at large.

5.      You should immediately endorse a copy of this letter to all the parties concerned in the Oro Chieftaincy dispute.

6.      I am directed to emphasise that any individual or groups who flout any of the above directives will be severely dealt with.

7.      Gratefully confirm that these directives have been complied with.

(SGD) (Sani Ogupade)

For: Permanent Secretary

Ref. No. IRLG/CA/S/13/96

Central Administration,

Irepodun Local Government,

Omu-Aran.

16th June, 1982.

Copy to:

The Oloro of Oro,

Oloro's Palace,

Oro.

The Aro of Oro,

Aro's Palace,

Oro.

Mr Joseph Ode Oyeyemi,

Oro.

Mr Raphael Afyan Atoyebi,

Oro.

Overleaf above for your noting and strict compliance please. Your attention is particularly drawn to paragraphs 4 and 6 of the endorsed circular letter. I with to advise all of your (sic) to adhere strictly to the directives given. I would want also to advise you in your own interest, that nobody should do anything that can cause public unrest or disorder.

(SGD.)

(JO OTITOJU)

SECRETARY

IREPODUN LOCAL GOVERNMENT."

There is nothing to show that this letter was endorsed to the appellant. On the face of it, it was not. Howbeit, mere endorsement, if at all, is clearly not enough. It is true that the letter itself does not pretend to say that there was any inquiry. It does not show the appellant, who was then occupying the chieftaincy stool, as either invited to the meeting, present or represented. This alone is enough to vitiate the proceeding, if there was any, see Fleet Mortgage & Investment Co Ltd v Lower Maisonette 6 Eaton Place Ltd (1972) 1 WLR 765; also Grimshaw v Dunbar (1953) 1 QB 408, page 416. Nor had he any opportunity of defending or countering the allegation that his installation and recognisation were inchoate or, in any way, irregular. This is his right on general principles of fair hearing as well as audi alteram partem. Also, it appears clear to me, that there was not the type of hearing contemplated by the Chieftaincy Law in which every claimant must be given the opportunity of putting forward and processing his claim to the stool. What had taken place, according to Exhibit 'J', was merely on intervention by the Governor and a meeting with "some traditional rulers and important dignitaries of Oro Community".

I agree with learned Counsel for the appellant, that a proper inquiry under Sections 3(2) and 6 of the Chiefs (Appointment and Deposition) Law, set out above, contemplates not only that the appellant as a person who lays claim to the position of the Bale of Oro Town was entitled to be present and present his case at such inquiry, but also that the Asanlu of Oro and the Aro of Oro, two principal chiefs responsible, under native law and custom, for the appointment and installation of the Bale of Oro, should be consulted by the Governor as required by Section 6. But none was the case: indeed the Asanlu and the Aro were merely copied with the content of Exhibit. Therefore, there has been a non-compliance with the law. The law does not intend that on mere representations to the Governor, by persons in the community, no matter how highly placed the they might be, he should intervene and, without an inquiry, withdraw recognition of a chief no matter how clear the case against him might appear to be. The Executive Governor of Kwara State was found to act according to law; any act of his which was contrary to law, statutory or otherwise, could be declared invalid. In this case, the action of the Governor, in removing the appellant, without hearing, was in breach of the principle of audi alteram partem. It was also in clear breach of the express provisions of the Chiefs (Appointment and Deposition) Law. The case of the appellant was stronger, in that, he had acquired a vested right to the chieftaincy stool over which he had acted, been recognised and paid his salary by the third respondent for about two years. Courts have a duty to protect vested rights, as otherwise lawlessness will reign. So, they have always taken the view that any attempt by a competent authority to take away a citizen's vested rights must be done in strict compliance with the law and any laid down procedure therefore. See on this Ojo v Governor of Oyo State (1989) 1 NWLR (Part 5) 1; also Wilson v Attorney-General of Bendel State (1985) 1 NWLR (Part 4) 572. As Lord Macnaghten put it in the case of Mayor of Westminister v London & North Western Railway Coy (1905) AC 426, at page 430:

". . . a public body invested with statutory power must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably."

See also Hart v Military Governor of Rivers State & others (1976) 2 FNLR 215, at 226-7. For what I have said above, I cannot say that the Governor did not exceed or abuse his powers or that he kept within limits of the authority vested in him.

