PRINCE YAHYA ADIGUN AND 2 ORS v. ATTORNEY-GENERAL OF OYO STATE AND 18 ORS (SC.98/1986) [1987] 4 (20 March 1987);

PRINCE YAHYA ADIGUN AND 2 ORS (APPELLANT)

ATTORNEY-GENERAL OF OYO STATE AND 18 ORS (RESPONDENT)

(1987) All N.L.R. 111

Division: Supreme Court of Nigeria Bello

Date of Judgment: 20th March,1987

Case Number: (SC.98/1986)

Before: Obaseki, Eso, Nnamani, Coker, Karibi-Whyte, Kawu, Oputa; JJSC

The plaintiffs claim against the defendants jointly and severally a declaration that under the customary law prevailing in Iwo, the Ogunmakinde Ande Ruling House is the only Ruling House from which appointment to Oluwo of Iwo Chieftaincy is to be made, a declaration that the instrument dated the 28th day of July, 1981 is in so far as it purports to declare the customary law prevailing in Iwo with respect to the Oluwo of Iwo Chieftaincy is wrong and accordingly illegal and void, and an injunction restraining all servants officers and agents of the government of Oyo state or of the Iwo Central Local Government from acting pursuant to or taking any steps to implement the aforesaid declaration registered on 29th day of July 1981.

The matter has its genesis in the steps taken by the government of Oyo State to ascertain the customary law governing the appointment of the Oluwo of Iwo. In the continuing search one declaration made by chieftaincy Committee of the Iwo Local Government area on the 4th day of January, 1979 approved on the 17th day of July, 1979. It was admitted in the High Court as Exhibit D. In that declaration, only one Ruling House that is Ogunmakinde Ande was identified and declared as being in existence. This evoked a spate of protest and petitions poured into the office of the Governor of the State. This led the Government to appoint Dr Agiri as sole Commissioner to carry out discreet investigation into the chieftaincy and provide a report for the consideration of the Government.

The assignment was carried out. The investigation was conducted and a report on the investigation and findings submitted to government. Oyo State Government duly considered the other report and came out with a new declaration of the customary law regulating the selection to the Oluwo of Iwo Chieftaincy, Exhibit K. It was signed by the Governor of Oyo State on 28th day of July, 1981. In the Declaration, three ruling Houses were identified and declared as (1) Alawusa, (2) Adagunodo, (3) Gbase. Ogunmakinde Ande was dropped as a ruling House on the ground that Ogunmakinde Ande is a branch of Alawusa Ruling House. The plaintiffs/appellants who are members of Ogunmakinde Ande decided to go to court and on 3rd day of March, 1982 commenced this action.

Pleading on the order of the court were filed and delivered and at the close of pleading, the matter went for trial. After hearing evidence and addresses of counsel, the trial Judge delivered a considered judgment dismissing the appellants claim in its entirety including the issue of fair hearing raised by the appellant. Being dissatisfied, the plaintiffs appealed to the court of Appeal which dismissed the appeal. Against the decision of the Court of Appeal, the plaintiffs further appealed to the Supreme Court.

HELD:

(1) It is true that the trial Judge made copious references to the provisions of the Chiefs Law particularly to the provisions of the sections 4, 9 and 10. It is also true that he distinguished the powers exercisable under the Chiefs Law from the powers exercisable by the court in exercise of its jurisdiction. I do not gather or form the impression that he declined jurisdiction in respect of claim (1) to wit: a declaration that by the customary law prevailing in Iwo, the Ogunmakinde Ande Ruling House is the only Ruling house from which appointment to the Oluwo of Iwo Chieftaincy is made.

(2) Having failed to give an oral hearing to the elders and representatives of Ogunmakinde Ande Ruling House, Dr Agiri did not complete his investigation before writing his Report. The right to fair hearing being a fundamental constitutional right guaranteed by the constitution, the breach of it in any trial or investigation or inquiry nullifies the trial investigation or inquiry and any action taken on them is also nullity. In the instant case, the basis of satisfaction before Exhibit K was made is no longer there.

The APPEAL succeeds on the dismissal of Claim No.2.

Chief F.R.A. Williams SAN for Appellants with him Chief Sobo Sowemimo, SAN

Dr L.O. Aremu, Mr G.O. Sofunde,C.J. Aremu (Mrs), Dr Ahmed Kusamotu and Mr M. Oyetunde.

O.A. Boade Esq (Senior State Counsel, Oyo State Ministry of Justice) for 1st, 6th to 19th Respondents.

Chief J.O. Fawole for 3rd, 4th and 5th with him O. Ojikutu Esq. Respondents.

Cases referred to

(1) Adedeji v Police Service Commission (1968) NMLR 102

(2) Annamuthodo v Olfields Workers Trade Union (1961) AC 945 at 954

(3) Bull v Attorney General for N.S.W. (1916) 2 AC. 564

(4) Carltona Ltd v Commissioner of Works (1954) 1 ALL ER 560 at 564

(5) Durayappan v Fernando (1967) 2, AC 337 at P348

(6) General Medical Council v S. Packman (1943) AC. 627

(7) Goldberg v Kelly 397VS 254 at 268-269

(8) Governor of Kaduna State & ors v Kagoma (1982) 6 SC 87

(9) Hart v Military Governor Rivers Public Service Commission & Attorney General (1976) 11 SC 211.

(10) Mohammed v Kano NA (1968) 1 ALL NLR 422

(11) Obadana & ors v COP (1967) NMLR.39

(12) Queen v Director of Audit (WR)-ors (1961) ALL NLR 659 at 660

(13) Ridge v Baldwin (1964) AC. 40

(14) Reg v Birmingham Justices (DC) (1970) 1 WLR 1428 at 1433

(15) Wednesbury Corporation v Ministry of Housing and Local Government (NO2) (1966) 2 Q.B. 275 at 298

Statutes referred to:-

(1) The Constitution of the Federal Republic of Nigeria (1979)

(2) Chiefs Law, Chapter 21, Laws of Oyo State, 1978.

(3) Chiefs (Amendment) Edict 1975.

(4) Chiefs Law, Chapter 19, Laws of Western Nigeria, 1959.

Obaseki, J.S.C. This appeal has raised the important question of FAIR HEARING in its widest context in a Chieftaincy matter. The matter has its genesis in the steps taken by the Government of Oyo State to ascertain the customary law governing the appointment of the Oluwo of Iwo in Iwo. In the continuing search one Declaration made by the chieftaincy Committee of the Iwo Local Government area of the 4th day of January, 1979 approved on the 17th day of July, 1979 by the Military Administrator was registered on the 19th day of July, 1979. It was admitted in evidence at the High Court as Exhibit D. In that Declaration, only one Ruling House that is Ogunmakinde Ande was identified and declared as being in existence. This evoked a spate of protest and protest petitions poured into the office of the governor of the State. This led the Government to appoint Dr Agiri as sole Commissioner to carry out discreet investigation into the chieftaincy and produce a report for the consideration of the government. The assignment was carried out. The investigation was conducted and a Report on the investigation and findings submitted to government. Oyo State Government duly considered the Report and came out with a new Declaration of the customary law regulating the selection to the Oluwo of Iwo chieftaincy, Exhibit K. It was signed by the Governor of Oyo State on the 28th day of July, 1981 and registered on the following day, the 29th day of July, 1981. In the declaration, three Ruling House were identified and declared as

(1) Alawusa

(2) Adagunodo, and

(3) Gbaase

Ogunmakinde Ande was dropped as a Ruling House on the ground that Ogunmakinde Ande family is a branch of Alawusa Ruling House. The plaintiffs/appellants who are members of Ogunmakinde Ande decided to go to court and on the 3rd day of March, 1982 commenced this action in Oshogbo Judicial division of the High Court of Justice of Oyo State of Nigeria. The claims endorsed on the writ of summons are straight-forward and simple and read:

"The plaintiffs claim against the defendants jointly and severally:

"(1) a declaration that [under] the customary law prevailing in Iwo, the Ogunmakinde Ande Ruling House is the only Ruling House from which appointment to the Oluwo of Iwo Chieftaincy is to be made (word in bracket supplied)

(2) a declaration that the instrument dated the 28th day of July, 1981 is in so far as it purports to declare the customary law prevailing in Iwo with respect to the Oluwo of Iwo chieftaincy, is wrong and accordingly illegal and void.

(3) an injunction restraining all servants officers and agents of the Government of Oyo State or of the Iwo Central Local Government from acting pursuant to or taking any steps to implement the aforesaid declaration registered on 29th day of July, 1981."

Pleadings on the order of the court were filed and delivered and at the close of pleadings, the matter went to trial before Oloko J. After hearing evidence and addresses of counsel, the learned trial Judge delivered a considered judgment dismissing the appellant's claim in its entirety.

The issue of fair hearing was raised, the learned trial Judge gave due consideration to the question and said:

"Learned counsel for the plaintiffs Mr B.O. Sofunde submitted that the plaintiffs were not given a hearing at the enquiry. Learned counsel further submitted that before the Governor-in-Council can exercise its powers under section 9(A)3 all parties likely to be affected by the exercise of that power must be given an opportunity of being heard.

Whilst I concede to the learned Counsel that the doctrine audi alteram partem must be involved in appropriate cases the absence of an oral hearing, or of an opportunity to be heard orally, before an administrative tribunal does not necessarily amount to a denial of the principles of natural justice.

A decision reached after a full inquiry without an oral hearing does not violate such principles. See case of the Queen v. Director of Audit (W.R.) & Ors (1961) All N.L.R. page 659 at page 660 ..........

..........

Referring to Exhibit 'F' it is clear that on its pages 2 and 3, Dr Agiri stated his source of information. Plaintiffs participated effectively in the proceedings of the minutes of meeting held by the Commissioner of Local Government and Chieftaincy Affairs on 19th day of July 1974 which is Exhibit 'W' in the proceedings and the Exhibit forms part of the material used by Dr Agiri in the assignment of the discreet research into Oluwo of Iwo Chieftaincy. I cannot by any stretch of imagination see how the plaintiffs was prejudiced in compiling the report Exhibit 'F'. I therefore reject the submission of learned Counsel for the plaintiffs and the requirements of natural justice were not met or that the doctrine of Audi Alteram partem was not involved in compiling Exhibit 'F'. From the evidence before me, I find myself unable to make the declaration sought in the first leg of the plaintiffs' claim ..........

Assuming I am wrong in the above conclusion, I am prepared to hold further that even on evidential requirement, the plaintiff must fail in the first leg ..........

..........

It is settled law that custom must be strictly proved. And it has also been held that in proving a custom, it is not enough that one who asserts the custom should be the only witness. In other words, for a custom to be acceptable, it must be proved by at least two witnesses, see the case of The Queen v. Chief Ideliaguahan Ozogula 11 ex-Paater Chief Lewis Epenga (1962) WNLR. 136 at 137 ..........

..........

The only witness who testified before me in favour of the plaintiffs is the second plaintiff. No other witness confirmed the custom that Ogunmakinde Ande should be the only recognised ruling house for the appointed to the stool of Oluwo of Iwo.

The learned trial Judge also considered the second leg of plaintiffs' claim and said:

"The instrument referred to above is Exhibit K in these proceedings. In my view, the plaintiffs have the onus of proving that Exhibit K was made in violation of the chiefs Law or rather Exhibit K was not made in accordance with the Chiefs' Law. Learned counsel for the second defendant, Mr M.L. Ladapo submitted that the government having considered the report of Dr Agiri, i.e. Exhibit F was of the view that Exhibit 'D' is faulty. Learned counsel further submitted that by making Exhibit K, Governor is acting according to section 9A of the Chiefs' Law.

On the other hand, learned Counsel for the plaintiffs, Mr E.O. Sofunde contended that that Exhibit K does not represent the customary law and referred the court to section 9A(3) of the Chiefs' Law. ..........

The learned trial Judge after referring to sections 9A and 9B of the Chiefs' Law said:

"I am satisfied from the above provisions of the Chiefs Law that Exhibit K is validly made and duly represents the customary law regulating the selection to the Oluwo of Iwo Chieftaincy. I therefore refuse the second leg of plaintiffs' claim."

Being dissatisfied with the decision the plaintiffs appealed to the Court of Appeal. Three grounds of appeal were filed along with the notice of appeal and as they are relevant to the consistency of the complaint of the plaintiffs/appellants, I set them out hereunder. They read:

"1. The learned trial Judge erred in law when he held that the declaration sought by the plaintiff that 'by the customary law prevailing in Iwo, the Ogunmakinde Ande Ruling House is the only ruling house from which appointment to the Oluwo of Iwo Chieftaincy is to be made' can only be obtained administratively and only under the Chiefs Law, when under the provisions of the Constitution the High Court has unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege interest, obligation or claim is in issue.

2. The learned trial Judge erred in law when he held that the plaintiffs were given a fair hearing before the Agiri Report was issued because there was evidence that Dr Agiri relied on minutes of a meeting in which the plaintiffs participated, as part of his sources of information, when in fact there was ample evidence that the plaintiffs were not given the opportunity of being heard by the said Dr Agiri but the 3rd-5th Defendants were called upon and were heard, before Dr Agiri wrote his report." (Italics mine.)

3. The learned trial Judge erred in law in holding that the declaration dated the 28th of July, 1981 was validly made under Section 9(a)(3) of the Chiefs Law, in spite of the fact that the plaintiffs were not given an opportunity of being heard before the said declaration was made.

Particulars of Error

(i) Under the rules of natural justice and Section 33 of the Constitution, every person is entitled to a fair hearing in the determination of his civil rights and obligations;

(ii) The making of the declaration dated the 28th day of July, 1981 involved a determination of the plaintiff's civil rights and obligations;

(iii) In view of (i) and (ii) above, the learned trial Judge ought to have held that the said declaration was null and void."

After hearing the submissions of counsel both written and oral on the issues raised in the grounds of appeal, the Court of Appeal, by a unanimous decision of the three justices (Omololu-Thomas, Sulu Gambari and Onu, JJCA.) dismissed the Appeal.

On the issue of fair hearing, Omololu-Thomas, JCA, in his lead judgment (concurred in by Sulu-Gambari and Onu, JJCA) said:

"It has long been settled that natural justice does not necessarily require that the hearing should be oral (vide Local Government v. Arlidge (1915) AC 120). It can also in my view be said by way of general principle that there is no right to an oral hearing, unless the refusal of an oral hearing would prejudice the applicant. A statute may take away the right to provide expressly or by necessary implication for such right (vide for example Requires v. Birmingham City Justice, Ex

Parte Chris Foreign Foods (Wholesales) Ltd.) where it was held that a justice acting under a procedure of the U.K. Food and Drugs Act 1955 even though in an administrative or executive capacity was obliged to act fairly and impartially. In essence, he is obliged to do so ..........

This case however decided that notwithstanding that an inquiry is administrative, natural justice requires a fair hearing.

In the case in hand, it has not been shown by the appellants that the absence of an oral hearing had prejudiced the appellants ..........

..........

The evidence indeed was that Dr Agiri was to conduct a discreet research and he collected materials from all the families concerned including Alawusa and Ogunmakinde Ande families the latter of which as the evidence and findings disclosed, is a section of Alawusa family (refer to Exhibit 'F'). The three ruling houses recommended were Alawusa, Adagunodo and Gbaase and the case of the appellants appeared to have been considered under the umbrella of Alawusa family.

The position of the appellants, having been established already in Exhibit 'D', and considering the scope of the inquiry conducted by Dr Agiri was there really any further need for oral hearing of what has been established by a declaration? In view of the existing materials in favour of the appellants, the inquiry is not as though Dr Agiri was conducting a lis proceedings in view of the various claims, complaints, petitions, Reports and other inclusive inquiries before 1979.

The question is not that they were not heard but that they were not heard orally and it seems to me that in view of the representations which were taken into account, the appellants' case could not have been prejudiced. If they were, there is no evidence before the trial court. They cannot now complain.

I do not therefore for the foregoing reasons think that substantial justice requires the oral hearing of the appellants before an inquiry of the type instituted under Dr Agiri ..........

..........

In the evidence of 1st appellant, before the High Court which I find significant, he is reported to have said:

'Adagunodo was the 3rd Oluwo of Iwo ..........

Alawusa succeeded his father Gbaase ..........

At the death of Alawusa his son Ogunmakinde Ande succeeded him ..........

This clearly makes Ogunmakinde-Ande only a section of Alawusa family."

On the issue of the promulgation of the Declaration Exhibit K by the Governor-in-Council and the provision of the Chiefs Law, the learned justice said at P. 196:

"Counsel then in view of the foregoing reasons and submissions further submitted that any act of the Oyo State Governor tending to render Exhibit D invalid, as in this case the making of Exhibit K is a usurpation of the function of the State Legislature and as it does not fall within the permitted legislation, it is void.

Counsel's submission overlooks the point that there are two distinct modes of modification provided by Section 274 of the Constitution ..........

The operative words in Section 274(1) of the Constitution before any existing law is deemed to be the law of legislature of a state (as in this case on appeal, the Chiefs Law and in particular Section 9 thereof) the law shall have effect with such modifications as may be necessary to bring it into conformity with the Constitution. It is obligatory that the modifications must be made. My reading of the provision is that as at the time effect is given to it, such law must be read with the necessary modifications.

The next modification provision is under Section 274(2) enabling "the appropriate authority" in his discretion to make such textual amendments as he considers necessary or expedient. In the absence of any such textual amendments, the law retains its character as an existing law unless it is inconsistent with the provisions of the constitution. If the law is not thus inconsistent, its validity as an existing law cannot be questioned on the ground merely that it had not been textually amended.

The common ground in the submission of both sides is that it is the "Governor" and not the "executive council" upon which is vested all the executive powers under Section 5 of the Constitution. He is the repository of all the executive functions under the Chiefs' Law and as indeed decided in Kagoma's case. That being the case, the executive functions under Section 9 of the Chiefs' Law on the "Governor-in-Council" by the operation of Section 274(1) of the Constitution since 1st October, 1979 vested in the "Governor" in the absence of a textual modification under Section 274(2) of the Constitution. The law empowering the Governor to make the declaration under Section 9 of the Chiefs' Law is thus saved as an existing law ..........

..........

The section does not require express textual modifications to the effective as an existing law. This reading of the section will bring it into conformity with the constitution in order to give full effect to the provisions and so as to enable the exercise of the power conferred there under to continue (see Kagoma's case supra)."

On the issue of jurisdiction of the court to make the declaration of customary law regulating the appointment of Oluwo of Iwo in Iwo, the learned justice (Omololu-Thomas, JCA) said:

"The trial Judge was of course correct in holding in effect that the primary object of the section of the Chiefs' Law is, by setting out the procedure for the making of declarations on customary law, derived from that law, and it is not a function exercisable by the courts. To make the point clearer, "exercisable" should read "primarily exercisable."

It is not the business of the courts to make declarations of customary laws relating to the selection of Chiefs under that law. The exercise of such functions is not directly related to the general jurisdiction of the courts under Section 236(1) of the Constitution of 1979 so long as the power exercisable under or to be exercised under the law is within its four corners and is exercised in good faith as being a power lawfully conferred by the legislature. (Cartonal Ltd. v. Commissioner of Works (1943) 1 All ER. 560 per Lord Greene, M.R.) In the exercise of the court's judicial functions under Section 236 of the Constitution, orders declaratory of the functions or powers under the law can be made for example with a view to determining the validity or otherwise of the existence of a particular custom, in contradistinction from the making of "Declaration" as a form of sub-legislation under the law.

The jurisdiction of the courts in that respect is unfettered and unlimited in terms of the said Section 236 of the Constitution.

Indeed, the correct view as respects the courts' powers vis-a-vis those under the Chiefs' Law is as conceded by the learned Counsel, and the courts will not by themselves exercise, primarily, jurisdiction with respect to those powers conferred expressly by the legislature on bodies other than the courts-outside their judicial authority under Sections 6 and 236 of the Constitution. At any rate, the appellants' claim did not speak of a "declaratory order" as such, but just a declaration simpliciter, which may suggest to any reader the exercise of an administrative (or executive) or legislative functions under the law."

Against the decision of the Court of Appeal, the plaintiffs have further appealed to this Court. Six grounds of appeal were filed along with the notice of appeal. They are:

1. The learned Justices of the Court of Appeal erred in law in failing to hold that the learned trial Judge held that he had no jurisdiction to make a declaration that by the customary law prevailing in Iwo, the Ogunmakinde Ande ruling house from which appointment to the Oluwo of Iwo Chieftaincy is to be made.

Particulars Omitted

2. The learned Justices of the Court of Appeal erred in law in failing to hold that the learned trial Judge had original jurisdiction to make the declaration referred to in ground 1.

Particulars:

(a) Under the provisions of the Constitution of the Federal Republic of Nigeria 1979, the High Court has unlimited jurisdiction to hear and determine any civil proceedings in which the existence or intent of a legal right, power, duty, liability, privilege, interest obligation or claim is in issue.

(b) The fact of not claiming a "declaratory order" but a "declaration" as contended by the Court of Appeal is only a play on words and judging from the context in which the case was prosecuted and addresses made, the learned trial Judge ought to have known that what was sought from him was a declaratory order and not a document termed a "declaration" under the Chiefs' Law.

3. The learned Justices of the Court of Appeal erred in law in failing to hold that the appellants were not given a fair hearing before the Agiri inquiry and that such a lack of fair hearing vitiated the inquiry.

Particulars of Error

(a) The provisions of the Constitution, the Chiefs' Law and the rules of natural justice require a fair hearing to be given to a party whose rights are likely to be affected as a result of such an inquiry.

(b) The instructions to Dr Agiri by the Oyo State Government show that the respective claims of the appellants and other contesting parties were to be examined for a determination as to which of the competing claims was correct;

(c) In the process of deciding which of the competing claims was correct, Dr Agiri, the Commissioner gave the Adagunodo, Gbaase and Alawus The learned Justices of the Court of Appeal erred in law in failing to hold that a families an oral hearing whilst the appellants were not given the opportunity of being heard orally;

(d) Contrary to the decision of the Court of Appeal, that the appellants were heard under the umbrella of Alawusa, the learned trial Judge never based his decision that the appellants had a fair hearing on that ground, and there was no cross-appeal or notice to support the decision on that ground.

(e) In any event, the appellants could not have been heard under the umbrella of the Alawusa family when it was clear that the contest was between the Ogunmakinde Ande family on the one hand and Alawusa, Gbaase and Adagunodo families on the other hand.

(f) The decision of the learned trial Judge that the appellants were given a fair hearing in view of the minutes of a meeting containing views expressed by the appellants and which were used by the Commissioner cannot be right, as those minutes also contained the views of the other parties who were in addition given oral hearing.

(g) In the alternative, these minutes could not have afforded the appellants the opportunity of properly putting forward their case as the contents were not made in contemplation of any inquiry.

(h) Contrary to the decision of the Court of Appeal that the appellants have not shown how they have been prejudiced by their having been denied an oral hearing, once that denial amounted to a denial of fair hearing, it is presumed that the appellants could have been prejudiced and the law does not require that a party denied a fair hearing should show that he was prejudiced.

(j) In any event, the fact that if they had been given an oral hearing like the other parties, it is now known what decision Dr Agiri would have reached is the prejudice suffered.

4. The learned Justices of the Court of Appeal erred in law in failing to hold that the learned trial Judge was wrong in holding that Exhibit 'K' was validly made under Section 9(a)(3) of the Chiefs' Law.

Particulars of Errors

(a) The appellants were not given a fair hearing before Exhibit 'K' was made;

(b) The provisions of the Constitution of the Federal Republic of Nigeria 1979 and the Chiefs' Law and the rules of natural justice require that they be given a fair hearing;

(c) Exhibit 'K' was made pursuant to Section 9(a)(3) of the Chiefs' Law by the Governor-in-Council a body that did not exist at the material time.

(d) Section 9(a)(3) of the Chiefs' Law is void in so far as it authorises the Governor-in-Council to make any such declaration as it is in conflict with the provisions of the 1979 Constitution to the extent that there is nobody known as the Governor-in-Council in the said Constitution.

