BALOGUN & ORS v. OYINLOYE & ORS
(2020)LCN/14343(CA)
In The Court Of Appeal
(ADO-EKITI JUDICIAL DIVISION)
On Wednesday, June 10, 2020
CA/EK/11/2019
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
Fatima Omoro Akinbami Justice of the Court of Appeal
Paul Obi Elechi Justice of the Court of Appeal
Between
- HIGH CHIEF S. O. BALOGUN (The Onirefin Of Irefin Quarters, Isan-Ekiti) 2. HIGH CHIEF I. O. OYEBI (The Arusin Of Ogilolo Quarters, Isan-Ekiti) 3. HIGH CHIEF ADEBAYO ALABI (The Olu Of Ilusajumu Quarters, Isan-Ekiti) 4. HIGH CHIEF R. O. FATOKI (The Adara Of Adisa Quarters, Isan-Ekiti) 5. HIGH CHIEF LATEEF SALIU (The Ejimoko Of Abudo Quarters, Isan-Ekiti) 6. HIGH CHIEF S. A. OLADIMEJI (The Obaisa Of Ilale Quarters, Isan-Ekiti) APPELANT(S)
And
- CHIEF KEHINDE DADA OYINLOYE (Aworo Onisan) (For Himself And On Behalf Of Aworo Onisan Chieftaincy Family Of Petu, Oke Isan, Isan-Ekiti) 2. CHIEF MICHAEL OGUNDIPE OLUWASIKU (Aworo Oloke) (For Himself And On Behalf Of Aworo Oloke Chieftaincy Family Of Igbomoji Quarters, Isan-Ekiti) 3. THE SECRETARY, OYE LOCAL GOVERNMENT 4. HON. COMMISSIONER FOR LOCAL GOVERNMENT & CHIEFTAINCY MATTERS, EKITI STATE. 5. THE HONOURABLE ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, EKITI STATE. 6. THE GOVERNOR, EKITI STATE RESPONDENT(S)
RATIO
DEFINITION OF A STATUTE BARRED LEGAL ACTION
An action is said to be statute barred when the claim is no longer legally enforceable owing to a prescribed period of limitation having elapsed. As has been equally defined, a statute barred legal action is one which cannot be brought to trial in civil Court because too much time has passed. An action is statute barred if it is instituted outside the prescribed statutory period within which the suit ought to have been commenced after the cause of action accrued. PER ORJI-ABADUA, J.C.A.
DEFINITION OF THE TERM “CHIEFTAINCY DECLARATION”
It may be necessary at this juncture to appreciate the connotation of the term “Chieftaincy Declaration” and on this footing, I turn to the decision of the Supreme Court in the case of Governor of Oyo State vs. Folayan (1995) 8 NWLR Part 413 page 292, the apex Court in deciding the connotation of the term “Chieftaincy Declaration” said that: “By Section 4(2) of the Chiefs Law. Cap. 21 Laws of Oyo State 1978, a Chieftaincy Declaration is a statement of the customary law relating to the appointment etc of a recognized Chief. It follows therefore, that any question relating to such a declaration is a chieftaincy question. See Enwezor v. Onyejekwe & Ors (1964) NSCC 9; Chief Abaekere, the Arinmo & Ors v. The Minister for Chieftaincy Affairs Western Nigeria & Ors (1963) WNLR 53 HC affirmed by this Court in SC.606/64 on 4th May, 1966.” The same Supreme Court in another case, that is, Mafimisebi vs. Ehuwa (2007) 2 NWLR Part 1018 page 385 in determining whose responsibility is it to make the declaration, then enshrined that “…From the decided cases, the function of making chieftaincy declarations lies with the executive arm of the State Government concerned and is usually exercised by a chieftaincy committee on behalf of that government.”PER ORJI-ABADUA, J.C.A.
WHETHER OR NOT THE FUNCTION AND RESPONSIBILITY OF MAKING CHIEFTAININCY DECLARATIONS RESTS WITH THE EXECUTIVE ARM OF THE STATE GOVERNMENT
Also in Olanrewaju vs. Oyesomi (2014) 11 NWLR Part 118 page 258, the Supreme Court in deciding on whom lies the function/responsibility of making chieftaincy declarations held that “It is also settled law that the duty/function/responsibility of making chieftaincy declarations lies with the executive arm of the relevant state government and is usually exercised by a Chieftaincy Committee on behalf of that government and where a declaration in respect of a recognized chieftaincy is validly made and registered, the matter therein stated is deemed to be the customary law regulating the selection of a person to be the holder of the recognized chieftaincy to the exclusion of any other customary usage or rule. The declaration is therefore in the eyes of the law, the tradition, customary law and usages pertaining to the selection and appointment to a particular chieftaincy stool which, of necessity, dispenses with the required need of proof by oral evidence of the relevant custom, tradition and usages each time the need arises to determine the matter/succession to the stool or throne or chieftaincy title.” “Chieftaincy Declarations came into existence to stop the need for frequent calling of evidence in proof of the customary law and traditions of the people in relation to any particular recognized chieftaincy title/stool or throne. The purpose of a registered Chieftaincy Declaration is to embody in a legally binding written statement of fact, the customary law of the relevant area in which the method of regulating the nomination and selection of a candidate to fill a vacancy is clearly stated so as to avoid uncertainty: Olowu v. Olowu (1985) 3 NWLR (pt. 13) 372; Agbai v. Okogbue (1991) 7 NWLR (pt. 204) 391; Mafimisebi v. Ehuwa (2007) 2 NWLR (pt. 1018) 385.” PER ORJI-ABADUA, J.C.A.
