This is an appeal from a judgment of the Supreme Court in an action in which the respondents sought a declaration that the installation by the first and second appellants of the third appellant as Oluwo of Iporo Township, Abeokuta, and of the fourth appellant as Balogun of Iporo is contrary to the native law and customs of the people of Abeokuta to which the respondents and appellants both belong, and an injunction restraining the third and fourth appellants from acting as or performing any of the customary functions of the Oluwo and Balogun respectively. The learned judge in an exhaustive judgment which covered every phase of the Gase with meticulous care found for the respondents and made the declaration and granted the injunction prayed.
In the first place, it was submitted by Counsel for the appellants that the action was not properly before the Court below in that the respondents had adduced no proof that they were duly authorised to sue on behalf of that section of the Iporo community, Abeokuta, known as Iporo No.2. We are of the opinion that the approval of the Court by its Order of the 24th August, 1945, having been obtained upon an affidavit made by the first and eighth respondents and the truth of the affidavit not having been challenged or contradicted, the action was properly before the Court.
It was also submitted that the Supreme Court had no jurisdiction to entertain the action by reason of the opening words of section 12 of the Supreme Court Ordinance, 1945. this case being one in which a Native Court has jurisdiction. This point was raised before the learned trial judge who held that he nevertheless had jurisdiction. It is true that the learned judge, as alleged by one of the grounds of appeal, appears to have made a slip in finding that there was no native court entitled to exercise jurisdiction in this case. Reference to the Warrant of the appropriate Grade “A” Native Court assures us that that Court has in fact, such jurisdiction. The erroneous finding of the trial judge, however, does not affect the main question for he did not base his decision as to his assumption of jurisdiction upon this finding.
Section 12 of the Ordinance referred to defines the exercise of the jurisdiction conferred upon the Supreme Court by the preceding section and enacts that this jurisdiction shall be exercised ,. subject to such jurisdiction as may for the time being be vested by Ordinance in Native Courts “. It is contended on behalf of the appellants that by reason of these words the jurisdiction of the Supreme Court is ousted in every case in which jurisdiction is vested in a Native Court by any Ordinance. To this the respondents reply that these words bear no such interpretation and do not impose any such limitation upon the exercise of the jurisdiction of the Supreme Court-a limitation which would, it is submitted, deprive the Supreme Court of much of its jurisdiction. The adoption of any such interpretation must certainly be approached with caution and we must be at pains to construe the words used by the legislature in no other sense than that in which they express the intention of the legislature. In doing so this Court must have regard not only to the words used but also to the context in which they appear. The object of the section is patently to define the exercise of the civil jurisdiction of the Supreme Court and it provides that subject to the words under consideration this shall include the exercise of all His Majesty’s civil “jurisdiction which was or may be exercisable in Nigeria for the judicial hearing and determination of matters in difference or for the administration or control of property and persons. By a proviso to the section the exercise of this jurisdiction is limited, except in certain cases, so that the Supreme Court shall not exercise its jurisdiction in cases in which an issue is raised as to the title to land or to any interest in land which is within the jurisdiction of a Native Court or in any matter subject to the jurisdiction of a Native Court relating to marriage, family status, guardianship of children, inheritance or disposition of property on death. As was pointed out by Counsel for the respondents, if the words “subject to such jurisdiction as may for the time being be vested by Ordinance in Native Courts” are to bear the meaning placed upon them by counsel for the appellants, then there would appear to be no reason for and no meaning in the proviso, for if the Supreme Court has no jurisdiction in any matter within the jurisdiction of a Native Court then it would follow that it can have no jurisdiction in the limited classes of case referred to in the proviso. The plain meaning of the proviso is that the Supreme Court shall not exercise in limited classes of case the jurisdiction which it otherwise has power to exercise. If that be so then the meaning of the opening words of the section pressed upon us by counsel for the appellants cannot be the right meaning. So to hold would be to decide that the legislature by the proviso intended to limit a jurisdiction which the Supreme Court could not in any event exercise. Clearly there must be some other way of construing these words in order to give effect to the intention of the legislature without straining their meaning. It appears to us that no other reasonable interpretation can be given to them than that the Supreme Court shall exercise its jurisdiction subject to that of the Native Courts so that, where a Native Court was exercised or is exercising the jurisdiction vested in it by Ordinance, the jurisdiction of the Supreme Court shall not supersede it and shall not be exercised in the same matter. This is a limitation obviously desirable whosesoever there may exist courts of equal and concurrent jurisdiction within the same area and such an interpretation gives coherence to the whole section and meaning to each part thereof. We are fortified in this view by the provisions of section 42 of the Supreme Court Ordinance by which it is made clear that there is an original jurisdiction in the Supreme Court in cases in which a Native Court also has jurisdiction and which the Supreme Court may at any stage transfer to the Native Court. In our view, therefore, the first ground upon which the appellants contest the jurisdiction of the Supreme Court must fail.
