THE RESIDENT, IBADAN PROVINCE, JOHN ADETOYESE LAOYE & TIMI OF EDE V. MEMUDU LAGUNJU

Foster-Sutton, P. This is an appeal from a decision of Ademola, J., by which he directed the issue of a Writ of Certiorari to remove into the Supreme Court, Ibadan Judicial Division, a letter of the Resident, Ibadan Province, dated the 7th December, 1946, approving of the appointment of Mr. John Adetoyese Laoye as Timi of Ede. The events which led to the present proceedings are fully set out in the judgment

appealed from and in the exhibits tendered in evidence when the appellants appeared to show cause why the writ applied for should not issue.

It is, therefore, sufficient to say that the respondent's complaint is that there I ,vas a dispute as to whether the appointment of the second appellant as Timi of , Ede had been made in accordance with native law and custom, and that the “due inquiry” required by section 2 (2) of the Appointment and Deposition of Chiefs Ordinance, 1930, as amended by Ordinance No. 20-of 1945 (now section 2 (2) of Cap. 12 of the revised edition of the Ordinances) was not held before the approval of the appointment was signified.

The first complaint of the appellants was that the procedure adopted by the respondent to initiate the present proceedings was misconceived in that an application “ for leave to apply for an Order of Certiorari out of time “ was made, when the correct procedure is by way of an ex parte motion for an order nisi to show cause, and that his failure to apply in due form vitiates the whole proceedings.

At this stage it is convenient to deal with another objection taken regarding procedure. It ,vas urged that since the appellants had been required to show cause why” an Order of Certiorari “ should not issue, the learned trial Judge erred in granting an amendment and directing the issue of a Writ of Certiorari.

While I entertain no doubt that the procedure here is governed by section 14 of the Supreme Court Ordinance and Order 34, rule 8 of the Supreme Court Rules, that is to say, that the English practice does not apply, that there was no necessity to apply for leave to apply for an Order out of time”, and that the correct procedure is to apply by way of an ex parte motion for an order nisi to show cause why a ,writ, not an order, of Certiorari should not issue, I am not prepared to accede to the proposition that the whole of these proceedings should be regarded as a nullity for want of form.

As the learned trial Judge said in his judgment when dealing with the point raised regarding the initial proceedings:” It is enough to say that the motion was argued to cover the two points; it was so treated and the Order made accordingly.”

An Order nisi was in fact granted, and although the formal Order drawn up refers to an “Order of Certiorari “ and the notice served upon the appellants pursuant to the Order does the same, I cannot think that they were prejudiced in any way by the error in nomenclature. The trial Judge did grant an application by the respondent, properly I think, for leave to amend “Order “ to” Writ “ and it was a Writ of Certiorari which he directed to issue. The action taken by the trial Judge had the merit of avoiding multiplicity of proceedings and saving 'unnecessary costs, and I do not consider that it resulted in any injustice to the appellants.

A point was also taken that the respondent wrongly referred to the Resident's letter of 7th December, 1946, as an “Order “, when in fact it was “ merely an approval “. However described, the appellants could have been left in no doubt to the identity of the document referred to, and a further complaint that the material before the Court on the initial proceedings was insufficient to warrant e making of an order nisi is, in my opinion, equally without substance.

Copies of the judgments of this Court and of the Judicial Committee of the Privy Council in the previous proceedings regarding this dispute, Memudu unju v. Olubadan-in-Council and Another, were admitted in evidence in the Court below by consent, and the judgment of Jibowu, J., in the same proceedings tendered by the respondent's counsel in order to establish the fact that the Supreme Court had already held that there had been no “due inquiry”. The tender was not objected to and the judgment was duly admitted as exhibit “D”. The first appellant's counsel urged that there was nothing before the Court low to indicate that no “due inquiry “ had been held, that the Resident was not a party in the previous proceedings, that no portion of them could be used to establish anything against him, and that there was accordingly no evidence upon which a writ could properly issue against him.

It is true that the first appellant was not a party in the earlier proceedings, but he gave evidence in the case before Jibowu, J., during the course of which he admitted that he had not held an inquiry.

When dealing with this aspect of the matter in their judgment in the previous case their Lordships of the Judicial Committee said at pages 399 and 400 (1952) A.C “The Resident was fully aware that there was a dispute, for he had been present at meetings when the Olubadan-in-Council had discussed the points in issue, and in his evidence he did not attempt to make the case that his counsel tried to make for him. His position was that an inquiry had been held on 19th July, 1946. On that date there took place one of the meetings of the Olubadan- in-Council at which the dispute was discussed in the Resident's presence. But the Resident held no inquiry on that date. It was not till five months later that the second respondent's name was submitted for approval. It was then that an inquiry by the Resident should have been held, and admittedly there was none.”