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): The Respondents instituted an action before the High Court of Ekiti State on the 25th April, 2018 via a Writ of Summons filed alongside a Statement of Claim wherein they claimed against the Appellants thus:
“(a). A declaration that by history, customs and tradition of Isan Ekiti, the 1984 Onisan of Isan Ekiti Chieftaincy Declaration wrongly procured without the knowledge of the Claimants and which the Claimants became aware of in 2016 does not reflect the history, customs and tradition with respect to the Kingmakers for the selection, appointment and installation of Onisan of Isan Ekiti.
(b). A declaration that by history, customs and tradition of Isan Ekiti, the authentic Kingmakers to Onisan of Isan Ekiti are the Iwarapamefa which include the Aworo Onisan, Aworo Oloke, Ejio Olua, Baapoo (Ibapo), Balomi and Baidu and not the first to sixth Defendants.
(c). An Order setting aside the Onisan of Isan Ekiti Chieftaincy Declaration Registered on 23rd October, 1984 which Declaration recognised first to sixth Defendants as Kingmakers to Onisan of Isan Ekiti.
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(d). A Declaration that by history, customs and tradition of Isan Ekiti, the 1960 Registered Onisan of Isan Ekiti Chieftaincy Declaration is the relevant Chieftaincy Declaration with respect to the identity and numbers of the Kingmakers for the selection, appointment and installation of Onisan of IsanEkiti.
(e) An Order directing the seventh to tenth defendants not to recognise or deal with the first to sixth Defendants as Kingmakers to the Onisan of Isan Ekiti Chieftaincy.
(f). A Perpetual Injunction restraining the first to sixth Defendants from parading themselves or acting henceforth as Kingmakers to the Onisan of Isan Ekiti Chieftaincy.
Upon being served with the originating processes, the 1st to 6th Defendants and the 7th to 10th Defendants filed their Memorandum of Conditional Appearance dated the 14th May, 2018 and 22nd May, 2018 respectively. Then on the 13th June, 2018, the 1st to 6th Defendants filed a Motion on Notice praying for an Order dismissing the Claimants’ suit for want of jurisdiction and competence on the grounds that the suit as presently constituted is statute barred, incompetent and discloses no reasonable cause
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of action. The action is speculative, hypothetical, pre-emptive, frivolous and vexatious. The same was buttressed by an affidavit of 24 paragraphs deposed to by the 1st Defendant with some documents attached thereto as Exhibits. The Claimants responded by filing a counter-affidavit of 18 paragraphs sworn to by the 1st Claimant. The 7th to 10th Defendants equally raised an objection to the institution of the case by filing a Notice of Preliminary Objection on the 4th July, 2018 basically on the reasons that the Court lacked jurisdiction to entertain the action, the action is statute barred, the action is wrongly commenced by Writ of Summons, the action is abuse of Court process and the action is grossly incompetent. The same was also supported by an affidavit of 27 paragraphs deposed to by one Omotoso Bukola Helen, a Higher Executive Officer II in the Ministry of Local Government Community Development and Chieftaincy Affairs with some Exhibits annexed thereto. The 1st to 6th Defendants filed their Statement of Defence on the 18th July, 2018.
The said objections were heard and at the end of which the lower Court delivered its ruling on the 13th December,
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2018 overruling the objections respectively raised by the two sets of Defendants. It opined that in view of the averments in paragraphs 34, 35, 36, 37, 38 and 39 of the Statement of Claim and particularly in view of the decision of the Supreme Court in the case of Sifax Nig. Ltd vs. Migfo (Nig.) Ltd (supra), it agrees with the learned Counsel for the Claimants/Respondents that when an action like the instant action is based on concealment, it will postpone the limitation period. The lower Court adopted the said decision of the Supreme Court and held that the aforementioned paragraphs took the case out of the ambit of Section 4 (1) (a) of the Limitation Law of Ekiti State, 2012 and therefore not statute barred. It then assumed jurisdiction to hear and determine the suit.
The 1st to 6th Defendants were displeased with the said ruling that they filed their Notice of Appeal challenging the same, on the 24th December, 2018. The record of appeal was transmitted to this Court on the 13th February, 2019. Then on the 27th March, 2019, the Appellants’ Brief of Argument was filed wherein the Appellants projected a lone issue, that is to say:
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“In view of the Writ of Summons and Statement of Claim filed by the 1st and 2nd Respondents in this case, coupled with the decision of the Supreme Court in the case of Sifax (Nig.) Ltd & 4 Ors vs. Migfo (Nig.) Ltd & 1 Anor (2018) 9 NWLR Part 1623 page 138, was the lower Court right when it held that it had the requisite jurisdiction to entertain suit No. HAD/37/2018 on the ground that the said suit was not statute barred?”