(e) Exhibit D which was purportedly altered by the making of Exhibit 'K' contains the prevailing customary law as at the 1st day of October, 1979 and to that extent it became the existing law which could only be amended in substance or repealed or done away with the Oyo State Legislature.

5. The learned Justices of the Court of Appeal erred in law in failing to hold that the learned trial Judge was wrong in failing to evaluate the evidence of p.w. 1 because the evidence as to customary law was not corroborated.

Particulars of Error

(a) The learned trial Judge though not using the word "corroboration", did require corroboration of the evidence of p.w. 1 and because of this did not evaluate his evidence;

(b) There is no rule of law that the evidence of a witness in relation to customary law must be corroborated;

The learned Justices of the Court of Appeal erred in law in assuming the role of the trial court and holding that the trial court could not have been satisfied with the scanty evidence on custom and that the relevant ground of appeal relate to the failure to evaluate the evidence of the 1st appellant who never testified.

Particulars of Errors

(a) There was no scanty evidence as to custom and the learned trial Judge never complained that the evidence was scanty;

(b) Though the appellants solicitors wrongly made reference to the 1st appellant in the relevant ground of appeal it is clear that this was purely descriptive of the person who testified as p.w. 1;

(c) The fact that p.w. 1 was not the 1st appellant does not remove the fact that there was a p.w. 1 who testified and whose evidence was not evaluated;

(d) The real complaint in the relevant ground of appeal is that p.w. 1's evidence was not evaluated."

Ten 'issues' were formulated as questions for determination in this appeal by the appellants in their briefs or arguments. These questions are:

"(1) Whether the learned trial Judge declined jurisdiction to grant the relief sought by claim (1)?

(2) Whether in view of the Chiefs' Law, the High Court has no original jurisdiction to grant a declaration as to the existing customary law relating to the existence of a ruling house?

(3) Whether the Court of Appeal was right in refusing to hold that the appellants were not given a fair hearing before Dr Agiri?

(4) Whether where a person alleges the denial of a fair hearing the law requires him to go further and show the injury suffered?

(5) If question 4 is in the affirmative, whether it is correct that the appellants have not shown the injury suffered?

(6) Whether in the circumstances of this case, the declaration dated 28th day of July, 1981 could have been validly made under Section 9(A)(3) of the Chiefs' Law if the appellants were not given fair hearing before the declaration was made?

(7) Whether there was in existence a body known as the Governor-in-Council which could have validly made Exhibit K?

(8) Whether the Evidence Act requires the evidence of a witness with regard to traditional evidence and/or the evidence of customary law to be corroborated?

(9) Whether having regard to the facts and circumstances of this case and the relevant law the Court of Appeal was right in coming to the conclusion that the lower court could not have been satisfied with the evidence of custom led before it? and

(10) Whether the Court of Appeal was right in using the fact that the 1st appellant never testified as a ground for dismissing ground 5 of the appellants' ground of appeal?

On the 1st question, learned Counsel for the appellants, Chief F.R.A. Williams, SAN, submitted that the judgment of the learned trial Judge, Oloko, J. bears no other interpretation than that the learned judge declined jurisdiction to grant the relief sought by claim 1. It is true that the learned trial Judge made copious references to the provisions of the Chiefs' Law particularly to the provisions of section 4, 9 and 10. It is also true that he distinguished the powers exercisable under the Chiefs' Law from the powers exercisable by the Courts in exercise of its jurisdiction. I do not gather or form the impression that he declined jurisdiction in respect of claim (1). Otherwise he would not have

said:

"From the evidence before me, I find myself unable to make the declaration sought in the first leg of plaintiffs' claim to wit:

'A declaration that by the customary law prevailing in Iwo, the Ogunmakinde Ande Ruling House is the only Ruling House from which appointment to the Oluwo of Iwo Chieftaincy is made.'

Assuming I am wrong in the above conclusion, I am prepared to hold further that even on the evidential requirement, the plaintiffs must fail in the first leg of the claim."

This conclusion of the learned trial Judge was arrived at after detailed consideration of the complaints about the validity of Exhibit K, portion of Dr Agiri Report Exhibit F and submission of learned Counsel for the plaintiffs, Mr O. Sofunde that plaintiffs were not given a fair hearing.

From the wording of the claim, it is clear that the plaintiffs were not seeking a declaration as to the customary law but a declaration that by the customary law prevailing in Iwo, the Ogunmakinde Ande Ruling House is the only ruling house from which appointment to the Oluwo of Iwo Chieftaincy is to be made.

There is no doubt that before this declaration can be granted, there must be evidence establishing the customary law in Iwo as a question of fact. If there is a registered declaration of the customary law regulating the appointment, the evidence is straight forward and would consist in the production of the Registered Declaration in which case a single witness would suffice. If there is no registered declaration, cogent evidence of the custom must be adduced through credible witnesses in which case prudence demands that more than one witness be called.

From the evidence adduced, the exercise of declaring whether Ogunmakinde Ande is or is not the only Ruling House is straight forward. The function of the judge, the learned trial Judge, is to ascertain and make a finding of fact of what the customary law applicable is and decide whether the declaration sought is permitted by that law.

The learned trial Judge was perfectly justified to have referred to the procedure for making declarations of customary law regulating the appointment of Chiefs under the Chiefs' Law by bodies other than the court. The court of Appeal quite properly held that "it is not the business of the courts to make declarations of customary law relating to the selection of Chiefs under the Chiefs' Law. But it is the business of the court to make a finding of what the customary law is and apply the law for the purpose of the claims for declarations.

The Court of Appeal was also of the correct view when it held that as respects the courts powers vis-a-vis those under the Chiefs' Law, the correct view is that the courts will not by themselves exercise, primarily, jurisdiction with respect to those powers conferred expressly by the legislature on bodies other than the courts outside their judicial authority under Section 6 and 236 of the Constitution.

The Court of Appeal, however, in my respectful view, misdirected itself when it said that the appellants' claim did not speak of a declaratory order as such. When a 'declaration' is claimed in an action in court, the claim is indistinguishable from a claim for "a declaratory order."

The opinions expressed above covers also the second question for determination. The issue of fair hearing covered by questions 3, 4, 5 and 6 is a major issue in these proceedings. It is the main plank on which the 2nd and 3rd legs of the appellants' claim are based and before dealing with the issue, a brief reflection on the facts is necessary.

The plaintiffs/appellants are members of Ogunmakinde Ande Ruling House of the Oluwo of Iwo Chieftaincy. The Oluwo of Iwo Chieftaincy institution came into being many years ago-in fact more than three centuries ago. It is common ground among the parties that Paring was the first Oluwo of Iwo. It is alleged that he reigned for 90 years according to p.w. 1, i.e. the 2nd appellant. He was succeeded by his son Layilumi as 2nd Oluwo.

Adagunodo was the 3rd Oluwo of Iwo. Gbaase succeeded him as 4th Oluwo. Gbaase was succeeded by his son Alawusa as 5th Oluwo. Alawusa was succeeded by his son Ogunmakinde as 6th Oluwo he reigned for 82 years and was succeeded by his son Mohammed Lamuye as the 7th Oluwo of Iwo, he reigned for 90 years, 1816-1906. Since the reign of Ogunmakinde which ended in 1816, eight Oluwos have reigned in Iwo. According to p.w. 1, i.e. 2nd appellant, they have been sons and great sons of Ogunmakinde Ande. This is controverted by the respondents. Only one witness, the 2nd plaintiff testified for the plaintiffs. He is a member of Ogunmakinde Ande Ruling House. The 1st and 3rd plaintiffs are his uncles. His testimony was short and mainly consist of the genealogy of those who have been occupants of the stool on Oluwo chieftaincy. According to him in his testimony:

"The Ogunmakinde/Ande Ruling House is the only Ruling House at Iwo in connection with the appointment of Oluwo of Iwo chieftaincy."

This is the only oral evidence led in proof of the customary law that Ogunmakinde Ande is the only Ruling House from which, according to the customary law of Iwo, the Oluwo of Iwo is entitled to be appointed. It is true that P.W. 1 gave evidence that the past 8 Oluwos of Iwo since Ogunmakinde Ande reigned have been chosen from Ogunmakinde Ande Ruling House. But it was not in the testimony that their appointments were in accordance with the customary law of Iwo regulating the appointment.

The respondents, contrary to the stand of the appellants, contended that Adagunodo, Gbase and Alawusa were not father, son and grandson but brothers who reigned in turn.

It appears that the search for a registered declaration of customary law regulating the appointment of Oluwo of Iwo is of long standing. The various attempts since 1955 to get a declaration made yielded no result until 1979 when Exhibit D which declared Ogunmakinde Ande as the only ruling house was made. Before Exhibit D was made, Government set up Apara Commission to enquire into the chieftaincy and the Report of the Commission influenced government in no small measure to the making of Exhibit D. However, Exhibit D evoked a wave of protests to government. This led to the appointment of Dr B.A. Agiri to conduct discreet research into the chieftaincy. Dr Agiri produced Exhibit F, a report of the result of his research. This was acted on by government and influenced by the finds of the Oyo State Governor made Exhibit K a declaration identifying Adagunodo, Gbaase and Alawusa as the ruling houses from which according to the customary law of Iwo, Oluwo of Iwo is appointed. It is in evidence that Ogunmakinde Ande house is a constituent branch of Alawusa Ruling House. Members of Ogunmakinde Ande Ruling House naturally aggrieved at having been submerged in Alawusa Ruling House commenced these proceedings in the High Court of Oyo State, Oshogbo Judicial Division. The main contention of the appellants are brought out in paragraphs 11 and 19 of the amended statement of claim which read:

"11. The plaintiffs will contend at the trial that the proceedings of the Agiri Inquiry are contrary to natural justice, unconstitutional, illegal, null and void for the following reasons:

'The plaintiffs were never notified of such inquiry and consequently were not given the opportunity of being heard at the inquiry'.

19. The plaintiffs will contend at the trial that the purported declaration referred to in paragraph 17 above is ultra vires the Chiefs' Law as amended by Edict No. 16 of 1975 null and void and of no effect whatsoever, because:

(i) Section 9(a)(3) of the Chiefs' Law as amended by Edict No. 16 of 1975 does not make provision for the Governor to make any declaration;

(ii) it does not represent the customary law prevailing."

It appears that no Oluwo of Iwo has ever been appointed under any registered declaration of customary law regulating the appointment. According to 2nd defendant's 1st witness, Adesunpe Sanusi in his testimony:

"To the best of my knowledge, the late Oluwo, Oba Abimbola II was never appointed under a registered declaration. He became Oba in December, 1957. He died on the 22nd March, 1982, and since then the chieftaincy has been vacant."

The action in the High Court in this matter was filed on the 3rd day of March, 1982 almost 3 weeks before Oba Abimbola II died. According to Exhibit F produced by Dr Agiri.

"The main issue raised by the Oluwo of Iwo chieftaincy dispute is whether or not succession to that title before the nineteenth century was by primogeniture. The controversy centres specifically on whether succession from Paarin (the first Oluwo to rule at the present site of Iwo) to Ogunmakinde Ande (who ruled in the 1820s) was direct from father to his first son. There is no dispute that this alleged mode of succession did not apply to Ande's rule."

Narrating the source of his information, he said:

"In attempting to resolve the problem of the mode of succession from Paarin to Ogunmakinde Ande, I have relied very much on information obtained from Mr Adeyemi Aremu, Ile Oosa, Kajola, Iwo at an interview on Thursday, 1st May, 1980 ..........

..........

I obtained the information from him in the presence of his eldest son who introduced me to his father and refused to participate ..........

Other sources of information available to me included:

(i) E.N.C. Dickinson Intelligence Report on Iwo District dated 1st February, 1939;

(ii) Minutes of meeting held by the Commissioner for Local Government and Chieftaincy Affairs with the Oba, Chiefs and people of Iwo on the Oluwo Chieftaincy Declaration on Friday, 19th day of July, 1974 at 10 a.m. at the Western House of Assembly Chambers;

(iii) Notes on Dr P.C. Lloyd's "A comparative study of the Political Institutions in some Yoruba Kingdoms 1952 (B. Lett. thesis Oxford), which includes a study on Iwo Political institutions in Dr Lloyd collected his information between 1948 and 1950;

(iv) Brief on the Oluwo of Iwo Chieftaincy from the office of the Governor, Oyo State reference CB. 141/8/13/049 of 1st April, 1980; and

(v) My interview with the elders and representatives of the Adagunodo, Gbaase and Alawusa sections of the Iwo ruling lineage in Iwo on 26th April, 1980.

The appellants have made heavy weather of the 5th source of information as it shows that the Ogunmakinde Ande Ruling House was not heard before Dr Agiri made his findings and the recommendations which reads in Exhibit F:

12 Recommendation Any male descendant of Adagunodo, Gbaase and Alawusa (who were direct sons of Olayilumi and who held the title of Oluwo of Iwo in rotation) could, with valid justification, be appointed Oluwo. This would remove the distortion of the mode of succession to the Oluwo title caused by the reigns of Ande and Lamuye during the nineteenth century."

The Governor, after the receipt of the Report Exhibit F, directed the Iwo Chieftaincy Committee to make another declaration to reflect the three Ruling Houses. When the Iwo Chieftaincy Committee failed to make a new declaration, the Governor made the Declaration Exhibit K was subsequently registered the following day, i.e. 29th July, 1981.

Two important submissions were made by the learned Senior Advocate of Nigeria, Chief F.R.A. Williams appearing for the appellants. They are:

(1) That Exhibit K is void for having been made by a non existent body, the Governor-in-Council. He further submitted that no adaptation of the Chiefs' Law has been made by the appropriate authority as required by section 274(2) of the Constitution of the Federal Republic of Nigeria 1979. Consequent upon this failure, he submitted that section 10(3) of the Chiefs' Law (formerly section 9(A)(3) Cap 21 Laws of Oyo State 1978 is void there being no provision for an equivalent Executive Council under the 1979 Constitution. He cited and relied on the case of Governor of Kaduna State & Ors. v. Kagoma (1982) 3 NCLR 1032 at 1069;

(2) That Exhibit K is void as it was made on the basis of the result of the inquiry conducted by Dr Agiri which enquiry was conducted in breach of section 33(1) of the Constitution.

He complained and contended that the Ogunmakinde Ruling House of which the appellants are members were not given a hearing or an opportunity of being heard. He submitted that although Ogunmakinde Ande Ruling House is a branch of Alawusa Ruling House and representatives and elders of Alawusa were given a hearing, those elders and representatives could not be expected to present the case of Ogunmakinde Ande Ruling House against whom they were protesting. He contended further that a study of the minutes of the meeting held by the Commissioner for Local Government and Chieftaincy Affairs with the Oba, Chiefs and people of Iwo on the Oluwo Chieftaincy Declaration on 19th July, 1974 cannot be a hearing of members of Ogunmakinde Ande Ruling House.

Mr Boade, learned Senior State Counsel who appeared for the 1st and 6th to the 19th respondents submitted that the Executive Council in the Interpretation Law Cap 52 Volume 3 Laws of Oyo State is not the same as Executive Council defined by this Court in Kagoma's case (1982) 6 SC. 87 at page 90. He contended that the Executive Council in Oyo State in the Chiefs' Law in 1977 is as in Kagoma's case (supra) and referred to the dictum of Fatayi-Williams, CJN, (as he then was) at p.107. He then submitted that as under section 5 of the Constitution of the Federal Republic of Nigeria 1979 the executive authority of Oyo State was vested in the Governor, the Governor of Oyo State had the power to make Exhibit K.

He then urged the court to read Governor-in-Council as Governor as Exhibit K was signed by the Governor. In conclusion, he referred to pages 119-120 of the Presidential Constitution of Nigeria by Professor Nwabueze. On the issue of fair hearing, learned Counsel cited the case of Maxwell v. Department of Trade and Industry (1974) 2 All ER 126-127 particularly the dictum of Lord Denning. He contended that the Appellants, i.e. Ogunmakinde Ande Ruling House were heard as members of Alawusa Ruling House.

On the issue of jurisdiction, learned Counsel submitted that the making of declarations in respect of customary law relating to selection of Chiefs is purely administrative under the provisions of section 4 of the Chiefs' Law Cap 21 Laws of Oyo State 1978 and that it is not a function exercisable by the court or vested in the court. The exercise of such functions is not directly related to the general jurisdiction of the courts under section 236(1) of the Constitution of the Federal Republic of Nigeria 1979. He then referred to:

Merchants Bank Ltd v. Federal Minister of Finance (1961) All NLR 598;

Carltona Ltd. v. Commissioner of Works (1943) 1 All ER 560 at 564;

Bull v. Attorney General for N.S.W. (1916) 2 AC.564.

Learned counsel therefore urged the court to hold that in respect of chieftaincy matter, the courts have only supervisory or appellate jurisdiction on the making of declarations as to customary laws relating to the selection of traditional chiefs under the law.

It is clear from the Chiefs' Law that the court cannot assume the functions of the Chieftaincy Committee as regards the making of declarations of customary law governing the selection and appointment of traditional chiefs. The appellants have not by their claim asked for that declaration. What the appellants seek is a declaration that Ogunmakinde Ande is under the customary law of Iwo the only Ruling House. In carrying out this judicial task, the court will from the evidence adduced ascertain and find whether there is customary law on the matter, what the customary law is and then decide whether on the evidence, Ogunmakinde Ande is the only Ruling House in Iwo from which Oluwo of Iwo can be selected and appointed. It cannot, in my view, be correctly and legally argued that the High Court cannot entertain and adjudicate on such a claim in exercise of its unlimited jurisdiction vested in it by section 236(1) of the Constitution of the Federal Republic of Nigeria 1979. I prefer Chief F.R.A. Williams' submission on this point.

Chief Fawole who appeared for the 3rd, 4th and 5th respondents submitted that Exhibit K was validly made, that the Governor had constitutional powers to make it and that the appellants were given fair hearing by Dr Agiri before he compiled his report and made his recommendation on which Exhibit K was based.

In reply, Chief F.R.A. Williams submitted that as an executive body with state executive functions Executive Council is not provided for in the 1979 Constitution of the Federal Republic of Nigeria.

I shall now proceed to examine the two constitutional points. These are:

(1) Whether section 10(3) of the Chiefs' Law Cap 21 is in conflict with the 1979 Constitution and therefore void; and

(2) Whether there has been a breach of fair hearing under section 33(1) and (2) of the 1979 Constitution by Dr Agiri to render his report void and nullify Exhibit K.

Along with the 1st issue raised above is the issue of whether Exhibit K was made by a non-existent body having regard to the fact that it was signed by Chief Bola Ige, the then incumbent Governor and Chief Executive of the State as Governor.

Section 10 of the Chiefs' Law appears to me to be the focal point of this dispute. It is the power provided by subsection 3 of the section that the governor purported to have exercised in making the Declaration in Exhibit K. I will therefore set out the provisions of the section in full. It reads:

"10. (1) where the Executive Council is satisfied that a registered declaration-

(a) does not contain a true or sufficiently clear statement of the customary law which regulates the section of a person to be the holder of a recognised chieftaincy;

(b) does not contain a sufficient description of the method of selection of the holder of such a chieftaincy; or

(d) is otherwise defective, faulty or objectionable having regard to the provisions of this law.

(1) the Executive Council may require the chieftaincy committee which made the declaration to amend such declaration in any respect that it may specify, or to make a new declaration in any respect that it may specify, or to make new declaration according as it may consider necessary or desirable in each case;

(2) The Executive Council may approve or refuse to approve a registered declaration amended or a new declaration made by a chieftaincy committee under subsection (1) of this section.

(3) Where a chieftaincy committee fails to amend a registered declaration in the respects specified by the Executive Council or to make a new declaration within a reasonable period of its being required so to do in accordance with subsection (1) of this section, the Executive Council, may amend the registered declaration in respect of a recognised chieftaincy concerned in accordance with the powers conferred on the committee under this law.

(4) The provisions of section 6 shall apply mutatis mutandis in respect of any amendment to a registered declaration or to any new declaration made by a chieftaincy committee under subsection (1) of this section."

When the Constitution of the Federal Republic of Nigeria 1979 came into force on 1st October, 1979, the Chiefs' Law was an existing law. It was a law in force on the 30th day of September, 1979. Existing law has been defined in section 274(4)(b) to mean

"any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date comes into force after that date."

It is also deemed to have been made by the Oyo State House of Assembly as it is a law with respect to matter the House of Assembly was empowered by the Constitution to make law. See section 4(7) of the 1979 Constitution of the Federal Republic of Nigeria. Subsection 7 of section 4 at the material time reads:

"The House of Assembly of a State shall have power to make laws for the peace order and good government of the State or any part thereof with respect to the following matters, that is to say.

(a) any matter not included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to the Constitution;

(b) any matter included in the Concurrent Legislative list set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto;

(c) any other matter with respect to which it is empowered to make laws in accordance with the provision of this Constitution."

Chieftaincy matter is neither in the Exclusive nor in the Concurrent Legislative List. This power is now under Decree No. 1 of 1984 Constitution (Suspension and Modification) Decree 1984 as amended by Decree No. 17 of 1985. Constitution (Suspension and Modification) (Amendment) Decree 1985 vested in the Military Governor of a State see section 2(3) of Decree No. 1 of 1984. The law being an existing law was not repealed by the Constitution. Section 274(1) of the Constitution provides that:

"Subject to the provisions of this constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be

(a) ..........

(b) a law made by a House of Assembly to the extent that it is a state law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws."

It should be noted, however, that section 274(2) of the Constitution gave power to the Appropriate Authority to make by order from time to time such changes in the text of any existing laws as the Appropriate Authority considers necessary or expedient to bring the law into conformity with the provisions of the 1979 Constitution. It was the failure of the Governor of Kaduna State to utilise this power to effect textual changes in the Kaduna Local Government Law that led this Court to declare section 98(1) of that law inconsistent with the Constitution and therefore void in the case of Governor of Kaduna State and 2 Others v. Kagoma (1982) 6 SC. 87.

Mr Boade has submitted that the Governor of Oyo State was the Chief Executive of the State and by section 5(2) of the Constitution had subject to the provisions of the Constitution vested in him the executive powers of Oyo State. I agree with him that by section 5(2), the executive powers of Oyo State were vested in the Governor of Oyo State then Chief Bola Ige. These executive powers extend to:

"(i) the execution and maintenance of this Constitution and all laws made by the house of Assembly; and

(ii) to all matters with respect to which the House of Assembly has for the time being power to make laws."

These executive powers may subject to the provisions of the Constitution and to the provisions of any law made by the House of Assembly, be exercised by the Governor of the State either directly or through the Deputy Governor and Commissioner of the Government of that State or officers in the public service of the State.

The functions exercised by the Executive Council before 1979 October 1, learned Counsel submitted, have been transferred to the Governor of the State and in order to bring the Chiefs' Law into conformity with the Constitution, this Court has been urged to use its interpretative jurisdiction to alter "Executive Council in section 10 of the Chiefs' Law to read Governor.'

There is a body known as Executive Council provided for in section 171(1) of the Constitution. The only constitutional function assigned to that body is to declare in time of ill-health the Governor or Deputy Governor of a State is incapable of discharging the functions of his office. In subsection (5), it is stated that reference to Executive Council is a reference to the body of Commissioners of the Government of the State, howsoever called, established by the Governor and charged with such responsibilities for the functions of government as the Governor may direct. It is to be observed that in Decree No. 32 of 1975 Constitution (Basic Provisions) Decree, the Executive Council established included the Military Governor and later the Military Administrator. See Section 7 of the Constitution (Basic Provisions) Decree 1975 Decree No. 32 of 1975 and the Constitution (Basic Provisions Transitional Measures) Decree 1978 Decree No. 15 of 1978.

According to Section 7 of the Decree No. 32 of 1975,

"There shall be for each State an Executive Council which shall consist of:

(a) The Military Governor as Chairman;

(b) one senior officer each from the Nigerian Army, Navy and Air Force in the State;

(d) such other members (to be known as Commissioners) as the Military Governor in his discretion may from time to time appoint."

Decree No. 15 of 1978 substituted the "Military/Administrator" for the "Governor" as head of the Executive Council.

