OLADELE AWOYEMI & ORS. V. AJAYI FASUAN
(2006)LCN/1900(CA)
In The Court of Appeal of Nigeria
On Monday, the 27th day of February, 2006
CA/IL/39/2001
RATIO
CUSTOMARY LAW: EFFECT OF NON-COMPLIANCE ALREADY PROVIDED WHEN A DISPUTE ARISES CONCERNING CHIEFTAINCY MATTERS
It is a well settled law that where a law requires something to be done before a particular act or action is to be done or to be done first then non-compliance of that pre-condition, as in this case, will definitely be fatal to the respondent. In the case of Sunday Eguamwense v. James Amaghizenwen supra the Supreme Court per Belgore, JSC held on page 25 as follows: “Where a statute prescribes a legal line of action for determination of an issue be that issue an administrative matter, chieftaincy matter or a matter of taxation, the aggrieved party must exhaust all the remedies in that law before going to court. The provisions of section 21 and section 22(1) – 6 of Traditional Rulers and Chiefs Edict (No. 16) 1979 (Bendel State) are clear as to steps to take. The plaintiff seemed to have jumped the stile as he avoided all avenues that availed him and went to the High Court. I am of the view that he did a wrong thing indeed. This court is not asked nor were the lower courts fully adverted to S. 22(4)(a) and (b) (supra) and I shall not pronounce per incuriam on that subsection; but suffice to say here that provisions of S. 22(5) and (6) have amply provided for redress which the plaintiff failed to seize advantage of. The provisions of S. 236 of 1979 Constitution is not an open gate for all High Courts to assume jurisdiction in all subjects. All the local remedies in the statute on every subject must be exhausted before embarking on actual litigation in court. In instant case the clear provisions of S. 22(3) that says ‘where there is a dispute as to whether a traditional chieftaincy title has been conferred on a person in accordance with Customary Law or as to whether a traditional chieftaincy title has been conferred on the right person, the prescribed authority or the Executive Council as the case may be, may determine the dispute.” In the recent decision of the Supreme Court over a similar matter in Aribisala & Anor. v. Ogunyemi & Ors. (2005) 2 SCNJ 18, (2005) 6 NWLR (Pt. 921) 212 the above view of His Lordship Belgore, JSC was re-affirmed, at p. 31, the Supreme Court per Oguntade, JSC held as follows: “The position of the law therefore, is that in a chieftaincy dispute as this, an aggrieved person who brings a suit must show that he brought his suit only after he had exhausted the remedies proved or followed the procedure prescribed under the applicable law. Why did not the plaintiffs in this case first take their grievance to the prescribed authority and later to the Commissioner in charge of chieftaincy matters as laid down in section 22(3) and (5) of the Chiefs Law of Ondo State, Cap. 207. PER MUNTAKA-COOMASSIE, J.C.A.
JUSTICES
MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE Justice of The Court of Appeal of Nigeria
ABOYI JOHN IKONGBEH Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
Between
1. OLADELE AWOYEMI
2. LAMIDI OMOLOYEGBE
3. OTIMI ASHAOLU
4. ASAOLU ALE Appellant(s)
AND
AJAYI FASUAN Respondent(s)
MUNTAKA-COOMASSIE, J.C.A. (Delivering the Leading Judgment): The respondent, Ajayi Fasuan, who was the plaintiff in the High Court of Justice Ijero-Ekiti, herein called the lower court, claimed against the appellants in his statement of claim dated 2nd April, 1997 as follows:
“Whereof the plaintiff’s claim is:
1. Declaration that after passing away of Chief Ajayi Adunse Ogidiolu, the late Odofin of Erinmoye it is turn of Okuta Elu of Ile-Awe branch of Ibamogun ruling House to present the next Odofin of Erin Mope-Ekiti.
2. Declaration that purported selection of the 1st defendant as the next Odofin of Erin Mope-Ekiti is irregular, illegal and/or violation of the customs and tradition of the Odofin family and therefore null and void and of no effect whatsoever.
3. An order of injunction restraining the 2nd to 7th defendants, themselves, their servants and/or agents from recognizing, appointing and installing the 1st defendant as Odofin of Erin Mope-Ekiti.
4. A further order of injunction restraining the 1st defendant from presenting himself for installation and from acting and/or parading himself as the Odofin of Erin Mope-Ekiti.”
The 1st, 3rd, 4th, 5th and 6th defendants filed a joint statement of defence dated 8/5/97 and filed on the 9/5/97, while the 2nd defendant also filed a statement of defence dated 9/5/1997.
In paragraphs 17 and 18 of the 1st, 3rd, 4th, 5th and 6th of statement of defence, it was averred as follows:
“17. The defendants further averred that the plaintiff had not exhausted all avenue for relief open to him before he rushed to court.
18. The relevant provisions of the Chiefs Law are not complied with for which notice of preliminary objection will be raised before or during the hearing.”
This point was not raised at all until the trial Judge gave judgment in the case. The plaintiff testified and called one witness while, DW1, DW2, DW3 and DW4 gave evidence for the defence.
A careful consideration of the dispute leading to this appeal will show that it arose out of succession to a minor chieftaincy, the Odofin of Erin Mope-Ekiti, in Ekiti State. The 1st appellant was chosen to fill the vacant Odofin Chieftaincy (stool) by the 2nd – 6th defendants, and was presented to the 7th defendant, who is the prescribed authority in Erin Mope-Ekiti for approval. Dissatisfied with the way and manner the 1st appellant was selected, the respondent commenced this action at the lower court seeking the reliefs earlier set out above.
The learned trial Judge L. S. Awe on 2/3/99 entered judgment in favour of the plaintiff and granted the plaintiff’s claim and held thus at page 97 of the record of proceedings:
“Since equity is equality, the plaintiff is entitled to all the four reliefs sought. I am therefore perfectly satisfied that he has successfully proved his claims and I hereby enter judgment in his favour and against the defendants in terms of all the reliefs sought.”
On the issue of the incompetency of the action itself raised by the defence, the learned trial Judge held thus:
“For the benefit of doubt and for a proper understanding this is not a case of chieftaincy Review Commission but a proper suit brought by an aggrieved contestant in a chieftaincy matter.”
I refer to page 75 of the record of proceedings.
Aggrieved by the decision of the lower court, the appellants appealed to this court and filed a notice of appeal containing four (4) grounds of appeal together with their respective particulars. They also filed an amended notice of appeal which was deemed filed on 22/4/2004 containing now seven grounds of appeal.