The Appellants’ learned Counsel, Ebenezer Gbenga Alabadan, Esq., had contended that the claims of the 1st and 2nd Respondents herein before the lower Court being tortuous in nature, ought to have been instituted within six years from the date of accrual of the cause of action as was prescribed by the provisions of Section 4(1)(a) of the Limitation Law, Cap 61, Laws of Old Ondo State of Nigeria, 1978 (as was then applicable to Ekiti State), now (Section 4 (1)(a) of the Limitation Law, Cap L9, Laws of Ekiti State, 2012). It says actions founded on simple contract or on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued. He reproduced the six reliefs sought by the 1st
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and 2nd Respondents and submitted that the fulcrum of the 1st and 2nd Respondents’ action is a direct attack on the 1984 Onisan of Isan Ekiti Chieftaincy Declaration which was made by the Ekiti North Local Government Committee, then approved, published and registered on the 23rd October, 1984 wherein the Appellants were recognised as the authentic Kingmakers to the Onisan of Isan Ekiti Chieftaincy title or stool. He argued that the since the Claimants’ action is founded on tort, the same ought to have been instituted in 1984 or within the next six years counting from the 23rd October, 1984 and since it was not so instituted it is statute barred having been commenced almost about 34 years from the date of accrual of cause of action. He cited the cases of Okenwa vs. Military Governor, Imo State (1997) 6 NWLR Part 507 page 154; Bala Hassan vs. Baba Giwa Aliyu (2010) 42 NSCQR 139; Adekoya vs. Federal Housing Authority (2008) All FWLR Part 434 page 1452 at 1458; and Tonimas (Nig.) Ltd vs. Chigbu (2001) 15 NWLR Part 736 page 259 at 268 and stated that in determining the period of limitation, the Court has to examine the Writ of Summons and Statement of
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Claim to ascertain when the cause of action arose. He further pointed out that it is the substantive law existing at the time the cause of action arose that governs the determination of the action and the rights and obligations of the parties even if the law has been amended or changed. Also, it is the existing law at the hearing of a case whether at the trial or at the appeal, that governs the determination of the case whether the case was instituted or filed before or after the enactment of the procedural law. He said that in view of that, the applicable laws are provisions of Section 4(1)(a) of the Limitation Law, Cap 61, Laws of Old Ondo State of Nigeria, 1978 (as was then applicable to Ekiti State), now (Section 4 (1)(a) of the Limitation Law, Cap L9, Laws of Ekiti State, 2012) and Sections 1(2), 3(5), 4(1) and (2), and 5(1) of the Chiefs Edict, 1984 and the provisions of Chiefs’ (Amendment) Edict, 1991 which came into force on the 1st January, 1984 and 3/1/1984 respectively but now (The Chiefs Law, Cap. C5, Laws of Ekiti State). He reproduced the contents of the sections of the said Chiefs Edict, 1984 mentioned above which made it clear that the
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Committee of a Local Government Council Area may, and shall, if so required by the member of the Executive Council charged with the responsibility for chieftaincy affairs, make a declaration in writing stating the customary law which regulates the selection of a person to be the holder of a recognised chieftaincy. Every Declaration of the Committee approved by the Executive Council and every Declaration made by the Executive Council shall be registered and kept in a safe custody by such officer as the Military Governor may direct. And no Declaration shall come into effect until it is registered.
Learned Counsel then contended that the combined reading of the said sections reveals that it is the primary duty of the Executive Council to make Chieftaincy Declaration such as the 1984 Onisan of Isan Ekiti Chieftaincy Declaration which the 1st and 2nd Respondents are challenging. He stated that it is not the business of the Court to make Chieftaincy Declarations or customary law relating to the rules or methods of selection of Chiefs under the Chiefs Law. The duty of the Court is to make findings of what the customary law is and then apply it. He made
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reference to the decisions in Ikine vs. Edjerode (2002) ALL FWLR Part 92 page 1775-1802; Ode vs. Balogun (2002) ALL FWLR Part 115 page 693, per Aderemi, JCA (as he then was); where it was stressed that that the invitation to the Court by the reliefs sought, is to make pronouncement contrary to the declaration. It is an abuse of Court process. He further referred to the case of Mil. Administrator of Ekiti State vs. Aladeyelu (2007) 14 NWLR Part 1055 page 619 at 652-653 where the Chieftaincy Declaration relevant to the fact of the case was not registered until the 19th September,1995 and it was held that the lower Court was right in holding that the action was not statute barred, the same having been instituted on the 2nd November, 1995 following the registration of the offensive Chieftaincy Declaration on the 19th September, 1995 less than a month after the cause of action arose. The recommendations of the Morgan’s Commission remains a recommendation whether made in 1981 or later just as the Government White Paper therein. They remain as papers until registration which gives them life and the respondents a cause of action. Learned Council again relied on the case
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of Imonikhe & Anor vs. A. G., Bendel State & Ors (1992) 7 SCNJ Part 1 page 197 in which the Supreme Court stated that when such a declaration is duly made and registered, it becomes the Constitution and embodiment of the entire custom of the town with respect to chieftaincy matters to the exclusion of any other customary rule or usage.