This Executive Council ceased to exist on the 30th day of September, 1979 with the repeal by Decree No. 105 of 1979 of Decree No. 32 of 1975 and Decree No. 15 of 1978.

I am of the opinion that the provision of Section 274(1) of the Constitution imposes an exercise on the courts in its interpretative jurisdiction in order that effect shall be given to an existing law without prejudice to their powers to declare invalid any provision of an existing law on the ground of inconsistency with the provisions of any other law.

Modification has been defined in Section 274(4)(c) of the Constitution as including addition, alteration, omission or repeal. In other words, in order to bring an existing law into conformity with the Constitution, the modification envisaged include addition, alteration, omission or repeal.

The question therefore arises whether the repeal of Section 10 will bring the Chiefs' Law into conformity with the Constitution or whether the alteration of Executive Council to Governor will be more likely to bring it into conformity with the Constitution or whether the alteration of Executive Council to Governor will be more likely to bring it into conformity with the Constitution.

It seems to me that having regard to Section 5(2) of the Constitution which vested executive powers in the Governor and the fact that the functions imposed by Section 10 on the Executive Council which has ceased to exist were executive functions it seems reasonable, proper and desirable to modify the section by substituting Governor for Executive Council to execute the functions thus imposed and conform with the Constitution. See The Presidential Constitution of Nigeria 1982 Edition page 172.

Exhibit K made pursuant to Section 9(A)(3) now Section 10(3) of the Chiefs' Law by the Governor, in my view, cannot be declared a nullity on the ground that it was signed by the Governor. The declaration at the top that it was made by the Governor-in-Council cannot affect the validity of the Declaration when instead of being signed by the Governor-in-Council it was signed by the Governor.

If Section 274(1) of the Constitution had made no provision for modification, the absence of adaptive legislation would have been fatal to the legislation Section 10 of the Chiefs' Law and it would have been declared void. It appears to me that Section 274(1) of the Constitution gives far wider powers than Section 274(2) of the Constitution which only allows changes in the text.

It appears the Declaration Exhibit K has survived the onslaught so far and rescued from nullification by Section 274(1).

Will it survive the issue of fair hearing? This question raises the issue of essential rather than formal validity of the Declaration. There is no doubt that the Declaration Exhibit K with particular reference to the declaration of the 3 Ruling Houses-Adagunodo, Gbaase and Alawusa was based wholly on the report of the inquiry carried out by Dr Agiri. If therefore Dr Agiri failed to give Ogunmakinde Ande Ruling House a hearing or fair hearing before compiling his report on the issue which touches the very existence of Ogunmakinde Ande House as a ruling house, the least that can be said is that the inquiry is incomplete.

It has been the contention of the respondents that Ogunmakinde Ande Ruling House was given a hearing. The hearing consisted in

(1) interview of the elders and representatives of Alawusa family;

(2) examination of the minutes of the meeting of the Commissioners for Local Government and Chieftaincy Affairs with the Oba, Chiefs and people of Iwo in 1974.

It must be overlooked that the inquiry was ordered by government as a result of a dispute over the right of

Ogunmakinde Ande Ruling House to be declared the only Ruling House the Oluwo of Iwo Chieftaincy as shown in Exhibit D.

The exercise of embarking on the making of a Declaration or amendment of a Declaration of the applicable customary law is not to be carried out just for its own sake. This is expressly stated in Section 10 of the Chiefs' Law. It is not to satisfy the whims and caprices of those in power. It can only be embarked on when the Government is satisfied that a registered declaration does not contain a true or sufficiently clear statement of the customary law which regulates the selection of a person to a recognised chieftaincy.

Where does the Governor get the required satisfaction from? And what steps does he take to get the satisfaction? These are not spelt out by the Chiefs' Law. What is spelt out is what the satisfaction must consist of. This is where an inquiry comes in. It could be an administrative inquiry or a judicial inquiry.

In this instant appeal, the evidence shows that the Government decided on an administrative inquiry and Dr Agiri was the Commissioner or officer appointed to conduct the inquiry described as discreet. Exhibit D the 1979 Declaration had declared Ogunmakinde Ande as the only Ruling House. Any determination by the Commissioner, Dr Agiri at variance with that declaration was bound to affect adversely the civil rights of Ogunmakinde Ande Ruling House to the chieftaincy. Not having given that Ruling House a hearing or opportunity of being heard, it cannot be said that the Ogunmakinde Ande Ruling House has been given a fair hearing.

By Section 33(1) of the Constitution of the Federal Republic of Nigeria, 1979, it is provided that:

"In the determination of his civil rights and obligations, including any question or determination by or against any government of authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to ensure its independence and impartiality."

Learned counsel for the appellants contended very vigorously that the constitutional provision has been breached by the 1st respondent. He contended that the appellants were entitled to not only a hearing but a fair hearing and that the consideration of the 2nd appellant's petition to the government together with the minutes of a meeting in which the appellants participated Exhibit W did not amount to a fair hearing. Boade, learned Counsel for 1st, 6th to 19th respondents conceded that the appellants were entitled to a hearing and to a fair hearing but contended that they were given a fair hearing as their petition and the minutes of the meeting they participated in were considered by Dr Agiri.

A hearing can be on oral evidence or written documents submitted by the parties interested in the inquiry or whose civil rights and obligations will be affected by the inquiry.

Dr Agiri's Commission qualifies as an Administrative Tribunal [see Wednesbury Corporation v. Ministry of Housing and Local Government No. 2 (1966) 2 QB.275] and is bound to observe the Rules of Natural Justice. The fact that it is an administrative tribunal does not exempt it from observing the principles of audi alteram partem and nemo judex in causa sua enshrined in the Rules of Natural Justice. The principles constitute the bastion of fairness and are equally enshrined in Section 33(1) of the Constitution of the Federal Republic 1979.

Audi alteram partem or hear the other side is a very dominant principle and pervades the systems of adjudication in dispute in both primitive and civilised world. I agree with counsel for all parties that a hearing of parties to a dispute need not be oral. It could be on written document. See:

(1) The Queen v. Director or Audit (W.R.) and Ors. (1961) All NLR. 659 at 660.

(2) Hart v. Military Governor, Rivers State Public Service Commission & Attorney-General (1976) 11 SC. 211.

(3) Adedeji v. Police Service Commission (1968) NMLR. 102.

But all the parties must be heard on written documents. If the tribunal decides to have in addition an oral hearing, all the parties affected must be given an opportunity of an oral hearing. There is no doubt that where parties cannot adequately due to illiteracy put their thoughts into writing an oral hearing may be beneficial. In this context, I agree with the views of the U.S. Supreme Court in the case of Goldberg v. Kelly 397 US 254 at 268 to 269 (1970) which reads:

"The opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard ................... Written submissions are an unrealistic option for most recipients who lack the educational attainment necessary to write effectively and who cannot obtain professional assistance. Moreover, written submissions do not permit the recipient to mould his arguments to the issues the decision maker appear to regard as important particularly where credibility and veracity are at issue

.. written submissions are a wholly unsatisfactory basis for decision."

The argument that the appellants were heard under the umbrella of Alawusa Ruling House cannot hold since Ogunmakinde Ande family is not the sole constituent family of Alawusa Ruling House. Indeed, it was the right of Ogunmakinde Ande family/Ruling House to rule that was under attack by all except members of that family and their friends. It therefore behoved Dr Agiri to give them the same type of hearing as he gave to the elders and representatives of Adagunodo, Gbaase and Alawusa Ruling Houses.

It is said that the appellants have not shown that they suffered any injury by the denial of fair hearing. Do they really have to show injury or prejudice? It is implicit in the very act of denial because the denial is an injury to the right of fair hearing guaranteed by the Constitution and rules of natural justice.

In the instant appeal, an examination of Exhibit D, the 1979 Declaration and Exhibit K the 1981 Declaration will leave one in no doubt that the right to the monopoly of providing the candidates for appointment as Oluwo of Iwo has been taken away from the appellants and diluted into insignificance in Alawusa family Ruling House to which

Ogunmakinde Ande belong along with others. If that is not an injury, I do not know what else can be more painful.

Dr Agiri's Report, Exhibit F, clearly shows on the face of it that the appellants were not given oral hearing but that Adagunodo, Gbaase and Alawusa Ruling Houses by their elders and representatives were given oral hearing. It also shows that it was the minutes of a meeting held in 1974 and not the minutes of a meeting held at Dr Agiri's request that formed a vital source of his information.

From these two facts, it is clear that the appellant were not heard by Dr Agiri and more importantly, they were not given a fair hearing.

The submission of Chief F. R. A. Williams, SAN, learned Counsel for the appellants that:

"Had Dr Agiri relied upon minutes of a meeting as well to gather facts relating to the 3rd to the 5th respondents' side of the story, the appellants would have conceded that they were given a fair hearing." is well founded.

I agree with him that where two parties are each subjected to different types of hearing, it cannot be said that there was a fair hearing.

I am however unable to accept the generalisation that an oral hearing is of higher quality than hearing on written briefs and documents although I agree that gleaning facts from minutes which were made at a time when the hearing before the tribunal which made use of the minutes was not in contemplation cannot match the quality of an oral hearing in the search for the true customary law. See Reg. v. Birmingham Justices (D.C.) (1970) 1 WLR. 1428 at 1433.

The appellants were entitled to be heard in the same manner as others. See Stafford v. Minister of Health (1946) 1 KB 621 at 623-624. Durayappah v. Fernando (1976) 2 AC. 337 at 348. Ridge v. Baldwin (1964) AC. 40. Denial of fair hearing is denial of justice and it is a prejudice to any man to be denied justice. See Annamuthodo v. Oilfields Workers Trade Union (1961) AC. 945 at 954.

In Ridge v. Baldwin (supra) Lord Hodson at page 128 emphasised the need for hearing as follows:

"...but in my opinion, it will not do to say that the case was so plain there was no need for the appellant to be heard and therefore, the claim of natural justice were satisfied.

I do not find that the answer put by counsel for the watch committee to your Lordships that the case was as plain as a pikestaff is an answer to the demand for natural justice."

Even in purely administrative inquiries as that conducted by Dr Agiri opportunity to be heard must be given to all parties involved and likely to be affected (see Wednesbury Corporation v. Ministry of Housing and Local Government (No.2) (1966) 2 QB 275 at 298. It makes no difference whether the body charged with the inquiry is judicial, quasi-judicial or administrative. See Reg. v. Birmingham Justices (D.C.) (supra).

Having failed to give an oral hearing to the elders and representatives of Ogunmakinde Ande Ruling House, Dr Agiri did not complete his investigation before writing his Report. The right to fair hearing being a fundamental constitutional right guaranteed by the Constitution, the breach of it in any trial or investigation or inquiry nullifies the trial investigation or inquiry and any action taken on them is also a nullity. In the instant case, the basis of satisfaction before Exhibit K was made is no longer there.

If the principles of natural justice are violated in respect of any decision, it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision. See General Medical Council v. Spackman (1943) AC. 627.

The appeal succeeds on the dismissal of claim No. 2 but fails in respect of the dismissal of claims 1. It is desirable that the appellants, i.e. Ogunmakinde Ande Ruling House along with others be heard in an inquiry to ascertain the relevant customary law. The decision of the Court of Appeal is hereby set aside and in its stead, I hereby order that

(1) Claim 1 be dismissed; Ogunmakinde Ande has not proved to be the only Ruling House at Iwo from which Oluwo of Iwo is appointed under the customary law of Iwo;

(2) Claims 2 and 3 be granted.

Therefore, the Declaration of the Customary Law of Iwo regulating the appointment of Oluwo of Iwo contained in Exhibit K is hereby declared null and void.

A proper inquiry to be the basis of a new and proper declaration should be set in motion so that the stool vacancy can be filled with a minimum of delay.

The appellants are entitled to cost assessed at N300.00.

Eso, J.S.C. This is a very important case. The Oluwo of Iwo Chieftaincy is a very important chieftaincy in Yorubaland. Iwo itself, being a very important town in the land. Prince Yahya Adigun, Prince Alade Lamuye and Prince N.O. Abanikanda, representing the Ogunmakinde Ande Ruling House in Iwo, had brought a declaratory action against the Attorney-General of Oyo State, representing the Government of Oyo State and eighteen others, seeking-

(i) A declaration that by the customary law prevailing in Iwo, the Ogunmakinde Ande Ruling House is the only Ruling House from which appointment to the Oluwo of Iwo Chieftaincy is to be made.

(ii) A declaration that the instrument dated the 28th day of July, 1981 is in so far as it purports to declare the customary law prevailing in Iwo with respect to the appointment to the Oluwo of Iwo Chieftaincy illegal

and void.

(iii) An injunction restraining all Servants, Officers and Agents of the Government of Oyo State or of the Iwo Central Local Government from acting pursuant to or taking any steps to implement the aforesaid declaration registered on 29th of July, 1981.

Pleadings were ordered by the learned trial Judge, Oloko J., and delivered. To appreciate the issues that were in controversy before the trial court, it is pertinent to observe that the "eighteen others" of the defendants include the other chieftaincy families contesting the Oluwo of Iwo Chieftaincy with the plaintiffs, that is, the Alawusa, Adagunodo and Gbaase families, and the Kingmakers, in regard to that particular chieftaincy.

Now, dated 29th day of March 1957, is a Declaration signed by the Chairman and the Secretary of the Iwo District Council, stating that there were three ruling houses to wit-

Lamuye,

Ande and Paarin

See Exhibit "AA".

All attempts by the Government to register this Declaration were to no avail. Before this "1957 Declaration", there was one dated 24th May 1955, signed by Oba S. O. Abimbola II, Oluwo of Iwo as Chairman, Iwo District Council Chieftaincy Committee, which named only one Ruling House-

"Ogunmakinde Ande Ruling House."

This "1955 Declaration" formed part of the basis for a discussion at a meeting held by the Commissioner for Local Government and Chieftaincy Affairs, Chief J. A. Akinyemi, with the Oba (S. O. Abimbola II, the last Oluwo on the throne), the Chiefs and the people of Iwo (Exhibit W) in 1974. It is interesting, even at this stage to disclose the following from the minutes of the 1974 meeting-

"(5) It has also been contended that the other sections of the Oluwo family who have been trying to claim their right to the Oluwo stool have been caught by the rule of remoteness under s. 4(4) of the Chief Law (Cap. 19). My Ministry does share this view...

(6) On the totality of the evidence reviewed in the proceeding paragraphs, the decision of the Government on the issue is that the declaration made by the Chieftaincy Committee naming Ogunmakinde Ande as the only ruling house entitled to the Oluwo of Iwo Chieftaincy cannot stand as it is not in conformity with the customary law regulating appointment to the Oluwo stool. The petitioning families are as much entitled to the Oluwo of Iwo Chieftaincy just like the Ogunmakinde Ande families...

This, as I have said, was in 1974, and so, Exhibit "AA" the "1957 Declaration" which named three ruling houses was just an extension of the 1955 Declaration naming only one Ruling House. It is to be noted that neither the 1955 nor the 1957 Declaration was registered.

In 1977, the Government set up an enquiry into this matter. The Commission was headed by Apara J. of the High Court of Oyo State, and he produced a report (Exhibit C) dated 30th November 1977. The Commission recommended-

"That Ogunmakinde Ande should be the only ruling house recognised to provide the Oluwo of Iwo."

Government accepted this report and a registered Declaration (Exhibit "D") followed. This Declaration made on 4th January, 1979 was approved by the Military Governor on 17th July, 1979. This registered declaration named the Ogunmakinde Ande Ruling House, as the only ruling house for the Chieftaincy.

The registration of this declaration would appear not to have solved the problem. Petitions had started to come in, even before the date of its approval for:

(1) on 5th August 1978, the Adagunodo Gbaase and Alawusa Ruling Houses sent a petition to the Military Administrator.

(2) On 18th August 1978, a petition came from the Adagunodo, Gbaase, Alawusa and Jadese Ruling Houses. (Exhibit P.)

(3) On 7th December 1978 another protest came from the Adagunodo, Gbaase and Alawusa Ruling Houses (Exhibit Q).

(4) On 22nd January 1979 the Adagunodo, Gbaase and Alawusa Ruling Houses sent yet another petition. (Exhibits R & S).

On 5th April, the Secretary to the Military Government sent a reply to the petition dated 22nd January (Exhibits R & S) saying-

"your representations have been given very thorough consideration by the Military Administrator. However, I am to convey to you the stand of the Military Administrator to the effect that Government decision on the provisions of the Oluwo of Iwo Chieftaincy declaration cannot be altered and that it is not intended to entertain further representations on the matter."-(Exhibit T).

After the approval and the registration of the declaration, a firm of Solicitors-M.A. Omisade & Co. petitioned the Deputy Governor, Oyo State, and the Governor respectively (Exhibits "U" & "V") on behalf of the Adagunodo Gbaase and Alawusa Ruling Houses. It is of interest to note that as of this date, Government had changed. It was the Military Government that set up the Apara Commissioner of Enquiry and which registered the declaration in terms of the recommendations of that Commission. On the 1st October 1979 the Military Government had been succeeded by a Civilian Government.

What followed all the petitions, was (Exhibit "X"). The Governor of Oyo State appointed a Dr B.A. Agiri of the Department of History, University of Lagos to conduct "a quick but discreet research into the history of the Oluwo of Iwo Chieftaincy." The letter (Exhibit "X") reads-

"(2) From various reports in this office, the history of the Oluwo of Iwo Chieftaincy has been traced from the time of John who migrated from Ile-Ife to Ogundigbaro and later to Igbo-Orita. After John, there were three successive reigns at Igbo Orita culminating in the reign of Jikanmo. Paarin succeeded Jikanmo and later moved the settlement from Igbo Orita to Iwo and thus Paarin was the first Oluwo of Iwo. The origin of the chieftaincy was largely agreed to by the various people interested in the chieftaincy. Paarin the first Oluwo of Iwo was succeeded by his son Layilumi and on the death of Layilumi, Adagunodo succeeded his father. It was at this point in time that different historical versions were presented by the two major groups: the one calling for a single ruling house system deposed that Gbaase who reigned after Adagunodo was his son and that Gbaase was the father of Alawusa who reigned as the next Oluwo. The other camp in favour of a multiple house structure submitted that Adagunodo, Gbaase and Alawusa were brothers being children of Layilumi. From the foregoing, it is clear that the area of disagreement is in the relationship among Adagunodo, Gbaase and Alawusa, for while one group maintains that the three of them were brothers, the other stated that they were father, son and grandson..."

The Commissioner, Babatunde Agiri, felt he would rather "be in the field to conduct some discreet oral investigations." He also requested assistance in "selecting possible reliable informants."

Dr Agiri conducted an enquiry and made "findings in respect of the history" of the Chieftaincy, and acting upon that report (Exhibit F), the declaration registered during the Military Administration (Exhibit D) was amended and Exhibit K was the result of the amendment.

Exhibit "K" signed by the civilian Governor, Bola Ige created three ruling Houses-

(1) Alawusa

(2) Adagunodo and

(3) Gbase

It was made on 28th July, 1981 and registered the following day on 29th July 1981.

This, then, was the genesis of the present action and the plaintiffs who are members of the Ogunmakinde/Ande Ruling House, declared by the Apara Commission of Enquiry to be the only ruling house, and registered to be so in the 1979 Declaration were definitely aggrieved by the Agiri report and the action of the Oyo State Government thereupon.

Before Oloko, J., the contention of learned Counsel for the Plaintiffs was that the Plaintiffs were not given a hearing at the enquiry. Prince Alade Lamuye who testified on behalf of the Plaintiffs had said that their family was never consulted before the declaration Exhibit "K" was made by the Civilian Governor and that he, Lamuye, only knew of Agiri's report (Exhibit F) through a letter written by the Secretary to the Government to the Secretary Iwo Local Government dated October 28, 1980 conveying the Government decision on the issue to the parties in the case.

Indeed, paragraph 11 of the Plaintiffs statement of claim was very clear on this complaint. It reads-

"The plaintiffs were never notified of such inquiry and consequently were not given the opportunity of being heard at the inquiry."

Perhaps, it is better, at this stage to state the source of Dr Agiri's "discreet oral investigations" as well as the documentary source for a thorough appreciation of Plaintiffs complaint. Exhibit "F", the report, states inter alia-

"2. In attempting to resolve the problem of the mode of succession from Paarin to Ogunmakinde Ande, I have relied very much on information obtained from Mr Adeyemi Aremu, Ile Oosa, Kajola, Iwo at an interview in Iwo on Thursday 1st May 1980. Mr Aremu is the head of drummers who sing the praises of the Oluwo every Friday and at traditional festivals related to the title of the Oluwo. Although Mr Aremu is now old, aged about 75 years and blind, these physical disabilities did not detract from the quality of his information because his vocation places him in a very crucial position to understand the history of Iwo and the pattern and order of succession of all Oluwo.

3. I obtained the information from him in the presence of his eldest son, who introduced me to his father and refused to participate in the discussion. To this extent, Mr Aremu's information is the result of what he remembers and comes as direct answers to my questions.

4. Other sources of information available to me included-

(i) E. N. C. Dickinson Intelligence Report on Iwo District dated 1stFebruary 1939.

(ii) Minutes of meeting held by the Commissioner for Local Government and Chieftaincy Affairs with the Oba, Chiefs and people of Iwo on the Oluwo Chieftaincy Declaration on Friday 19th July, 1974 at 10.00 a.m. at the Western House of Assembly Chambers.

(iii) Notes on Dr P. C. Lloyd's "A Comparative Study of the political Institutions in some Yoruba Kingdoms, 1952, (B. Litt., thesis, Oxford), which includes a study on Iwo political institutions. Dr Lloyd collected his information between 1948 and 1950.

(iv) Brief on the Oluwo of Iwo Chieftaincy from the office of the Governor, Oyo State, reference CB. 141/8/13/049 of 1st April 1980, and

(v) My interview with the elders and representatives of the Adagunodo, Gbaase and Alawusa sections of the Iwo ruling lineage in Iwo on 26th April, 1980." (Italics mine.)

Now, although Dr Agiri interviewed the elders and representatives of the Adagunodo, Gbaase and Alawusa sections of the Iwo ruling lineage", there is no indication whatsoever throughout the report that this discreet oral enquiry was extended to the plaintiffs. This point will come out distinctly later when I deal with the issues arising in the appeal in this Court.

Oloko J. in the High Court declared-

"Whilst I concede to the learned Counsel that the doctrine of audi alteram partem must be involved in appropriate cases, the absence of an oral hearing, or of an opportunity to be heard orally, before an administrative tribunal does not necessarily amount to a denial of the principles of natural justice. A decision reached after a full inquiry without an oral hearing does not violate such principles. See the case The Queen v. Director of Audit (W.R.) and Ors. reported in (1961) All N.L.R. p. 659 at page 660."

The learned trial Judge went on-

"Referring to Exhibit 'F', it is clear that on its pages 2 and 3, Dr Agiri states his source of information. Plaintiffs participated effectively in the proceedings of the Minutes of Meeting held by the Commissioner for Local Government and Chieftaincy Affairs on 19th day of July, 1974 which is Exhibit 'W' in these proceedings and that Exhibit forms part of the material used by Dr Agiri in the assignment of the discreet research into Oluwo of Iwo chieftaincy. I cannot by any stretch of imagination see how the Plaintiffs were prejudiced in compiling the report in Exhibit 'F'. I therefore reject the submission of learned Counsel for the Plaintiffs that the requirements of natural justice were not met or that the doctrine of audi alteram partem was not involved in compiling Exhibit 'F'."

He declined to grant the declarations sought by the Plaintiffs whose claim, he proclaimed as having failed in its entirety.

The Plaintiffs appealed to the Court of Appeal. The contention of the Plaintiffs, before that Court, was that the proceedings of the Agiri enquiry are contrary to natural justice, unconstitutional and void; that the 1981 Chieftaincy Declaration is ultra vires the Chiefs Law, null and void and also the registration of the Chieftaincy Declaration is null and void.