In compliance with the Rules of this court the appellants filed their joint briefs of argument and formulated four (4) issues from the grounds of appeal as follows:
“1. Whether the trial court and/or this Hon. Court lack jurisdiction to adjudicate on this matter. This issue relates to grounds 1 and 2.
2. Whether the order of lower court for installation of the plaintiff/respondent is justifiable, maintainable and extant; especially when no such relief is claimed in the writ of summons and statement of claim. This issue relates to ground 3.
3. Whether the available evidence before the trial Judge were not or properly evaluated, and whether the granted reliefs or claims in the writ of summons and statement of claim are justified. This issue relates to grounds 4 and 5.
4. Whether the judgment of the lower court given against a dead 6th defendant, amongst other defendants, is vitiated, and therefore, null and void. This issue relates to ground 6.”
While the respondent, formulates three (3) issues for our consideration of the appeal in his respondent’s brief of argument.
They are thus:
“1. Whether the learned trial Judge has the requisite competence/jurisdiction to hear and determine this matter.
2. Whether having regard to the entire circumstances of the case, the pleadings and evidence adduced in support thereof, the judgment entered in favour of the plaintiff/respondent by the trial court is justified and proper.
3. Whether the death of the 6th defendant among other defendants in the course of hearing the suit vitiate the proceeding and/or renders the judgment of the trial court null and void. (Ground 6.)”
The respondent, also raised and argued preliminary objection in his brief of argument, wherein he challenged the competency of some of the grounds of appeal, numbers 3, 4, 5, 6 and 7 as either speculative or not covered by the issues formulated by the appellants.
My Lords, I deem it necessary to first of all determine this issue of jurisdiction of the lower court to determine this matter before proceeding to determine either the issue of the preliminary objection as raised or the merits of the case. This is so as the learned counsel to the respondent has no complaint about the ground challenging the jurisdiction of the lower court.
The appellants submitted in their brief of argument that the respondent herein has not complied with the condition stipulated in the provisions of section 9(3)(4) and (5) of the Chiefs (Amendment) Edict, 1991 of Ondo State as applicable to Ekiti State before initiating this proceedings. As a result, this action is incompetent. The Odofin still in Erinmope-Ekiti is a minor chieftaincy, and in accordance with the provisions of section 9(4) there was a dispute as to whether the 1st appellant was properly appointed in accordance with the Customary Law as Odofin by the “Ifidegan” rites by the 7th defendant, the prescribed authority amounted to approval.
It was therefore the submission of the appellants’ counsel that under the Chieftaincy Edict, before the respondent could rush to the court he has to, within twenty-one days, petition to Executive Council member assigned to such chieftaincy affairs to set aside the appointment or not. All these steps constitute conditions precedent the respondent must fulfill before resorting to legal action, and having failed to comply, the action as filed is incompetent and the court thus lacks jurisdiction to entertain it. He relied on the cases of: Eguamwense v. Amaghizemwen (1993) 9 NWLR (Pt. 315) 1 at 25; Aina v. Jinadu (1992) 4 NWLR (Pt. 233) 91 at 109.
The respondent in his brief of argument submitted that the applicable law is amended by Edict 4 of 1991. The appellants’ counsel agreed with this submission at the hearing of this appeal. The provision of section 9(4) was by the consent of both counsel hereby abandoned and discarded.
The learned counsel for the respondent Kayode Olatoke, Esq. then submitted that for this section to apply, it must have been established by the defendants/appellants that the Military Governor or the Governor of the State has appointed a person or some persons as the prescribed authority for the appointment of a minor Chief in Erin-mope in accordance with section 13 of the Edict, this the appellants have failed to do.
He further submitted that the 1st appellant’s appointment has not been approved by Oba of Erin-mope to warrant a review, hence Chieftaincy Review Commission will not arise as it was then premature at that time. It is the dispute arising from the appointment by the prescribed authority that must follow the procedure stipulated in section 13(4) and (5) of the law for the review of the appointment by the member of executive to whom responsibility for chieftaincy is assigned.
The respondent made further important submission that section 13(3)(4) and (5) of the Ondo State Chiefs Law as amended by Edict No.4 of 1991 has not removed the powers of the trial court by virtue of section 272 of 1999 Constitution, which is in pari materia with section 236 of the 1979 Constitution as amended, which was the law inforce when this action was instituted. He cited in support the cases of Ikine v. Edjerode (1996) 2 NWLR (Pt. 431) 468/478, and Akibu v. Oduntan (2000) 13 NWLR (Pt. 685) 446 at 467.
My Lords, these were the submissions of both learned counsel on this particular point. It may not be out of place to reproduce section 13(3)(4)(5) and (6) of the Ondo State Chiefs Law amended by Edict No.4 of 1991 thus:
“(3) No one shall hold himself out to be appointed to the office of a minor chief without ensuring that prior written approval of the prescribed authority had been obtained by the person entitled under Customary Law to make the appointment.
(4) Where there is a dispute as to whether a person has been appointed in accordance with Customary Law to a minor chieftaincy, the prescribed authority may determine the dispute and the person concerned shall be notified of the decision.
(5) Any person who is not satisfied with the decision of the prescribed authority may within twenty-one days from the receipt of the notification, make representations to such member of the Executive Council to whom responsibility for chieftaincy affairs is assigned that the decision be set aside and he may, after considering the representations confirm or set aside the decision.
(6) Before exercising the powers conferred by sub-section (5) of this section, the members of the Executive Council responsible for chieftaincy affairs may cause such inquiries to be held as appear to him necessary or desirable.” (Italics mine for clarity)
My Lords can see that in this case, it is not in dispute that Odofin chieftaincy is a minor chief or minor chieftaincy; hence it falls within the provisions of section 13(3)(4)(5) and (6) of the Ondo State Chiefs Law. The respondent’s argument is that there is no prescribed authority, in Erin-mope, to my mind with tremendous respect, this is untenable. Paragraph 8 of the statement of claim filed by the respondent is clear on this point. It was stated thus:
“8. The 7th defendant is the Oba of Erinmope, the traditional head of the town and the consenting authority in respect of the Odofin of Erinmope chieftaincy”.