It is further submitted, on behalf of the appellants, that the Supreme Court is precluded from exercising its jurisdiction in the present case on the ground that, in so far as the claim relates to pecuniary advantages accruing to the third and fourth appellants by reason of their installation as Oluwo and Balogun respectively, these advantages include rents collected from certain properties, that this raises an issue as to the title to an interest in land within the jurisdiction of a Native Court, and the jurisdiction of the Supreme Court cannot be exercised by virtue of the proviso to section 12 of the Supreme Court Ordinance. This submission is hardly consistent with submissions following thereon in the course of Counsel’s argument, but must nevertheless receive consideration. There can be no doubt that there are claims in regard to rent which do involve an issue relating to the title to an interest in the land from which the rents arise. There are also claims in regard to rent which raise no such issue and it is a question to be determined in each case as to whether or not an issue as to the title to the land or to an interest in the land is raised by the facts. In the present case it is clear that no question is raised as to the title to the land or to any interest therein from which the rent is derived. The rent is payable to a body of people and the holders of certain offices therein are entitled to a share in the distribution thereof. This right does not give them any title to an interest in the land and to title to any such interest is in issue. On this ground also the submissions as to the jurisdiction of the Court below must fail.
The next point raised is that on the authority of Adanji v. Hunvoo (1), this case is one in which the Supreme Court should have declined jurisdiction. The learned Judge gave consideration to that case and to a number of cases cited to us by counsel for the appellants and came to the conclusion that he was, nevertheless, entitled to assume jurisdiction in the present case. In the case of Adanji v. Hunvoo (1) it was held that the Supreme Court has no jurisdiction to entertain .a claim merely to establish a title to a chieftaincy. The learned Judge felt himself bound by this decision but held that, if the plaintiff were seeking a title to a position of mere honour or dignity and also pecuniary rights cognisable by the Supreme Court, then the Court must hear and determine the suit.
It was submitted that the case of Adanji v. Hunvoo (1) was approved by this Court in the case of Okupe v. Soyebo (2), when in the course of his judgment Kingdon, C.J., said” . I will only add that I entirely agree with the finding of the learned Judge in the Court below that the position of the Alaperu of Iperu is a mere dignity, a position of honour-based as that finding is upon the judgments of the Full Court in Adanji v. Hunvoo (1) ...”On the question as to whether in a case where pecuniary rights are also involved the Supreme Court can exercise jurisdiction the decision of this Court in that case is silent, and we are of the opinion that this Court should give further consideration to Adanji v. Hunvoo (1) in the light of more recent cases and more especially the judgment of the Judicial Committee of the Privy Council in Laoye and Ors. v. Ojetunde (3). Counsel for the appellants cited also Dick v. Green (4) and Essen v. Ediok (5). In the former case the Supreme Court exercised its jurisdiction in a case involving a question of title to a c4ieftaincy, but counsel seeks to distinguish this from Adanji v. Hunvoo (1) on the ground that, whereas in the latter case the claim was to title to a Chieftaincy only, in theorem the claim itself was in respect of the payment of certain taxes. In Essen v. Ediok (5) the Court declined to assume jurisdiction on the ground that the sole jurisdiction to determine the question of title involved was vested in the Governor by virtue of the provisions of the Appointment and Deposition of Chiefs Ordinance, 1930 (Cap. 12). It is not suggested in the argument before us that the same considerations apply in the present case, the learned Judge having rightly held that the titles in question do not fall within the definition of “Chief” and “Head Chief” in section 5 of Cap. 12.