In a considered judgment, Omololu-Thomas J.C.A., delivering the judgment of the Court of Appeal, with which Sulu-Gambari and Onu JJ.C.A. concurred held that it was not the business of the Courts to make declarations of customary law relating to the selection of Chiefs under the Chiefs Law. In regard to the complaint of the Plaintiffs/Appellants about not being given a fair hearing before the Chieftaincy Declaration, (following the Agiri report), was made, the Court held that the enquiry did not deal with a clear contest between the two parties but to conduct a thorough and discreet research with a view to ascertaining "the correctness of the claim of Ogunmakinde Ande family and that of Adagunodo, Gbaase and Alawusa families." Let me note at this point that the learned Justice of the Court of Appeal saw the necessity of separating the Ogunmakinde-Ande family from the three other families-Adagunodo, Gbaase and Alawusa-for the purpose of dealing with the issue of fair hearing, notwithstanding that it was being contested by the Respondents that Ogunmakinde-Ande was a member of the Alawusa Ruling House.

The Court of Appeal however held that it was settled law that natural justice did not necessarily require that the hearing should be oral. Further, the Court was of the view that there is no right to oral hearing, unless the refusal of an oral hearing would prejudice the applicant.

Omololu-Thomas J.C.A. held-

"The evidence indeed was that Dr Agiri was to conduct a discreet research, and he collected his materials from all the families concerned including Alawusa and Ogunmakinde-Ande families, the latter of which as the evidence and findings disclose, is a section of Alawusa family (refer to Exhibit 'F'). The three ruling houses recommended were Alawusa, Adagunodo and Gbaase and the case of the appellants appeared to have been considered under the umbrella of Alawusa Family."

"In view of the existing materials in favour of the appellants, the inquiry is not as though Dr Agiri was conducting a Lis proceedings in view of the various claims, complaints, petitions, Reports and other inconclusive inquiries before 1979.

The question is not that they were not heard but that they were not heard orally, and it seems to me that in view of representations which were taken into account, the appellants' case could not have been prejudiced. If they were, there is no such evidence before the trial Court. They cannot now complain.

I do not therefore for the foregoing reasons think that substantial justice requires the oral hearing of the appellants before an enquiry of the type instituted under Dr Agiri."

As regards the issue of the Governor being a different entity from the Governor-in-Council, the learned Justice of the Court of Appeal was of the view that the executive functions conferred under S. 9A of the Chiefs Law in the Governor-in-Council by the operation of S.274(1) of the Constitution has, since 1st October 1979 been vested in the Governor in the absence of a textual modification under s. 274(2) of the Constitution. It was therefore a misconception, the learned Judge held, of the true intendment of s. 274(1) of the Constitution to say that there is no law in existence enabling the Governor to make a declaration under s. 9A of the Chiefs Law when the law was saved as an existing law under the said section 274(1). Section 9A, thus referred to, is now section 10 of the Chiefs Law.

Finally, the Court of Appeal dismissed the appeal filed by the Plaintiffs.

The Plaintiffs were aggrieved by that decision of the Court of Appeal and have appealed to this Court, relying on six grounds of appeal. Learned counsel, Chief F. R. A. Williams S.A.N. lead a team of lawyers, including a Senior Advocate of Nigeria for the Appellants; Mr O. A. Boade a Senior State Counsel with the Ministry of Justice Oyo State was for all the Respondents, except the 2nd to the 5th, that is, the Secretary to the Iwo Central Local Government and the heads of the three families challenging the authority of the Ogunmakinde-Ande family as the only family entitled to the Oluwo stool. There is no representation for the 2nd Respondent as the office of Secretary to the Local Government ceased. Mr Fawole represented the other Respondents.

The complaint of the appellants are well set out in what the learned Counsel for the Appellants had termed the "Questions for Determination." They are-

"(1) Whether the learned trial Judge declined jurisdiction to grant the relief sought by claim (1)?

(2) Whether in view of the Chiefs Law, the High Court has no original jurisdiction to grant a declaration as to the existing customary law relating to the existence of a ruling house?

(3) Whether the Court of Appeal was right in refusing to hold that the Appellants were not given a fair hearing before Dr Agiri?

(4) Whether where a party alleges the denial of a fair hearing the law requires him to go further and show the injury suffered?

(5) If question 4 is the affirmative, whether it is correct that the appellants have not shown the injury they suffered?

(6) Whether in the circumstances of this case, the Declaration dated the 28th day of July 1981 could have been validly made under Section 9(A)(3) of the Chiefs Law if the appellants were not given a fair hearing before the declaration was made?

(7) Whether there was in existence a body known as the Governor-in-Council which could have validly made Exhibit K?

(8) Whether the Evidence Act requires the evidence of a witness with regard to traditional evidence and/or the evidence of customary law to be corroborated?

(10) Whether the Court of Appeal was right in using the fact that the 1st Appellant never testified as a ground for dismissing ground 5 of the appellants' ground of appeal?

Learned counsel, in an argument in support of these issues thus set out, contended in their Brief-

In regard to Question One:

That the Court of Appeal read the words "primarily exercisable" into the judgment of the Trial Court. That what the whole pronouncement of the Trial Court was in regard to jurisdiction was that the High Court had no jurisdiction because the jurisdiction that was invoked was original and not supervisory jurisdiction."

Mr Boade for the 1st, 6th to 19th Respondents contended in his own brief that the Courts have only supervisory or appellate jurisdiction on the making of declarations of customary laws relating to the selection of traditional Chiefs under the law and it is the supervisory jurisdiction that the Court of Appeal had stressed.

For his part, Mr Fawole's stand was that the Trial Court used the word "jurisdiction" in a wide sense and it was in regard to this use that he declared jurisdiction.

With respect, I think the semantics being employed by the Court of Appeal is much ado about nothing. There is no doubt that the Court does not declare the Customary Law in regard to chieftaincy matters or any matter. Mr Boade put the matter correctly when he said in is brief that the making of declarations in respect of customary law relating to the selection of chiefs is purely administrative under Section 4 of the Chiefs Law (Cap 21) Laws of Oyo State 1978 and not a function exercisable by the Court. But by the declaratory action brought before the Court, the Court is not being asked to usurp powers conferred by Section 4 of the Chiefs Law. The statement of claim has indicated fully what evidence is required for such administrative declaration. The evidence led was consistent with the statement of claim. The declaratory order being sought is that "by the customary law prevailing in Iow" the general jurisdiction of the Court is being invoked that the customary law permits of only one ruling house-the Ogunmakinde Ande Ruling House. It is not a declaration that the Court has jurisdiction to make a chieftaincy declaration. Chief Williams is therefore right, when he said-

"However, the appellants contend that what was sought from the High Court was not a declaration under the Chiefs Law which would eventually be registered, but a declaratory order as to be existing customary law as a matter of fact which all High Courts have the jurisdiction to make: see Section 236(1) of the Constitution of the Federal Republic of Nigeria 1979 and Section 9 High Court Law. The effect of such a declaratory order of the court would be that any declaration made and registered under the Chiefs Law as to the customary law prevailing which was not in line with the declaratory order of the court as to the existing customary law would be void see Section 4(2) (a) and 4(4) of the Chiefs' Law. The granting or otherwise of the declaration would depend on the evidence led as to the prevailing custom."

(Emphasis supplied.)

This argument takes care of the second question as well. Question 3: Fair Hearing:

By far, the most important contention of the Appellants, was that they were not given fair hearing. I have already set out the circumstances leading to the setting up the Agiri enquiry and the method adopted by the Commissioner in pursuance of his "discreet enquiry."

That, I think, is a good starting point, for the learned trial Judge conceded that a fair hearing was a prerequisite for the exercise of any power under Section 10(3) of the Chiefs Law. He said however that the absence of an oral hearing, or of any opportunity to be heard orally, before an administrative tribunal does not necessarily amount to a denial of the principles of natural justice. It was the Appellants' contention, however, that had Dr Agiri relied only upon minutes of a meeting and not oral evidence in regard to the 3rd to the 5th Respondents, they, the appellants would have conceded that they were given a fair hearing. But while the 3rd to 5th Respondents, in whose favour Agiri found, were called upon to give and did give an oral testimony, the Appellants, the Ogunmakinde Ande Ruling House, were neither called upon, nor did they in fact give oral hearing. The appellants further said-

"an oral hearing is of a higher quality than gleaning facts from minutes which were made at a time the hearing before the tribunal which made use of those minutes was not contemplated."

With regard to the contention of the Court of Appeal that the Appellants were heard under the umbrella of Alawusa, appellants submitted in their Brief that this is a misconception of the facts. And that even before the Agiri enquiry and while Ogunmakinde-Ande was the only Ruling House there had been petitions from Alawusa among others. This part of the Brief is very important for the resolution of the issue, and I will set it down-

"There were petitions from Alawusa, Gbase and Adagunodo amongst others, and whilst not disputing that Ogunmakinde Ande is a family unit within the bigger unit of the Alawusa family, the Appellants contend that in so far as Ogunmakinde Ande was contending that the Oluwo of Iwo could only come through Ogunmakinde-Ande as supported by Exhibit 'D', whilst Alawusa contended that the unit should be Alawusa inclusive of Ogunmakinde-Ande, it is inconceivable that Ogunmakinde Ande could have been heard through Alawusa when their interests were divergent. If this were to be so, since all the parties beneficially interested in the Oluwo of Iwo Chieftaincy descended from Paarin, it might equally be argued that even Alawusa, Gbase and Adagunodo could have been heard by inviting one descendant of Paarin to speak on their behalf, even if that descendant belongs to the Ogunmakinde Ande family."

On this issue, Mr Boade contended in his Brief for the 1st and 6th to 9th Respondents, that fair hearing does not necessarily mean oral hearing, and absence of an oral hearing or an opportunity to be heard orally before an administrative tribunal does not amount to a denial of fair hearing. The views of the Appellants, as to the customary law affecting the Chieftaincy declaration having been considered by Dr Agiri, by his reading of the records and minutes of the meetings where they expressed their views a fair opportunity had been offered them. The function of the Courts, Mr Boade said, is to establish minimum legal standards of administrative procedure and not to insist on procedural perfection.

Further in his submission in the Brief, Mr Boade drew our attention to the fact that two courts had found against the Appellants on the issue of fair hearing, and there has been no exceptional circumstance to warrant the interference of this Court.

It was Mr Fawole's submission, on the third question, that "Dr Agiri was not trying a lis, but was researching into what was the correct custom." I presume learned Counsel was saying in effect, that it was not necessary to enquire into whether or not there was fair hearing, once it was a research and not a lis that was being tried.

Now, the point being made by Chief William is, and I think he was right, and well supported by authorities, that all parties to a "lis" or to any enquiry of this nature must be given the same type of hearing. To start with, in conducting a lis or an enquiry, a Judge must not only be impartial, but must be so seen. Brett Ag C.-J.N., in Obadana and Ors. v. Commissioner of Police (1967) NMLR 39, had said with great force in this Court-

"The principle that a judge must be impartial is accepted in the jurisprudence of any civilised country."

And Nigeria is a civilised country, whose jurisprudence is accepted worldwide or at least in the common law countries.

One should however not lose sight of the fact that in this case, the complaint is not that the appellants were not heard at all. It is conceded that Exhibit D, the January 1979 Declaration, did establish the position of the Appellants, before the Agiri enquiry. But how did Agiri conduct that enquiry? These I have already stated.

Now, I will deal with the issue of oral hearing in regard to the Appellants' complaint that they were not accorded a fair hearing. What is of the greatest importance, is the interview by Agiri with the elders and representatives of Adagunodo, Gbase and Alawusa sections of the Iwo Ruling lineage. This interview was on 26th April 1980. Apart from the fact that the appellants have been classified under Alawusa Ruling House, there is no suggestion that their representatives, as representatives of Ogunmakinde-Ande Ruling House established by the Declaration, Exhibit "D" to be the only Ruling House, were ever invited, or present, or took part in the Agiri interview. Yet, basing his finding on this premises, the learned trial Judge held-

"I cannot by any stretch of imagination see how the Plaintiffs were prejudiced in compiling the report Exhibit "I"-that is the Agiri Report."

And, also the Court of Appeal, having referred to this passage in the judgment of the Trial Court-held

"The position of the Appellants having been established already in Exhibit "D" and considering the scope of the enquiry conducted by Dr Agiri, was there any further need for oral hearing of what had been established by a declaration?"

In R. v. Laity of Melbourne, Ex parte Whyte (1960) Victorian Law Report 257, O'Brien J. was of the view that an applicant is not entitled to an oral hearing, unless such hearing is expressly prescribed. That may be good law, but what happens where one party has not been given oral hearing, whereas the others opposed to him have been given that privilege? Would this not contravene the principles of natural justice? Let me answer the question by examining these principles of natural justice. Evershed MR., said in Abbot v. Sullivan 1952 1 K.B. 189 at page 195, that the principles of natural justice are easy to proclaim but their precise extent is far less easy to define. There is a lot of force in the truth of this statement. But how does the Court go about defining them. My recipe is for the court to simplify the whole approach to the determination of the principles. The administration of justice, it must always be remembered, can never be over simplified. Sometimes, some of the phrases used by the Courts become mere rhetoric and they lose, within the course of the flowing language, their meaning and effect.

When documents have been examined in the determination of facts which a Tribunal seeks to find, but still, it has been necessary to invite one section to the dispute to buttress their case by giving oral evidence, while the other section is not so invited, ordinary common sense dictates that the common man who observes this exercise, from an impartial perspective, cannot be impressed that justice has been done to the other party which has not been so invited, especially if the determination goes against such other party.

One may then ask-why measure justice by the standard of the common man or the ordinary reasonable citizen? It is not in vain that English law invented the standards of the man in Clapham Omnibus in describing the ordinary reasonable citizen. But then, except one has been to England, and appreciated the man that goes to work in an Omnibus in Clapham area in London as against the executive who drives in his Rolls Royce in Mayfair, the phrase "Clapham Omnibus" is completely lost to him. And so, in this country, in trying to find out the level of justice, the yardstick of the "reasonable person" has been taken. Ademola C.J.N. in Mohammed v. Kano N.A. (1968 1 All N.L.R. 422 has said-

"We think a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing ..........

The true test of a fair hearing it was suggested by counsel is the impression of a reasonable person who was present at a trial whether, from his observation, justice has been done in the case. We felt obliged to agree with him."

pp. 351-352

(Italics mine)

A reasonable person here, may be a peasant housewife, shopping for meal in Sandgrouse, and not the wife of an executive, shopping for her grocery in Moloney Supermarket; he may be the ordinary worker in the Kano Native City, living on his "Tuwo", and not the Senior Assistant Secretary cruising in his officially produced air-conditioned Peugeot 505 SR to his air-conditioned office; or she is the plain woman in Okrika dress and not the voile-laced fashion enthusiast. It is what this reasonable "man" sitting as an impartial observer, thinks of the Agiri Report that would matter. It is he who would note that while the "elders and representatives of Adagunodo, Gbase and Alawusa sections of the Iwo Ruling lineage" had been interviewed by Dr Agiri, in pursuance of his fact finding exercise, the representatives, and or elders of the Ogunmakinde Ande Ruling House were neither invited for interview, nor in fact present at the interview of those other Ruling Houses opposed to their monopoly of the Stool. He certainly could not say that in a circumstance of this creation, justice has been done to the Ande Ogunmakinde ruling house.

I think myself, that to hide under the cloak that the Alawusa Ruling House also represented the Ogunmakinde-Ande Ruling House, is to introduce, with utmost respect, a howler into a very serious matter. All the petitions written against the Ogunmakinde-Ande Ruling House have included protests by, on behalf or in favour of Alawusa Ruling House. The petitions had started to come in even before the registration of Exhibit D the Chieftaincy Declaration that favours the Ogunmakinde Ande Ruling House.

On 14th April 1978 the Iwo Progressive Association complained (Exhibit "L")-

"Anyone reading through the proceedings of the last enquiry on Oluwo chieftaincy declaration will know very easily what the result should be-there should be three ruling houses in Iwo

..........

"In the history of the Yorubas we have not heard or read it that there is a town in Yorubaland with only one ruling house"

On 12th May 1978, the Iwo District Political Association based in Lagos queried-"How on earth and most especially in Yorubaland to have a single Ruling House?"

Even the Ogunmakinde Ande Ruling House on 2nd August 1978 (Exhibit "N") protested against allowing "Ande" only to monopolise the stool. On 5th August 1978, the Adagunodo, Gbase and Alawusa Ruling Houses demanded (Exhibit "O") that mistaking Ogunmakinde Ande Ruling House as the only Ruling House should be declared "void and invalid and also repugnant to Yoruba Customary Law."

Again, on 18th August 1978, the Adagunodo, Gbase and Alawusa Ruling Houses joined with Fadase Family, to draw the attention of the Military Administrator to other towns in Yorubaland to wit Ile-Ife, Ogbomosho, Oyo, Ede and Oshogbo where enquiries, similar to the Iwo enquiry, had taken place and not in any of these was single ruling houses recommended.

On 7th December 1978, the Adagunodo, Gbase and Alawusa Ruling Houses protested, again against the monopoly of the Ogunmakinde Ande Ruling House, while on 22nd January 1979 the three Ruling Houses, in another petition (Exhibit "R"), referred to the Apara Report that recommended a single ruling House as "a complete rape of democracy, a well calculated and ill-intentioned enquiry aimed at imposing a puppet family on the whole town of Iwo." Finally, Omisade and Co., a firm of Solicitors, on 29th November 1979, in a petition said (Exhibit "U")-

"Throughout the history of the Yoruba speaking race, the concept of family dynasty carried down from the ancestral Oduduwa knows nothing like primogeniture."

To say therefore that the interests of the Appellants have been taken care of by the Alawusa Ruling House is to reveal, with dismay, the lack of understanding of the case of the Appellants, who have always claimed sole right to the stool, to the exclusion of all others, including all the members of Alawusa Ruling House. It was Elias, C.J.N., who, in Ex Parte Iguage Obiyan, (1973) 12 SC. 23, equated natural justice with fair play in action.

The Ogunmakinde Ande Ruling House, having been denied oral hearing, while this was granted to their opponents, could not be said to have been "heard". Natural justice demands that a party must be heard before the case against him is determined. Even, God gave Adam an oral hearing despite the evidence supplied by his act of covering his nakedness, before the case against his continued stay in the Garden of Eden was determined against him. Ademola, C.J.F., as he then was, declared in Kano N. A. v. Obiora (1959) 4 F.S.C. 226-that a party must be heard before the case against him is determined.

The Court of Appeal was in serious error in this case, when the Court declared, as per Omololu-Thomas, J.C.A.-

"I do not therefore think that substantial justice requires the oral hearing of the Appellants before an enquiry of the type instituted under Dr Agiri."

Before concluding this aspect of the case, I will like to refer to a pronouncement by the Court that it was not shown that the absence of an oral hearing had in anyway prejudiced the appellants. Once an appellant shows that there is an infringement of the principle of natural justice against him, it is my view that he needs show nothing more. The finding that there is an infringement of the principle is sufficient to grant him a remedy. This is not a case where one, after showing injuria would need to proceed further to show damnum. The injuria herein, is proof positive of the damnum. All the arguments, so far advanced, take care of Questions 5 and 6.

The Appeal must succeed on these grounds, that is on the issue of fair hearing. I will deal with the order to be made later.

Question 7

The question here touches also on a constitutional problem, in the same way as the question of fair hearing is constitutional. Was there in existence a body known as the Governor-in-Council which could have validly made Exhibit "K"?

Exhibit "K" was signed by the Governor. This was the declaration making the stool a rotational chieftaincy stool. It followed after the acceptance of the Agiri Report that Exhibit "K" was made. It bore the following imprint-

"Made by the Governor-in-Council in accordance with Section 9A(3) of the Chiefs Law (Cap. 19) the 28th day of July 1981.

(sgd.)

Bola Ige

Oyo State Governor

Registered this 29th day of July, 1981."

for Secretary to the Governor"

Section 9A(3) of the Chiefs Law which has been referred to in the Declaration is now Section 10 of the Law and it reads-

"(3) Where a chieftaincy committee fails to amend a registered declaration in the respects specified by the Executive Council, or to make a new declaration, within a reasonable period of its being required so to do in accordance with subsection (1) of this section, the Executive Council may amend the registered declaration in respect of the recognised chieftaincy concerned in accordance with the powers conferred on the committee under this Law."

It was Chief Williams' contention, and the argument is attractive, that as it was the Executive Council that was empowered by the provision (supra) to make such declarations as in Exhibit "K", and there was no such thing as the Governor-in-Council at the time of the making of Exhibit "K", Exhibit "K" was made by a dead body. It was only the Governor, as from 1st October 1979, who could make the declaration, provided there was a law empowering him to do so.

Chief Williams relied on our decision in Governor of Kaduna of Kaduna State & Ors. v. Kagoma (1982) 6 SC. 87 and submitted that Governor-in-Council could not be substituted with Governor under s. 274(1) of the Constitution of the Federal Republic of Nigeria 1979.

Mr Boade's contribution to this part of the "debate" in his brief is also very interesting. He said-

"A declaration made under Section 4 of the Chiefs Law and approved under Section 7 of the Chiefs Law can be declared faulty or defective under Section 10 of the Chiefs Law. Section 10 of the Chiefs Law empowers the Governor-in-Council to make a declaration such as Exhibit "K". The Governor-in-Council is the Executive Council of the State. See Section 3 of the Interpretation Law. Cap. 52, Laws of Oyo State of Nigeria, 1978. Under Section 5(2) of the 1979 Constitution, the executive powers of the State are vested in the Governor while Section 162 (2) of the Constitution makes the Governor the Chief Executive of the State. Thus, the Governor is the repository of the executive powers of the State. See Governor of Kaduna State and Ors. v. Kagoma (1982) SC. 87 at pp. 129-131.

The Governor of Oyo State, as the Chief Executive of the State and successor to the powers of the Executive Council under Section 10 of the Chiefs Law, could and has validly made, Exhibit "K". The executive powers vested in the Governor extend to the operation of the Chiefs Law including Section 10 which vested the power to make the subsidiary legislation such as Exhibit "K". The Governor as the successor to the powers of the Executive Council under Section 10 of the Chiefs Law was constitutionally able to make Exhibit "K". See Section 21(1) of the Interpretation Law."

While Mr Fawole has said, in his own brief, that by adaptation provided in the Constitution (1979 Constitution), it is the Governor who succeeded to total executive power and he is repository of all executive powers.

I will now refer to the oral submission of learned Counsel on this very important aspect of the case. Chief Williams has referred us to Section 3 of the Interpretation Law (Cap. 52) for the meaning of "Governor-in-Council". Where the Governor of a State neglects to adapt the law under Section 274 of the Constitution, then, submitted learned Counsel, the Governor cannot exercise the function which that law confers on the Executive Council nor could the Executive Council, set up under the Constitution, exercise that function.

Mr Boade tried to distinguish the Kagoma case, and Executive Council, as stipulated by the Chiefs Laws reference under the Chiefs Law to "Governor-in-Council". He said Executive Council as defined in (Cap. 52) that is the Interpretation Law, is not the same as defined by this Court in the Kagoma case. As at 1963 when Section 9(A) (or s.10 as the case may be) of the Chiefs Law was enacted, the "Executive Council" was, the "Premier and the Ministers," whereas "Executive Council" in the Kagoma case was what in the phrase would mean as at 1977 under the Local Government Law, s. 109. The "Executive Council" in Oyo State would be, relying on the Kagoma case, what the phrase meant in 1963. There are therefore two Executive Councils, said Mr Boade.

I must say that this part of this case has given me some anxiety. I will in trying to resolve the issue, start with the judgment of this Court in the Kagoma case (supra). In that case, Fatayi-Williams C.J.N., delivering the judgment of the Court, with which all the Justices concurred, said that "the words of a statute will generally be understood in the sense which they bore when the statute was passed into law." The statute herein relevant is Section 10 of the Chiefs Law. This provision came into force on 6th June 1963 and that was before the 1963 Constitution, that is, the Constitution of Western Nigeria Law 1963 No. 26. The phrase "Executive Council" in Section 10 of the Chiefs Law could only be understood in the sense of the 1960 Constitution, that is, the fourth schedule to the Nigeria (Constitution) Order in Council, 1960. Section 34 provides-

"There shall be an Executive Council for the Region whose function shall be to advise the Governor in the Government of the Region and which shall consist of the Premier and such of ten persons, being Ministers of the Government of the Region, as the Governor, acting in accordance with the advice of the Premier, so directs."