I think parties and even court are bound by the pleadings of the parties. Suffice it to say also, that the argument put forward by respondent that 1st appellant has not been appointed by Oba of Erinmope, hence the Chiefs Edict is not applicable. Section 13(3) of the law does not require the prescribed authority to appoint a minor chief, but only to give approval to the person entitled under the Customary Law to make the appointment. In the instant case, the appointment was to be made by the Ibamogun Ruling House. See paragraph 17 of the statement of claim, where it was averred that:
“The plaintiff avers that according to Ibamogu Ruling House tradition, meetings are held after candidates have shown interest in the vacant stool, it is in this meeting that some traditional duties are performed to select a candidate among the contestants …”
I also wish to point out that the argument of the respondent that no dispute has arisen as no one has been appointed as Odofin to warrant the applicability of section 13 of the Chiefs Law is not borne out of the record. In his evidence in chief, the respondent stated:
“I told the 4th and 5th defendants of my intention and interest in the Chieftaincy. I told all the members of the Family. The other contestants are 1st and 2nd defendants.
I raised up my hand at the family meeting. When I was not answered I went to report to the Kabiesi. There is only one Ruling House for the Chieftaincy that is Awe.
I went to the Oba because I was told that the Chieftaincy was going to be conferred on the 1st defendant. The Oba sued for peace and asked us to go and settle at home as we are all sons of the same father. There was no other family meeting, where 1st defendant was elected, it was fraud. No Ifa oracle nor election held before the 1st defendant was purported (sic) chosen.”
It is clear my Lords from this testimony that the 1st defendant had been chosen as Odofin by the Ibamogun Ruling House, whether fraudulently or not is another question/issue altogether. This appointment has led to a dispute which made the respondent to report to the 7th defendant, the Oba of Erinmope-Ekiti. The said Oba has not made his decision before the respondent initiated this action.
The procedure to be followed, with respect, under the provisions of section 13(3)(4)(5) and (6) of the Chiefs Law of Ondo State, in a case involving a dispute relating to a minor chieftaincy, is clear and they are as follows:
1. The complainant must take this grievance to the prescribed authority, who may resolve the dispute one way or the other and notify the person concerned.
2. Where the prescribed authority refuses to determine the dispute within a reasonable time, the complainant would be right to make representation to the Executive Council member responsible for chieftaincy matters. This is so because section 13(4) of the Ondo State Chieftaincy Law does not make it mandatory for the prescribed authority to determine the dispute, the word may used in the section, in my view, is discretionary.
3. Where the prescribed authority decides to determine the dispute, the complainant if not satisfied, may within twenty-one days make representation to Executive Council member responsible for Chieftaincy Affairs, that the prescribed authority’s decision be set aside.
4. In the consideration of the representation, the Executive Council member may set aside the decision or confirm it. In the process the Executive Council member may cause such enquiries to be held as appear to him necessary or desirous.
5. In the overall interest of justice, I must add that where the Executive Council members unnecessarily delays the consideration of the representation made to him by the complaint, it is my view that the complaint may then be right to seek redress in the court of law.”
In the instant case, my Lords, the respondent only reported to the Oba of Erinmope-Ekiti, the 7th defendant without more. No further representation was made to the Executive Council member responsible for chieftaincy matters as required by the Chiefs Law before this action was instituted.
I agree entirely with the learned counsel to the appellants that the respondent failed to exhaust all the local remedies available to him under the Chiefs Law before he commenced this action. It is a well settled law that where a law requires something to be done before a particular act or action is to be done or to be done first then non-compliance of that pre-condition, as in this case, will definitely be fatal to the respondent. In the case of Sunday Eguamwense v. James Amaghizenwen supra the Supreme Court per Belgore, JSC held on page 25 as follows:
“Where a statute prescribes a legal line of action for determination of an issue be that issue an administrative matter, chieftaincy matter or a matter of taxation, the aggrieved party must exhaust all the remedies in that law before going to court. The provisions of section 21 and section 22(1) – 6 of Traditional Rulers and Chiefs Edict (No. 16) 1979 (Bendel State) are clear as to steps to take. The plaintiff seemed to have jumped the stile as he avoided all avenues that availed him and went to the High Court. I am of the view that he did a wrong thing indeed. This court is not asked nor were the lower courts fully adverted to S. 22(4)(a) and (b) (supra) and I shall not pronounce per incuriam on that subsection; but suffice to say here that provisions of S. 22(5) and (6) have amply provided for redress which the plaintiff failed to seize advantage of.
The provisions of S. 236 of 1979 Constitution is not an open gate for all High Courts to assume jurisdiction in all subjects. All the local remedies in the statute on every subject must be exhausted before embarking on actual litigation in court.
In instant case the clear provisions of S. 22(3) that says ‘where there is a dispute as to whether a traditional chieftaincy title has been conferred on a person in accordance with Customary Law or as to whether a traditional chieftaincy title has been conferred on the right person, the prescribed authority or the Executive Council as the case may be, may determine the dispute.”
In the recent decision of the Supreme Court over a similar matter in Aribisala & Anor. v. Ogunyemi & Ors. (2005) 2 SCNJ 18, (2005) 6 NWLR (Pt. 921) 212 the above view of His Lordship Belgore, JSC was re-affirmed, at p. 31, the Supreme Court per Oguntade, JSC held as follows:
“The position of the law therefore, is that in a chieftaincy dispute as this, an aggrieved person who brings a suit must show that he brought his suit only after he had exhausted the remedies proved or followed the procedure prescribed under the applicable law. Why did not the plaintiffs in this case first take their grievance to the prescribed authority and later to the Commissioner in charge of chieftaincy matters as laid down in section 22(3) and (5) of the Chiefs Law of Ondo State, Cap. 207.”
My Lords, these authorities have completely settled this matter. The plaintiff only reported to the prescribed authority whose decision was not known. He stopped at that without further making representation to the Commissioner for Chieftaincy affairs as provided by section 13(4)(5) and (6) of the Chiefs Law. His act of rushing to court without complying with the provisions of the law is indeed bad. This, if I may repeat, lack of compliance has rendered the suit incompetent and consequently robbed the lower and this court the jurisdiction to entertain it. Having, held that this court also lacks jurisdiction to entertain the matter for the reasons stated earlier on, it would become unnecessary to delve into other issues raised in this appeal.
In the final conclusion, this appeal succeeds. The decision of the lower court dated 2/3/99 cannot stand. Same is hereby set aside. The plaintiff’s case before the trial court is hereby dismissed as conditions precedent were not met before the action was instituted. There shall be no order as to costs. Parties are one and the same having common grand parents looking for the same stool.
Appeal is allowed.
