CHIEF AJIJOLAOGUN ODE & ANOR v. IDOFIN IGBANA OBA-IN-COUNCIL & ORS (2008)

CHIEF AJIJOLAOGUN ODE & ANOR v. IDOFIN IGBANA OBA-IN-COUNCIL & ORS

(2008)LCN/2804(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 11th day of June, 2008

CA/IL/15/2007

RATIO

JURISDICTION: COMPETENCE OF COURT

Since the crux of this issue is the competence of the suit before the lower Court and therefore the jurisdiction of the Court to entertain same, it becomes crucial to examine the Writ of Summons or Statement of Claim of the Plaintiffs. The law is now certain that the jurisdiction of a court is only determined by the claim of the Plaintiff before the court. See Chief Olori Edjerode & Others V Chief Ohwovwiogor Ikine & Others (2001) 12 SCNJ 184; Chief Ali Abu & Others V Chief Abubakar Zibirii Odugbo & Others (2001) 7 SCNJ 262. PER JUMMAI HANNATU SANKEY, J.C.A.

JUSTICES

OLUFUNLOLA OYELOLA ADEKEYE Justice of The Court of Appeal of Nigeria

SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

Between

1. CHIEF AJIJOLAOGUN ODE
2. MALLAM IBRAHIM MUSTAPHA
(For themselves and on behalf of lie Olowu Family of Idofin Igbana, Oke-Ero Local Government Area of Kwara State). Appellant(s)

AND

IDOFIN IGBANA OBA-IN-COUNCIL
As represented by:
1. CHIEF SUNDAY AIYELABOLA
(THE ODOFIN OF IDOFIN IGBANA)
2. CHIEF SUNDAY ATOFOLAKI
(THE ASANLU OF IDOFIN IGBANA)
3. MR. SAMUELOLAWUYI OLORUKOBA Respondent(s)