Section 38 enjoins the Governor, in exercise of his functions under that Constitution, to act in accordance with the advice of the Executive Council ..........

.........."

Section 10 of the Chiefs Law is, by virtue of Section 274(1) of the 1979 Constitution, an existing law. The provision of Section 10 of the Chiefs Law, therefore, shall, in accordance with s. 274(1) of the 1979 Constitution have effect, with such modifications as may be necessary, to bring it into conformity with the provisions of the Constitution. It is true that by Section 5(2) of the 1979 Constitution, the executive powers of Oyo State were vested in the Governor of the State. The question then is, what is the executive power exercised, in the making of Exhibit "K" (the Declaration of Customary Law in regard to the Oluwo of Iwo Chieftaincy)? This declaration was made under s. 10 of the Chiefs Law, which provides for an executive interference, where a registered declaration (like Exhibit D which indicated on ruling house) does not contain a true statement of the customary law (as it has been complained of in this case by the various petitions that impelled the setting up of the Agiri Enquiry) and the Chieftaincy Committee fails to amend the declaration, as indicated by the Executive (again, as it is being claimed herein). It was this executive interference, that was purported to be carried out by Exhibit "K".

But Exhibit "K" states quite clearly, that the action was by the Governor-in-Council. This importation of the authority of the Governor-in-Council impels the seeking of the true meaning of the phrase Governor-in-Council. And this is what leads to seeking the aid of the Interpretation Law (Cap. 52) Laws of Oyo State, which defines "Governor-in-Council" as the Executive Council of the State.

By the authority of this Court, in the Kagoma case (supra) Executive Council would be as defined under s. 34 of the 1960 Constitution. And as the Governor has said, in Exhibit "K", that Exhibit "K" was made by "the Governor-in-Council," this would mean by the Executive Council as known under the 1960 Constitution. The next question then would be is there a counterpart of that type of "Executive Council" under the 1979 Constitution? My considered answer is in the affirmative. I am of the view that Section 171 of the 1979 Constitution has made a provision for this type of "Executive Council". This section provides in its subsection (5)-

"In this section (meaning Section 171) reference to "Executive Council of the State" is a reference to the body of Commissioners of the Government of the State, howsoever called, established by the Government and charged with such responsibilities for the functions of government as the Governor may direct."

I think the subsection envisages that there would be the establishment of an Executive Council of the State by the Governor of the State. In my view, the words-a body ...established by the Governor and charged with such responsibilities for the functions of governing, as the Governor may direct can only mean that such Executive Council will not be limited to only dealing with the permanent incapacity of the Governor or the Deputy Governor. I am of the opinion that subsection (5) provides for an Executive Council which could be charged with any function of governing, as the Governor may decide to direct. Whatever function the Governor directs the Executive Council to perform, that Council must perform it. But in any event, the functions of the Executive Council include dealing with cases of permanent incapacity of the Governor or his Deputy. In other words the question of the permanent in-capacity of the Chief-Executive or his deputy is just one of the functions the Executive Committee shall perform, the other functions being left to the discretion of the Governor.

Following this, I will now have to examine Exhibit "K". The exhibit states that it was made by the Governor-in-Council, that is, the Executive Council. It is my view, therefore, on the principle of omnia praesumuntur rite esse acta, that the existence of an Executive Council of the State must, be presumed in the State until the contrary is alleged, having regard to the fact that the Governor, in Exhibit "K", said that the declaration was made by the Governor-in-Council a propos Executive Council. Of the principle of omnia praesumuntur rite esse acta.

Lindley, L.J. said in Horris v. Knight (1890) 15 PD 170 at p. 175-

"The maxim, omnia praesumuntur rite esse acta, is an expression, in a short form, of a reasonable probability, and of the propriety in point of law of acting or such probability ..........

..........

(emphasis mine)

I respectfully adopt this. The maxim is generally invoked where (like in the present case) there is no proof either way, but that it is more probable, that what was intended to be done, has been done, as it ought to have been done. In this case, the Governor is the authority to set up an Executive Council. It was the same Governor, who in

Exhibit "K", was saying in effect that the Exhibit was made by the Executive Council. This can only mean that the Governor has already set up an Executive Council, and one of the functions of the Council is to make the type of Exhibit "K".

The invocation of s. 274(1) of the 1979 Constitution, would therefore, be only to read the Chiefs Law (or rather Section 10 thereof) to bring it into conformity with the provisions of the Constitution. And so, s. 10 of the Chiefs Law would be deemed to be an Act of the Oyo State House of Assembly. For all these, I have come to the conclusion that the appeal must fail on this ground.

As questions eight, nine and ten deal mainly with evidence and its evaluation, I do not think I need bother myself with examining them.

In the final analysis, I hereby fully agree with the judgment of my learned brother, Obaseki J.S.C. a preview of which I was privileged to read, that this appeal must succeed, but only on the ground of fair hearing and the judgment and order of the Court of Appeal are hereby set aside. It is to be emphasised that the first claim is not granted and cannot be granted having regard to the spate of complaints that followed Exhibit "D" the declaration setting out Ogunmakinde Ande as the only ruling house.

I hereby order therefore-

(1) that to declare the ruling house/houses which would be entitled to the Oluwo of Iwo chieftaincy, neither Exhibit "D" nor Exhibit "K" shall be relied upon.

(2) An injunction is hereby granted in terms of the claim.

(3) There shall be no filling of the Oluwo of Iwo chieftaincy until there has been a proper enquiry set up by the Government of Oyo State which enquiry shall invite all parties to the controversy, including the Alawusa, Adagunodo, Gbase and Ogunmakinde/Ande Ruling Houses to the enquiry, take evidence, both oral and documentary from them if they do decide to present any, and upon which enquiry a declaration, as to the Customary Law regulating the selection to the Oluwo of Iwo chieftaincy shall be made and upon which declaration, the Kingmakers shall be called upon to select the Oluwo of Iwo.

(4) I abide by the order as to Costs made by my learned brother Obaseki J.S.C.

Nnamani, JSC-The appellants were plaintiffs in Suit No. HOS/15/82 filed in the High Court of Oyo State, Oshogbo Judicial Division in which they claimed the following reliefs-

"(1) a declaration that by the customary law prevailing in Iwo, the Ogunmakinde Ande Ruling House is the only Ruling House from which appointment to the Oluwo of Iwo Chieftaincy is to be made

(2) a declaration that the instrument dated the 18th day of July, 1981 is in so far as it purports to declare the customary law prevailing in Iwo with respect to the appointment to the Oluwo of Iwo Chieftaincy, is wrong and accordingly illegal and void

Pleadings were ordered filed and exchanged. At the close of the trial, Oloko, J. in a well considered judgment dated 16th July, 1982 dismissed the claims of the Plaintiffs/Appellants in their entirety. An appeal to the Court of Appeal (Omololu-Thomas, Sulu-Gambari and Onu, JJ.C.A.) also failed on 5th December, 1985. The appellants have now appealed to this Court.

I had seen, before now, a draft of the judgment just delivered by my learned brother, Obaseki, J.S.C. I entirely agree with his conclusions. I shall adopt his summary of the facts in this suit and will only refer to them if necessary, in the course of this judgment.

In their appeal to this Court, the appellants filed six grounds of appeal. In his brief of argument learned Senior Advocate appearing for the appellants, Chief Williams, identified 10 questions for determination. Questions 3, 4, 5, 6 and 7 seem to me to relate to the main issues canvassed in the appeal. They were as follows:

"(3) Whether the Court of Appeal was right in refusing to hold that the Appellants were not given a fair hearing before Dr Agiri?

(4) Whether where a party alleges the denial of a fair hearing the law requires him to go further and show the injury suffered?

(5) If question 4 is in the affirmative, whether it is correct that the appellants have now shown the injury they suffered?

(6) Whether in the circumstances of this case, the Declaration dated the 28th day of July, 1981 could have been validly made under Section 9(a)(3) of the Chiefs law if the appellants were not given a fair hearing before the declaration was made?

(7) Whether there was in existence a body known as the Governor-in-Council which could have validly made Exhibit "K"?

Taking first questions 6 and 7 above, it may be useful to state that two declarations made under section (9)(a)(3) of the Chiefs Law and tendered as Exhibits D and K respectively are very much in issue. Exhibit D dated 19th July, 1979 is a "Declaration made under Section 9A(3) of the Chiefs Law Cap. 10 as amended by the CHIEFS (Amendment) Edict No. 16 of 1975 of the Customary Law regulating the selection to the Oluwo of Iwo Chieftaincy." In effect it declared the Ogunmakinde Ande Ruling House as the only Ruling House in relation to the Oluwo of Iwo

Chieftaincy. This Exhibit D followed the Report of the Justice Apara Inquiry. On the other hand, Exhibit K followed a Report by Dr Babatunde Agiri, itself tendered in evidence as Exhibit F. Exhibit K is a "Declaration made under Section 9A(3) of the Chiefs Law Cap. 19 as amended by the Chiefs (Amendment) Edict No. 16 of 1975 of the Customary Law regulating the Selection to The Oluwo of Iwo Chieftaincy." It among other things stated the number of Ruling Houses at 3 said to be Alawusa, Adagunodo and Gbase. It also stated the order of rotation as-

(a) Alawuso (present Ruling House)

(b) Adagunodo

(c) Gbase. It stated the number of Kingmakers and the method of nomination. The document was said to be "Made by the Governor-in-Council in accordance with Section 9A(3) of the Chiefs Law, Cap. 19 this 28th day of July, 1981." It was signed by "BOLA IGE, Oyo State Governor" and was "Registered this 29th day of July, 1981." As can be seen the appellants were satisfied with Exhibit D which recognised their family as the only Ruling House, and dissatisfied with Exhibit K which now recognised 3 Ruling Houses although they form a part of one of them. It is perhaps pertinent too to mention that Exhibit K was made when, notwithstanding Exhibit E, a letter from the Secretary to the Government of Oyo State dated 28/10/80 addressed to the Secretary Iwo Local Government, Iwo informing them of the acceptance by the Government of Oyo State of the recommendations of Dr Agiri, and directing the Chieftaincy Committees of the Iwo Local Government to give effect to the Agiri recommendations; nothing was done by the Local Government.

On the issue of the validity of Exhibit K, Chief Williams drew attention of the Court to the fact that it was made by the Governor-in-Council. He submitted that by Section 3 of the Interpretation Act Cap. 52, Part A, Governor-in-Council means Executive Council of the State. He said that the law involved in this case was made during the military administration between 1975 and 30th September, 1979. During that period, there was executive council over which the Military Governor was Chairman. He referred to Governor of Kaduna State and Ors vs. Kagoma (1982) 3 N.C.L.R. 1032, 1053-4, 1051 where this Court held that where there is Executive Council on which powers were conferred and after 1979 the Governor of a State had not adapted that law under Section 274 of the Constitution of the Federal Republic of Nigeria, herein after referred to as the Constitution, the Governor cannot exercise the functions which that law conferred on the Executive Council. He also referred to Section 171 of the Constitution where the Executive Council had been given special functions. He argued that Executive Council under the Constitution did not include the Governor of the State and was different from the Executive Council in the law between 1975 and 30th September, 1979. He submitted that Section 9A(3) of the Chiefs Law had not been adapted; it was void. Consequently, he submitted Exhibit K was not validly made.

Both learned Counsel to the respondents, Mr Boade and Chief Fawole submitted that Exhibit K was validly made. They submitted that under the interpretation law Governor-in-Council was from 1st October, 1979 Executive Council. Reference was made to Section 274(1) of the Constitution. It was conceded that Executive Council under the 1979 Constitution was not the same as Executive Council between 1975 and 1979. It was their view, however, that under Section 162 read together with Section 5(2) of the Constitution, the Governor of a State was conferred with the Executive Power of State. They then submitted that the Governor of Oyo State had power to make Exhibit K and that it was valid. Section 10(3) of the Chiefs Law Cap. 21 Laws of Oyo State 1978 is in the same terms as Section 9A(3) of the Chiefs Law Cap. 19. It provides as follows-

"Where a chieftaincy committee fails to amend a registered declaration in the respects specified by the Executive Council or to make a new declaration within a reasonable period of its being required so to do in accordance with subsection (1) of this section, the Executive Council may amend the registered declaration in respect of the recognised chieftaincy concerned in accordance with the powers conferred on the committee under this Law."

It is clear that the powers are conferred on the Executive Council as in 1978. Under Section 7(1) of the Constitution (Basic Provisions) Decree No. 32 of 1975, the Governor was Chairman of the Executive Council of each State. It is conceded on all sides that under the 1979 Constitution, the Governor is not a member of the Executive Council of the State. Section 171(5) of the 1979 Constitution defines-

"Executive Council of State" as the body of Commissioners of the Government of the State, howsoever called, established by the Governor and charged with such responsibilities for the functions of government as the Governor may direct."

That Executive Council of the State is not conferred with any other powers or functions beyond those stated in Sections 171(1)(a) and 174 of the Constitution. It would appear to me therefore that from 1st October 1979 there was no Executive Council analogous to the one mentioned in Section 10(3) of the Chiefs Law of Oyo State referred to above. If it was intended that any other person or body should exercise the executive functions conferred on the Executive Council under that law it would have been necessary to modify that section so as to bring it in line with the Constitution pursuant to Sections 274(1), 274(4)(a)(ii) and 274(4)(c) of the Constitution. These Sections provide as follows-

"274 (1) Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be..."

"274 (4) In this section the following expressions have the meanings assigned to them-respectively

(a) appropriate authority means'-

(i)

(ii) the Governor of a State, in relation to the provisions of any existing law deemed to be a law made by the House of Assembly of that State"

..........

Exhibit K is said to have been made by the Governor-in-Council which is not even the authority conferred with the Power in the 1978 legislation. Even if it had been made by the Executive Council the difficulty would not in my view have been obviated. There was nothing to indicate that the Governor, Oyo State, the appropriate authority, had carried out any modification of Section 10(3) of the Chiefs Law, Cap. 21 Laws of Oyo State 1978. In such circumstances, it is my view that that Section of the Chiefs Law is void for inconsistency with the Constitution. It has to be observed that while Section 10(3) of the Chiefs Law 1978 obviously conferred executive functions on the Executive Council, no such executive functions were conferred on the Executive Council in the 1979 Constitution except perhaps the rather restricted functions contained in Section 171(1)(a) of the Constitution to which I earlier made reference. I have had no cause to depart from the views I expressed in Kagoma (supra). There I observed as follows:

"In the circumstances of the case in hand, it is inconsistent with the powers which I hold were vested on the Governor by the Constitution for the Local Government Law 1976 to vest on the Executive Council the powers to set up an inquiry and appoint its member. For this reason, and the further reason that 'there is no equivalent body under the 1979 Constitution' to 'Executive Council' as conceived and used in the said Local Government Law 1976, I hold too that the law is inconsistent with the provisions of the Constitution and therefore void (see Section 1(3) of the Constitution)."

The circumstances of the Kagoma case were not dissimilar to that of the case in hand. Section 98 of the Local Government Law of Kaduna State 1976 conferred on the 'Executive Council' such executive powers as appointing a person to conduct a Commission of Inquiry. In holding it as inconsistent with the executive powers which the 1979 Constitution had deliberately vested in the Governor of a State, I expressed the view that,

"The Governor of a State is therefore ..........

the repository of the executive power of the State. He is the Chief Executive of the State. In this connection the provisions of Sections 5(2) and 162 of the Constitution seem to me unequivocal .......... though I agree that our 1979 .......... Constitution is inspired by principles of democracy and social justice-in fact Section 14(1) of the Constitution states that the Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice-I am in no doubt that the provisions relating to the position of Governor at the State level (and President at the Federal level) were designed to vest executive responsibility of the State or the Federation on one individual for purposes of effective Government."

It follows in my view that for the same reasons the provisions of Section 10(3) of the Chiefs Law Cap. 21 Laws of Oyo State 1978 in so far as they purported to vest in the Executive Council what were clearly executive powers were inconsistent with the provisions of the 1979 Constitution and therefore void. But that is by no means the end of the matter. In Kagoma, although Section 98 of the Local Government Law of Kaduna State 1976, was declared void, the Governor of that State had recourse to Section 2 of the Commissions of Inquiry Law Cap. 25 of the Laws of Kaduna State pursuant to the provisions of which he set up an inquiry into the Kaduna State Local Government Council. In the instant case, having declared the provisions of Section 10(3) of the Chiefs Law void, is Exhibit K which was signed by the Executive Governor of Oyo State invalid? I think not for it is my view that the Governor, in the circumstances, had power to make it by virtue of the general extensive executive powers which the Constitution in Section 5(2) and 162 conferred on him. By virtue of Section 162(2) of the Constitution he is

"the Chief Executive of that State"

On the other hand, Section 5(2) of the Constitution provides, subject to the provisions of this constitution, that the "executive powers of a State-

(a) shall be vested in the Governor of that State and may subject as aforesaid and to the provisions of any law made by a House of Assembly, be exercised by him either directly or through the Deputy Governor and Commissioners of the Government of that State or officers in the public service of the State"129

Having thus dealt with Section 10(3) of the Chiefs Law under which Exhibit K was purportedly made, it would not have been necessary to consider Section 274(1) of the Constitution. I shall however comment, albeit briefly, since it is on that section that the Court of Appeal based its decision to uphold the validity of Exhibit K. Section 274(1) of the Constitution is in the terms already set down. Section 274(2) then provided that

"the appropriate authority may at any time by order make such changes in the text of any existing law as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of this Constitution."

As indicated earlier in this judgment, appropriate authority is defined in Section 274(4) (a) (i) and (ii) of the Constitution. "Modification" includes addition, alteration, omission or repeal." Interpreting these provisions Omololu-Thomas, J.C.A. said-

"The next modification provision is under Section 274(2) enabling "the appropriate authority" in his discretion to make such textual amendments as he considers necessary or expedient. In the absence of any such textual amendments, the law retains its character as an existing law unless it is inconsistent with the provisions of the Constitution. If the law is not thus inconsistent its validity as an existing law cannot be questioned on the ground merely that it had not been textually amended."

Of course the purpose of modification by the appropriate authority is specifically, under Section 274(2), to bring the law into conformity with the Constitution. It follows that if there has been no textual amendment, and the law is not inconsistent with the Constitution then it will remain validly in the Statute Book and have application to the extent that it can do so in reality. But the learned Justice then went on-

"The common ground in the submission on both sides is that it is the 'Governor' and not the 'executive council' upon whom is vested all the executive powers under Section 5 of the Constitution. He is the repository of all executive functions under the Chiefs Law and as indeed decided by Kagoma's case. That being the case, the executive functions conferred under Section 9 of the Chiefs Law on the 'Governor-in-Council' by the operation of Section 274(1) of the Constitution is since 1st October, 1979, vested in the 'Governor' in the absence of a textual modification under Section 274(2) of the Constitution."

It would seem to me that the learned Justices conclusion means that since the appropriate authority, in this case the Governor of Oyo State, has not modified the Chiefs Law, obviously an existing law, to bring it into conformity with the Constitution, and since under the Constitution the Governor is the repository of executive power, the Court can do the modification, altering "Governor-in-Council" to "Governor". I am in respectful disagreement with this view. It seems to me to fly in the face of the clear provisions of Section 274(2) of the Constitution as to the express power conferred on the State and Federal organs for purposes of modification where necessary. I think it is essential to reiterate that the provisions of our Constitution ought to be read as a whole. In that connection, it seems to me that in so far as modification is concerned, Sections 274(1), 274(2) and 274(4)(a) and (c) ought to be read together. See Senator Abraham Adesanya v. President of the Federal Republic of Nigeria & Anor. (1981) 5 S.C. 112 at 134. In my view, if the modification has not been done by the appropriate authority, the existing law concerned will be void if it is inconsistent with the Constitution and if not inconsistent, it will at best remain moribund in the Statute Book.

Questions 3, 4, 5 set down above as some of the questions that arise in this appeal do raise a much more fundamental issue. The appellants contended that they were not given a fair hearing before Exhibit K was made. As was mentioned, Exhibit K was made following the recommendations in the Report of Dr Agiri Exhibit F in these proceedings. Dr Babatunde Agiri was appointed by the Oyo State Government to carry out a discreet investigation into the Oluwo of Iwo Chieftaincy. It was not an open inquiry nor did it involve proceedings such as in a tribunal or court. In his report Exhibit F, he disclosed his sources of information as including-

"(ii) Minutes of Meeting held by the Commissioner for Local Government and Chieftaincy Affairs with the Oba, Chiefs and people of Iwo on the Oluwo Chieftaincy Declaration on Friday 19th July, 1974 at 10 a.m. at the Western House of Assembly Chambers.

..........

(v) My interview with the elders and representatives of the Adagunodo, Gbase and Alawusa sections of the Iwo Ruling lineage in Iwo on 26th April, 1980."

It is this last source of information that is the sore point with the appellants. The appellants are members of the OGUNMAKINDE ANDE Ruling House and OGUNMAKINDE ANDE was one of the two sons of ALAWUSA. From all the facts of this case, their case cannot be said to coincide with those of the descendants of the other son of Alawusa-Momodu, or the descendants of ALAWUSA'S brothers, ADAGUNODO AND GBASE. It is in that sense that appellants complained that by holding a meeting with representatives of these other sections to their exclusion, they were denied of fair hearing before Exhibit F and K were made. The learned trial Judge had, in dismissing the complaint of the appellants, held that they had been heard in so far as Dr Agiri made use of minutes containing their views before Exhibit F was prepared. As the appellant's counsel has put it in their brief of argument.

"the straight issue before the Court of Appeal ought to have been whether a party whose views were taken from minutes containing them can be said to be given a fair hearing if his adversary was heard orally."

In dealing with this issue, Omololu-Thomas, J.C.A. said in the lead judgment of the Court-

"It has long been settled that natural justice does not necessarily require that the hearing should be oral (vide Local Government v. Arlidge (1915) A.C. 120). It can also in my view be said by way of a general principle that there is no right to an oral hearing, unless the refusal of an oral hearing would prejudice the applicant.

..........

In the case in hand it has not been shown by the appellants that the absence of an oral hearing had in anyway prejudiced the appellants.

..........

The evidence was that Dr Agiri was to conduct a discreet research and he collected his materials from all the families concerned including Alawusa and Ogunmakinde Ande families, the latter of which as the evidence and findings disclose, is a section of ALAWUSA Family (refer to Exhibit 'F'). The three ruling houses recommended were ALAWUSA, Adagunodo and Gbase and the case of the appellants appeared to have been considered under the umbrella of Alawusa family."

To start from the end of that quotation, it is clear that any hearing given to the ALAWUSA Family did not necessarily mean that a hearing had been given to the appellants for, as earlier shown in this judgment, the interests of all the sections do not coincide. Since it is also clear that no representative of the appellants were present at the meeting Dr Agiri held at Iwo on 25th April, 1980 (representatives of the 3rd-19th respondents were rather present) could it be said that there had been no breach of the principle of natural justice i.e. the audi alteram partem Rule? In effect to accord with the principle of natural justice each party must have notice of the case he has to meet and be given an opportunity of stating his case and answering, if he can, any arguments put against it. Coopers v. Wandworth Board of Works 14 C.B. (N.S.) 180. See also Ridge v. Baldwin (1964) A.C. 40; Pillair v. City Council of Singapore (1968) 1 W.L.R. 1238 (P.C.); Mallock v. Aberdeen Corporation (1971) 1 W.L.R. 1578: (1971) 2 All E.R. 1278 (H.L.). See also the decision of this Court in Garba v. University of Maiduguri (1985) 1 N.W.L.R. 550.