IKONGBEH, J.C.A.: I have read before now the judgment just delivered by my learned brother, Muntaka-Coomassie, JCA. I agree with him that this appeal has merit and ought to be allowed. I will only add a few comments by way of emphasis, especially in areas not touched by the lead judgment.
This is an appeal by four of the seven defendants before the High Court of Ekiti State, sitting at Ijero-Ekiti. The appellants were the 1st, 3rd, 4th and 5th defendants. These defendants, together with the 6th defendant, were defended by one counsel and a joint statement of defence was filed on their behalf. The 6th defendant died in the course of the proceedings before judgment in the lower court. Hence only the 1st, 3rd, 4th and 5th defendants have brought this appeal. The 2nd defendant, who was defended by a separate counsel and filed a separate statement of defence, has not appealed against the decision of the trial court. The 7th defendant was not represented, did not file any papers, did not participate in the proceedings in the trial court and has not appealed.
I have taken the trouble to sketch out these preliminary facts because of an issue raised before us on behalf of the appellants. We shall come to it in due time.
The respondent, as plaintiff, took out a writ of summons claiming the following reliefs, which he repeated in paragraph 23 of his statement of claim:
“1. Declaration that after passing away of Chief Ajayi Adunse Ogidiolu, the late Odofin of Erinmope, it is the turn of Okuta Elu of Ile-Awe branch of Ibamogun ruling House to present the next Odofin of Erinmope-Ekiti.
2. Declaration that the purported selection of the 1st defendant as the next Odofin of Erinmope-Ekiti is irregular, illegal and violation of the customs and tradition of the Odofin family and therefore invalid and of no effect whatsoever.
3. An order of injunction restraining the 2nd to 7th defendants themselves, their servants and/or agents from recognizing, appointing and installing the 1st defendant as the Odofin of Erinmope-Ekiti.
4. A further order of injunction restraining the 1st defendant from presenting himself for installation and from acting and/or parading himself as the Odofin of Erinmope-Ekiti.”
He testified and called one witness.
For their group, the 3rd, 1st, and 5th, defendants/appellants testified as DW1, DW2 and DW3 respectively. They called one witness (DW4). The 2nd defendant testified as DW5.
After taking oral addresses from counsel for the parties, the learned trial Judge, L. S. Awe, J., delivered his judgment on 02/03/99, granting the four reliefs sought by the plaintiff. In addition he ordered that machinery be set in motion immediately for the installation of the plaintiff as the Odofin of Erinmope.
It is against the decision and orders that the 1st, 3rd, 4th, and 5th defendants have appealed to this court. For them Mr. T. O. S. Gbadeyan, who settled the appellants’ brief of argument, has formulated the following four issues for determination:
“3.01 Whether the trial court and/or this Honourable Court lack jurisdiction to adjudicate on this matter.
3.02. Whether the order of lower court for installation of the plaintiff/respondent is justifiable, maintainable and extant; especially when no such relief is claimed in the writ of summons and statement of claim.
3.03. Whether the available evidence before the trial Judge were (sic) not or properly evaluated, and whether the granted reliefs or claims in the writ of summons and statement of claim are justified.
3.04. Whether the judgment of the lower court given against a dead 6th defendant, amongst other defendants, is vitiated, and therefore, null and void.”
Mr. K. Olatoke formulated the following three in the respondent’s brief.
“3.01 Whether the learned trial Judge has the requisite competence/jurisdiction to hear and determine this matter. (Grounds 1 & 2)
3.02 Whether having regard to the entire circumstances of the case, the pleadings and evidence adduced in support thereof, the judgment entered in favour of the plaintiff/respondent by the trial court is justified and proper. (Grounds 3, 4 and 5)
3.03 Whether the death of the 6th defendant among other defendants in the course of hearing of the suit vitiate the proceeding and/or renders the judgment of the trial court null and void. (Ground 6)”
I propose to dispose of the preliminary objection taken on behalf of the respondent before I turn to the main appeal. Mr. Olatoke has urged us to strike out grounds 3 – 7 of the grounds of appeal because:
1) grounds 3, 4 and 5 are repetitive, unnecessary and uncalled for;
2) grounds 3, 4 and 6 are grounds of mixed law and fact for which leave was required but was not sought and obtained; and
3) no issue for determination has been distilled from ground 7.
In answer, Mr. Gbadeyan, for the appellants, filed a reply brief. In it, counsel disputed that grounds 3, 4 and 5 of the grounds of appeal are repetitive. Accordingly to him, each ground raised a complaint against a different aspect of the judgment and orders of the trial court appealed against. With regard to grounds 3, 4 and 6, learned counsel contended that notwithstanding that those grounds might involve questions of fact or mixed law and fact, the appellants did not require leave. This, counsel pointed out, is because the appeal is as of right, coming, as it did, from a final decision of the High Court sitting at first instance. For this, counsel cited section 241 (1)(a) of the 1999 Constitution. This is identical with section 220(1)(a) of the 1979 Constitution, which was the operative Constitution on 12/04/99, when this appeal was filed and to which all reference will henceforth be made. With regard to ground 7, learned counsel conceded the point. He agreed that it could be taken as abandoned.
I must observe right away that it was a concession well made. The rule is well established that any ground from which an issue or issues is/are not distilled is to be taken as abandoned and left out of consideration in considering the appeal.
Now, with the profoundest respect to learned counsel for the respondent, this objection is a huge waste of time and resources. The basis for it is either non-existent or is misinterpreted by counsel. The four grounds, namely, Grounds 3 – 6, that are under serious attack are as follows:
“3. Error in law
The learned trial Judge erred in law when he held in his judgment thus:
“Every machinery should be put in motion to install the plaintiff as the next Odofin of Erinmope”
Particulars
(i) The lower court had by the order assumed the function of the Ruling House, which has a right to nominate, appoint and or install a candidate.
(ii) The plaintiff/respondent did not claim any such relief in the writ of summons or amended statement of claim, as ordered by the court.
(iii) The court has no right to award that which was not specifically claimed by the litigants before it.
4. Error in law
The learned trial Judge erred in law when he granted and entered judgment on the four reliefs claimed in the writ of summons and statement of claim.
Particulars
(i) None of the four reliefs claimed was considered by the court before resolving that they were successfully proved.
(ii) Issues formulated by the learned counsel during address were jettisoned by the trial Judge and the ones he single-handedly formulated and resolved in his judgment were not the ones claimed by the plaintiff in his writ and statement of claim. (Page 96 of the record of proceedings).