Learned Counsel then submitted that by the 1984 Onisan of Isan Ekiti Chieftaincy Declaration which was duly registered, all previous Chieftaincy Declarations like that of the 1960 Onisan of Isan Ekiti Chieftaincy Declaration shall become void. He then contended that upon the registration of the 1984 Onisan of Isan Ekiti Chieftaincy Declaration on the 23rd day of October , 1984, the previous 1960 Onisan of Isan Ekiti Chieftaincy Declaration became void and of no effect whatsoever. Therefore, the cause of action to challenge the validity of the 1984 Onisan of Isan Ekiti Chieftaincy Declaration accrued to the 1st and 2nd Respondents in the substantive suit on the 23rd day of October, 1984. Consequently, the failure of the 1st and 2nd Respondents to institute their action within the period of six(6) years immediately
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after the registration of the 1984 Onisan of Isan Ekiti Chieftaincy Declaration, rendered their action statute barred meaning that their right to enforce the action is totally lost as the jurisdiction of the Court to entertain the same is totally lost. He further referenced the cases of Eboigbe vs. NNPC (1994) 6 SCNJ 218; Aremo II vs. Adekanye (2004) All FWLR Part 224 page 2113; Alhaji Ibrahim Kasandubu & Anor vs. Ultimate Petroleum Ltd & Anor (2008) All FWLR Part 417 page 155 at 171 in support and then urged this Court to hold that the action is statute barred. Learned Counsel then debunked the assertions of the 1st and 2nd Respondents that the late Chief J. A. Gboyega used his position as the Permanent Secretary, Ministry of Local Government and Chieftaincy Affairs to procure the 1984 Onisan of Isan Ekiti Chieftaincy Declaration surreptitiously without the knowledge of the 1st and 2nd Respondents. He further drew the attention of this Court to the case of Central Bank of Nigeria vs. Harris (2017) 11 NWLR Part 1575 page 54 at 88-90 in which it was stated that knowledge of the plaintiff is not a precondition for the determination of the limitation period.
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Time runs whether or not the plaintiff knows about the transaction or not. He also focused on the averments at paragraphs 34 to 38 and 42 of the 1st and 2nd Respondents’ Statement of Claim filed on the 25th April, 2018 revolving around the late Chief J. A. Gboyega and argued that the late Chief Gboyega was neither one of the defendants in the substantive suit nor the agent of any person through whom any of the defendants claim(s) or his (their) agent. He further pointed out that none of them, the defendants in the substantive suit, was an agent of the late Chief Gboyega and on this footing, the 1st and 2nd Respondents cannot validly seek refuge under one of the exceptions to the general rule of statute of limitation. Learned Counsel then contended that the lower Court misconstrued the clear provisions of Section 25 of the Limitation Law, Cap. 61, Laws of Old Ondo State of Nigeria, 1978 (as was then applicable to Ekiti State) now Section 25 of the Limitation Law, Cap. L9, Laws of Ekiti State, 2012 which provided for postponement of limitation period in case of fraud or mistake, that is, “where, in the case of any action, for which a period of
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limitation is prescribed by law, either-(a) the action is based upon the fraud of the defendant or his agent or any person through whom he claims or his agent; or (b) the right of action is concealed by the fraud of any such person aforesaid, or (c)…; the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it. He stated that the 1981 Government White Paper on Morgan Chieftaincy Review Commission and the 1984 Onisan of Isan Ekiti Chieftaincy Declaration were not and could not have been procured personally by Chief Gboyega let alone procuring the same surreptitiously and fraudulently as alleged by the 1st and 2nd Respondents. Learned Counsel contended that the 1981 Official Gazette of Government White Paper on Morgan Chieftaincy Review Commission and the 1984 Onisan of Isan Ekiti Chieftaincy Declaration constitute sufficient notice to the whole world including the 1st and 2nd Respondents, of the facts contained therein, therefore, they could have acted with reasonable diligence which could have enabled them to challenge the two
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documents, their failure to act cannot avail them.
It was strongly argued that the lower Court erred in law by placing heavy reliance on the Supreme Court decision in Sifax (Nig) Ltd vs. Migfo (Nig) Ltd (2018) 9 NWLR Part 1623 page 138 and pronounced that the 1st and 2nd Respondents’ action was not statute barred. He pointed out that the said case differed considerably from the instant matter in terms of their facts and issues, therefore, it may not serve as an authority for the present case. He explained that the Sifax’s case relates to the incorporation of a limited liability company without the knowledge of the other prospective shareholders and directors. He explained that what was involved in the present case was the 1981 Government White Paper on Morgan Chieftaincy Review Commission which was officially gazetted and it therefore constituted sufficient notice of the facts contained therein to the whole world including the 1st and 2nd Respondents. He further stressed that the said Old Ondo State of Nigeria Government’s White Paper on Morgan Chieftaincy Review Commission adequately represented the Official Gazette of the
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Government’s view on the Morgan Chieftaincy Review Commission which was made in 1981 wherein the Appellants were recognised as the authentic Iwarapa Mefa (Kingmakers) to the Onisan of Isan Ekiti Chieftaincy title. He reiterated that the 1981 White Paper as well as the 1984 Onisan of Isan Ekiti Chieftaincy Declaration were public documents which could not have been and were not concealed, either secretly, fraudulently from the 1st and 2nd Respondents. He further explained that 1st and 2nd Respondents knew that it was the predecessors in-office of the Appellants that rightly selected and installed the immediate past Onisan of Isan Ekiti in the year 1991 as the authentic Kingmakers without let or hindrance. He then invited this Court to allow the appeal.
The 1st and 2nd Respondents in this appeal postulated a lone issue thus:
“Whether considering the Writ of Summons and Statement of Claim of the 1st and 2nd Respondents, the lower Court was wrong in holding that the 1st and 2nd Respondents’ suit was not statute barred.”