As the fifth respondent is dead, the above are enough to dispose of the appeal by the plaintiff. It is trite that the effect of breach of the rule of audi alteram partem or of fair hearing is to render the hearing liable to be set aside or declared invalid by the court: the court will look at the situation as if such a hearing, had in fact, took place. The issues in litigation will be set back to the situation before the decision was taken, in this case, to the position of affairs before the Governor withdrew the recognition of the appellant as the Bale of Oro Town. It has been urged, on behalf of the respondents, that I should not make an order accordingly, because the first, second and fourth defendants never recognised the appellant as such. I have already dealt with this at length. Its enough for me to refer to paragraph 13 of Exhibit 'G' with which the Governor was defending a previous suit against him and the appellant on the chieftaincy issue. It was deposed on behalf of the Governor by the Secretary to the Local Government inter alia as follows:-

"13.    That His Excellency, Alhaji Adamu Atta, Governor of Kwara State (first defendant), told me and I verily believe him, that the appointment of Joseph Odetoye Oyeyemi as the Bale of Oro from Egin Orunmila family has satisfied the chieftaincy traditions practice, customs that should be met in the selection or appointment of Bale of Oro Town".

The third defendant paid him his salary for the whole period. So, the Governor, or indeed any of the defendants, cannot be heard to say that the appellant was not duly appointed or recognised as the Bale of Oro Town. The defendants will not be allowed to approbate and reprobate on the same issue as it suits their convenience. They cannot be allowed to expressly recognise the appellant, pay him the salary due to his office as Bale for about two years, make a solemn assertion on oath that he was duly selected and appointed according to custom and then, now that they are sued for improperly withdrawing his recognition as the Bale, be permitted to seek to set up a case that he was not duly appointed. As they, by words and conduct, wilfully made the appellant believe that he was duly appointed as the Bale of Oro Town and he believed them and acted as such, they cannot now be heard to deny the representation of facts which they had wilfully made in the matter, by words or conduct. The law will hold them to their own wilful representation. (See on this: Joe Iga & others v Ezekeil Amakiri & others (1976) 11 SC 1, 12-13; also Rowrafric & Far Eastern Ltd v John Chief Avbenake & others (1958) WRNLR 92).

As no issue was raised in the Court of Appeal, non-suiting the plaintiff without a hearing on the issue of non-suit, I should say nothing about it.

For all the reasons I have given above, I shall allow the appeal, set aside the judgment of the Court of Appeal and restore the judgment of Orilonise, J, in the High Court. I therefore restore the following declarations and orders, excluding those that affected the fifth defendant (now dead).

I hereby declare:-

"(1)    That the plaintiff is the recognised Bale (Village Head) of Oro and that the purported withdrawal of his recognition by the first, second, and third defendants, as contained in the first defendant's letter, Exhibit 'J', and the third defendant's letter, Exhibit 'E', is wrongful, null and void and of no effect whatsoever.

. . .

(2)     Consequentially, I order that the plaintiff shall forthwith be paid all outstanding arrears of his salary as the Bale of Oro by the third defendant (Irepodun Local Government) from March, 1982 or 14 June, 1982 to-date depending on when he was last paid a salary and shall continue to be so paid his monthly salary by the third defendant as at when due."

I award costs of N1,000 in favour of the plaintiff and against all the defendants jointly.

This shall be the judgment of the Court.

Uwais, JSC:- I have had the opportunity of reading in draft the judgment read by my learned brother Nnaemeka-Agu, JSC. I agree with him that the appeal has merit and that it should be allowed.

By Section 6 of the Chiefs (Appointment and Deposition) Law, Cap 20 of the Laws of Northern Nigeria, then in force in Kwara State, before a chief is deposed, the Governor of the State is required, amongst other things, to hold an inquiry. To conform with the requirement of natural justice, it is sine qua non for the Body conducting the inquiry, to afford the chief concerned, the opportunity to be heard. Unless, of course it can be shown that the inquiry has not been set up with a term of reference to pronounce on the guilt or innocence of the chief. The principle of natural justice applicable here, is that the parties be given adequate notice and opportunity to be heard - audi alteram partem. Exhibit 'J' which the Court of Appeal held to satisfy the requirement of Section 6 of the Chiefs (Appointment and Deposition) Law, Cap 20 states relevant, as follows, in part:-