(iii) The four reliefs claimed in the writ and statement of claim were not sought by the plaintiff from the court during his testimony. They were abandoned. Rather, he sought from the court an unclaimed relief in the writ and statement of claim. (See: page 45 lines 5-10 of the record.)
5. The judgment is against the weight of evidence.
6. Error in law
The learned trial Judge erred in law by making enforceable orders in his judgment against a dead party; that is, the 6th defendant.
Particulars
(i) The trial Judge said it emphatically in his judgment that the 6th defendant is dead; yet, he retained him as a party bound by his judgment,
(ii) The judgment is vitiated by the inclusion of a dead party, the 6th defendant, among parties bound by judgment of court.
With regard to the first set of grounds of appeal, I must agree with the appellants’ counsel that there is nothing in or about them to complain about. They are valid grounds of appeal. I asked myself what grounds they are allegedly repetitive of? Is it of one another or of other grounds? Learned counsel has not seen fit to clarify. We have just seen the grounds. I cannot see any repetition. Whereas ground 3 complains about the gratuitous award of the order for the installation of the respondent as the Odofin, ground 4 complains about the award of the four reliefs sought and ground 5 is the omnibus grounds. I do not see the repetition of any of the complaints in one ground in any other ground. The objection on behalf of the respondent on this ground is, therefore, lacking in factual basis.
I also see no merit in the contention that the appellants required leave to file grounds 3,4 and 6. By section 220(1)(a) of the 1979 Constitution, an appeal lay from decisions of the Federal High Court or a State High Court to the Court of Appeal as of right in final decisions in any criminal or civil proceedings before the Federal High Court or State High Court sitting at first instance. As we saw at the beginning of this judgment, this appeal came from the decision of the High Court of Ekiti State sitting at the first instance. The decision finally settled all the issues in controversy between the parties. It was, therefore, a final decision. An appeal from it was as of right and so the appellants did not require leave.
Although the appellants’ counsel conceded that these three grounds involve questions of fact or mixed law and fact because, in the words of Mr. Olatoke, for the respondent, “they are based on disputed facts which requires (sic) further resolution of or by the Honourable Court”, I would still have overruled the respondent’s counsel. I would still have held that the grounds involved questions of law alone and could, therefore, be filed as of right under section 241(a)(b) of the Constitution. A ground does not become a ground on fact or mixed law and fact merely because counsel by ingenious argument says so. In this appeal learned counsel has not drawn attention to any facts in these grounds of appeal that the court would need further investigation into before resolving the complaint raised. I do not see any. In ground 3 all that the court would need to do is to look at the order complained of and consider whether or not it was, in law, properly made. I see no controversial question of fact here. Again, with regard to ground 4, I see no issue of fact. The facts are there on the record to be gleaned. The court’s only duty is to consider the legal effect. The central complaint is that the Judge did not properly consider the issue canvassed by counsel regarding the reliefs sought before granting them. Finally on this point, the complaint is that the trial Judge was in error of law in entering judgment against a dead defendant. That the 6th defendant died before judgment was delivered is not in dispute. This court in dealing with the appeal does not have to inquire into that fact. All that is left to be done is to consider the legal effect of delivering judgment in the circumstances.
Finally, ground 7 is said to have been abandoned and should be formally struck out. The expenditure in time and recourses over this non-issue is regrettable. The abandonment of a ground of appeal should not be occasion for time-consuming preliminary objection. The court would simply ignore an abandoned ground and decide the appeal only on the basis of grounds in respect of which arguments have been advanced.
On the whole, the preliminary objection is devoid of merit and is accordingly overruled.
Next, I think I should take the fourth issue in the appellants’ brief, which raises the same question as the third issue in the respondent’s brief. The complaint here is that the death of the 6th defendant vitiated the judgment given against the surviving defendants just because the deceased defendant was found liable along with them. Learned counsel on behalf of the appellants dogmatically submitted that the entire judgment “is fatally vitiated and rendered incompetent by the presence of the 6th defendant, who was reported dead before the judgment is delivered”, because “the judgment was meant to affect the deceased 6th defendant notwithstanding that he had ceased to be a person in the eyes of the law”. In learned counsel’s final submission, “the learned trial Judge acted in vain when he delivered judgment against the 6th defendant who cannot be found blameworthy in law”. In reaction learned counsel for the respondent drew attention to the decision of the Supreme Court in In Re. Egbo II (2002) 10 NWLR (Pt. 774) 41 at 62, and submitted that the death of the 6th defendant did not invalidate the judgment of the court as it affected the surviving defendants.
With all due respect to the appellants, their complaint here is a flivolous one. In the first place, the death of one of several defendants does not necessarily put a stop to the proceedings. So that, even if, without making a substitution, the court proceeds to judgment against all the defendants, as happened in this case, the judgment cannot, on account of the non-substitution alone, be declared a nullity. Even if it was a mistake on the part of the Judge to have entered judgment against a dead man, in what manner has that mistake affected the validity of the judgment given against the living defendants who fully and actively participated in the proceedings? It was not as if the primary liability was that of their deceased colleague and theirs was only secondary to that. The plaintiff/respondent had his complaint against each of the defendants that was independent of the complaints against the others. A mistake made in considering the case against one defendant does not necessarily vitiate what has been done in respect of the others. In In Re Egbo the Supreme Court, per Ayoola, JSC, put the matter beyond argument when the learned Justice of the Supreme Court firmly held that –
“The respondents in this appeal were right in their contention that the application dated 13th November, 1995 could not have been rendered null and void by reason alone of the death of Henry Okoli since the 2nd respondent to the application, the Surveyor-General, was a living party. Where proceedings are brought against two or more persons at a time when one or more, as the case may be, of such persons has or have died, the proceedings do not become a nullity. It could be put light by striking out the name of the dead party or parties, of course, without prejudice to a substitution of fresh parties for the deceased parties. In this regard, the appellant had put his case rather too highly by contending that the application in question was a nullity. Weak as the chance of its success may have been without a person who is a necessary party being joined, it remained nevertheless a live application.”
Notwithstanding that the judgment in the case on appeal before us was given against all the defendants, including the 6th defendant, who had died in the meantime, the appellants cannot avoid the effect of the judgment as it relates to each of them, unless, of course, there are other valid grounds for granting them relief from such effect.
Another reason why I see no merit in the complaint of the appellants here is that they have not shown their locus standi to make it. If their complaint is that injustice to the deceased might have been occasioned by the manner in which the Judge had handled the case against him, then they must show that they have authority, maybe from his estate or personal representative, to press the matter. They have shown no such authority. They are, therefore, mere busybodies.