Learned Counsel for the 1st and 2nd Respondents, Ademola Adeyemi, Esq., submitted that in determining
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whether a suit is statute barred, the Court would have to inspect only the Writ of Summons and the averments in the Statement of Claim to determine when the cause of action accrues. He referred to the cases of Ajayi vs. Military Administrator of Ondo State (1997) 5 NWLR Part 504 page 237 at 254; Abubakar vs. B. O. & A. P. Ltd (2007) 18 NWLR Part 1066 page 319 at 360-361 and Mulima vs. Usman (2014) 16 NWLR Part 1432 page 160 at 199 and stated that on a closer examination of the Writ of Summons and Statement of Claim in the suit, it will be clear that the 1st and 2nd Respondents in 2016 became aware of the existence of the Onisan of Isan Chieftaincy Declaration which was registered in 1984. The 1st and 2nd Respondents’ Chieftaincy family discovered that the registration, existence and everything relating to the 1984 Onisan of Isan Chieftaincy Declaration were concealed from them in the light of the assertions at paragraphs 28-41 of the Statement of Claim and as such time began only to run from February, 2016 when they became aware of the wrong through the letter written by the 3rd to 8th Respondents. He relied on the decisions in Mulima vs. Usman
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(supra) at 201 and Sifax (Nig) Ltd vs. Migfo (Nig) Ltd (2018) 9 NWLR Part 1623 page 138 at 178 wherein the Supreme Court expressed that a party can only sue when he becomes aware that his right has been tampered with. For as long as he is unaware that someone has dealt with his property inconsistent with his ownership, he cannot sue. The right of action accrues when the person that sues becomes aware of the wrong done to him. He clarified that the issue before the lower Court is that the 1984 Onisan of Isan Chieftaincy Declaration which was procured and registered secretly without the knowledge of the 1st and 2nd Respondents does not reflect the history, custom and tradition of Isan Ekiti with regards to Onisan of Isan Chieftaincy and not as the Appellants conjectured it that the suit was for a Chieftaincy Declaration. However, he submitted that a Court has the jurisdiction where appropriate and, if moved, declare a Chieftaincy Declaration null and void based on the decisions in Ajakaiye vs. Idehai (1994) 8 NWLR Part 364 page 504 at 533 and Aliu vs. Anekwu (1991) 8 NWLR Part 209 page 280 and further stated that it is not the law that once a Chieftaincy
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Declaration is registered, it cannot be declared null and void. Learned Counsel then reproduced the averments at paragraphs 34-37 of the Statement of Claim showing that it was after the demise of Oba Ajiboye on the 6th November, 2015 that the 1st Claimant received a letter from the 1st to 6th Defendants stating that the 1st to 6th Defendants are the Kingmakers to Onisan of Isan Ekiti. The Claimants and others immediately wrote to the Chairman of Ekiti State Council of Obas stating that the 1st to 6th Defendants are not Kingmakers. Then in consequence thereof, particularly in 2016, the Claimants were shown a White Paper on Morgan Chieftaincy Review Commission where the names of the Claimants and other traditional Kingmakers were surreptitiously replaced with those of the 1st to 6th Defendants. It was done without the knowledge of the Claimants who only became aware of the White Paper in 2016. The Claimants were equally shown an Onisan of Isan Ekiti Chieftaincy Declaration registered on the 22nd October, 1984. The Claimants also became aware of the existence of the Declaration in 2016. It was also in the same 2016 that the Claimants discovered as a fact that it
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was the late Chief J. A. Gboyega otherwise known as Chief Badegboyega who was then a Permanent Secretary in the Ministry of Local Government and Chieftaincy Affairs in 1984 and who was from Ilusajumu Quarters in Isan Ekiti that used his position to procure those documents, otherwise they would have taken legal steps to set aside the 1984 Declaration. He stressed that the said documents were secretly obtained without the knowledge of the Claimants. He argued that by the nature of the interests of the Claimants as traditional Kingmakers to the Onisan of Isan Chieftaincy, they ought to have been notified or formally invited before anything affecting their rights as the Kingmakers to Onisan of Isan Ekiti can be done. He submitted that the failure to notify them of the move at the time the 1984 Declaration was made suggests suppression or concealment. It imputes fraud, therefore, the 1st and 2nd Respondents’ right of action accrued from the time they became aware. He drew the attention of this Court to the decision of this Court contained in the case of Central Bank of Nigeria vs. Harris cited by the Appellants and their contention that that non-knowledge of
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the existence of the 1984 Chieftaincy Declaration on the part of the 1st and 2nd Respondents cannot be a condition for the determination of the limitation period and said that was wrong. He then made reference to the Supreme Court decision in UBA Plc vs. BTL Ind. Ltd (2006) 19 NWLR Part 1013 page 61 at 111 and 126 where it was succinctly put that where the wrongful act of a defendant has been fraudulently concealed, the right of action in respect of that accrues only when the plaintiff becomes aware of the wrongful act of the defendant and that the Respondents’ right of action therein accrued in 1984 when it became aware of the existence of the Central Bank circular. He further referred to Adejumo vs. Olawaiye (2014) 12 NWLR Part 1421 page 252 at 284 in which the Supreme Court made it clear that the issue is not that defendants/appellants have been in adverse possession of the land in dispute since 1970, rather it is when the plaintiff/respondent knows that the defendants/appellants were on the land in dispute. He said that by the doctrine of stare decisis, the Supreme Court decision takes precedence over the Court of Appeal decision and then stressed that the