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Justice, Ilorin, Kwara State delivered on the 18th July, 2006 by Akoja, J.
The claim of the Appellants, who were the claimants in a civil suit at the High Court, was as follows:
1. A Declaration that it is the turn of lie Olowu family in Odo-Eru Ruling House to produce an Oba for Idofin Igbana in Oke-Ero Local Government Are of Kwara State and not Alomilogba family.
2. A Declaration that the appointment of the 3rd Defendant by the Oba-in Council as represented by the 1st and 2nd Defendants is wrong, null and void.
3. An order that the 3rd Defendant should not parade himself as the appointed candidate to mount the stool of Oba of Idofin Igbana of Oke-Ero Local Government Area of Kwara State.
In defence to the claim, the Respondents, as Defendants, filed their Statement of Defence/Counter claim. Thereafter, they also filed a Preliminary Objection to the hearing of the suit on the 25th April, 2006.
The main ground of objection therein was that the Appellants failed to comply with the mandatory provision of Section 15(1) of the Chiefs (Appointment and Deposition) Law of Kwara State, 1994, and that the Court therefore lacked jurisdiction to entertain the suit. After arguments were taken on the objection, the learned trial Judge, in a considered ruling delivered on the 18th July, 2006, upheld the objection and struck out the claim of the Claimants for lack of jurisdiction. He found inter alia thus at pages 110-111 of the transcribed record of the Court:
“With the above referred to decided authorities and the applicable rules of court, the court is of the firm view that the Onidofin of Idofin Igbana whose position is being challenged having been graded as a fourth class chief by the Governor of the State vide the Kwara State legal Notice No. 14 of 2005, is a graded chief whose appointment cannot be validly challenged unless there is due compliance with the provisions of Section 15(1) of the Chiefs (Appointment and Deposition) Law, 1994…
Accordingly therefore, the Court holds that this suit is not competent for failure of claimants to comply with the provisions of Section 15(1)of the Chiefs (Appointment and Deposition) Law of 1994 which makes the deposit of N10, 000.00 with the State’s Accountant General, mandatory.
Since the court has held that the suit is not competent, the court lacks the requisite jurisdiction to try same.
The suit No. KWS/OM/23/2006 is accordingly struck out for incompetence. ”
Dissatisfied by this decision, the Appellants appealed to this Court on three grounds via their Notice of Appeal filed on 26th July, 2006. The Grounds without their particulars complain thus:
1. The learned trial judge erred in law when he held that the Appellants’ suit is not competent for failure of the Appellants to comply with the provisions of section 15(7) of the Chiefs (Appointment and Deposition) Law of 1994 which makes the deposit of N10, 000.00 with the State’s Accountant General mandatory.
2. The learned trial judge erred in law when he endorsed the use of, in his judicial division, a motion filed in the Registry of a different judicial Division without the fiat of the Chief Judge under section 72 of the High Court Law Kwara State.
3. The learned trial judge erred in law by holding that he lacked jurisdiction to entertain this suit.
When this Appeal was called up for hearing on the 15th April, 2008, Chief Odeyemi, learned Counsel for the Appellants, adopted the Appellants’ Brief of Argument dated 30th November, 2007 and filed on the same day, as the Appellants’ arguments in the Appeal. He urged the Court to allow the Appeal. In like manner, Mr. Ayoola, learned Counsel for the Respondents, adopted the Respondents’ Brief of Argument dated 15th October, 2007 and filed on 16th October, 2007, as the Respondents’ arguments in the Appeal. On his part, he urged the Court to affirm the decision of the lower Court and to dismiss the Appeal.
The Appellants, in their Brief of Argument, formulated the following four issues for the determination of this Appeal:
1. Whether, judging from the reliefs sought by the Appellants, the Appellants are bound to pay N10,000 under Section 15(1) Chiefs (Appointment and Deposition) Law, Cap 28 Laws of Kwara State, 1994 before instituting this suit. And if not so, whether the trial judge should decline jurisdiction to try the Appellants’ case.
2. Whether as at the time (10/3/2006) that the Appellants filed this suit, the 3rd respondent had been approved as the Oba of Idofin Igbana by the Governor or the Oke-Ero Traditional Council of Kwara State.
3. Whether the Oke-Ero Local Government of Kwara State can usurp the official function of the Governor or the Oke-Ero Traditional Council in appointing an Oba for Idofin Igbana town.
4. Whether the learned trial judge can remove the arrangement and convenience provided by the creation of judicial Divisions under the High court Law of Kwara State.
The Respondents on the other hand formulated only two issues for resolution by the Court thus:
1. Whether the trial Court was in order when it held that this suit cannot be instituted without the Appellants first complying with section 15(1) of the Chiefs (Appointment and Deposition) Law of Kwara State, 1994 and failure which oust (sic) its jurisdiction.
2. Whether the learned trial judge was right when he held that filing of the motion on notice in another Registry of the same High Court instead of the registry of Omu-Aran High Court has not in any way affects (sic) the jurisdiction of the trial Court.
Having closely examined the facts as disclosed in the record, I believe the following issues as set out hereunder shall suffice to adequately address the issues arising there from and to dispose of the Appeal:
1. Whether from the cause of action as disclosed in the Writ of summons and the Statement of claim, the learned trial judge rightly invoked the application of Section 15(1) of the Chiefs (Appointment and Deposition) Law Cap 28 Laws of Kwara State, 1994 as a condition precedent to the institution of the action.
2. Whether the filing of the Notice of Preliminary Objection in the Registry of the Ilorin High Court in the same judicial Division with the High Court, Omu-Aran, in any way detracted from its validity and therefore the jurisdiction of the trial court to try same.