This issue should be and it is hereby resolved against the appellants. This takes me to first issue raised in each brief of argument taken together with the third issue in the appellants’ brief.
On these issues the first complaint on behalf of the appellants is that the learned trial Judge did not adequately consider the question of the jurisdiction of his court to entertain the plaintiff’s suit. Learned counsel for the appellants drew attention to the fact that the facts giving rise to the question were copiously pleaded in the statement of claim and the question was canvassed by counsel for both sides during addresses. In counsel’s view, the one sentence finding that the learned Judge made on the questions was far from adequate. In counsel’s own words, “This finding, which sprang a surprise on the defendants, is left hanging, unjustifiable, and does not resolve the issue of jurisdiction before him.”
In answer to this point, the respondent’s counsel submitted that the one-sentence finding adequately took care of the question. In paragraphs 4.06 and 4.07 of the respondent’s brief counsel argued thus:
“4.06 It is humbly submitted that the trial Judge is not bound to consider the purported issue of jurisdiction raised by the defendants/appellants in their statement of defence. The reason being that the issue raised in paragraphs 17 and 18 are not the issue that could be resolved ex-facie the statement of claim but it could only be argued based on facts to be supplied which has not been supplied. What is more the court cannot force the defendant counsel to take his objection when he is not ready to do so as the counsel to the defendants have the right to suspend and/or delay the argument till address state as he did.
4.07 It is also submitted that the appellants have not shown that the delay in hearing the objection till address stage has occasioned miscarriage of justice. What is more, issue of jurisdiction can be entertained even on appeal as he did. They have therefore not suffered any injury. On this score, I urge my noble lords to disregard the issue of delay raised by the appellants.”
I must confess to some difficulty in following the respondent’s counsel’s argument. Learned counsel does not appear to me to have grasped the essence of the appellants’ complaint. Counsel appears to think that their complaint relates to the delay by the Judge in hearing arguments on the question. If this is what counsel is saying then I must say he has missed the point being made on behalf of the appellants. What the appellants’ counsel is saying is that although counsel for the parties extensively addressed the court on the issue of its jurisdiction, the learned Judge did not specifically resolve that issue in his judgment.
By the first and last sentences of paragraph 4.06, learned counsel appears to be saying that the learned trial Judge had no obligation to consider the issue of jurisdiction at all and that the decision as to when to take the objection was a matter entirely at the discretion of the respondent, the Judge being powerless in the matter. Nothing, with all due respect, could be farther from the true legal position. The issue of jurisdiction is of such importance that it is about the only matter that could be raised with ease at any stage of the proceedings, even in the court of final resort and even by the court itself, whether the parties like it or not. The only entitlement they would have in the matter is to be given the opportunity to address the court on the point. To say, therefore, that the trial court must wait on one of the parties to raise the matter in his own sweet time is almost to make a sacrilegious pronouncement. The law relating to practice and proceeding that has been firmly established by the highest court of the land is that the issue of the jurisdiction of the trial court must be raised at the earliest opportunity and, once raised, must be decided before any further steps in the proceedings are taken.
In Nigerian Deposit Insurance Corporation v. Central Bank of Nigeria (2002) 4 MJSC 66, (2002) 7 NWLR (Pt. 766) 272 although pleadings had not been ordered and no statement of claim had been filed, the appellant filed a notice of his intention to raise a preliminary objection urging that the suit be struck out on the grounds that –
‘the Honourable Court is coram non judice in respect of this action; and the plaintiff has no right of action.’
This court, per Opene, JCA, expressed the view, inter alia, that “the preliminary objection was premature and that it could only be raised after the appellant has filed his statement of claim and that the preliminary objection can only succeed if the appellant failed to plead in his statement of claim that the Governor of Central Bank ‘acted in bad faith’.
The Supreme Court, however, saw the matter differently. Uwaifo, JSC, who delivered the lead judgment said at page 77 -78:
“I am afraid I cannot quite agree with these observations. It is now beyond argument that the issue of jurisdiction can be raised at any stage of the proceedings even on appeal. As observed by Oputa, JSC, in Western Steel Works Ltd. v. Iron & Steel Workers Union (1986) 2 NSCC (Vol.17) 786 at 798; (1986) 3 NWLR (Pt.30) 617 ‘A court has to be competent in the sense that it has jurisdiction before it can undertake to probe and decide the rights of the parties.’ But because it is regarded as a threshold issue and a lifeline for continuing any proceedings, objection to jurisdiction ought to be taken at the earliest opportunity if there are sufficient materials before the court to consider it and a decision reached on it before any other step in the proceedings is taken because if there is no jurisdiction, the entire proceedings are a nullity no matter how well conducted. There are far too many decisions on this: see Ndaeyo v. Ogunnaya (1977) 1 SC 11; Chacharos v. Ekimpex Ltd. (1988) 1 NWLR (Pt. 68) 88; Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508; Bakare v. Attorney-General of the Federation (1990) 5 NWLR (Pt. 152) 516; Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350; Ajayi v. Military Administrator, Ondo state (1997) 5 NWLR (Pt. 504) 237; Jeric (Nigeria) Ltd. v. Union Bank of Nigeria Plc. (2000) 15 NWLR (Pt. 691) 447. It is plain from the authorities that at any stage sufficient facts or materials are available to raise the issue of jurisdiction, or that it has become apparent to any party to the action that it can be canvassed, there is no reason why there should be delay in raising it. In Petrojessica Enterprises Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 675 at 693, Belgore, JSC said inter alia:
‘Jurisdiction is the very basis on which any tribunal tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity … This importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to Court of Appeal or to this court; afortiori the court can suo motu raise it. It is desirable that preliminary objection be raised early on issue of jurisdiction; but once it is apparent to any party that the court may not have jurisdiction it can be raise even viva voce as in this case. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity.’
It has also been said per Viscount Simon, L.C. in Westminster Bank Ltd. v. Edwards (1942) 1 All ER 470 at 473, inter alia, that:
‘There are, of course, cases in which a court should itself take an objection of its own motion, even though the point is not raised by any of the parties before it…Again, a court not only may, but should, take objection where the absence of jurisdiction is apparent on the face of the proceedings.’
To this Lord Wright added his observation at page 474 as follows:
‘Now it is clear that a court is not entitled but bound to put an end to proceedings if at any stage and by any means it becomes manifest that they are incompetent.’
