AMINU JINADU & 3 ORS V. SALAMI AKIYELE

Brooke, J. The claim of the Plaintiffs-Appellants was :-

“Delivery of the keys of the Iga and the paraphernalia of the Ejilu-Malaki Chieftaincy known as Iga Iduntafa which are improperly and unlawfully in the possession and control of the defendant.

“A declaration that the defendant has no right to control the Iga or to the exclusive use thereof and that he has no right to wear any emblem of the headship of the family and for to have possession of the key of the Iga. Value of the properties claimed is £50.” The Statements of Claim and of Defence are both important and read as follows :-

Statement of Claim

“1. The plaintiffs are the representatives of the four houses of the Ejilu- Malaki Chieftaincy family namely: (i) Ogunmade House (ii) Adamu House (iii) Sogba House (iv) Onilegbale House and they sue for themselves and other members of the family.

“2. The Ejilu-Malaki Chieftaincy is one of the Chieftaincies of Lagos of the Akarigberi class. “The last Chief was called Braimah Akilagun and was of the 4th House known as the Onilegbale House.

“4. The said Braimah Akilagun died about the year 1907 and since then no Chief has been appointed.

“ 5. The affairs of the family were in the hands of the elder members of the family for many years since the death of the said Braimah Akilagun.

“6. In 1940 there was a dispute among the members of the family about the selection of a Chief and when no agreement could be reached by the descendants of the Chieftaincy family the matter was postponed and the management of the family affairs was vested in a Committee appointed by the members of the family.

“7. The plaintiffs are all members of that Committee.

“8. About nine weeks ago the defendant improperly and unlawfully occupied and still occupies the Iga (official residence) of the Chief and took ~ possession of the keys thereof including the paraphernalia of the Ejilu-Malaki Chieftaincy.

“9. The defendant has assumed the control of the Iga of Ejilu-Malaki Chieftaincy with no shadow of right thereto and is improperly and unlawfully using the same. . “10. The defendant unlawfully wears and is still wearing the emblem which belongs to the head of the family of the plaintiffs.

“11. The defendant has been asked to give up possession of the key of the Iga and other paraphernalia belonging to the family but the defendant refused and still refuses to given them up.”

“Defence

“1. The defendant denies each and every allegation of fact contained in paragraph 1 of the Statement of Claim, and puts the plaintiffs to the strict proof thereof.

“2. The defendant denies paragraph 2 of the plaintiffs’ Statement of Claim.

“3. The defendant denies paragraph 3 of the Statement of Claim, and states that the said Chief Braimah Akilagun was the last Ogboni Iduntafa of Iga Iduntafa founded by the late Prince Shokun. the ancestor of the defendant.

“4. The defendant admits paragraph 4 of the Statement of Claim.

5. The defendant denies each and every allegation of fact contained in paragraphs 5, 6 and 7 of the Plaintiffs’ Statement of Claim.

“6. The defendant denies paragraphs 8 and 9 of the Statement of Claim, and says that he has been properly and lawfully elected as the Ogboni Iduntafa by the said Prince Shokun family who have the right so to do.

“7. With further reference to paragraphs 8 and 9 of the Statement of Claim the defendant says that he is a direct descendant of the said Prince Shokun (deceased), and has been duly installed and capped by Alaiyeluwa the Oba Falolu of Lagos as the Ogboni Iduntafa, according to Native Law and Custom.

“8. With reference to paragraphs 10 and 11 of the Statement of Claim, the defendant says that having been elected, installed and capped as Ogboni Iduntafa and virtually the present head of the said Shokun Chieftaincy Family, he is the only person lawfully entitled to wear the emblem, and to be in possession of the said Iga Iduntafa as well as the paraphernalia of the said Shokun Chieftaincy Family.

“9. The defendant states that the plaintiffs are not entitled to the relief sought, and will contend that the action is misconceived and should be dismissed with costs.”

The learned trial judge states in his judgment that “after hearing the case for the Plaintiffs and their witnesses Counsel for Defendant raised the question of jurisdiction submitting that by virtue of the Appointment and Deposition of Chiefs Ordinance (No. 14 of 1930) this Court had no jurisdiction to try the case. Owing to the importance of the case I decided to reserve my opinion with regard to the question of jurisdiction until such time as I had heard Defendant’s case with a view to ascertaining if there were other issues in the case which could be disassociated with the question of the Chieftaincy and I could make some decision which would settle the controversy one way or the other. Having heard Plaintiffs’ and Defendant’s case I am satisfied that the only issue before me is whether the Defendant’s appointment to the title or dignity of Ogboni Iduntafa has been made in accordance with Native Law and Custom. The occupation of the Iga, the wearing of the emblems and the possession of the paraphernalia I am satisfied cannot be separated from the title or dignity of the Chieftaincy but are part of, and wedded to the title or dignity”, and held that his jurisdiction was ousted by section 2 (2) of the Appointment and Deposition of Chiefs Ordinance, 1930 (No. 14 of 1930) as under that section the Governor is now the sole judge of the issue whether or not the appointment of a Chief has been made in accordance with native law and custom.