"You are aware that some time ago, some leaders within Oro Community approached His Excellency, Alhaji Adamu Atta the Chief Executive Governor of Kwara State, to use one of his good offices to personally intervene in the Chieftancy dispute which had led to the position of "stand still" in the social and economic development of their community. Though it is not the responsibility of the respected office of the Governor to intervene in minor Chieftancy disputes, His Excellency, Alhaji Adamu Atta did honour the above request by inviting some traditional rulers and important dignitaries of Oro Community to Government House for series of informal meetings. The resultant effect of such meetings were letters. . . . . . which were addressed and dispatched to you by my Ministry for onward endorsement to the parties concerned." (My emphasis.)

This exhibit was addressed to the Secretary, Irepodun Local Government, Omu-Aran, as a letter from the Permanent Secretary of the Ministry of Local Government, Kwara State. It is to be observed that the meetings held by the Governor with the traditional rulers and important dignitaries of Oro Community were informal, while the holding of an inquiry under Section 6 of the Chiefs (Appointment and Deposition) Law being official, ought to be formal. Furthermore, the contents of the letters mentioned in Exhibit 'J' are not stated, nor were those letters exhibited before the trial High Court. Though the letters were said to have been endorsed to the "parties concerned", those parties have not been specifically mentioned so that one is not sure if the appellant was one of them. In the light of all these, I am at a loss to understand the conclusion reached by the Court of Appeal that Exhibit 'J' amounted to a hearing in satisfying the inquiry enjoined by Section 6.

As to whether the Governor could withdraw the recognition of a Chief, I think there is a misnomer here. The power given to the Governor under Section 6 is the power to:-

". . .depose any chief or any head chief, whether appointed before or after the commencement of this Law, if, after inquiry, he is satisfied that such deposition is required according to native law and custom or is necessary in the interest of peace, order or good government."

Therefore, if by the phrase "withdrawal of recognition" is meant "deposition" then the Governor has such power. However, the power can only be exercised after an inquiry has duly been held. On the other hand, if the phrase simply means what it says, it is doubtful if the Governor has such power, for nowhere in the Chiefs (Appointment and Deposition) Law has it been stated that the Governor can deny a chief or withdraw his recognition.

Be that as it may, whether one takes it that withdrawal of recognition as employed in this case implies deposition or otherwise, the action of the Governor faltered in each case. Firstly, in the case of deposition, no inquiry had been held and the rule of natural justice has been breached even if it is granted, (which I do not) as done by the Court of Appeal, that Exhibit 'J' amounted to an inquiry, since the appellant was not given the opportunity to be heard. Secondly, if it were a simple case of withdrawal of recognition, the rule of estoppel both under the common law and the Evidence Act would render the withdrawal ineffective. For Section 150 of the Evidence Act, Cap 62 of the Laws of the Federation 1958 provides:-

"When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he, nor his representative, in interest, shall be allowed, in any proceedings between himself and such person or such person's representative, in interest, to deny the truth of that thing."

The evidence adduced at the trial showed that the appellant had occupied the office of Bale of Oro from 1 August 1980 to on or about 14 June 1982, when Exhibit 'J' was written. During that period he was paid salary for the office by the third respondent and the second respondent, jointly, with the appellant defending a case in which the second respondent canvassed that the appellant was duly appointed as the Bale of Oro (see Exhibit 'G') Surely all the respondents in this appeal are estopped from denying that the appellant was not properly appointed as the Bale of Oro.

Accordingly, for these and the fuller reasons contained in the judgment read by my learned brother Nnaemeka-Agu, JSC this appeal is allowed and the decision of the Court of Appeal, reversing that of the High Court, is hereby set aside. I adopt the orders contained in the aforesaid judgment of Nnaemeka-Agu, JSC.

Kawu, JSC:- I have had the advantage of reading, in draft, the lead judgment of my learned brother, Nnaemeka-Agu, JSC, which has just been delivered. I am in complete agreement with him that the appeal should be allowed.