Turning to Laoye v. Ojetunde (3), it appears by reference to the record in that case that the claim was in respect of the use and occupation of certain property, the right to which was vested in the holder of a certain chieftaincy. In the High Court the trial Judge while finding that the respondent was not chosen to succeed to the chieftaincy in accordance with native law and custom dismissed the action for reasons which this Court held did not apply. On appeal this Court held that the trial Court had no jurisdiction to try the action by reason of sub-section 2 of section 2 of the Ordinance upon which the decision in Essen v. Ediok (5) turned. The Judicial Committee of the Privy Council allowed the appeal and not only declared that possession of disputed property by the respondent was illegal but also went on to declare that the appellant was entitled to be appointed to the chieftaincy. Their Lordships based their opinion upon a finding that the provisions of the Ordinance referred to were not applicable to the title involved in the action.
Counsel for the appellant submits that the cases of Dick v. Green (4) and Laoye v. Ojetunde (3) are to be distingttished from Adanji v. Hunvoo (1) on the ground that whereas in the two former cases the claim was in respect of pocuniary rights or rights of property and the claim to a chieftaincy incidental thereto, the claim in the latter case was to a chieftaincy and the pecuniary rights (if any) are incidental thereto. It is to be observed that while in Adanp v. Hunvoo (1) It was contended on behalf of the plaintiff that it was clear from the special case that the title was no mere empty title but carried with it certain rights to land or property, it appears from the judgment of Packard, J., that this was uncertain. It is also to be observed that Speed, C.J, said” it may be that the chieftaincy carries with it ...some or many rights and privileges which might be made the subject of an action at law” and added” it may be that upon a claim differently stated the Court might have been forced to decide incidentally the question whether the plaintiff had been duly elected”. The view we are invited to take of the effect of all these cases is that, where the claim is for the declaration of right to a title and there is no mention in the claim of consequential relief in relation to pecuniary rights attached thereto, there is no jurisdiction in the Court to entertain the suit, but that where the claim is in respect of rights in property attaching to a title then the Court may enquire into the question of title as incidental to the determination of the claim to property. It was further argued that even in such case the Court will determine the issue of title merely as an issue of fact and will in no case make a declaration in regard to a title of dignity or honour. This last submission is clearly contrary to the judgment of their Lordships in Laoye v. Ojetunde (3) for although in that case the claim was in respect of property rights and no declaration as to title was prayed nevertheless such a declaration was made. The present issue is, therefore, narrowed to the question as to whether where the claim is confined to a declaration of title to a chieftaincy coupled with a claim for an injunction, the Court is to decline jurisdiction even though the particulars of the claim and the evidence in the case go to show that pecuniary rights are attached thereto. We think that the true distinction is rather to be found between the present case and that of Cowley v. Cowley (6), in which it was held by the House of Lords not only that in England no claim can be made to a title of honour such as was involved in that case, by reason of the fact that there is a special procedure for the determining of such rights, but also that in that case no more was involved than the mere use of a bare title there being no foundation for any suggestion that the respondent in that case laid claim to any participation or share in the earldom upon which the title used by her was founded. That is far from being the case here. The statement of claim alleges not only that the offices to which the third and fourth defendants