ESHUGBAYI ELEKO Vs. OFFICER ADMINISTERING THE GOVERNMENT OF NIGERIA

JUDGEMENT

(1.) This is an appeal from a decision of the Full Court of the Supreme Court of Nigeria, which dismissed the appellant's appeal from the judgment of Tew, J., discharging what by consent of the parties was deemed to be a rule nisi for a writ of habeas corpus addressed to the respondents. The case has an unfortunate history. The appellant was ordered into custody on 8 August 1925, and though within a few hours he took every legal step to question the validity of his detention, the matter is still before the Courts and as will appear from this judgment, has still to be heard ab initio by the Supreme Court of the Colony. The case has already been before this Board on a refusal by one of the Judges, affirmed by the Supreme Court to hear an application for a rule nisi for habeas corpus on the ground that a similar application had already been heard and determined by another Judge. The Board then decided that the well-established rule that applications in habeas corpus may be made to successive Judges existed in Nigeria, and remitted the case to the Supreme Court. The early history of the applicant's abortive attempts to establish his right to liberty are narrated in the judgment of this Board delivered by Lord Hailsham on 19 June 1928, [1928] A.C. at p. 462, and need not be repeated. The application so remitted was originally made by notice of motion dated 8 December 1925. In pursuance of the order in Council it came on for hearing before Tew, J., on 15 January 1929 when it was agreed that the motion should be treated as if an order to show cause had been made. Their Lordships have recently had occasion to say in the case of Commissioner for Local Government, etc., V/s. Abdul Husain Kaderbhai, AIR 1931 PC 132, that in applications for such writs as mandamus and habeas corpus it is important that the proper procedure should be maintained, and that the actual rule or order asked for or made should be formulated. The rights of the parties are however not affected in any way in this case by the departure from strict form.

(2.) It is now necessary to state the nature of the appellant's complaint, and the circumstances in which it arose. He is the successor of Docemo, who was the ruling chief of Lagos in 1861, when he by treaty ceded Lagos to Her Majesty Queen Victoria. His precise position at the time of the order of which he complains in August 1925, is in dispute : but it is plain that in 1901 the Governor of Lagos recognized him as head of the family of Docemo in succession to one Oyekan, and it is also plain that in 1920 the Governor of Lagos regarded him with less cordiality, and by announcement in the Nigeria Gazette intimated what would be in future the relation of the applicant to the Government. In 1917 there was passed the Deposed Chiefs Removal Ordinance, which as amended in 1925 is so far as is material in the following terms : 1. This Ordinance may be cited as the Deposed Chiefs removal Ordinance. (2).-(1) When a native chief or a native holding any office under a native administration or by virtue of any native law or custom has been deposed or removed from his office by or with the sanction of the Governor, whether such deposition or removal shall have been before or after the commencement of this ordinance, the Governor may : (a) If native law and custom shall require that such deposed chief or native shall leave the area over which he exercised jurisdiction or influence by virtue of his chieftaincy or office or (b) If the Governor shall be satisfied that it is necessary for the re-establishment or maintenance of peace, order and good government in such area that the deposed chief or native shall leave such area or any part of Nigeria adjacent thereto, by an order under his hand direct that such chief or native shall, within such time as shall be specified in the order, leave the area over which he had exercised jurisdiction or influence and such other part of Nigeria adjacent thereto as may be specified in the order, and that he shall not return to such area or part without the consent of the Governor.

(3.) For the purposes of this section the following parts of Nigeria (and no others) shall be deemed to be adjacent to an area over which a deposed chief or native exercised jurisdiction or influence by virtue of his chieftaincy or office : (I) If the area is situated in the Colony: The Colony and the Provinces of Abeokuta, Ijebu and Ondo. (II) If the area is situated in one of the Provinces of Ilorin, Oyo, Abeokuta, Ijebu and Ondo: The Colony and all provinces next adjacent to the province in which the area is situated. (III) If the area is situated in any other province: All provinces next adjacent to the province in which the area is situated. (2) Any deposed chief or native who shall refuse or neglect to leave such area or part of Nigeria as aforesaid, as directed by the Governor, or who having left such area or part of Nigeria shall return thereto without the consent of the Governor, shall be liable to imprisonment for six months, and the Governor may by writing under his hand and seal order such deposed chief or native to be deported, either forthwith or on the expiration of any terms of imprisonment to which he may have been sentenced as aforesaid, to such part of Nigeria as the Governor may by such order direct. (3) An order of deportation under sub-S. (2) may be expressed to be in force for a time to be limited therein or for an unlimited time, and shall have the same force and effect as an order of deportation made under the criminal Code. By the Interpretation Ordinance, 1923, S. 3: "In every ordinance, unless there be something repugnant in any subject or context (18) 'chief' or "native chief" means any native whose authority and control is recognized by a native community."