In the instant case, it seems obvious that while representatives of the 3rd-19th respondents had an opportunity of being heard orally by Dr Agiri, the appellants had no such chance. Although the petitions of both sides were available to Dr Agiri, and although the minutes of the meeting the Commissioner for Local Government held with the Chiefs and Elders from all the sections were available to him, a procedure which gave one party, the 3rd-19th respondents, the opportunity in effect to orally explain their petition without a similar opportunity being extended to the appellants cannot be fair, and is indeed a breach of the principles of natural justice. Perhaps I should add that the mention of oral hearing in the circumstances of this case does not mean that there is a right to have an oral hearing. In fact where the maxim audi alteram partem applies it does not mean that the party is entitled to be heard orally. See Local Government Board v. Arlidge (1915) A.C. 120; Board of Education v. Rice (1911) A.C. 179 (H.L.); Spackman v. Commissioner of Public Works (1885) 10 App. Cas. 299. In the case in hand, oral hearing has only assumed importance because it was granted to the 3rd-19th Respondents. If Dr Agiri had contented himself with the written materials submitted by both parties, the appellants would have been unable to sustain any complaint of not being heard orally. It is established that if an administrative body reaches its decision after full inquiry but without granting oral hearing to the parties it would not mean that there has been no fair hearing. Queen v. Director of Audit (W.R.) & Ors. (1961) 1 All N.L.R. 659, 660.

In all these circumstances, it is my view that the appellants had not been treated fairly, and had not been given a fair hearing before Dr Agiri compiled his report Exhibit F. This must necessarily vitiate that exhibit and render it void. As Exhibit K was made following the recommendations in Exhibit F, I also hold that it must be vitiated and I accordingly declare it invalid. All that remains is the proper order in the light of the conclusions I have reached in this appeal. Although Exhibits F and K have been set aside, it seems clear to me that another inquiry is inevitable as the Review of the Oluwo of Iwo Chieftaincy Declaration in respect of which Dr Agiri was appointed is still outstanding. Exhibit D which is the declaration favourable to the appellants is admittedly still in force, but it would in my view be an injustice to the respondents if the appellants were not restrained from taking advantage of it pending the setting up of an inquiry.

In the circumstances, I allow the appeal and set aside the judgment of the Court of Appeal. In its place, I hereby give judgment in favour of the appellants only in terms of their claims (ii) and (iii). I hereby order that an Inquiry be instituted without further delay by the Oyo State Government with a view to establishing the Customary Law governing the succession to the Oluwo of Iwo Chieftaincy. For the avoidance of doubt, I also order that Exhibit D shall not be relied upon as a declaration on the Ruling House entitled to succession to the Oluwo of Iwo Chieftaincy until the Inquiry to which I made reference is set up and its recommendations acted upon by the Oyo State Government one way or the other.

I endorse the order for costs contained in the judgment of my learned brother, Obaseki, J.S.C.

Coker, J.S.C. I have had the advantage of a preview of the judgment just delivered by my learned brother Obaseki, J.S.C. and agree with his reasoning and conclusions and the order made in the said judgment.

It is not necessary for me to inflict upon you a repetition of the facts of the case and the issues which have been fully stated in the judgment. Suffice it to say that I agree that the trial court has the jurisdiction to make the declaration sought in the writ by virtue of Sections 6(6) (b) and 236(1) of the 1979 Constitution of the Federation of Nigeria. See Attorney-General of Bendel State v. Attorney-General of the Federation & Ors. (1982) 3 N.C.C.R.1.

I also agree that the Governor has the power as the Chief Executive of the State, to make (Exhibit K) the Declaration under Section 9(A) (3) of the Chiefs Law Cap. 19 regarding the selection of the Oluwo of Iwo Chieftaincy. The declaration was signed by Bola Ige, as Oyo State Governor, and it is immaterial that it purported to have been made by the Governor-in-Council, a body which now has no Constitutional existence or powers under the 1979 Constitution except as constituted under Section 171(1) and (5). The important consideration is that the power to make the declaration under the said law is an executive function, of which he was chief executive functionary. Under the pre-1979 Constitution of the former Western Region, executive powers were vested in the Governor-in-Council. In the present Constitution, the executive powers of the State are vested in the governor under Section 162(2) and the power to appoint State Commissioners was vested in the Governor under Section 173 and in addition has the power to assign them executive responsibilities, vide s. 174. The Chiefs Law Cap. 21 of the Laws of Oyo State was an existing law by virtue of Section 274(1) of the Constitution which is effective with such modifications as were necessary to bring it into conformity with the provisions of the Constitution. So far, there has been no textual modification to the provisions of the Law by the Governor, as the appropriate authority, as provided in subsection (2).

The Appellant complained the declaration, Exhibit F, was based on Dr Agiri's Report which proceedings were conducted in breach of natural justice, for reason that the Appellants' family were never notified of such inquiry and consequently were not given the opportunity of being heard, even though its main objective was to deprive the family of the right as the sole Ruling House of Oluwo of Iwo Chieftaincy.

The Declaration of the 17th July 1979 (Exhibit D) was made following the Apara Report. It identified Ogunmakinde Ande as the only ruling house of Iwo. The Dr Agiri Inquiry was initiated as a result of a series of petitions and protests by members of Adagunodo, Gbase and Alawusa families and others who were dissatisfied with the recommendation and approval of Apara Commission of Inquiry Report that Ogunmakinde Ande should be the only ruling house recognised for Oluwo of Iwo Chieftaincy. Dr Agiri was commissioned to conduct a discreet research into the said issue of succession of Oluwo of Iwo Chieftaincy.

I agree that Dr Agiri was not obliged to hear any oral evidence in the course of his inquiry, but if he does as he did, he ought to give the same treatment to all the parties concerned.

In his Report (Exhibit F) he stated he had interviews with representatives of the three protesting families, but there was no evidence challenging the testimony of Prince Alade Lamuye that his family was not consulted before Exhibit K was made. The declaration was based on Dr Agiri's Report. There was no evidence before the trial court that Dr Agiri informed or even invited members of the Appellant's family, the Ogunmakinde Ande family, during the course of his inquiry as he did in respect of the three other families. He ought to have informed and give the Ogunmakinde Ande family the same opportunity of hearing, irrespective of whether the hearing could have affected his recommendation one way or the other.

The final result of the inquiry was adversely to affect their position of exclusive right, as the sole Ruling House of Oluwo Chieftaincy of Iwo and to relegate it to the insignificant position of a branch of one of three ruling families of Oluwo Chieftaincy. The complaint of the Appellants therefore is justified. The injury which the family has suffered as a result of the breach is real and substantial not imaginary.

I will allow the appeal for the said reasons only. I hold that the declaration (Exhibit K) made on the 28th July 1981 was competently made by the Governor, but null and void because it was based on Exhibit F (Dr Agiri's Report). I agree that a fresh inquiry should be ordered and conducted and that all the affected parties should be given equal opportunity of hearing.

Karibi-Whyte, JSC. I have had the advantage of reading in advance the judgment of my learned brother Obaseki J.S.C. in this appeal. I agree entirely with his reasoning and also the conclusion that this appeal be allowed in part. I however, wish to make a few comments of my own in amplification of some aspects of the reasoning in the judgment. I sincerely hope that this will not lead to obfuscation but result in clarification of the reasons stated by my learned brother Obaseki J.S.C.

The issues for determination stated with so much prolixity by counsel to the Appellants can be stated concisely as follows-

(a) was the trial court right to decline jurisdiction in this matter and the Court of Appeal right to hold that it was right to do so;

(b) whether the customary law governing the appointment of the Oluwo of Iwo, is contained in Exhibit D or Exhibit K. That is whether Exhibit K contains a valid declaration of customary law.

Those three questions, are in my opinion the most important issues relevant for determination, because every other issue depends upon answers to them. The making of Exhibits D and K, involve the exercise of rights under the Chieftaincy Laws and concern the right to fair hearing in issue in this appeal.

The facts of the case are quite simple and largely undisputed. Appellants as Plaintiffs, on the 3rd March, 1982, filed a writ of summons for declaration against the Government of Oyo State and 18 Ors, that

(i) the customary law prevailing in Iwo, the Ogunmakinde/Ande Ruling House is the only Ruling House from which appointment to the Oluwo of Iwo Chieftaincy is to be made.

(ii) a declaration that the instrument dated 28th day of July, 1981, is in so far as it purports to declare the customary law prevailing in Iwo with respect to the appointment to the Oluwo of Iwo Chieftaincy is wrong and accordingly illegal and void.

Plaintiffs also sought

(iii) an injunction restraining all servants, officers and agents of the Government of Oyo State or of the Iwo Central Local Government from acting pursuant to or taking any steps to implement the aforesaid declaration registered on the 29th July, 1981.

Plaintiffs are members of the Ogunmakinde/Ande Ruling House, which is a member of the larger Alawusa family. The action was brought by Plaintiffs as members of the Ogunmakinde/Ande Ruling House. Their grievance is that relying on the report of a Commission of Inquiry, referred to as the Apara Commission of Inquiry which sat in 1977, the Government of Oyo State, accepted the recommendation and approved the declaration that the Ogunmakinde/Ande Ruling House was to be the only Ruling House in respect of the Oluwo of Iwo Chieftaincy and all the parties were so informed. The declaration which is Exhibit "D" in these proceedings was approved by the Executive Council of Oyo State on the 17th July, 1979 and was registered on the 19th July, 1979. The torrent of protests consequent upon this declaration necessitated a reconsideration of the declaration of the 17th July, 1979. To this end a Dr B.A. Agiri, renowned historian of the University of Lagos was commissioned to undertake a research into claims of those disputing the declaration in Exhibit "D" that the Ogunmakinde/Ande Ruling House is the only Ruling House in respect of the Oluwo of Iwo Chieftaincy. Dr Agiri's report which was accepted by the Government of Oyo State recommended that there were three ruling Houses, namely (a) Alawusa (b) Adagunodo (c) Gbase. The order for rotation was also recommended to follow in the same order. There is no dispute that Ogunmakinde/Ande is a part of Alawusa. The defendants deny categorically the existence of an Ogunmakinde/Ande Ruling House. Consequent upon the report of the Agiri Inquiry, the Government of Oyo State acting under Section 9A(3) now Section 10(3) of the Chiefs Law directed the Chieftaincy Committee of the Iwo Local Government to amend the Declaration in Exhibit "D" to reflect the new position that Alawusa Adagunodo and Gbase are the ruling houses and entitled to present candidates to fill the vacant Oluwo of Iwo Chieftaincy. The Iwo Local Government Chieftaincy Committee did not comply with the directive. Consequently, the Governor of Oyo State as the Chief Executive of Oyo State, proceeded in the exercise of his executive powers under Section 5(2) of the Constitution and in accordance with Section 10(3) the provisions of the Chiefs Law to amend the Declaration to reflect the new recommendation. The amended declaration reflecting the three ruling houses in Exhibit "K" in these proceedings. It is the last action resulting in Exhibit "K" that gave rise to this action for declaration and injunction. Strictly speaking the main issue before the trial Judge was whether Exhibit "K" which amended Exhibit "D", with respect to the customary law relating to the Oluwo of Iwo Chieftaincy was validly made and represented the customary law with respect to the Oluwo of Iwo Chieftaincy. It does appear to me that what was in issue is not only the correctness of the customary law but also the question of the validity of the document declaring the customary law. In dismissing the claim of the Plaintiffs, the trial Judge declined jurisdiction, holding as he did that the matter was one within the Chiefs Law, and that the powers to make declarations of customary law relating to the selection of chiefs can only be derived from the Chiefs Law and it is not a function exercisable by the court or vested in the Court." The learned trial Judge relied on Merchants Bank Ltd. v. Federal Minister of Finance (1961) All NLR. 598 as his authority.

The trial Judge considered the validity of Exhibit "K" which now contains the customary law on the Oluwo of Iwo Chieftaincy and held that although Plaintiffs were not afforded opportunity for an oral hearing during the investigation consequent upon the petitions after Exhibit "D", the inquiry being before an administrative tribunal, absence of oral hearing did not necessarily amount to a denial of the principles of natural justice-The Queen v. Director of Audit (W.R. & Ors. (1961) All NLR. 659, 660, University of Ceylon v. Fernando (1960) 1 All ER. 631, 637 were relied upon. I think it is pertinent to quote in extenso the reason of the trial Judge for holding that Plaintiff was heard even if not orally. He said, at p. 74 lines 18-30.

"Plaintiffs participated effectively in the proceedings of the Minutes of Meeting held by the Commissioner for Local Government and Chieftaincy Affairs on 19th day of July, 1974, which is Exhibit 'W' in these proceedings and that Exhibit forms part of the material used by Dr Agiri in the assignment of the discreet research into Oluwo of Iwo Chieftaincy. I cannot by any stretch of imagination see how the Plaintiffs were prejudiced in compiling the report in Exhibit 'F'. I therefore reject the submission of learned Counsel for the Plaintiffs that the requirements of natural justice were not met or that the doctrine of audi alteram partem was not involved in compiling Exhibit 'F'".

Accordingly the learned trial Judge refused to make the declaration that the Ogunmakinde/Ande Ruling House is the only Ruling House. The second reason for refusing the first declaration sought was because Plaintiff failed to prove the customary law relied upon. The Plaintiff failed because as the learned judge said, "... for a custom to be acceptable in law it must be proved by at least two witnesses. See the case The Queen v. Chief Ideliaguahan, Ozogula II, Ex-parte Chief Lewis Ekpenga reported in (1962) W.N.L.R. p. 136 a judgment of the Federal Supreme Court where at p. 137, Ademola C.J.F. (as he then was) made the following observations:

"It was of the greatest importance that native law and custom be strictly proved. It is correct that a custom is not proved by the number of witnesses called, but it is not enough that one who asserts the custom should be the only witness."

The only witness who testified before me in favour of the Plaintiffs is the second Plaintiff. No other witness confirmed the custom that Ogunmakinde/Ande should be the only recognised Ruling House for the appointment to the stool of Oluwo of Iwo. I therefore hold that the first leg of the Plaintiffs' claim must also fail on the ground of insufficiency of evidence."

Finally, the learned judge held that Exhibit "K" was validly made and in compliance with the provisions of the Chiefs Law. All the claims of the Plaintiffs failed in their entirety and were dismissed. They appealed to the Court of Appeal. Three grounds of appeal alleging errors in law were filed. The grounds ranged from the view of the trial court in declining jurisdiction on the ground that it was called upon to declare the customary law relating to the Oluwo of Iwo Chieftaincy, to the breach of the rules of natural justice in that appellants were not given a fair hearing, to the validity of the declaration dated 28th day of July, 1981. Subsequently appellants were granted leave to file and argue two additional grounds of appeal relating to the validity of Exhibits "K" which was the result of the declaration of the 28th day of July, 1981, and the views of the learned judge with respect to proof of customary law.

The Court of Appeal also dismissed the appeal, holding like the learned trial Judge that the making of declarations in respect of customary law relating to selection of chiefs is purely administrative i.e. the power is vested in the Minister. The powers can only be derived from the chiefs law and it is not a function exercisable by the Court or vested in the Court. The Court of Appeal apart from accepting this proposition went on to explain that what the learned trial Judge meant by not a function exercisable by the court or vested in the court, was "primarily exercisable by the Court or vested in the Court." It was also pointed out that although declaratory orders were within the jurisdiction of the Court under Section 236(1) of the Constitution, and that a declaratory order "with a view to determining the validity or otherwise the existence of a particular custom, in contra-distinction to the making of "Declaration" as a form of sub-legislation under the law", it was not the business of the courts to make declarations of customary laws relating to the selection of chiefs under that law. The Court of Appeal held that the exercise of this last mentioned jurisdiction was not directly related to the general jurisdiction of the Courts under Section 236(1) of the Constitution 1979. The Court of Appeal further held that "the courts will not by themselves exercise, primarily, jurisdiction with respect to those powers conferred expressly by the legislature on bodies other than the courts-outside their judicial authority under Sections 6 and 236 of the Constitution." The Court of Appeal finally concluded on this point that "At any rate, the appellants' claim did not speak of a "declaratory order" as such, but just a declaration simpliciter which may suggest to any reader the exercise of an administrative (or executive) or legislative functions under that law."

The Court of Appeal considered the question of fair hearing and argued that the inquiry was not dealing with a contest between two parties, but it was a discreet research into the Oluwo of Iwo chieftaincy with a view to ascertain the correctness of the claims of the Ogunmakinde/Ande family and that of Adagunodo. Gbase and Alawusa families. It then held that the question is not that appellants were not heard but that they were not heard orally. Considering the materials before Dr Agiri in respect of the claims of the appellants, the appellants could not have been prejudiced and therefore cannot complain. The Court concluded that

"I do not therefore for the foregoing reasons think that substantial justice requires the oral hearing of the appellants before an inquiry of the type instituted under Dr Agiri."

It was further said that the parties in this case had equal opportunities and that there was no miscarriage of justice.

The Court of Appeal considered the validity of Exhibit K and the submission that it was not validly made under Section 9(a)(3) of the Chiefs Law if appellants were not given a fair hearing during the making of the Agiri Report, which led to the making of the declaration. In affirming the learned trial Judge that Exhibit K, that is the declaration was validly made, the Court of Appeal said that the learned trial Judge was not asked "whether Exhibit K...could have been valid under Section 9(a)(3) of the Chiefs Law if the appellants had not been given a fair hearing." This was regarded now as a hypothetical issue. After conceding that fair hearing was essential to the determination of the civil rights and obligations of the Ogunmakinde-Ande family, it was held that appellants were given a fair hearing in this case. Hence it was not necessary for a further consideration of the effect on Exhibit "K" on the absence of fair hearing.

The Court of Appeal considered the validity of Exhibit K on the exercise of the power of the Governor to make the Declaration. Counsel to the Appellants' submission was that the exercise of the power was invalid and ineffectual since the necessary modification of the enabling provisions after the coming into force of the 1979 Constitution had been made to enable the appropriate authority to validly exercise the powers under Section 9(A)(3) of the Chiefs Law. After considering and analysing the provisions of S. 274 of the Constitution, the Court below came to the conclusion that there were two interpretation of Section 274 relating to application of existing law. There are those which have effect with such modifications as may be necessary to bring it into conformity with the Constitution, and the second case is where the appropriate authority is required to make the necessary textual amendments. Thus where textual amendment is necessary to bring the law into conformity with the provisions of the Constitution, unless the amendment was made the law will remain inconsistent and void. If however, the law is not inconsistent, it operates as an existing law. The Court of Appeal followed the first construction and held that the law enabling the governor to make a declaration under section 9 was saved as an existing law under section 274(1) of the Constitution. Section 9 it was held did not require express textual modifications to be effective as an existing law.

On the proof of the customary Law as to the Oluwo of Iwo Chieftaincy, the question was whether one witness alone was sufficient to prove the customary law on the selection of the Oluwo of Iwo Chieftaincy. It was held that the learned trial Judge was right in his application of The Queen v. Chief Idelia Guahan Ozogula II Ex parte Chief Lewis Ekpenga (1962) W.N.L.R. 136. Appellants appeal was dismissed. They have now further appealed to this Court on precisely the same grounds as to the Court of Appeal.

I consider it unnecessary to reproduce the grounds of appeal in this judgment. They have been reproduced in full in the judgment of my learned brother Obaseki, J.S.C. The six grounds of appeal concisely stated related to

(i) the jurisdiction of the trial High Court to make the declaration sought-Grounds 1 & 2

(ii) whether appellants had a fair hearing with respect to the inquiry resulting in Exhibit K-Ground 3

(iii) whether Exhibit K, the declaration of Customary law relating to the filling of the Chieftaincy of the Oluwo of Iwo was validly made-Ground 4

(iv) whether the trial Judge was right to hold that the evidence of one person was not sufficient to establish a rule of customary law-Grounds 5 and 6

Counsel for the Appellants has formulated ten questions for determination in this appeal. Counsel to the Respondents have adopted this formulation. Unlike the grounds of Appeal, I consider it necessary to reproduce the issues so stated verbatim.

Issues for Determination

(1) Whether the learned trial Judge declined jurisdiction to grant the relief sought by claim (1)?

(2) Whether in view of the Chiefs Law, the High Court has no original jurisdiction to grant a declaration as to the existing customary law relating to the existence of a ruling house?

(3) Whether the Court of Appeal was right in refusing to hold that the Appellants were not given a fair hearing before Dr Agiri?

(4) Whether where a party alleges the denial of a fair hearing the law requires him to go further and show the injury suffered?

(5) If questions 4 is in the affirmative, whether it is correct that the appellants have not show the injury they suffered?

(6) Whether in the circumstances of this case, the Declaration dated the 28th day of July 1981 could have been validly made under section 9 (a) (3) of the Chiefs Law if the appellants were not given a fair hearing before the declaration was made?

(7) Whether there was in existence a body known as the Governor-in-Council which could have validly made Exhibit K?

(8) Whether the Evidence Act requires the evidence of a witness with regard to traditional evidence and/or the evidence of customary law to be corroborated?

(10) Whether the Court of Appeal was right in using the fact that the 1st Appellant never testified as ground for dismissing ground 5 of the appellants' ground of appeal?

I however deem it convenient to group the questions according to their relevance to the grounds of appeal.

Jurisdiction

(1) Whether the learned trial Judge declined jurisdiction to grant the relief sought by claim (1)?

(2) Whether in view of the Chiefs Law, the High Court has no original jurisdiction to grant a declaration as to the existing customary law relating to the existence of a ruling house?

Fair Hearing

(3) Whether the Court of Appeal was right in refusing to hold that the Appellants were not given a fair hearing before Dr Agiri?

(4) Whether where a party alleges the denial of a fair hearing the law requires him to go further and show the injury suffered?

(5) If question 4 is in the affirmative, whether it is correct that the appellants have not shown the injury they suffered?

Validity of Exhibit K

(6) Whether in the circumstances of this case, the Declaration dated the 28th day of July, 1981 could have been validly made under section 9(1)(3) of the Chiefs Law if the appellants were not given a fair hearing before the declaration was made?

(7) Whether there was in existence a body known as the Governor-in-Council which could have validly made Exhibit K?

Establishment of Customary Law

(8) Whether the Evidence Act requires the evidence of a witness with regard to traditional evidence and/or the evidence of customary law to be corroborate?

Question (10) relates to ground 5 of the grounds of appeal

"Whether the Court of Appeal was right in using the fact that the 1st Appellant never testified as a ground for dismissing ground 5 of the appellants' grounds of appeal?"

I shall now discuss and answer these questions in the order in which I have indicated starting with the question relating to jurisdiction.

The Jurisdiction of the Court as to Declaration

(1) Whether the learned trial Judge declined jurisdiction to grant the relief sought by claim (1)?

(2) Whether in view of the Chiefs Law, the High Court has no original jurisdiction to grant a declaration as to the existing customary law relating to the existence of a ruling house?

The substance of grounds 1 and 2 is that the trial Court and the Court below held that the court had no jurisdiction in respect of the subject matter of the action which was seeking a declaration that "the customary law prevailing in Iwo, the Ogunmakinde/Ande Ruling House is the only Ruling house form which appointment to the Oluwo of Iwo Chieftaincy is to be made." The view of the courts below was that the declaration sought related to the selection and appointment of Chiefs under the Chiefs' Law and an administrative matter directly within sections 6 (6)(b) or 236(1) of the Constitution 1979. The Court of Appeal added the reason that the claim did not speak of a declaratory order but a declaration simpliciter.

Chief F.R.A. Williams, S.A.N. for the appellants has in his brief of argument submitted that the view of the court below restating the reason why the High Court declining to exercise jurisdiction saying that what was meant was that the learned judge primarily had no jurisdiction in respect of the declaration sought is wrong. What was submitted then meant that the trial Judge had no original jurisdiction but may have supervisory or appellant jurisdiction. Counsel contended that what was being invoked was the original jurisdiction of the Court. Counsel to the 1st 6th-9th, Respondents has supported the reasoning of the Court below relying on the authorities cited by them-Merchants Bank Ltd. v. Federal Minister of Finance (1961) All N.L.R. 598; Carttona Ltd. v. Commissioner of Works (1943) 1 All E.R. 560 at p.564; Bull v. Attorney-General for New South Wales (1916) 1 A.C. 564.