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fundamental question herein is not whether the Onisan of Isan Chieftaincy Declaration, the subject matter of the suit was registered in 1984 but, when did the 1st and 2nd Respondents become aware of the existence of the Declaration which informed them of the civil wrong committed against them. He submitted that it was in the year 2016 when they became aware of it. He then referred to the documents front-loaded with the Statement of Claim which he argued, by the decisions in Sifax (Nig) Ltd vs. Migfo (Nig) (supra) at 175-176 and MMA Inc. vs. NMA (2012) 18 NWLR Part 1333 page 506 at 535-538, have formed part of the pleadings having been made reference to in their pleading. He therefore stated that by the state of the pleadings of the 1st and 2nd Respondents, and the decision in Sifax (Nig) Ltd’s case which he argued is applicable to the instant case, time began to run from 2016 when they became aware of the existence of the 1984 Onisan Chieftaincy Declaration which was concealed from them. He further referred to the case of Mulima vs. Usman (supra) at 202-203 where fraudulent concealment was said to include “a situation where a party is entitled to a
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notice of the happening of an event but such notice was not given to him though the failure to give the notice was not fraudulent but merely an oversight. In such a case, the party whose right of action is so concealed should not by any stretch of imagination be made to suffer for it. He stressed that one of the issues in controversy in the case of Sifax (Nig.) Ltd vs. Migfo (Nig.) Ltd (supra) which is the latest decision in respect of the same which is similar to the instant case, was ‘when the right of action’. He referred to the arguments surrounding the late Chief J. A. Gboyega using his position as a Permanent Secretary in the then Ministry of Local Government and Chieftaincy Affairs and then asked “Whose agent is the Permanent Secretary, moreso when the Commissioner for Local Government and Chieftaincy Affairs, the Attorney General and the Governor of the State are parties to the case”. He stated that Section 25 of the Limitation Law of Ekiti State, 2012 is applicable. He urged this Court to dismiss the appeal.
In the Appellants’ Reply Brief, Counsel relied on Julius Berger Nigeria Plc vs. Tobi Rainbow Community Bank Ltd.
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(2019) 5 NWLR Part 1665 page 219 at 254-255, Adamu-Augie, JSC, where the Supreme Court held that even though the Writ of Summons and the Statement of Claim are the materials that the Court considers in resolving the issue of competence and jurisdiction of Court, it may not be so in all cases, as circumstances could arise where when an objection is raised by means of a motion on notice, facts deposed to in the affidavit in support as well as the counter affidavit and attached Exhibits are utilised to resolve the question. It further held that the Court of Appeal erred in holding that the trial Court was correct to determine the objection by reliance solely on the Writ of Summons and Statement of Claim even though the oral and documentary evidence in proof of the relevant paragraphs of the Statement of Claim were before the Court. He referred to other cases relied upon by the Supreme Court and then submitted that the lower Court ought to have considered the affidavit evidence placed before it by the Appellants via the affidavit in support of their motion on notice.
I have carefully studied the respective lone issue raised by the parties and it must be
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observed that the nub issue in this appeal is whether the civil proceeding commenced by the 1st and 2nd Respondents on the 25th April, 2018 is statute barred.
An action is said to be statute barred when the claim is no longer legally enforceable owing to a prescribed period of limitation having elapsed. As has been equally defined, a statute barred legal action is one which cannot be brought to trial in civil Court because too much time has passed. An action is statute barred if it is instituted outside the prescribed statutory period within which the suit ought to have been commenced after the cause of action accrued. The Appellants’ bone of contention is that the suit commenced by the Respondents is statute barred having been instituted by the Respondents on the 25th April, 2018 outside the six year statutory period prescribed by Section 4 (1)(a) of the Limitation Law, Cap L9, Laws of Ekiti State, 2012 for actions founded on simple contract or on tort. It was stated that the 1st and 2nd Respondents’ suit is founded on tort, and the same ought to have been instituted in 1984 or within the next six years from the 23rd October, 1984. However, the
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1st and 2nd Respondents relying on the decisions in Mulima vs. Usman (supra) and Sifax (Nig.) Ltd vs. Migfo (Nig.) Ltd (supra) contended that a party can only sue when he becomes aware that his right has been tampered with. For as long as he is unaware that someone has dealt with his property inconsistent with his ownership, he cannot sue. The right of action accrues when the person that sues becomes aware of the wrong done to him. The general principle of law is that a cause of action arises on the date or from the time the breach of duty occurs which warrants the person adversely affected by the breach or injury therefrom to sue in a law Court to assert or protect his legal right that has been violated.
It is evident in the averments in the 1st and 2nd Respondents’ Statement of Claim that they are challenging the validity of the Onisan of Isan Ekiti Chieftaincy Declaration registered on the 22nd October, 1984. A White Paper was also issued in that respect in the same 1984. The Respondents asserted that they only became aware of the existence of the Declaration in 2016 and that the 1984 Onisan of Isan Ekiti Chieftaincy Declaration does not
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represent the true history and tradition of Isan Ekiti but that the true tradition and custom of Isan Ekiti is captured in the 1960 Onisan of Isan Chieftaincy Declaration. It was further averred that the Claimants discovered that the White Paper and the Chieftaincy Declaration were procured by one late Chief J. A. Gboyega also known as Chief Bade Gboyega who was from Ilusajumu Quarters in Isan Ekiti. That he used his position as the Permanent Secretary, Ministry of Local Government and Chieftaincy Affairs in 1984 without the knowledge of the Claimants.