To say, therefore, as did the court below and as canvassed by the plaintiff/respondent before us in its brief of argument that objection to jurisdiction should only be taken after the statement of claim has been filed is a misconception. It depends on what materials are available. It could be taken on the basis of the statement of claim: see Izenikwe v. Nnadozie (1952) 14 WACA 362 at 363; Adeyemi v. Opeyemi (1976) 9 – 10 SC 31; Kashikwu Farms Ltd. v. Attorney-General of Bendel State (1986) 1 NWLR (Pt. 19) 695. It could be taken on the basis of the evidence received: see Barclays Bank of Nigeria Ltd. v. Central Bank of Nigeria (1976) 1 All NLR 409; or by a motion supported by affidavit giving the full facts upon which reliance is placed: see National Bank (Nigeria) Ltd. v. Shoyoye (1977) 5 SC 181 at 194 per Obaseki, JSC. But certainly it could be taken on the face of the writ of summons where appropriate: see Attorney-General, Kwara State v. Olawale (1993) 1NWLR (Pt. 272) 645 at 674 – 675 where Karibi- Whyte, JSC observed:
‘There is no doubt the issue of whether a plaintiff’s action is properly within jurisdiction or indeed justiciable can be determined even on the endorsement of the writ of summons, as to the capacity in which action was being brought, or against who action is brought. It may also be determined on the subject-matter endorsed on the writ of summons, if this is not actionable.’
By the second sentence of paragraph 4.06 counsel appears to be saying that the appellants had not placed enough materials before the Judge to assist him to come to a decision on the question of jurisdiction. This, again with respect, is not borne out by the record. Even if the Judge could not at the early stage of the proceedings because he did not have sufficient materials before him, that statement could no longer be true at the time he wrote his judgment. As will be seen anon, there was sufficient material before the learned Judge to assist him to decide at the stage reached the issue of the jurisdiction of his court.
In paragraphs 17 and 18 of their joint statement of defence the appellants pleaded:
“17. The defendants further aver that the plaintiff had not exhausted all the avenue for relief open to him before he rushed to court.
18. The relevant provisions of the chiefs law are not complied with for which notice of preliminary objection will be raised before or during the hearing.”
In his final address the defendants’/appellants’ counsel drew attention to the relevant provisions of the Chiefs Edict, as amended and applicable in Ekiti State, which stipulates steps to be taken by a person aggrieved by the selection or installation of a minor chief. Citing Eleso v. Gov. of Ogun State & Ors (1990) 2 NWLR (Pt. 133) 420, and Eguamwense v. Amaghizemwen, he urged the court to decline jurisdiction because the plaintiff had not exhausted the remedies afforded him before rushing to court. In answer, the plaintiff’s counsel submitted that it was not mandatory for the plaintiff to exhaust these remedies before coming to court. What further material could he have needed at that judgment stage in view of the pleadings and the evidence?
Now, in the face of all these materials how did the learned Judge resolve this and the other issues raised and canvassed before him? His decision on these issues is not very long, so no harm will be done in setting all of it out here, especially considering the comments that I propose to make on it later. The judgment starts at page 80 of the record. From there to the last line but four on page 95 the Judge reviewed the evidence of the witnesses and the addresses of counsel.
His real decision starts from the fourth line from the bottom on page 95 to the fifth line on page 98. He said:
“For the benefit of doubt and for proper understanding, this is not a case of Chieftaincy Review Commission but a proper suit brought by an aggrieved contestant in a chieftaincy matter. Since there is no counter claim the first question to resolve is whether there is as at now an Odofin at Erinmope in place of the late Odofin Adunse who died about four years ago. In this regard, I have considered the totality of the evidence before me. The dramatis person are the 3rd defendant who as the Eisemo having failed to install himself according to the abundant evidence before me, arranged behind the other two contestants, to unilaterally manipulate a nomination paper exhibit A from Ile Ipo compound and which was sent to the Oba without the knowledge of the other Ruling Houses of Abumora, Osun and Awe of Ibamogun. The 1st defendant who was purportedly installed the Odofin claimed that he performed the Ifidegan ceremony but was never installed at the Palace. The evidence of DW3 Ashaolu Ale of 100 years of age that the practice is that the Elerebi puts forward a candidate and Oba is consulted with traditional gifts before the installation cannot be brushed aside. It is traditional evidence of much value more so when 7th defendant the Oba who is the prescribed authority swore to an affidavit that he had no knowledge of 1st defendant having been made the Odofin. I am therefore perfectly satisfied that the Ifidegan ceremony performed on 1st defendant to qualify him assume a higher chieftaincy title cannot take the place of an approval by the prescribed authority as evidenced in exhibit A.
The next question is whether the plaintiff is entitled to the stool of Odofin. It is a common ground that all the parties to this suit except 7th defendant are members of Bamogun sharing the same chieftaincy. See DW5’s evidence. PW 1 gave evidence that all the houses are branches of Awe Ruling House. He analysed how Ipo and Okuta Elu came to existence within Awe sons. What is admitted need no further proof. The evidence that Okuta Elu the sub-branch of Awe is a stranger is defeated by the fact that the plaintiff was a candidate and showed his intention to contest the Odofin chieftaincy at a meeting of Ibemogun, remains unchallenged. That proposition, I hold, is an after thought.
As to the plaintiff’s right to fill the vacancy of the Odofin, there is the evidence in support of paragraph 14 that of all the branches in the Ruling House, only the Okuta Elu branch of Ile Awe has not produced any Odofin of Erinmope. This evidence is supported also by PW2 in his evidence when he stated that the Awe family to which he belongs is one and indivisible Odofin Ruling House. The 3rd defendant also testified that Ile Oke, Ile Ipo and Okuta Elu are within Ile Awe. In his own testimony DW5 described himself and all other defendants and the plaintiff as members of Bamogun, sharing the same chieftaincies of Odofin, Eisemo and Asaba in rotation.
If the Odofin chieftaincy like others in the same Ibamogun to which the plaintiff belongs has gone round except the Okuta Elu of the same Awe House. It stands to reason that the plaintiff cannot be extinguished with the wave of the hand without any justifiable reason of disability.
Since equity is equality, the plaintiff is entitled to all the four reliefs sought. I am therefore perfectly satisfied that he has successfully proved his claims and I hereby enter judgment in his favour and against the defendants in terms of all the reliefs sought.
In order to curtail further tangle in respect of this minor chieftaincy, I further Order that every machinery should be put in motion to install the plaint as the next Odofin of Erinmope.”