were, properly or improperly, elected entitled their holders to certain fees and rents but also that these appellants have been acting in their respective offices. From the evidence it is made equally clear that the holders of these titles are entitled to fees, rents and other pecuniary benefit and also that by reason thereof they take part in the collection of taxes, the settlement of disputes and in looking after the Iporo township affairs. There is no question in this case of the titles claimed by the appellants being bare titles of honour or dignity such as was the case in Cowley v. Cowley (6), nor of it being uncertain whether these titles imply some rights in property as in Adanji v. Hunvoo (1) and we do not think that this Court would be doing justice to the respondents' claim were it to hold that, because there is in the Writ of Summons no specific claim in respect of the property rights attaching to the titles in question, there- fore the claim was in respect of a mere title to honour or dignity and, as such, outside the jurisdiction of the Supreme Court. The writ claims not only a declaration in regard to the title but also an injunction restraining the third and fourth appellants, not from the bare use of the titles, but from acting as and performing the customary functions of the holders thereof, while the statement of claim and the evidence alike show that by so acting and by performing such functions the holders of the titles become entitled to the pecuniary benefits and other rights and privileges flowing therefrom. We are of the opinion, therefore, that the Court has jurisdiction to entertain this suit in like manner as in the case of Laoye v. Ojetunde (3) and that the learned Judge was right in proceeding to its hearing arid determination.
The next point raised by the appellants was that the identity and interest of all the plaintiffs as representing the Iporo community known as Iporo 2 have not been proved and no right of action disclosed either in the respondents personally or as representing the community. There is evidence that all the respondents belong to Iporo No.2 Township, in approving the authority of the respondents to sue on behalf of that community the Judge who made the order was satisfied as to their being duly authorised, and the evidence discloses that, while the election and installation of these office holders is within the power of the Ogboni Society only, the nature of their duties as such affects the people of the township at large. We are of the opinion, therefore, that the respondents were entitled to bring this action to determine whether or not these office- holders had been properly installed.
We come now to the central issue in this suit: the regularity, or otherwise, of the installation of the third and fourth appellants as Oluwo and Balogun of Iporo respectively. The respondents contend that their installation was irregular by reason of the fact that notice was not given to all the chiefs entitled to notice of the holding of a meeting at which the choice of candidates for these offices was to be made. The first respondent claims that, as Base of Iporo, he was entitled to such notice in regard to the choice of an Oluwo and that the witness Raimi Moteso Bamgbola as Osi of Iporo was entitled to such notice in regard to the choice of a Balogun. The evidence shows that neither of these persons did in fact receive notice of any such meeting, and the trial Judge so found. The trial Judge also found as a fact that, by native law and custom, notice to each and every living chief of the I warefa body is an “indispensable condition precedent” to the regular choice of a candidate for a chieftaincy in that body and that notice to all Ologun chiefs is an “indispensable condition precedent” to the choice of a candidate for a chieftaincy in that body. These facts he found on the evidence of native law and custom adduced by or on behalf of both respondents and appellants. As a result of these findings the trial Judge held that the installation of the third and fourth appellants as Oluwo and Balogun respectively, were contrary to native law and custom and granted the declaration and injunction prayed.