In respect of the first issue, the sum of the submissions of the Appellants is that by virtue of Section 15(1) of the Chiefs (Appointment and Deposition) Law, N10,000.00 is payable only in respect of a person whose appointment has been approved by the Governor or the Appointing Authority in the area concerned. Learned Counsel for the Appellants has therefore submitted that, as at the time the Appellants instituted the action against the Respondents, the 3rd Respondent’s appointment had not been approved by the Governor or the Oke-Ero Local Government Traditional Council. He contended that the trial Court therefore had jurisdiction to try the case without this precondition being met.
The Respondents, on the other hand, argue that since the Exhibit A attached to the supporting affidavit at page 83 of the record of proceedings discloses that the stool of the 3rd Respondent is a graded one, then, by virtue of Section 15(1) of the Chiefs (Appointment and Deposition) Law, anyone intending to challenge the validity of appointment into that office must deposit with the State Accountant General a non-refundable sum of N10,000.00. Learned Counsel for the Respondent has submitted that since there is no pleading either in the Statement of Claim or in the Reply to the Counter Claim or even in the Counter affidavit in response to the Preliminary Objection showing that the Appellants had paid this sum, then there is a failure by the Appellants to comply with the condition precedent to the institution of this action. Learned Counsel in conclusion argues that this has effectively de-robed the trial Court of jurisdiction to entertain the suit.
Since both learned Counsel have hinged their arguments in this Appeal on Section 15(1) of the Chiefs (Appointment and Deposition) Law of 1994, it becomes imperative to examine and interpret same. For ease of reference, Section 15 of the said Law states as follows:
(1) Where the Governor or the appointing authority has approved the appointment of a person as a Chief, any person who intends to challenge the validity of such appointment shall first deposit with the State Accountant- General a non-refundable sum often thousand naira.
(2) Where the Governor or the appointing authority has not approved any appointment to a vacant chieftaincy stool, any aggrieved person who institutes any court action in connection with the vacant chieftaincy stool and joins the State Government or any of its agencies as a party to any such court action shall first deposit with the State Accountant-General a non-refundable fee of ten thousand naira.
(3) In this section-
“the appointing authority” shall include the Traditional Council having Jurisdiction in the are a concerned Applying the golden or literal rule of interpretation, sub-section
(1) evidently provides for a situation where the Governor or the appointing authority, (such as the Traditional Council), approves the appointment of a person as a Chief. The provision therefore anticipates that such a person whose appointment is so approved by the Governor must have passed through and scaled the processes of selection by those whose duty it is by tradition to select the Chief. This interpretation is buttressed by a conual reading of the entire Law, but in particular Section 3 thereof. The said section provides thus:
(1) Upon the death, resignation or deposition of any chief other than a chief of a kind referred to in section 4, the Governor must appoint as the successor of such chief or head chief. any person selected in that behalf by those entitled by customary law and practice to select in accordance with customary law and practice.
(2) Where no selection is made before the expiration of such interval as is usual under customary law and practice, the Governor may himself appoint such person as he may deem fit and proper to carry out such duties incidental to the chieftaincy as it may be necessary to perform.
(3) In the case of any dispute, the Governor, after due inquiry and consultation with persons concerned in the selection, shall have the final say as to whether the appointment of any chief has been made in accordance with customary law and practice.
(Underlining supplied for emphasis).
From the above, it is apparent, at least to me, that before the Governor or the Appointing Authority appoint a chief under this Law, he must have previously been selected by those entitled by customary law and practice to so select him. It is only after a candidate has emerged via such a process of selection that he is then presented to the Governor or Appointing Authority for appointment into the said office.
Any other approach would amount to putting the cart before the horse.
Since the crux of this issue is the competence of the suit before the lower Court and therefore the jurisdiction of the Court to entertain same, it becomes crucial to examine the Writ of Summons or Statement of Claim of the Plaintiffs. The law is now certain that the jurisdiction of a court is only determined by the claim of the Plaintiff before the court. See Chief Olori Edjerode & Others V Chief Ohwovwiogor Ikine & Others (2001) 12 SCNJ 184; Chief Ali Abu & Others V Chief Abubakar Zibirii Odugbo & Others (2001) 7 SCNJ 262. Upon a sober examination of the averments and the reliefs sought by the Appellants in their Statement of Claim at pages 12-15 of the record, (which reliefs have been reproduced earlier in the body of this judgment), it is evident that the Appellants are challenging the selection process conducted by the Oba-in-Council which threw up the 3rd Respondent as the candidate for appointment as Chief of Idofin Igbana. It is their position that selection to the stool is by rotation and presently, it is the turn of the lie Olowu family in Odo-Eru Ruling House to produce the Oba of Idofin Igbana.
They contend that the lie Olowu family produced three suitable candidates for selection by the Oba-in Council. The Appellants further contend that instead of complying with tradition and approving a candidate from the claimants’ family, the Oba-in-Council picked a candidate from the Alomilogba family which had already taken her turn in the rotation. Since, as aforesaid, the cause of action is to be gleaned from the claim of the Claimants, it is quite obvious that what is being challenged in the claim at the lower court is the selection process by the Oba-in-Council of a candidate for the stool of the Oba of Idofin Igbana.