The contention of Counsel for the Plaintiffs both in the Court below and in this Court is that subsections (1) and (2) of section 2 of the Ordinance should be read together and that where it is only alleged that a person is the nominee of the community and that no appointment has been approved or made by the Governor the Court’s jurisdiction is not ousted. We are of opinion that subsection (2) of section 2 should not be interpreted as dependent on subsection (1), or as limited to cases where the Governor has approved a successor or made an appointment under subjection (1). The wording of subsection (2) is as wide as it possibly can be “as to whether any appointment of a chief “, and we see no reason why the words should not be given their ordinary meaning. If the legislature had intended to limit the scope of the subsection as suggested the obvious wording would have been “'as to whether any such appointment as aforesaid or similar words; but no such words were used.

We were informed by learned Counsel for the Crown, speaking on behalf of the Attorney-General, from the Bar of the Court, that at the time when these proceedings were instituted the Commissioner of the Colony, on behalf of the Governor, was actually conducting an inquiry under subsection (2) of section 2 of the Ordinance as to whether the alleged appointment of the Defendant as Chief had been made in accordance with native law and custom, but desisted upon the institution of these proceedings in Court; and we see no reason to doubt this to be the case.

We hold that the learned trial Judge was correct in his decision that his jurisdiction to try the issue as to whether or not, the alleged appointment of the Defendant as Chief was made in accordance with native law and custom was ousted by the Ordinance. But we think that the learned trial Judge was wrong in holding that that issue was the only issue before him. In our view it was only one of the issues raised in the case and we are of opinion that the learned trial Judge was wrong to hold that his jurisdiction over the whole case was ousted so that he dismissed the Plaintiffs’ claim altogether. Such dismissal clearly operates unjustly against the Plaintiffs; for, if the Governor, upon inquiry, decides against the Defendants’ claim to be properly appointed, the Plaintiffs are obviously entitled to a decision of the Court upon some such claim as they are now making; but if the present judgment of the lower Court stood they would be met by a plea of res judicata.

The claim, as has been pointed out by Appellants’ Counsel, did not raise any question of appointment of a Chief, it is the Defendant in his defence who alleged the proper appointment of himself as Chief. When' he did so, two courses were open to the Plaintiffs; they could either admit it or put it in issue, They put it in issue. Thereupon the Court’s jurisdiction upon that particular issue was ousted and in our view the proper course was to adjourn the hearing to give the Defendant an opportunity of discharging the onus, which was upon him, of proving his contention; which he could do by leading evidence that the Governor had decided the particular issue in his favour. The order of adjournment should of course make it clear that an inquiry by the Commissioner of the Colony could proceed without infringin3 the privileges of the Court. Upon resumption of the hearing in Court, with the necessary evidence before the Court as to the Governor’s decision (or, if after a reasonable time, no such evidence was forthcoming, with the position that the Defendant had failed to discharge the onus of , proving his contention) the Court would be in a position to decide the other issues raised by the claim and give judgment accordingly.

It may, perhaps, be pointed out that the present case is materially different from that of Adanji v. Hunvoo (1 N .L.R. 75) which decided (before the enactment of the Appointment and Deposition of Chiefs Ordinance, 1930) that the Supreme Court had no jurisdiction to entertain a claim which is merely to establish a title to a Chieftaincy. Here the claim is to recover possession of property, both real and personal, from a person alleged to have seized it unlawfully.

If during the necessary adjournment, the Appellants have qualms as to what use the Respondent may make of the Iga and the paraphernalia of the Chieftaincy, that is a matter that can be adequately and properly dealt with upon an application for an interim injunction or other order.

The appeal is allowed, the judgment of the Court below, including the order as to costs, is set aside, and the case is remitted to the Court below for the hearing of the suit to be continued in the manner already indicated in this judgment.

Inasmuch as the Appellants have failed in their main contentions upon appeal, the parties will bear their own costs in this Court; the costs already incurred in the Court below will he costs in the cause.