I think it is in our jurisprudence quite elementary that our High Court has always had the jurisdiction in all cases where the Plaintiff conceives he has a right, even if there is no complete and subsisting cause of action-See Guaranty Trust Co. of New York v. Hannay (1915) 2 K.B. 536. A Plaintiff in Oyo State, where this action was brought is entitled to bring the action under Order 22, rule 5 of the High Court Rules. The Court below has held that the question of the declaration of customary law is a matter within the province of the Minister and in respect of which the High Court has no jurisdiction. Reliance was placed on Merchants Bank Ltd. v. Federal Minister of Finance (1961) All N.L.R. 598 where Unsworth, F.J. said at p.599,

"In matters involving the exercise of statutory administrative power the functions of the courts begin only if and when it is alleged that the powers have not been exercised in accordance with the statute creating them."

It is clear from this dictum that it relates to the exercise of a power conferred by statute and does not refer to a mere declaration of the existence of a right. The Court of Appeal was quite correct when it stated that

"the powers to make declaration of customary law relating to the selection of chiefs can only be derived from the Chiefs law and it is not a function exercisable by the court or vested in the Court."

A declaration of the kind sought is not a declaration under the Chiefs Law which can only be made by the appropriate authority under section 4 of the Chiefs Law. The declaration sought is under section 6(6)(b) and sections 236(1) of the Constitution 1979. It is an exercise of judicial power between persons for the determination of questions as to the civil rights and obligations of such persons. It is also a civil proceeding in which the existence of a legal right falls for determination. See Attorney-General of Bendel State v. A-G of Federation & ors. (1982) 3 N.C.L.R. 1. The action for declaration, as this is a procedural device for ascertaining and determining the rights of parties or for the determination of a point of law. Actions for declarations of title under customary law are common and familiar features of our land litigation.

I am inclined to agree that where the administrative or quasi-judicial powers of the Minister are concerned, our courts would be very slow to exercise their discretion in granting declarations. However, where the declaration sought does not affect the exercise of any authority or institution of powers under an enabling statute it seems to me that there is no legal obstacle in the court exercising its jurisdiction. The attitude of the courts below lend support to the view that the jurisdiction of the court to make declarations of right with respect to Chieftaincy matters had been excluded by the vesting of the powers to make declarations as to the customary law relating to a Chieftaincy. There is nothing of that kind. Access to the courts is such a fundamental requirement of our democracy that the Constitution has provided that "... the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of judicial tribunal established by law"-See s.4(8). See A-G of Bendel State v. A-G of Federation & Ors. (supra). Accordingly if the law cannot expressly exclude the jurisdiction of the court, it cannot be impliedly do so by the mere vesting of the exercise of certain powers on another authority or institution. The jurisdiction of the courts can only be excluded by clear provisions of the Constitution, or as it is now done, by the clear words of a Decree. There is nothing in the Chieftaincy Law which suggests that the declaration of customary law could not be made in any other manner. However such a declaration made alinude will not be a declaration made in accordance with the provision of the Chiefs Law. As I have already stated, the trial Judge had jurisdiction to make the declaration sought by virtue of sections 6(6)(b) and 236(1) of the Constitution. The court below was clearly wrong to hold that it had no jurisdiction. Accordingly grounds 1 and 2 of their grounds of appeal succeed.

Fair Hearing

(3) Whether the Court of Appeal was right in refusing to hold that the Appellants were not given a fair hearing before Dr Agiri?

(4) Whether where a party alleges the denial of a fair hearing the law requires him to go further and show the injury suffered?

(5) If question 4 is in the affirmative, whether it is correct that the appellants have not shown the injury they suffered?

Grounds 3, 4 and 5 concern the complaint that there was a breach of the Constitutional provision under section 33(1) requiring fair hearing in matters involving the determination of rights of the appellants, in this case the reversal of declaration in Exhibit D that the Ogunmakinde-Ande family was the only Ruling House with respect to the Oluwo of Iwo Chieftaincy. I have already reproduced the declaration seeking to set aside as null and void the declaration dated 28th day of July, 1981 and is Exhibit "K" in these proceedings. The declaration in Exhibit K enlarged the Ruling Houses in respect of the Oluwo of Iwo Chieftaincy by inclusion of Adagunodo, Gbaase and Alawusa. Ogunmakinde-Ande family is a unit of the Alawusa Ruling House.

It is not in dispute that Exhibit "K" sought to be set aside was based on the Agiri Report, which is Exhibit "F" in these proceedings. It is also not in dispute that Dr Agiri in making his inquiry, apart from relying on documentary sources for his information, invited the 3rd-5th respondents and gave them oral hearing. It is also admitted that appellants were not given an independent or separate, or any oral hearing. On their part Dr Agiri relied on minutes of meeting held by the Commissioner for Local Government and Chieftaincy Affairs with the Oba, Chiefs and people of Iwo which were made on the Oluwo of Iwo Chieftaincy Declaration on the 19th day of July, 1974. Appellants were supposed to have been heard as part of the larger Alawusa Ruling House. In the Courts below, it was held that not giving appellants a separate oral hearing was not a breach of the rule of fair hearing because, they were heard on the platform of the Alawusa Ruling House. Furthermore since they had equal opportunities and the issue before the court was not a lis inter partes and appellants have not shown that they have suffered any injury. There was no breach of the rule of fair hearing. Counsel to the Respondents have in their briefs of argument and oral argument before us adopted this reasoning to submit that there had been no breach of the constitutional provision requiring fair hearing. It is pertinent to point out two significant facts affecting the approach of the courts below. First Exhibit "D" which is being purportedly superseded by Exhibit "K" contains the declaration that Appellants are the only Ruling House with respect to the Chieftaincy of Oluwo of Iwo. Secondly the petitioners against that declaration are the Adagunodo, Gbase, and Alawusa families, the last mentioned of which Appellants are a unit. Accordingly the object of the Inquiry into the Oluwo of Iwo Chieftaincy is to determine the claim of the Appellants to remain the only Ruling House as against the others who contend the opposite. Besides the others contend the Appellants being a Unit of Alawusa family is not separate Ruling House and can only compete for nomination with the other units of the Alawusa family. It is within the context of these premises that the claim of Appellants to be heard orally and otherwise should be considered. Thus the interest and claims of Appellants to a separate identity cannot at this stage of inquiry be subsumed under the general interest and claim of the Alawusa family which claims to represent also the Appellants. Their interests being not only divergent but competing could not conceivably be heard under the same platform either Alawusa or Ogunmakinde-Ande the Appellants. Thus having invited the Adagunodo, Gbase and Alawusa families who are claiming also to be Ruling Houses to give oral evidence before Dr Agiri, it stands to reason to extend the same invitation to the Ogunmakinde-Ande Ruling House, who claim to be the only Ruling House, and who up to that time was so recognised in Exhibit "D". Undoubtedly, the determination of the civil rights and obligations of appellants were involved in the inquiry, and they were entitled to a fair hearing. Our Court has held in Alhaji Isiyaku Mohammed v. Kano N.A. (1968) 1 All N.L.R. 424 that "fair hearing does not mean a fair trial." The Learned Chief Justice, Ademola, C.J.N. after stating that there was no difference between a fair hearing and a fair trial, went on to lay down the true test of fair hearing at p. 426 as follows-

"The true test of fair hearing is the impression of a reasonable person who was present at the trial-whether from his observation justice has been done in the case"-See also Gaji v. The State (1975) 5 S.C. 61.

The inquiry before us is clearly not a trial but the interest involved is comparable to the risk of a trial. Thus a reasonable person observing the inquiry and noting that the other parties were invited to give oral evidence and appellants were not cannot say that there was fair hearing. See also Legal Practitioners Disciplinary Committee v. Fawehinmi (1985) 2 N.W.L.R. (Pt. 7) 300. There was no evidence that the separate claim of appellants was even considered under the platform of Alawusa family. It therefore is not fair to suggest that appellants had been heard on the platform of Alawusa whose claims were inconsistent and competing with the claims of the Appellants.

The Court of Appeal appears to hold the view that observance of the rules of fair hearing was not necessary since the matter was not a lis inter partes. This is a clear misunderstanding of the protection of the right to fair hearing in s.33(2) of the Constitution 1979. It is well established common law rule that an implied duty to observe the rules of natural justice can arise even in the discharge of administrative functions where such functions directly encroach on individual interests-See Kanda v. Government of Malaya (1962) A.C. 322; L.P.D.C. v. Fawehinmi (1985) 2 N.W.L.R. (Pt. 9) 300. Section 33(2)(a) which applies without prejudice to the right to fair hearing in section 33(1) provides for an opportunity for the person whose rights and obligations may be affected "to make representations to the administering authority before that authority makes the decision affecting that person;..." Section 33(2) speaks of conferring "on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person..." the sub-section does not speak of lis inter partes, and in fact concerns powers conferred on "government" or "authority" and not necessarily a court. Thus the Constitutional protection of fair hearing in the determination of civil rights and obligations is not limited to the exercise of administrative discretions. See R. v. Birmingham City Justices (1970) 3 All E.R. 945.

The Court of Appeal in rejecting the plea of absence of "fair hearing" stated the additional reasons of failure to show that the appellants suffered any prejudice thereby. The Court said: at page 190, lines 10 to 12:

"In the case in hand it has not been shown by the appellants that the absence of an oral hearing had in any way prejudiced the appellants."

As if to emphasise the requirement of prejudice, the court went further at p. 191, lines 6 to 11 to state:

"The question is not that they were not heard but that they were not heard orally, and it seems to me that in view of representations which were taken into account, the appellants case could not have been prejudiced. If they were, there is no such evidence before the trial court. They cannot now complain."

I think it is important to emphasise that the crucial element in the application of the Fundamental Rights provisions, is that the invalidity of the proceedings complained of does not lie in the injury or prejudice to the persons affected, but by virtue of the breach itself.

See Annamuthodo v. Oilfields Workers Trade Union (1961) A.C. 945. Accordingly prejudice to the person whose right to fair hearing has been infringed is not a necessary requirement of the invalidity of the act consequent upon the breach. It is unnecessary to consider whether the result would have been the same had the complainant been heard-See Ridge v. Baldwin (1964) A.C. 40 at p. 128. The injury, if any is sought for, is the deprivation of the right itself. It is not quantifiable and so incalculable injury. Hence the only remedy is to nullify the resulting proceedings. See General Medical Council v. Spackman (1943) A.C. 627. In this appeal before us, there was in fact prejudice in that appellants lost their position granted in the Declaration in Exhibit "D" as the only Ruling House. Nothing can be greater.

Validity of Exhibit K

(6) Whether in the circumstances of this case, the Declaration dated the 28th day of July 1981 could have been validly made under section 9(a)(3) of the Chiefs Law if the appellants were not given a fair hearing before the declaration was made?

(7) Whether there was in existence a body known as the Governor-in-Council which could have validly made Exhibit K?

Exhibit "K" was a declaration made under section 9A(3) of the Chiefs Law as amended by the Chiefs (Amendment) Edict No. 16 of 1975, declaring the Customary Law regulating the selection of the Oluwo of Iwo Chieftaincy. I have already set out at the beginning of this judgment the circumstances leading to the making of Exhibit "K", on the 28th July, 1981, which was registered on the 29th July, 1981. The purpose of Exhibit "K" was to supersede Exhibit "D", and is claimed to reflect the recommendation in the Agiri Report, (Exhibit "F") for a multiple ruling house structure, and an order of rotation from Alawusa, Adagunodo, and Gbaase in the order, as stated in Exhibit "E".

Counsel to the Appellants has submitted that the declaration in Exhibit "K" is not only invalid because Exhibit "F" on which it was based violated section 33(1) of the Constitution 1979 with respect to fair hearing, but that it is invalid because the Governor who made the Declaration had no powers to do so. Whilst I agree with the first submission having arrived at the same conclusion, I do not agree with the submission that the Governor acted ultra vires.

The power of the Local Government Council, by its committee to make declarations of customary law relating to selection of chiefs is contained in section 4, Part II of the Chiefs Law, Capt. 21, Volume 1, Laws of Oyo State. Section 7(1) empowers the Executive Council to approve or refuse to approve a declaration either after an inquiry, or even without an inquiry requiring the committee to amend the declaration in any respect that the Executive Council may specify-See s. 7(2). Section 7(3) enables the Executive Council to exercise the powers of a Committee which has within six months refused to make a declaration or failed to make the declaration in the manner specified by it.

The Chieftaincy Law has vested in the Executive Council controlling powers with respect to the amendment or replacement of defective or faulty registered declarations. It seems clear to me that after considering Exhibit "F", it was considered by the Governor that Exhibit "D", which declared Ogunmakinde-Ande as the ruling house for the Oluwo of Iwo Chieftaincy was defective and faulty and accordingly required an amendment. The Iwo Local Government Council failed to make the amendment as directed by the Governor to reflect the new situation as was communicated to the Council in Exhibit "E". The Governor then decided to exercise the powers vested in the Executive Council under section 10(1) of the Chiefs Law, Cap. 21 which are as follows-

"10 (1) Where the Executive Council is satisfied that a registered declaration-

(a) does not contain a true or sufficiently clear statement of the customary law which regulates the selection of a person to be the holder of a recognised chieftaincy; or

(b) does not contain a sufficient description of the method of selection of the holder of such a chieftaincy; or

(d) is otherwise defective, faulty, or objectionable, having regard to the provisions of this Law, the Executive Council may require the chieftaincy committee which made declaration to amend such declaration in any respect that it may specify, or to make a new declaration, according as it may consider necessary or desirable in each case."

Chief F. R. A. Williams, S.A.N. for the Appellants has submitted that there was no Governor-in-Council in 1981 when Exhibit "K" was purported to have been made by the Governor-in-Council, a non-existent body. Citing and relying on Governor of Kaduna State & Ors. v. Kagoma (1982) 6 S.C. 87-95, 108-111. He submitted that the Governor was not a member of the Executive Council provided under section 171 of the Constitution when the declaration was purported to have been made. The provision of the Chiefs Law vested the power for making declarations under it on the Executive Council. Since there was no Executive Council in the 1979 Constitution, similar to the Council in existence when the Chiefs Law was enacted, and the declaration in Exhibit "F" was made without an adaptation of the provisions of section 10 of the Chiefs Law under section 274 of the Constitution 1979, the provisions of section 10(3) of the Chiefs Law, not having been adapted, the provision is not an existing law and cannot be acted upon.

The Court of Appeal had taken a different view of the construction of section 274(1)(2) with respect to the application of existing law. It was there held that the operative words in section 274(1) of the Constitution 1979 before any existing law is deemed to be a law of the legislature, the law shall have effect with such modifications as may be necessary to bring it into conformity with the Constitution. On the other hand an existing law requiring textual alterations may only have effect under section 274(2) when "the appropriate authority" had made such changes in the text of any existing law as it considers necessary or expedient to bring it into conformity with the provisions of this Constitution. It was thus held that in the absence of any inconsistency with the provisions of the Constitution the law requires no textual amendments, and its validity as an existing law remains unquestionable. The Court of Appeal held that the executive functions vested in the Executive Council by the provisions of section 9, (now section 10) of the Chiefs Law vested by operation of section 274(1) of the Constitution 1979 in the Governor without textual modification. The Court of Appeal held that the section did not require express textual modifications to be effective as an existing law.

Counsel to the Respondents have supported this interpretation of the operation of the provisions of section 274 of the application of an existing law. The construction of the section has not been treated with sufficient attention because of the two frequent recourse to it in the application of the existing law. I shall reproduce for ease of reference the relevant parts of the section which are as follows-

274 (1) Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be-

(a) an Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered to make laws; and

(b) a Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this constitution to make laws.

(2) The appropriate authority may at any time by order make such changes in the text of any existing law as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of this Constitution.

(4) In this section, the following expressions have the meanings assigned to them, respectively-

(a) "appropriate authority" means-

(i) the President, in relation to the provisions of any law of the Federation,

(ii) the Governor of a State, in relation to the provisions of any existing law deemed to be a Law made by the House of Assembly of that State, or

(b) "existing law" means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date comes into force after that date; and

I agree with the construction placed upon the provisions of the Constitution that where an existing law does not require any textual changes or modification in its application and is otherwise not inconsistent with the provisions of the constitution, it applies proprio vigore. If on the other hand the provisions of an existing law requires minor alterations to bring it into conformity with the provisions of the Constitution, the existing law shall be read with such modifications and when so read shall be deemed a law of the National Assembly or a Law of a House of Assembly as the case may be. Where however it is necessary to make any textural changes in the existing law to bring the law into conformity with the provisions of the Constitution, the "appropriate authority" will make such textual changes by way of an Adaptation Order. It is pertinent to observe that no Adaptation Order has been made in this case. In Governor of Kaduna State & Ors. v. Kagoma (supra) textual changes were not made in section 98(1) of the Local Government Law to bring its provisions into line with the provisions of the constitution and was therefore void.

The issue is whether an Adaptation Order was required to enable the application of section 10 of the Chiefs Law as an existing law. Mr Boade, relying on the provisions of section 5(2) of the Constitution 1979 has submitted, and I entirely agree, that the Governor of Oyo State was vested with Executive powers. Executive powers of the Governor extend to

"(i) the execution and maintenance of this constitution and all laws made by the House of Assembly; and

(ii) to all matters with respect to which the House of Assembly has for the time being power to make laws."

Counsel submitted that the Governor in exercise of the executive powers so vested in him by section 274(1) of the Constitution, and to bring the Chiefs Law into conformity with the Constitution, the Court should construe the powers vested in the executive Council to read vested in the Governor.

It must be conceded that the Governor under section 5(2) of the Constitution exercises total executive powers without an Executive Council. The only constitutional provision for an Executive Council in section 171 of the Constitution consists of the Commissioners and is not vested with any executive functions. The Governor is not a member of the Executive Council established in section 171(5). The Council is charged with such responsibilities for the functions of government as the Governor may direct. The Executive Council established under section 7 of the Constitution (Basic Provisions) Decree No. 32 of 1975 and the Constitution (Basic Provisions) (Transitional Measures) Decree No. 15 of 1978, which had the Military Governor and subsequently Military Administrator as the chairman, and head of the Executive Council ceased to exist on the 30th September, 1979 on the repeal of these Decrees by Decree No. 105 of 1979.

It appears on a careful reading of the provisions of the Chiefs Law that section 10 which speaks of the exercise of functions by the Executive Council its inconsistent with the provisions of the Constitution 1979 and can only be an existing law after modification or adaptation by the appropriate authority to be an existing law. In my opinion it is not necessary but desirable for an adaptation by order, to modify the provisions of section 10 to read Governor instead of Executive Council. This is because the functions hitherto vested in the Executive Council by that section are functions which the Governor can exercise by virtue of section 5(2) of the Constitution 1979. This can be done by virtue of the application of the provisions of section 274(1) and of reading the provision of section 10 of the Chiefs Law in the light of such changes. This is possible because section 274(1) has wider powers than section 274(2).

In my view Exhibit "K" made by the Governor pursuant to section 9A(3), new section 10(3) of the Chiefs Law is saved by s.274(1) as an existing law and cannot be declared a nullity because it was made by the Governor. The description that the declaration was made by the Governor-in-Council does not affect its validity. It is an established principle of our law that the validity of an act is not affected by its being erroneously or mistakenly described as having been done under the wrong law. In Falobi v. Falobi (1976) 1 N.W.L.R. 169 at p. 177 Fatayi-Williams, J.S.C. said,

"In our view if a relief or remedy is provided for any written law (or by the common law or in equity for that matter) that relief or remedy, if properly claimed by the party seeking it cannot be denied to the applicant simply because he has applied for it under the wrong law. To do so would be patently unjust."

So is the document Exhibit K in these proceedings. The making of Exhibit "K" would have been valid were it not for the fact that it was based on Exhibit "F" which did not satisfy the provisions of section 33(1) relating to fair hearing.

Evidence of Customary Law as to Chieftaincy

(8) Whether the Evidence Act requires the evidence of a witness with regard to traditional evidence and/or the evidence of customary law to be corroborated?

(10) Whether the Court of Appeal was right in using the fact that the 1st Appellant never testified as a ground for dismissing ground 5 of the appellants' grounds of appeal?

The fifth ground of appeal challenged the holding of the Court below that proof of the relevant customary law required ore than one witness. The learned Judge held and this view was supported by the Court below that as a matter of law custom should be strictly proved and that it was not sufficient for the person asserting the custom to be the only witness. Reliance for this proposition was placed on The Queen v. Chief Ideliaguahan, Ozogula II, Ex-parte Chief Lewis Ekpenga (1962) W.N.L.R. 136 at p. 137. In that case Ademola, C.J.F. considered the proof of the Native Law and Custom of the Ibo community in Sobe. The learned Judge at the trial felt unable to accept the uncorroborated evidence of the Head Chief of the Ibo Community in Sobe. The Head Chief gave evidence stating his own version of the Native Law and Custom on the point. He did not call any witness. There was no other evidence oral or documentary to support his version. The learned Chief Justice on appeal agreeing with the learned Judge said, at p. 137

"I cannot agree more with the views expressed by the learned Judge in the circumstances of this case. It was of the

greatest importance that the Native Law and Custom be strictly proved. It is correct that a custom is not proved by the number of witnesses called, but it is not enough that one who asserts the custom should be the only witness."

Although what the court in this case said was that it is not enough to accept evidence of the person who asserts the existence of custom as proof of such custom, hence the evidence of the sub-chiefs which was supported by other witness was accepted as the custom as against that of the Head Chief who was alone.

Without in the least doubting the validity of this authority, it is a little difficult to comprehend. The establishment of custom is a matter of evidence to be decided on the evidence presented to the Court in each particular case-See Angu v. Attah P.C. 1874-1928, 43; Giwa v. Erinmilokun (1961) 1 All N.L.R. 294. Where evidence of custom is cogent and reliable, the veracity of the testimony not in dispute, the credibility of the witness accepted by the court, and there is no other evidence to the contrary, the fact that evidence of custom was by a witness alone will not affect its proof. In the Ex parte Chief Lewis Ekpenga, (supra) the evidence of custom of the Head Chief rejected contradicted the evidence of custom of the sub-chiefs. I am inclined to agree with Chief Williams in his submission that the Evidence Act does not require corroboration of the evidence of a witness as to custom. As it was observed in Ex parte Chief Lewis Ekpenga (supra) at page 137, "... custom is not proved by the number of witnesses called." See also Ojemen & Ors. v. His Highness Momodu II (1983) 3 S.C. 173. Thus the authority relied upon by trial court does not support the proposition. Although the Court of Appeal came to the correct conclusion that corroboration of evidence of custom was not necessary and therefore rejecting the proposition of the trial Judge, it went on to evaluate the evidence and gave a reason different from that of the trial Judge. The Court of Appeal held that the evidence of custom was scanty, and that the trial Judge could not have been satisfied with such evidence. The Court of Appeal ought not to have taken the point suo motu, and used the point as one of the grounds for deciding the case without giving an opportunity to the parties to address it on the issue. The court was wrong in so doing. This however is different from a finding that Plaintiff in the trial court proved the customary Law relating to the claim that they were only Ruling House of the Oluwo of Iwo Chieftaincy.

On the reasons I have given in this judgement, I have come to the following conclusions in respect of this appeal.

The appeal succeeds in respect of claim 2, that is

"a declaration that the instrument dated 28th day of July, 1981 is in so far as it purports to declare the customary law prevail in Iwo with respect to the Oluwo of Iwo Chieftaincy, is wrong and accordingly illegal and void." The declaration of Customary Law in Exhibit K, regulating the appointment of the Oluwo is hereby declared null and void.

The appeal in respect of claim 1 falls because Appellants have failed to prove that the Ogunmakinde-Ande Ruling House is the only Ruling House from which appointment to the Oluwo of Iwo Chieftaincy, is to be made.

The appeal in respect of claim 2 having succeeded, Appellants are entitled injunction restraining all servants, officers, and agents of the Government of Oyo State or of the Iwo Central Local Government from acting pursuant to or taking any steps to implement the declaration registered on 29th July, 1981.

It is desirable that Appellants, that is the Ogunmakinde-Ande Ruling House and the others be heard in an Inquiry to ascertain the relevant customary law.