It is this process of the emergence of the candidate that is under challenge in the suit at the lower Court and not the validity of the candidate’s appointment as Oba by the Governor or the Appointing Authority. Visibly, from the Statement of claim, that bridge was yet to be crossed at the time the suit was filed. Since that is so, the application of Section 15(1) of the Chiefs (Appointment and Deposition) Law to the case was, in my opinion, hasty, untimely and premature. The suit of the Appellants was indeed competent and properly before the trial Court, and I do so find.
Going further learned Counsel for the Appellants has questioned the finding of the learned trial Judge in respect of ‘The Grading of Chiefs’ Legal Notice No. 14 of 2005. In respect of this Notice, the Court relied on the fact that the stool of the Onidofin of Idofin Igbana has been graded by the Governor of the State as a fourth class chief. He therefore made the following finding thereon at page 110 of the record:
‘With the above decided authorities and the applicable rules of court, the court is of the firm view that the Onidofin of Idofin Igbana whose position is being challenged having been graded as a fourth class chief by the Governor of the State vide the Kwara State Legal Notice No.14 of 2005, is a graded chief whose appointment cannot be validly challenged unless there is due compliance with the provisions of section 15(1) of the Chiefs (Appointment and Deposition) Law, 1994.”
With the greatest respect to the learned trial Judge, I believe he got it all wrong. There is no doubt that the Law vests the power to grade the offices of the chiefs on the Governor, and in pursuance of that, the Governor did go on to grade the category of chiefs as set out in the said Legal Notice. However, the grading of the stool or chieftaincy of an area must be distinguished from appointment to that graded stool/chieftaincy. Indeed, the wordings of Section 5 of the Chiefs Law erase any such ambiguous and hazy application of the Law. For the avoidance of doubt, it provides thus:
5. The Governor mar grade the office of a head chief as first, second or third class, according to the size and importance of such office.
(Underlining supplied for emphasis).
It therefore follows that the grading by the Governor is the grading of the office and not of the person occupying the office. Same cannot be equated to appointment into the office of a chief as prescribed by Section 3 of the Law. Consequently, it is my view that, the fact that the office of the Odofin of Idofin Igbana has been graded as a fourth class chief by the Legal Notice No. 14 of 2005, does not by itself without more require compliance with Section 15(1) of the Law by any person seeking to challenge the selection process of a candidate to the stool. The stool was evidently graded in 2005, (as published in the said Legal Notice No. 14 of 2005), while the selection process by the Oba-in-Council, (who, from the Statement of claim in the record of the lower Court, are the kingmakers or traditional selectors,) now under challenge took place in 2006. It is therefore for all these reasons that I answer issue one in the negative. Grounds 1, 2 and 3 succeed.
Issue two relates to the filing of the Preliminary Objection to the hearing of the suit at the Ilorin Division while the suit was pending at the Omu-Aran Division both of the High Court of Kwara State. Whereas the Appellants took up issues with this process, the learned trial Judge upheld the Respondents’ submission that same was in order. According to Section 270 of the Constitution of the Federal Republic of Nigeria, 1999, there is only one High Court for each State of the Federation. Order 3 of the Kwara State High Court (Civil Procedure) Rules 2005 which provide for the place of instituting and trial of suits is primarily designed for the convenience of parties and to save the costs of litigation. Indeed, Rule 6 thereof provides thus:
5. If any suit is commenced in the wrong Judicial division, it may be tried in that Division unless the chief Judge otherwise directs.
Hence, it is quite clear that unless an action is shown to be within the area of the territorial jurisdiction of another State, an action commenced in a Judicial Division other than the Judicial Division where it ought properly to have been commenced, but is still within the area of the territorial jurisdiction of the State High Court, it shall not be defeated or dismissed by reason only of the fact that the action was commenced in a wrong Judicial Division. See Obasi Brothers Merchant Co. (Nig) Ltd V Wilbros (Nig) Ltd. (1991) 3 NWLR (Pt. 181) 606. The era of technicality is long since gone and the attitude of the court is, whenever possible, to determine a case on its merits, and not to cling to technicalities to deny a plaintiff the opportunity of being heard. See Shedrak Orji Ukpai V Udo Oji Okoro & 2 Ors (1983) NSCC Vol. 14 Page 599. I have however since noted that the learned Appellants’ Counsel at page 10 of the Appellants’ Brief has advised himself properly and latterly elected to drop this point as an issue to be resolved by the Court on account of the fact that it has become, as he put it, “an academic exercise”. That is his prerogative and I think it is wise, especially since academic or hypothetical questions are not within the jurisdiction of the Court to deal with. See Lt. Gen. Ishaya Rizi Bamaiyi (Rtd) V Attorney General of the Federation & Others (2001) 7 SCNJ 346.
Therefore, nothing further needs to be said thereon save to strike out the Ground of Appeal giving rise to that issue. Consequently, issue four having been abandoned, Ground 2 is struck out.
In the result, having resolved issue one in favour of the Appellants, the Appeal succeeds. It is allowed. The Ruling of the High Court Ilorin delivered on 18th July, 2006 is hereby set aside. The suit is sent back for trial before another Judge of the Kwara State High Court. I award costs assessed at N30, 000.00 to the Appellants.

OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.: I have read in advance the lead judgment delivered by my learned brother J. H. SANKEY, JCA. My Lord had meticulously considered all the issues formulated for determination in this appeal. I am in full agreement with her reasoning and final conclusion that the appeal be allowed. I equally adopt the consequential orders made therein as mine.

SOTONYE DENTON-WEST J.C.A.: have had the great opportunity of reading before today the very concise judgment of my noble brother Jummai Hannatu Sankey (J.C.A) just delivered allowing the appeal. For the reason set out in the lead judgment, I also allow the appeal and would readily set aside the ruling of the High Court, Ilorin Judicial Division delivered on 18th July, 2006, for the reasons mentioned in the said judgment and more. In fact, I adopt the reasoning and the conclusion therein as mine.
However, by way of emphasis I would like to recapitulate the facts and give an elaboration of other reasons of my own for allowing the appeal.
This appeal is from the ruling of the High Court of Justice, Omu-Aran Judicial Division, Kwara State of Nigeria whereby the appellants’ claim in suit No KWS/OM/33/2006 was struck out for want of jurisdiction. The claims are as follows:-
(1) “A Declaration that it is the turn of lie Olowu Family in Odo-Eru Ruling house to produce an Oba For Idofin Igbana in Oke-Ero Local Government Area of Kwara State and not Alomilogba family.
(2) A Declaration that the appointment of the 3rd defendant by the Oba-in Council as represented by the 1st and 2nd defendants is wrong, null and void.
(3) An Order that the defendant should not parade himself as the appointed candidate to mount the stool of Oba of Idofin Igbana of Oke-Ero Local Government Area of Kwara State.
The Defendants who are the Respondents in this appeal, however, entered a conditional appearance and contended that the Lower Court lacks jurisdiction to entertain the matter based on the following grounds.
(1) That there is non-compliance with the mandatory provision of Sections 15 (1) of Chiefs (Appointment and Deposition) (Amendment) Edict NO.3 of 1988 at the time suit was commenced.
(2) That the Lower Court lacks jurisdiction to entertain the suit, other processes like motion exparte and motion on Notice filed along with it and that the consequential order made on the 16th March, 2006 by the Hon. Justice A. O. Bamigbola is null and void and of no effect.
Pleadings were filed and exchanged on both sides. The preliminary objection was dated 24th of March, 2006 and filed on the 25th of April, 2006 supported with an affidavit of 7 paragraphs. The claimants filed a counter affidavit of 11 paragraphs in opposition to the notice of preliminary objection.
The application came up for hearing on the 4th of May, 2006; and the ruling was reserved for the 18th day of July, 2006.
The learned trial judge delivered his ruling on the 18th day of July, 2006 and, as already stated, he struck out the claim for want of jurisdiction.
The crux of the ruling complained against, inter-alia, is as follows:
“With the above reformed to decided authorities (Sic) and the applicable rules of Court. The Court is of the firm view that the Onidofin of Idofin Igbana whose position is being graded as a fourth class chief by the Governor of the Kwara State vide legal Notice No. 14 of 2005, is a graded chief whose appointment cannot be validly challenged unless there is due compliance with the provisions of section 15(1) of the Chiefs (Appointment and Deposition) Law, 1994………………. The Court holds that this suit is incompetent for failure of the claimants to comply with the provisions of Section 15(1) of the Chiefs (Appointment and Deposition) Law of 1994 which makes deposit of Ten Thousand Naira (N10,000.00) with the State Accountant General, Mandatory…….”
The Appellant being dissatisfied appealed to this Court and formulated 4 issues for determination but later abandoned the 4th issue. They are:
(1) Whether, judging from the reliefs sought by the appellants, the appellants are bound to pay Ten Thousand Naira (N10, 000. 00) under Section 15 (1) of Chiefs (Appointment and Deposition) Law cap 28 Laws of Kwara State 1994 before instituting this suit. And if not so, whether the trial judge should decline jurisdiction to try the appellants’ case.
(2) Whether as at the time (10/3/2006) the Appellants filed this suit, the 3’d Respondent had been approved as the Oba of Idofin Igbana by the Governor or Oke-Ero Traditional Council of Kwara State.
(3) Whether the Eko-Ero Local Government Area of Kwara State can usurp the official function of the Governor or the Oke-Ero Traditional Council in appointing an Oba for Idofin Igbana Town,
(4) Whether the learned trial judge can remove the arrangement and convenience provided by the creation of Judicial Divisions under the High Court Law of Kwara State.