As could be gleaned from the contention of the Appellants, a Chieftaincy Declaration comes into effect upon registration and the right of action accrues to an aggrieved party who wishes to challenge its validity immediately. It was further contended that upon the registration of the 1984 Onisan of Isan Ekiti Chieftaincy Declaration, on the 23rd October, 1984 the previous 1960 Onisan of Isan Ekiti Chieftaincy Declaration became void and of no effect, and that the cause of action to challenge the validity of the 1984 Onisan of Isan Ekiti Chieftaincy Declaration accrued to the 1st and 2nd Respondents on the 23rd October, 1984.
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What is involved in the instant case is the registration of the 1984 Onisan of Isan Ekiti Chieftaincy Declaration on the 23rd October, 1984 which the 1st and 2nd Respondents alleged was surreptitiously done and completely concealed from them till 2016 they became aware of it. It was alleged that the Appellants used the position and connection of the late Chief Gboyega to procure the same without their knowledge. Curiously the said late Chief Gboyega as per the 1st and 2nd Respondents’ pleading was not made a party to the suit nor was any of the Defendants established to be his agent. Although it was argued by them that the said Chief J. A. Gboyega died before the institution of the action.
It may be necessary at this juncture to appreciate the connotation of the term “Chieftaincy Declaration” and on this footing, I turn to the decision of the Supreme Court in the case of Governor of Oyo State vs. Folayan (1995) 8 NWLR Part 413 page 292, the apex Court in deciding the connotation of the term “Chieftaincy Declaration” said that: “By Section 4(2) of the Chiefs Law. Cap. 21 Laws of Oyo State 1978, a
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Chieftaincy Declaration is a statement of the customary law relating to the appointment etc of a recognized Chief. It follows therefore, that any question relating to such a declaration is a chieftaincy question. See Enwezor v. Onyejekwe & Ors (1964) NSCC 9; Chief Abaekere, the Arinmo & Ors v. The Minister for Chieftaincy Affairs Western Nigeria & Ors (1963) WNLR 53 HC affirmed by this Court in SC.606/64 on 4th May, 1966.” The same Supreme Court in another case, that is, Mafimisebi vs. Ehuwa (2007) 2 NWLR Part 1018 page 385 in determining whose responsibility is it to make the declaration, then enshrined that “…From the decided cases, the function of making chieftaincy declarations lies with the executive arm of the State Government concerned and is usually exercised by a chieftaincy committee on behalf of that government.” Also in Olanrewaju vs. Oyesomi (2014) 11 NWLR Part 118 page 258, the Supreme Court in deciding on whom lies the function/responsibility of making chieftaincy declarations held that “It is also settled law that the duty/function/responsibility of making chieftaincy declarations lies with the executive arm of the relevant state
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government and is usually exercised by a Chieftaincy Committee on behalf of that government and where a declaration in respect of a recognized chieftaincy is validly made and registered, the matter therein stated is deemed to be the customary law regulating the selection of a person to be the holder of the recognized chieftaincy to the exclusion of any other customary usage or rule. The declaration is therefore in the eyes of the law, the tradition, customary law and usages pertaining to the selection and appointment to a particular chieftaincy stool which, of necessity, dispenses with the required need of proof by oral evidence of the relevant custom, tradition and usages each time the need arises to determine the matter/succession to the stool or throne or chieftaincy title.” “Chieftaincy Declarations came into existence to stop the need for frequent calling of evidence in proof of the customary law and traditions of the people in relation to any particular recognized chieftaincy title/stool or throne. The purpose of a registered Chieftaincy Declaration is to embody in a legally binding written statement of fact, the customary law of the relevant area in
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which the method of regulating the nomination and selection of a candidate to fill a vacancy is clearly stated so as to avoid uncertainty: Olowu v. Olowu (1985) 3 NWLR (pt. 13) 372; Agbai v. Okogbue (1991) 7 NWLR (pt. 204) 391; Mafimisebi v. Ehuwa (2007) 2 NWLR (pt. 1018) 385.”
Now examining the contentions of the parties in the light of Section 25 of the Limitation Law, Cap. L9, Laws of Ekiti State, 2012, which introduced an exception to the provisions of Section 4(1)(a) of the Law, and, the trial Court’s absolute reliance on the Supreme Court’s decision in Sifax (Nig.) Ltd vs. Migfo (Nig.) Ltd (supra), it should be noted that the scenario in the instant appeal is different from what obtained in the case of Sifax Nig. Ltd because in that case, the Respondents later discovered that the 1st, 3rd and 4th Appellants had secretly incorporated the 5th Appellant without them.