The judgment of the Court of Appeal is hereby set aside and the following orders are hereby made.

(1) Claim 1 stands dismissed.

(2) Claims 2 and 3 are granted.

(3) The Declaration of Customary Law dated 28th July and registered 29th July, 1981 regulating the appointment of the Oluwo of Iwo Chieftaincy contained in Exhibit K is hereby declared null and void.

A proper inquiry to form the basis of a new and proper declaration of customary law to regulate the appointment of the Oluwo of Iwo should be set in motion within a minimum to fill the vacant possession.

Appellants are entitled to costs assessed at N300.

Kawu, J.S.C.-I have had the privilege of reading, in draft, the lead judgment of my learned brother, Obaseki, J.S.C., which has just been delivered. I am in complete agreement with his reasoning and conclusions, and for the reasons given in the said judgment, I too will allow the appeal. I merely wish to add a few observations of my own on the issue of whether the appellants had had a fair hearing.

In 1977 the Government of Oyo State set up the Apara Commission to inquire into the customary law regulating the selection and appointment of the Oluwo of Iwo. The Commission made recommendations to the Government on the basis of which a declaration was made. That declaration is Exhibit "D" in this case. It was dated the 4th day of July, 1979 and registered on 19th July, 1979. It recognised the appellants' family-the Ogunmakinde Ande family as the sole Ruling House in respect of the Oluwo of Iwo Chieftaincy.

As a result of the protests received by the Oyo State Government from the Adagunodo, Gbase and Alawusa families of Iwo, the Government was obliged to appoint another Commission to enquire into the validity of Exhibit "D". The Commissioner, Dr B.A. Agiri was to conduct a discreet research into the Iwo Chieftaincy. Dr Agiri conducted the inquiry and recommended that the Oluwo of Iwo Chieftaincy should have three ruling houses-namely: Alawusa, Adagunodo and Gbase. His report is Exhibit "F" in this case. The Government accepted Dr Agiri's recommendations and another declaration was made which was registered on 29th July, 1981. It is Exhibit "K" in this case. One of the complaints of the appellants, both in the high Court and in the Court below was that before Dr Agiri made his recommendations, they were never given a hearing. This was brought out in paragraph 11 of their amended Statement of Claim, which reads as follows-

"11. The plaintiffs will contend at the trial that the proceedings of the Agiri Inquiry are contrary to natural justice, unconstitutional, illegal, null and void for the following reasons:

'The plaintiffs were not notified of such inquiry and consequently were not given the opportunity of being heard at the inquiry'."

The submission of Chief Williams was that while the Agiri report (Exhibit "F") shows that the 3rd to 5th respondents were called upon and given an oral hearing by the Commissioner, the appellants were not. It was his submission that in a contest of this nature where two parties were subjected to two different types of hearing, it could not be said that there was a fair hearing. I entirely agree with these submissions.

Narrating the sources of his information in Exhibit "F", Dr Agiri stated as follows:-

"In attempting to resolve the problem of the mode of succession from Paring to Ogunmakinde Ande, I have relied very much on information obtained from Mr Adeyemi Aremu, Ile Oosa, Kajola, Iwo at an interview in Iwo on Thursday 1st May, 1980. Mr Aremu is the head of drummers who sings the praises of the Oluwo every Friday and at traditional festivals related to the title of Oluwo. Although Mr Aremu is now old, aged about 75 years and blind, these physical disabilities did not detract from the quality of his information because his vocation places him in a very crucial position to understand the history of Iwo and the pattern and order of succession of all Oluwo.

I obtained the information from him in the presence of his eldest son, who introduced me to his father and refused to participate in the discussion. To this extend, Mr Aremu's information is the result of what he remembers and comes as direct answers to my questions.

Other sources of information available to me included-

(i) E.N.C. Dickinson Intelligence Report on Iwo District dated 1st February, 1939.

(ii) Minutes of meeting held by the Commissioner for Local Government and Chieftaincy Affairs with the Oba, Chiefs and people of Iwo on the Oluwo Chieftaincy Declaration on Friday 19th July, 1974 at 10 a.m. at the Western House of Assembly Chambers.

(iii) Notes on Dr P. C. Lloyd's 'A Comparative Study of the Political Institutions in some Yoruba Kingdoms" 1952, (B.Litt, thesis Oxford), which includes a study on Iwo political institutions. Dr Lloyd collected his information between 1948 and 1950.

(iv) Brief on the Oluwo of Iwo Chieftaincy from the office of the Governor, Oyo State, reference CB.141/8/13/049 of 1st April, 1980, and

(v) My interview with the elders and representatives of the Adagunodo, Gbaase and Alwausa sections of the Iwo ruling lineage in Iwo on 26th April, 1980."

It is clear from the above that the appellants, who were obviously affected by the inquiry, were not afforded an opportunity of being heard. That, in my view, was a clear breach of the principles of natural justice which are enshrined in Section 33(1) of the 1979 Constitution. In the circumstances the declaration contained in Exhibit "K" cannot be allowed to stand. If the principles of natural justice are violated in respect of any decision, it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision. See General Medical council v. Spackacm (1943) A.C. 627 at p.664.

It is for the above reasons and for the fuller reasons so ably stated in the lead judgment of my learned brother, Obaseki, J.S.C. that I too will allow this appeal. I abide by all the consequential orders made in the lead judgment, inclusive of the order as to costs.

Oputa, J.S.C.-I have had the privilege of a preview in draft of the lead judgment just delivered by my learned brother and presiding Justice, Obaseki, J.S.C. and I am in complete agreement with him that the appeal should be allowed. Two fundamental issues were hotly contested and vigorously agitated, namely the extent of the interpretative jurisdiction and role of this Court as the Court of the last resort and the scope of the Right to Fair Hearing. It is on these two issues that I would like to add a few comments of mine in further elaboration and amplification of the points so ably made in the lead judgment.

It may be necessary to set down the background facts of this case. Section 4 of the Chiefs Law of Oyo State, Cap.21 of 1978 empowered a committee of a competent council to "make a Declaration in writing stating the Customary Law which regulates the selection of a person to be the holder of a recognised chieftaincy." Acting under this law, the Chieftaincy Committee of the Iwo Local Government made a Declaration on the 4th day of January 1979. That Declaration was approved by the Military Administrator on the 17th day of July 1979 and registered on the 19th day of July, 1979. That Declaration was tendered in evidence as Exhibit D. In Exhibit D only one Ruling House was declared, approved, and registered namely the Ogunmakinde Ande Ruling House. It is not in dispute that the Plaintiffs/Appellants are from the said Ogunmakinde Ande Ruling House-the only Ruling House recognised as per Exhibit D.

The publication of Exhibit D opened the flood-gate of protests and petitions. The Oyo State Government in response appointed Dr Agiri as sole Commissioner and asked him to conduct a discreet inquiry into the dispute surrounding the claims and counter-claims in respect of the Oluwo of Iwo Chieftaincy. Dr Agiri's Inquiry ultimately led to the registration and publication of a new Declaration tendered in evidence as Exhibit K. In that second Declaration (Exhibit K) three Ruling Houses were identified, declared and registered namely-

(i) Alawusa

(ii) Adagunodo and

(iii) Gbase.

The only Ruling House declared and registered in Exhibit D-the Ogunmakinde Ande Ruling House-did not even appear in the second Declaration (Exhibit K).

This sparked off the present action with the Plaintiffs on the Ogunmakinde Ande claiming-

"(1) A declaration that by the customary law prevailing in Iwo, the Ogunmakinde Ande Ruling House is the only Ruling House from which appointment to the Oluwo of Iwo Chieftaincy is to be made.

(2) A declaration that the Instrument dated 28th day of July, 1981 is in so far as it purports to declare the customary law prevailing in Iwo with respect to the appointment to the Oluwo of Iwo Chieftaincy, is wrong and accordingly illegal and void.

(3) An injunction restraining all servants, officers or agents of the Government of Oyo State or of the Iwo Central Local Government from acting pursuant or to taking any steps to implement the aforesaid declaration registered on 29th July 1981."

The ensuing contest was therefore a straightforward fight between the 1979 Declaration Exhibit D and the 1981 Declaration Exhibit K. If Exhibit K is declared null and void for any reason whatsoever then the only subsisting Declaration will be the 1979 Declaration, (Exhibit D). If however the 1981 Declaration (Exhibit K) is held to have been validly made, then it will supersede the 1979 Declaration and the present Appellants will be out of Court.

The Plaintiffs lost in the Court of first instance and in the Court of Appeal, Ibadan Division, on various grounds and for various reasons. These have been fully gone into, in the lead judgment. There is therefore no need for me to repeat the arguments. Having lost in the two Courts below Plaintiffs have now appealed to the Supreme Court of Nigeria. Chief Williams, S.A.N. for the Appellants launched a two pronged attack on the 1981 Declaration (Exhibit K)-

(i) Being by a non-existent body-the Governor-in-Council-Chief Williams on the authority of Governor of Kaduna State v. Lawal Kagoma (1982) 3 N.C.L.R. 1036 submitted that Exhibit K is invalid and void.

(ii) Dr Agiri during his inquiry which ultimately led to the 1981 Declaration (Exhibit K) denied the Appellants of the Ogunmakinde Ande Ruling House their Right to a Fair Hearing.

The success of either prong will mean the success of this appeal but the consequential order will depend on which prong succeeded.

Validity of the 1981 Declaration

In the Interpretation Law of Oyo State, Cap. 52 of 1978 the expression "Governor in Council" is officially defined to mean "the Executive Council of the State." By Section 10(1) of the Chief Law of Oyo State, Cap. 21 of 1978-

"(1) Where the Executive Council is satisfied that a registered declaration-

(a) does not contain a true or sufficiently clear statement of the customary law which regulates the selection of a person to be the holder of a recognised chieftaincy or

(b) ..........

(d) is otherwise defective, faulty or objectionable the Executive Council may require the Chieftaincy Committee which made the declaration to amend such declaration in any respect that it may specify or make a new declaration, according as it may consider necessary or desirable in each case."

Following the Dr Agiri Report (Exhibit F) the Secretary to the Government of Oyo State wrote a letter (Exhibit E) dated 28th October 1980 addressed to the Secretary, Iwo Local Government, Iwo asking him to "set in motion necessary machinery to summon the meeting of the Chieftaincy Committee of the Iwo Local Government to amend the declaration soonest." The only declaration to be thus amended was the 1979 Declaration (Exhibit D). The Recommendation of the Agiri Report was-

"Any male descendant of Adagunodo, Gbase and Alawusa (who were direct sons of Olayilumi and who held the title of Oluwo in rotation) could with valid justification be appointed Oluwo. This would remove the distortion of the mode of succession to the Oluwo title caused by the reigns of Ande and Lamuye during the nineteenth century."

The Government of Oyo State by its Letter Exhibit E "approved the above recommendation of the Agiri Report and asked that a new declaration be made to reflect the Agiri Recommendations.

When no new Declaration was made as requested, Bola Ige, the Governor of Oyo State purporting to be acting in the place of "the Governor in Council" on the 28th day of July 1981 signed a new Declaration of The Customary Law Regulating The Selection To The Olawu of Iwo Chieftaincy. This new Declaration contained three Ruling Houses namely-

(1) Alawusa

(2) Adagunodo and

(3) Gbase

This new Declaration was registered on the 29th day of July 1981 and was tendered as Exhibit K. Nobody had made the signature of Bola Ige, the Governor of Oyo State, on Exhibit K an issue. It is therefore agreed on all sides that the Governor Bola Ige signed or made Exhibit K, in other words the Governor "signed Exhibit K into law" in 1981 after the coming into force of the 1979 Constitution. The first question that now arises is-Had the Governor Bola Ige on the 28th July 1981 the power under the Chiefs Law of Oyo State to promulgate, as it were, Exhibit K?

The Governor on the fact of Exhibit K purported to be acting under Section 9A(3) of the Chiefs (Amendment) Edict No. 16 of 1975. This Section is now Section 10(3) of the Chiefs Law of Oyo State, Cap. 21 of 1978 and it stipulates-

"S.10-

(3) Where a Chieftaincy Committee fails to amend a registered declaration in the respects specified by the Executive Council, or to make a new declaration, within a reasonable period of its being required so to do in accordance with Subsection (1) of this Section, the Executive Council may amend the registered declaration in respect of the recognised chieftaincy concerned in accordance with the powers conferred on the Committee under this Law" (the Italics are mine).

Surely the power, the legal ability to amend a Declaration or make a new one under S.10 above was by the Chiefs Law No. 16 of 1975 vested in the Oyo State Executive Council and not in the Governor. By 1981 when Exhibit K was made, there was no body called and known as "the Executive Council" legally competent to handle Chieftaincy issues like the making of a Declaration under the circumstances contemplated by Section 9A(3) of the Chiefs Law (Amendment) Edict No. 16 of 1975. In other words following one of the rationes decidendi of Kagoma's case supra the Executive Council Contemplated and mentioned in Section 9A(3) of the Chiefs Law (Amendment) Edict is not the Executive Council of the State referred to in Section 171(5) of the 1979 Constitution.

There has been no issue as to whether or not the Chiefs Law as amended by Edict No. 16 of 1975 is an existing law as defined by Section 274(4)(b) of the 1979 Constitution. I can therefore take it that it is accepted on all sides that Edict No. 16 of 1975 as an existing "shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution" see Section 274(1) of the 1979 Constitution. It is my humble view that one of the ways of effectuating Section 274(1) is the Governor of the or the appropriate authority acting under s.274(2) of the Constitution adapting the existing law to bring it in line with the legal reality created by the 1979 Constitution. In the case on appeal the Governor could have by order adapted Section 9A(3) (now S.10(3) of the Chiefs Law of Oyo State by saying "where ever you have Executive Council read Governor"). This he was empowered to do by S.274(2) of the 1979 Constitution. The Governor had not adapted the Chiefs Law accordingly. The only subsisting issue now is-Can the court especially the Supreme Court exercising its interpretative jurisdiction read Section 9A(3) of Law No. 16 of 1975 to reflect the present reality that the Governor of a State is the Sole Executive; that under the 1979 Constitution there is no Executive Council such as was contemplated by the 1975 Chiefs Law of Oyo State; that the Governor had power to adapt the Chiefs Law but had not done it; that Section 274(1) of the 1979 Constitution itself provides that "an existing law shall have effect with such modification as may be necessary to bring it into conformity with the provisions of this Constitution?" Modification by S.27(4)(b) includes additional, alteration, omission or repeal.

In my view the whole problem here is the interpretation of Section 274(1) of the 1979 Constitution. What for instance is the meaning of "subject to the provision of this Constitution?" What is the meaning of "an existing law shall have effect with such modification?" By Section 5(2) the executive powers of a State are vested in Governor and the maintenance of law and order is surely the most important executive responsibility of the Governor. It is a notorious fact that chieftaincy disputes if not quickly attended to, can subvert and disrupt the very foundation of peace, order and good government which were loudly proclaimed in the preamble to the 1979 Constitution. The making of a Chieftaincy Declaration thus comes under the general concept of the executive responsibility of the Governor of Oyo State. What then should be the function of the Courts in construing Exhibit K vis-a-vis the Chiefs Law of Oyo State No. 16 of 1975 and the 1979 Constitution?

The Courts always lean against a construction which will either produce an absurdity or produce an avoidable invalidity. The latin maxim is-Ut res magis valeat quam pereat-(It is better for a thing to have effect than to be made void). It is better in this case for the 1981 Declaration Exhibit K to have effect than to declare it void. Here comes the duty of the Court to carefully attend to the meaning of the expression "an existing law shall have effect with such modification as may be necessary to bring it into conformity with the provisions of this Constitution." In my humble view this Court has an obligation to construe an existing law in such a way as to make it have effect and if need be, to apply such modification necessary to make that law effective. A liberal construction of the Chiefs Law No. 16 of 1975 is necessary with a view to carrying out both the intention of the law and the intention of Section 274(1) of the 1979 Constitution. Words have to be made subservient to that intention and not contrary to it.

I do not think it was ever the intention of either the Chiefs Law No. 16 of 1975 or the 1979 Constitution to create a vacuum in the executive process. To avoid such a vacuum the Court will have to interpret Section 9A(3) of the Chiefs Law of Oyo State 1975 "with such modification as may be necessary to bring it into conformity with the 1979 Constitution." The Court will have to modify "Governor in Council" or "Executive Council" wherever they occur in the 1975 Law to read Governor. With this simple modification Exhibit K the 1981 Declaration will be saved it shall, then in the words of Section 274(1) of the 1979 Constitution, "have effect". It is therefore my view that Exhibit K, the 1981 Declaration, is not void as argued quite strongly by Chief Williams. I hold that (Exhibit K) the 1981 declaration of the Customary Law Regulating the Selection to the Oluwo of Iwo Chieftaincy is valid. All the grounds of appeal alleging the invalidity of Exhibit K merely because it was purported to have been issued by the Governor in Council or the (Executive Council), a non-existent body in 1981, are misconceived and wrong. They therefore fail.

Right to a Fair Hearing

The 1981 Declaration was attacked by Chief Williams, S.A.N. from another angle. The 1981 Declaration, Exhibit K, was sequel to and as a result of the Agiri Report tendered as Exhibit F. If there is any fundamental defect in the conduct of the Agiri Inquiry that would naturally affect his Report and consequentially affect the validity of the Declaration (Exhibit K) made as a result of and based on, the Report. The rule of natural justice rests on two pillars-twin pillars, if you please, namely Impartiality and Fairness.

Impartiality is referable to the judex himself, while Fairness relates to how he conducted his investigation. The rule of natural justice is a common law rule. Our 1979 Constitution by its Section 33(1) elevated that common law rule to a constitutional right guaranteed by the Constitution itself:

By "Section 33(1) In the determination of his civil rights and obligations ....... a person shall be entitled to a fair hearing ..... by a Court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality."

The latin maxim-Audi alteram partem expresses the fair hearing aspect of the rule. It simply means that no one is to be condemned, punished or else deprived of his property or right without an opportunity of being heard. Therefore when a person's legal right or rights and/or obligations are called in question he should be accorded full opportunity of being heard before any adverse decision is taken in relation to those rights or obligations. It is an indispensable requirement of justice that the party who had to decide shall hear both sides, giving both sides the same opportunity and according each side the same method of presenting his case. It will therefore be wrong to receive oral evidence from one side and deny the other side the privilege of adducing oral evidence. It will also be wrong to call for written statements from one side while denying the same to the other side. See Re Brook (1864) 16 C.B. (N.S.) 403 at p. 416 per Erle, C.J. See also Cooper v. Wandsworth Board of Works (1863) 32 L.J.C.P. 185 at p. 188 per Byles, J. He who shall decide anything without the other side having been heard, although he may have said what is right, will not have done what is right (see Seneca's Medea). It is here that one finds fault with the Agiri Report.

By the 1979 Declaration, Exhibit D, the Ogunmakinde Ande Ruling House of the Plaintiffs/Appellants was the only recognised Ruling House from which selection had to be made to the Oluwo of Iwo Chieftaincy. The Plaintiffs/Appellants as it were had a vested right to the selection conferred on them by Exhibit D. By the 1981 Declaration, Exhibit K, the Plaintiffs' Ruling House of Ogunmakinde Ande was obliterated from the Number of Ruling Houses. In other words the Plaintiffs lost all the rights and privileges conferred on them by the 1979 Declaration (Exhibit D). To go that far it ought to be obviously apparent from the conduct of the Agiri Inquiry that the Plaintiffs were given all the opportunity to present their case and that nothing was denied them which was allowed or made available to the other side or sides to the dispute. The Report of the Agiri Inquiry into the Oluwo of Iwo Chieftaincy Dispute was tendered as Exhibit F. Dr Agiri had access to several sources for his information. Some were written-like Intelligence Reports of District Officers; Minutes of Meetings held by the Commissioners for Local Government and Chieftaincy Affairs with Obas, Chiefs and people of Iwo on the Oluwo Chieftaincy Declaration 1974; Notes on Dr R. C. Lloyd's Comparative Study of the Political Institutions in some Yoruba Kingdoms and Briefs on the Oluwo of Iwo Chieftaincy. He got these from the Office of the Governor. Dr Agiri also consulted "A History of Iwo until the accession of Lamuye in the 1830's."

But in addition to these written sources Dr Agiri "interviewed elders and representatives of the Adagunodo, Gbase and Alawusa Sections of the Iwo ruling lineage in Iwo on 26th April 1980." (See p.3, paragraph (V) of Exhibit F). Surely the 1979 Declaration, Exhibit D, which sparked off Dr Agiri's Inquiry should have been sufficient notice to Dr Agiri that the Ogunmakinde Ande Ruling Houses at least claimed to be, not only one of the Ruling Houses, but also the only Ruling House. Why did Dr Agiri not interview "elders and representatives" of the Ogunmakinde Ande section of the Iwo Ruling lineage? It is difficult to comprehend the reasons for this rather serious omission. But whatever his reasons might have been, the appearance that justice had been done to the Plaintiffs/Appellants of the Ogunmakinde Ande Ruling House had been seriously compromised. Who knows why the Iwo Chieftaincy Committee who made the 1979 Declaration refused to make the 1981 Declaration which was the direct result of the Agiri Inquiry and Recommendations. Was it a silent protest against the Agiri Report, Exhibit F? One can only speculate. And it is dangerous and wrong to speculate in such sensitive issues like Chieftaincy disputes. Chief Williams is here batting on a very strong wicket.

I should not be understood as saying that in every administrative inquiry there ought to be oral hearing or that the absence of such oral hearing ipso facto offends the rules of natural justice or means a denial of natural justice. No, far from that. In Adeji v. Police Service Commission (1968) N.M.L.R. 102 this Court held that it is of utmost importance that an inquiry must be in accordance with the rules of natural justice but that those rules do not call for oral hearing in every case. Also in the Queen ex parte F. Qputa and Ors. v. The Director of Audit and Anors. (1961) All N.L.R. 659 the Federal Supreme Court considered a ground of appeal suggesting that a denial of an opportunity for further oral hearing is a breach of the rules of natural justice. The Court held that it was not and concluded at p. 663:

"The petition was forwarded to the Ministry on the 18th December, 1959, without any intimation that the appellants wished to supplement the document, and no further submissions were received before the decision of the Minister was communicated to the appellants on the 13th February 1960. All relevant documents were forwarded to the Minister, and there is nothing to show that the Director of Audit made further representations which required any further explanation from the appellants" (the Italics are mine).

The ratio of the above case is that an inquiry conducted wholly on documents submitted by both sides does not ipso facto offend the rules of natural justice especially if there was no request by one side or the other to make oral representations in support or in elaboration. If any further representation oral or written is received from one side then the rule of natural justice will dictate that the opposite side be asked whether it wanted to explain any points raised in the further representations made. The failure to do this will certainly offend the rule of natural justice relating to a Fair Hearing. And this is where the Agiri Inquiry erred. If Dr Agiri considered only the documents and books made available to him, that would have been fair to all concerned. But to receive oral evidence from three parties in a four cornered contest and to "interview the elders and representatives" of three contestants in the absence of the fourth contestant is to say the least unfair. It will surely be a contradiction in terms to hold that this unfairness still amounted to a Fair Hearing. I agree with Chief Williams that this unfairness will vitiate the 1981 Declaration Exhibit K, based on it. Where one party is denied an opportunity of fully presenting his case and that same opportunity was allowed the opposite party then there is a denial of the first party's right of presenting his case in detail: Stafford v. Minister of Health (1946) K.B.D.621.

In the final result and for all the reasons given above and for the fuller reasons in the lead judgment which I now adopt as mine, this appeal succeeds on the ground that the 1981 Declaration, Exhibit K, was vitiated by the fact that the Inquiry on which it was based was conducted without giving the Appellants the opportunity to fully present their case as was allowed the other contestants. The 1981 Declaration, Exhibit K, is hereby declared null and void. I order that a proper inquiry be conducted to determine the appropriate Declaration of the Customary Law to regulate the Selection to the Oluwo of Iwo Chieftaincy. There will be costs to the Appellants assessed at N300.00. I also set aside the judgment and orders of the two Courts below.

Nigeria LII

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