It is admitted on behalf of the appellants, as it is indeed clear from the evidence, that notice must be given to every chief of the holding of meetings to make choice of candidates for these two chieftaincies. It is argued on behalf of the appellants, however, that, while such notice must be given, there is no evidence to show that according to native law and custom this condition precedent is indispensable nor is there evidence to show what is the consequence of failure to comply therewith. Counsel sought to find an analogy in those provisions of the Companies Ordinance where it is provided that, although notice is to be given of certain meetings to every shareholder, yet by a proviso the absence of such notice shall in certain circumstances not invalidate the proceedings at the meeting. He argued that, in the present case, the burden lay upon the respondents to prove by positive evidence that there was no similar provision by native law and custom in regard to notice of such meetings as these now under consideration. We are unable to accept any such proposition. If one party to a suit adduces evidence as to a certain provision of native law and custom it would be monstrous to require him to prove by positive evidence that there were no exceptions thereto. It is always open to the other party if such a general rule be established to show that there are exceptions thereto applicable to the case in point. In the present case the general rule was established to the satisfaction of the trial Judge upon credible and indeed undisputed evidence. No attempt was made by the appellants to show that there are any exceptions to that general rule or that the acts of the appellants fell within any such exception. When, therefore, the learned trial judge. found that due notice was an “indispensable condition precedent” to the regular election of these office-holders he meant no more than that it had been established to his satisfaction that such notice must be given and that there was no evidence to show that it might be dispensed with in any circumstances. In arriving at this conclusion we think that the learned Judge was right. In regard to the witness Bamgbola as Osi of Iporo there does not appear from the evidence to have been any reason why he should not have received notice of this meeting nor has it been argued that there was any fact disentitling him thereto.
In regard to the first respondent, however, it is submitted on behalf of the appellants that he was not entitled to notice, being at the time what has been described as a “suspended chief”. The evidence upon which this contention is based goes to show that, by reason of , disagreements between the first respondent and certain other chiefs, the latter decided to take steps equivalent to dismissing him from his chieftaincy by means of “drumming out”. It is clear, in the first place, that this is a customary method of dealing with a chief who has been guilty of an offence meriting deposition and deprivation of his title. There is ,evidence which the learned Judge accepted that, in order that a chief may be ,deposed and deprived of his title in accordance with native law and custom, there must be certain formalities, including an announcement to the community ,outside the Ogboni House, the presence of the chief to be deposed, who must be informed of his offence, the expression of opinion on the part of various persons present, and the offer to the chief to be deposed of an opportunity to pay fine. Only in such case may the formal proceeding known as” drumming out”.
Be concluded and then only with the consent of the Alake of Abeokuta as Head the Ogboni. There is no evidence to show that these formalities were complied with by those who desired and purported to depose the first respondent, although the parties alleging that he had been deposed the burden of proof of due deposition lay upon the appellants. It is admitted, moreover, that the Alake withheld his consent in the first instance and only after the “drumming out” taken place did he approve, in order, it is suggested, to maintain peace and quiet in the community. Although it may be that, if the absence of the Alake’s previous consent were the sole irregularity in the proceedings, he could by his sequent approval ratify that which had been done, it has not been proved in accordance with native law and custom the approval of the Alake can cure any defect or irregularity in the proceedings leading up to the decision he invited to approve. We are of the opinion, therefore, that the deposition of the first respondent was not in accordance with native law and custom and did not in itself disentitle him from receiving due notice of the meeting at which the third appellant was chosen for the office of Oluwo.