The evidence at the trial shows, clearly, that the appellant was appointed Bale of Oro by the traditional King makers and that his appointment was recognised by the then Executive Governor of Kwara State. There is evidence also, that after his appointment, the appellant continued to discharge his traditional functions as Bale for about two years. Subsequently, the appellant's recognition as Bale was withdrawn by the Governor, without affording him the opportunity of being heard, as the Governor was obliged to do under the provision of Section 6 of the Chiefs (Appointment and Deposition) Law, then in force in Kwara State.

I am therefore in complete agreement with the learned trial Judge, Orilonise, J, when he held in his judgment "that the then Governor, Alhaji Adamu Atta, exceeded his powers by ordering that a new Bale be installed by the Oloro without holding any inquiry into the selection, appointment and installation of the plaintiff, and that it amounted to executive misdirection to write Exhibit 'J'.

For the above reasons and for the fuller reasons stated in the lead judgment of my learned brother, Nnaemeka-Agu, which I respectfully adopt, I too will allow the appeal, set aside the judgment of the Court of Appeal and restore that of Orilonise, J. I abide by the consequential orders made in the lead judgment, including the order as to costs.

Wali, JSC:- I have had a preview of the lead judgment of my learned brother Nnaemeka-Agu, JSC. I entirely agree with his reasoning and conclusion.

For these same reasons which I hereby adopt as mine, I also allow this appeal, set aside the judgment and order of the Court of Appeal and restore that of the trial court, save where it affects fifth defendant, who is now dead. I abide by the consequential order of costs contained in the lead judgment.

Akpata, JSC:- I am in agreement with the reasoning and conclusion reached by my learned brother Nnaemeka-Agu, JSC, that the appeal be allowed. The facts of the case have been succinctly stated by him and the relevant findings of the learned trial Judge and the reasoning of the Court of Appeal in reversing the judgment of the trial Judge are neatly stated.

Six issues were raised in the appellant's brief and they have been adequately treated by my learned brother. Two of the issues are:-

1.      Whether the second respondent, the Governor of Kwara State, conducted any inquiry before withdrawing the recognition of the appellant as the Bale of Oro town; and

2.      Whether or not the appellant was afforded a fair hearing, or any hearing at all, before the second respondent withdrew the recognition accorded him as the Bale of Oro.

My comments on these two issues are only by way of emphasis. It is not in dispute that by Section 6 of the applicable law, the Governor, the second respondent, could depose any chief if, after inquiry, he is satisfied that the deposition is required, according to native law and custom or is necessary in the interest of peace, order or good government. It is thus clear that the withdrawal of recognition, an apparently euphemistic term for "deposition", is dependent on an inquiry first being held. For any deposition or withdrawal to be valid, it must be established by preponderance of evidence, documentary or oral, that there was an inquiry of the nature contemplated by the relevant law, unless the fact of inquiry is clearly admitted by the chief deposed or from whom recognition had been purportedly withdrawn. While it is open to a court to draw the inference from documents placed before it, that there must have been an inquiry, such documents must patently point to the fact of such an inquiry and that the inquiry pertained to the suitability or qualification or otherwise of the chief deposed remaining in office.

Exhibit 'J' which has been set down in full in the judgment of my learned brother, cannot by any stretch of the imagination or by the most benevolent interpretation in favour of the respondents, establish that there was an inquiry within the context of Section 6 of the Chiefs (Appointment and Deposition) Law. There is nothing on the face of Exhibit 'J' to transform "informal discussion" stated therein to an inquiry or investigation as to the suitability or qualification of the appellant for the chieftaincy position. What is more, there is nothing in Exhibit 'J' indicating that the appellant was present at any meeting or invited to any "informal discussion" relating to his position as the Bale of Oro Town. This touches on the second issue.

It is plain from the totality of the evidence adduced before the learned trial Judge that the appellant had no hearing before the purported withdrawal of recognition. It is therefore, without question, that the equitable principle of audi alteram partem was breached, even granted that there was an inquiry, which is not the case. Audi alteram partem means simply "hear the other party" or "hear the other side". When paraphrased, it means that no man should be condemned unheard. No man should be deprived of his rights or properties without a hearing. In this case, the appellant should not be punished by being removed from his position as a traditional ruler or chief, without being given a fair hearing. Any decision based on the findings of an inquiry, without the person affected by the decision being given a hearing, will be invalid. The withdrawal of recognition of the appellant as the Bale of Oro town is invalid, null and void.