In the instant case, the Chieftaincy Declaration was made by the Executive arm of Government through the Local Government Commission as stipulated in Sections 1(2), 3(5), 4(1) and (2), and 5(1) of the Chiefs Edict, a procedure set out for making a Chieftaincy Declaration
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in Ekiti State. It is a situation where the 1st and 2nd Respondents felt that their customary law on Chieftaincy matters was not properly represented. They did not allege any fraud on the part of the Appellants themselves who were the Defendants at the lower Court, nor was such incident attributed to the 3rd-6th Respondents. Section 25 provides that limitation period can only be postponed in a case of fraud or mistake where, the action is based upon the fraud of the defendant or his agent or any person through whom he claims or his agent or the right of action is concealed by the fraud of any such person aforesaid or the period of limitation shall not begin to run until he has discovered the fraud or the mistake as the case may be or could with reasonable diligence have discovered that. It follows therefore that since the Respondents did not allege any fraud or concealment on the part of the Appellants or the 3rd-6th Respondents, the time of accrual of the cause of action or the limitation period cannot be postponed. It portrayed an appropriate scenario where the 1st and 2nd Respondents ought to have applied to the Government for amendment of the Customary Law
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on Chieftaincy matters but not to have proceeded with an institution of a legal proceeding before the Court outside the statutorily provided period of six years, thereby inviting the Court via the reliefs sought to make a pronouncement that would be contrary to the Chieftaincy Declaration made in 1984 pursuant to the enabling Laws of Ekiti State. This is so because as Uwaifo, JSC observed in Fasade vs. Babalola (2003) 11 NWLR Part 830 page 26, “a Chieftaincy Declaration made under the Chiefs’ Law, 1978 is the customary law in force in the area which it covers.
By Section 11 (2) of the such declaration Chiefs’ Law, 1978 continues to have effect until it is amended and the amended Declaration is registered.
The amendment of chieftaincy declaration is not a judicial function. It is not within the jurisdiction of the Court to make such a declaration or to be involved in any way even to suggest amendment to it. In my view, it is the authorities given power under the law who can alter a declaration when a proper and convincing representation is made for a suitable amendment.
It would have been different had the suit been instituted
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within the statutorily provided period of six years. Onnoghen, JSC (as he then was) in Olanrewaju vs. Oyesomi (2014) 1 NWLR Part 1318 page 258 said that “Though the Court has no power to promulgate declaration of customary law, it has the competence to see whether a Chieftaincy Declaration is in conformity with prevailing customary law and accordingly declare it invalid if it does not. The Court therefore has power to set aside a registered declaration that does not correctly declare the chieftaincy custom and tradition of the area concerned: See Fasade v. Babalola (2003) 11 NWLR (pt 830) 26: Adigun v. AG, Oyo State supra; Ajakaiye v. Idehai (1994) 8 NWLR (pt. 364) 504; Eguamwense v. Amaghizemwen (1993) 9 NWLR (pt. 315) 1; Aku v. Aneku (1991) 8 NWLR (pt. 209) 280.” He clearly stated the circumstances in which the Court can declare or set aside a registered chieftaincy declaration. He expressed that the circumstances in which the Court will invalidate a registered chieftaincy declaration include a situation where, in the process of the making of the declaration those who ought to be heard were not so heard or where the making of that declaration is in breach of
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the right to fair hearing or where it offends any Constitutional provision or Act of the National Assembly or Law of a State etc; Obala of Otan-Aiyegbaju v. Adesina (1999) 2 NWLR (pt. 590) 163; Adigun v. AG, Oyo State, supra.”
As I observed earlier, the suit commenced by the 1st and 2nd Respondents as argued by the Appellant was instituted after about 29 years of the registration of the 1984 Onisan of Isan Ekiti Chieftaincy Declaration on the 23rd October, 1984. There was no fraud pleaded nor established against the Appellants and the 3rd-6th Respondents in the said paragraphs 34-39 of the Claimants’ Statement of Claim considered by the lower Court that would have postponed the limitation period. The 1st and 2nd Respondents could not have alleged concealment because of the White Paper that was involved in the whole process which was published in the same 1984. White Paper is said to be a Notice to the whole world of the position taken by Government on the relevant report. It is clear in every sense that this case was not affected by the situation expounded in Sifax Nig. Ltd case or that provided in Section 25 of the Limitation Law, Cap. L9, Laws of Ekiti State, 2012.
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In the end and for all the reasons, I have given above, this appeal is hereby allowed. Accordingly, the judgment of the lower Court delivered on the 13th December, 2018 is hereby set aside. In its place, this Court, pursuant to Section 15 of the Court of Appeal Act, 2004, dismisses the suit for being statute barred.
FATIMA OMORO AKINBAMI, J.C.A.: I agree.
PAUL OBI ELECHI, J.C.A.: My learned brother, THERESA NGOLIKA ORJI-ABADUA JCA obliged me in draft a copy of the judgment he has just delivered which I had read in advance. I am in agreement with him that there is merit in this appeal and that it deserves an order allowing the appeal.
I adopt both his reasoning and conclusion as mine. I also dismiss the suit at the lower Court as being statute barred.
Appeal Allowed.
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Appearances:
Gbenga Alabadan, Esq., with him, Adefisayo Oyedeji, Esq.
For Appellant(s)
Ademola Adeyemi, Esq. – for the 1st and 2nd Respondents
Olawale Fapohunda, Esq., The A. G., Ekiti State, L. B. Ojo, Esq., The S. G., Ekiti State, Julius Ajibare, Esq., D.P.P, Ekiti State, Tosin Odudu, Esq., A.C.L.O.,
Ibironke Odetola, Esq., P.L.O., Oluwaseun Olasanmi, Esq., S.L.O., Sheila Onah, Esq., L. O., Ekiti State Ministry of Justice. – for the 3rd, 4th, 5th and 6th Respondents
For Respondent(s)