It can be seen that the first sentence was the entirety of what he said that one could regard as being in resolution of the question of jurisdiction canvassed. No other reference at all was made by him to the issue of jurisdiction.
The questions are who talked about chieftaincy review commission? And what has that got to do with the defendants’ complaint that the plaintiff jumped the gun by coming to court the way he did and that, therefore, his action before the court was incompetent? How could the Judge, without considering the contentions on behalf of the parties jump to the conclusion that this was “a proper suit brought by an aggrieved contestant in a chieftaincy matter” when that was the very bone of contention before him?
With all due respect to the Judge, I must agree with the appellants’ counsel that he had not given adequate consideration to the issue of jurisdiction raised and canvassed before him. I must observe that he failed in his primary duty of resolving disputed issues. He should have considered the points canvassed by counsel and made a firm ruling on the defendants’/appellants’ contention that the plaintiff jumped the gun and that, therefore, the court lacked the jurisdiction to entertain his suit.
The learned Judge’s failure to consider the issue of jurisdiction does not preclude us from considering it. Indeed we have a duty to consider it. We have seen from the authorities cited earlier on that a court labours in vain if it embarks and the decision of a case if it has no jurisdiction to do so. It is our duty here to cheek to see that the learned trial Judge had not laboured in vain and whether or not his judgment was not a nullity.
That then brings me to the second aspect of the appellants’ complaints on this issue, which is that the trial Judge was wrong to have entertained the respondent’s suit, as it was premature. This aspect of the case has adequately been dealt with by my learned brother in the lead judgment. I need dwell no further on it other than to express my full agreement with him that the plaintiff’s/respondent’s action was premature and that the learned trial Judge should have refused to entertain it.
With that we are left with only the second issue in each brief. They all raise the main question whether or not the evidence before the learned trial Judge justified the judgment he gave and the orders he made in favour of the plaintiff/respondent, even if the action had not been premature but was properly before the court.
Learned counsel for the appellants saw the issue from the aspects. Firstly, he said that the declaration made by the Judge to the effect that the respondent was the rightful person to be the next Odofin was different from the one sought by the respondent. Secondly, he said that the order that the respondent be installed the Odofin was a gratuitous and an unsolicited donation.
I think there is merit in the complaints here. As we saw at the beginning of this judgment, the first declaration sought by the respondent was that it was “the turn of Okuta Elu of Ile-Awe branch of Ibamogun Ruling House to present the next Odofin of Erinmope-Ekiti”, not that he was entitled to be installed the Odofin. The case that he made in his pleading was not that he had undergone the traditional process that would have entitled him to be installed as the Odofin. His case was in fact that the process of selecting the next Odofin after the death of the immediate past incumbent had not been completed in respect of any of the aspirants. Indeed he made it clear in paragraphs 17 and 20 of his statement of claim that the process had not been followed in respect of any of the aspirants, including himself. In those two paragraphs he pleaded thus:
“17. The plaintiff avers that according to Ibamogun Ruling House tradition meetings are held after candidates have shown interest in the vacant stool, it is in this meetings that some tradition duties are performed to select a candidate among the contestant. There was no meeting except the one that was called during which applications were sought from any interested member of the family to fill the vacant stool of Odofin Erinmope.
20. That there was no meeting where any candidate was approved by the family and there was no ceremony where the name of any successful candidate was announced to the family.”
His case, as can be seen from the declarations and orders sought and the pleadings, was limited to attacking the selection and installation of the 1st defendant as such, not pushing for the selection and installation of himself as the Odofin.
Nor was there any evidence that the process leading to the installation as the Odofin had been followed in respect of the plaintiff. The material upon which the learned trial Judge relied in coming to the conclusion that the plaintiff was entitled to be installed as the next Odofin was not that he had been processed to be so installed. The material he relied on, as he himself observed in his judgment at page 97 of the record, was “the evidence in support of paragraph 14 that of all the branches in the Ruling House, only the Okuta Elu has not produced any Odofin of Erinmope”. Paragraph 14 reads:
“14. The plaintiff avers that of all the branches in the Ruling House only the Okuta Elu branch of Ile-Awe has not produced any Odofin of Erinmope.”
The evidence in support of this averment clearly cannot support the declaration that the respondent was entitled to be installed or the order that he be installed. The fact that it is the turn of this branch of the ruling house, even if he is from that branch, to produce the next Odofin does not automatically give the right to the respondent to be installed, especially in view of his own pleading that all that happened in respect of him was that he, among others, expressed his desire to be considered for selection.
Having regard to the pleadings and evidence before the court, I have no hesitation in agreeing with the appellants that the learned trial Judge was not justified in granting the reliefs he did to the respondent. This issue is resolved in their favour and against the respondent.
I cannot conclude this judgment without commenting on the quality of the judgment from which this appeal has come. It is a most unsatisfactory judgment. As I showed earlier on in this judgment, the learned Judge spent 15 pages reviewing evidence and addresses of counsel and spent less than 2 1/2 rendering his decision on all the issues raised and canvassed! By all means, nothing is wrong with reviewing evidence. It is an important step in the decision-making process. Equally important, however, if not more important, are the assessment and evaluation and appreciation of the evidence in the resolution of the issues canvassed. With the greatest respect to the learned Judge, all he did in this case was to review the evidence. He did not do much assessment or evaluation of it. As we saw, after the review, he just jumped to his conclusions without demonstrating by what process of reasoning he arrived at such conclusions. And some of the conclusions in vital areas, like declaring the respondent entitled to be installed, did not agree with the case brought before him. It can only be hoped that there will be some conscious effort at improvement.
It was for the reasons that I have given here that I agreed with my learned brother that this appeal should be allowed. I too allow it.
I abide by all the consequential orders in the lead judgment.
OGUNWUMIJU, J.C.A.: I have had the benefit of reading in draft the judgment just delivered by my learned brother Muntaka-Coomassie, JCA. I agree with his reasoning and his conclusion that the respondent’s action in the lower court was incompetent and the court had no jurisdiction to entertain the suit.
Consequently, the appeal is meritorious and should be allowed. I therefore allow the appeal. I also make no order as to costs.
Appeal allowed.
Appearances
Mr. T. O. S. Gbadeyan, Esq. (with him, S. A. Obafemi and Yewande Ashiru [Miss])For Appellant
AND
Mr. Kayode Olatoke, Esq. (with him, D. A. Ariyoosi and Chief D. O. BelloFor Respondent