As I have already said, the judgment of Jibowu, J., was tendered .for the purpose of establishing the fact that no due inquiry had been held, and it seems to me that the proper time to have taken the point was when the judgment was tendered. I am also of the opinion that the other judgments were tendered in evidence for the purpose of using them to establish any matters the parties wished to rely upon. In the circumstances here a most convenient procedure to adopt.

There would have been no point in tendering them in evidence if they were merely to be used as authorities in support of legal submissions. It follows that, in my view, there was material before the trial Judge upon which he could base I an order for the Writ of Certiorari to issue.

Counsel for the appellants also submitted that the present proceedings could have been taken immediately after the Resident's letter of 7tb December, 1946, had been written, that it was no fault of the appellants that the previous proceedings turned out to be misconceived, that after this long delay undue hardship will be created if the writ is allowed to issue, particularly in the case of the second appellant, and that the learned trial Judge wrongly exercised his discretion in acceding to the respondent's application. In support of this submission counsel referred to a passage which occurs in the last sentence of the penultimate paragraph of the Board's judgment, to which I have already referred, but the passage in question has no real relevance to the point under consideration here. In the case before the Board there appears to have been a last minute request for relief which had not been asked for before, and their Lordships held that it would be unfair to the respondent to grant the appellant relief which he sought for the first time during the last stages of the hearing of the appeal before them.

I consider there is substance in the submission that the second appellant will suffer hardship if the judgment of the Court below is upheld, but it is of the highest importance for the welfare and contentment of the people in the area concerned that the Resident should strictly adhere to the requirements attaching to his exclusive jurisdiction conferred by section 2 (2) of the Appointment and Deposition of Chiefs Ordinance. To do otherwise would amount to a denial of justice to interested parties such as the respondent who had a right to be heard.

The exercise of a discretion may, of course, be reviewed by this Court on appeal but it is the' practice not to interfere if the discretion has been judicially exercised, that is to say, bona fide and not arbitrarily or illegally, and without reference to extraneous considerations, even although we might feel in any case that the course ultimately adopted by the Court below is not the one we would have taken.

In this case I am of the opinion that the learned trial Judge did exercise his discretion judicially. He obviously gave the matter careful consideration, and I am not prepared to say that the conclusion he reached was wrong.

Finally, it was contended on behalf of the appellants that the Court can only remove before it matters it can determine, and that section 3 of the Chieftaincy Disputes (Preclusion of Courts) Ordinance, 1948, expressly excludes the jurisdiction of the Courts in matters such as this.

The relevant part of the section in question reads as follows: “Notwithstanding anything in any written law contained whereby or whereunder jurisdiction is conferred upon a Court, whether such jurisdiction is original, appellate or by way of transfer, a Court shall not have jurisdiction to entertain any Civil Cause or matter instituted for:-

“(a) the determination of any question relating to the selection, appointment, installation, deposition or abdication of a Chief”.

In order to answer this question it is necessary to determine whether it was the I: intention of the legislature to exclude the jurisdiction of the Courts to entertain proceedings of any kind by means of which the public or persons interested may I seek to ensure that the duty to hold due inquiry, imposed upon the Resident by section 2 (2) of the Appointment and Deposition of Chiefs Ordinance, is carried out by him.

The long title of the Chieftaincy Disputes (Preclusion of Courts) Ordinance reads: “An Ordinance- to preclude the hearing and determination of Chieftaincy Disputes from certain Courts both in original and appellate jurisdiction.” In my view proceedings by way of certiorari taken with the object of compelling the executive to perform its quasi judicial function of holding due inquiry, cannot be said to be a cause or matter instituted for the determination of any question relating to the selection or appointment of a chief within the meaning of the Ordinance. It determines no question relating to the selection or appointment, it is merely a means of compelling the performance of a statutory duty, and I do not think it was the intention of the legislature to deprive the subject of this common law right, nor do I think that the Ordinance doe so.

For the reasons I have given I would affirm the decision of the Court below and dismiss this appeal. The respondent to have his costs on the appeal fixed at £45 7s. 0d.

de Comarmond, Ag. C.J., Nigeria. I concur. Coussey,J.A. I concur.

Appeal dismissed.