It was further submitted on behalf of the appellants, however, that at a meeting convened by the Alake in order to settle these unfortunate disputes, the first respondent agreed to a settlement and submitted himself to deposition or suspension of his rights as a chief. It is true that the learned judge found that, at such a meeting, the first respondent under some pressure from the Alake made apology for his past conduct and that the Alake believed that he had by this means secured a settlement of the whole matter. There were, however, certain matters still to be performed on the part of the first respondent: a public apology and the giving of a feast. With these the first respondent did not comply and on the day following the supposed settlement he informed the Alake that he was not satisfied, It is submitted that in effecting this settlement the first appellant was acting in pursuance of his duties as Alake of Abeokuta, as Native Authority under the appropriate Ordinance, and as Head of the Ogbonis and that his decision In relation thereto was final and binding upon the first respondent. The learned Judge found not only that the Alake did not in the circumstances act either judicially or executively in final disposal of the matter at issue, but that there was before him no evidence that it was within the powers of the Alake so to do. The powers of the Alake as (king or) paramount chief in accordance with native law and custom are the subject of proof by positive evidence and, no such evidence was adduced to the satisfaction of the trial judge. The powers conferred upon the Alake as Native Authority for Abeokuta, under the Native Authority Ordinance, 1943, are those vested in him by that Ordinance or by any other Ordinance or by native law and custom. The statutory powers conferred on him by the. Ordinance which it is submitted that he exercised in seeking to impose terms of settlement upon the first respondent are said to be those of “maintaining order and good government”, as provided by section 19 of the Ordinance. The wording of the section makes it clear, however, that while it is the duty of the native authority to maintain order and good government, his powers in the fulfillment of this duty are those conferred by the Ordinance or vested in him by any other Ordinance or by native law and custom. We can find nothing in the Ordinance conferring upon the Native Authority the power to enforce a “settlement” such as that put forward in the present case nor is there any evidence that by native law and custom he has any such powers. We are in agreement, therefore, with the trial Judge in his finding that the terms of settlement imposed by the Alake upon the first respondent were in no way binding and we are unable, therefore, to accept the submissions of Counsel that by reason thereof the first respondent must be deemed to have accepted his deposition or suspension and thus to have cured those defects in the proceedings which, in our opinion, render them a nullity as being not in accordance with native law and custom.
This Court is, therefore, of the upon that the learned trial Judge was right when he found that the installation of the third and fourth appellants as Oluwo arid Balogun respectively, was contrary to native law and custom.
There is, however, one further submission with which we must deal. It was submitted on behalf of the first appellant that, as a public officer, he is entitled to the protection of the Public Officers Protection Ordinance (Cap. 186) and that in so far as he is concerned these proceedings do not lie having been commenced more than three months after the date of the act complained of. It was further argued that as a Native Authority within the meaning of the Native Authority Ordinance, 1943, he is also entitled to the protection afforded by section 61 of that Ordinance and that these proceedings do not therefore lie against him in that he received no notice of action in accordance with sub- section 2 of that section and in that the action was commenced more than six months after the act complained of. It is unnecessary for this Court to decide whether the act of the first appellant was done by him in his capacity as Native
Authority or whether he comes within the protection afforded him as such, for we are satisfied that he is a person within the class protected by Cap. 186 and that the act done by him was done in intended execution of a public duty within the meaning of section 2 of that enactment. No action, therefore, lay against him in respect of the act alleged and he should have been dismissed from the suit.
In this connection it may be observed that while it is true, as contended by counsel for the appellants, that according to English practice. this defence must be specially pleaded yet by virtue of the Rules of the Supreme Court of Nigeria, Order XXXII, rule 13, it is sufficient that there should be pleaded the facts upon which it is relied to establish a special defence of this nature. These facts were sufficiently pleaded in paragraph 13 of the Statement of Defence.
It was submitted that in such case the action must be dismissed as against the other three appellants, it being argued that the first appellant was a party necessary to the proceedings and if he could not lawfully be joined then the proceedings against the others must fail. We are unable to find that this submission is well founded. It would be open to the first appellant if he desired to be joined as a party to waive the protection afforded him by the statute. If he did not choose to do so he could not be heard to complain that he was not made a party thereto, nor could his absence prejudice the trial of the issue in regard to the other appellants.
We find, therefore, that the learned Judge was right to make the declaration and grant the injunction prayed and the appeal is dismissed. The judgment of the Court below will be varied, however, by deleting so much thereof as purports to be a judgment against the first appellant and by substituting therefore judgment for the first appellant as against the respondents. As regards the costs of the first appellant, no order was made in the Court below, and in view of the fact that this appellant relied upon the Native Authority Ordinance rather than upon the protection to which we have found him to be entitled, we do not propose to make any order as regards his costs either here or in the Court below, the sole ground upon which we have allowed his appeal not having been argued there. The respondents are entitled to the general costs of this appeal as against the second, third and fourth appellants only, such costs to be taxed.
Appeal dismissed and judgment of the Court below varied.