However, the Respondents formulated two issues for the determination of this appeal; distilled from the 4 Grounds of Appeal as filed by the Appellants. Accordingly, I hereby reproduce the Respondents’ issues for determination
(1) Whether the trial court was in order when it held that this suit cannot be instituted without the Appellants first complying with Section 15 (1) of the Chiefs (Appointment and Deposition) Law of Kwara State 1994 failure ousts its jurisdiction (Grounds 1 and 3)
(2) Whether the learned trial judge was right when he held that filing of the motion on notice in another registry of the same High Court instead of the registry of Omu-Aran High Court has not in way affected the jurisdiction of the Trial Court (Ground 2).
I shall now consider the issues as formulated by the parties serially and as appear appropriate.
ISSUE (1)
Whether, judging from the relief’s sought by the appellants, the appellants are bound to pay Ten Thousand Naira (N10,000.00) under Section 15 (1) Chiefs (Appointment and Deposition) Law of Kwara State 2004, before instituting this suit and if not so, whether the trial judge was right to decline jurisdiction to try the appellants’ case.
The provision of Section 15 (1), Chiefs (Appointment and Deposition) Law of Kwara State 1994 is not ambiguous, it is an express provision that creates a condition precedent that must be fulfilled by an aggrieved party that wants to challenge the validity of the appointment of a Chief.
The provision stated thus:-
………………………….. any person who intends to challenge the validity of such appointment shall deposit the sum of Ten Thousand Naira (N10,000.00)
See: sub-Section 1 thereof which provides thus…
Where the Governor or the appointing authority has approved the appointment of a person as a Chief, any person who intends to challenge the validity of such appointment shall first deposit with the State Accountant-General a non fundable sum often Thousand Naira (N10,000.00).
A careful look at this mandatory provision will show that it operates only in a case where the Chief has been appointed and the appointment together wit its approval has been done by either the Governor or the appointing authority
There is no evidence to show that the 3rd Respondent has been appointed or that his purported appointment has been approved by the Governor or the Oke-Ero Local Government Traditional Council. Exhibit (B) which was tendered by the 3rd Respondent as the letter of approval, being a public document, was not certified as a True Copy of the said letter was accordingly rejected by the Lower Court. There was no other sufficient evidence to justify the trial court in declining from adjudicating or justifying his declaring that he has no jurisdiction to hear the claim of the appellants. In the case of Alhaji Bani Gaa Budo Nuhu Vs. Alhaji Ishola Are Ogele (2003) 12 SCNJ 158, the Apex Court decided thus:
“Where an appeal is based on several grounds which include a ground raising issue challenging jurisdiction on a firm ground, the Court held inter alia that it would be useful to take arguments and decide the other issues raised in the appeal after dealing with the issue of jurisdiction”
From the totality of the aforesaid, the appointment of the 3rd Respondent and the approval of same was not shown to have been done by either the Governor of Kwara State or Oke-Ero Local
Government Traditional Council, the only condition which makes a deposit of Ten Thousand Naira (10,000.00) payable as a condition precedent before the appellant can institute his action.
By virtue of the Provisions of Section 272 of the Constitution of the Federal Republic of Nigeria, 1979, the High Court of a State has jurisdiction to entertain this case, the Lower Court should not have declined jurisdiction to hear the appellants’ claim on grounds of lack of jurisdiction.
It is on this constitutional provision that the Court below has jurisdiction to hear and determine the Appellants’ claims. See: Section 272 (1) of the Constitution of the Federal Republic of Nigeria, 1979 which provides thus:
“272 (1) subject to the provision of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person”
The Constitution is the ground norm or indeed the mother of all laws.
There is no way that an ancillary law like the Chiefs (Appointment and Deposition) Law, CAP 28, Laws of Kwara 1994 can take the pride of precedence as a law before the Constitution. The supremacy of the Constitution viz-a-viz other statutes was affirmed in the case of Doherty Vs. Balewa (1963) 1 WLR 949 where it was held thus:
“The Constitution is the supreme law and its provisions shall have binding force on all authorities and persons throughout Nigeria and any law that is inconsistent with its provisions shall to the extent of the inconsistency be void. Consequently, the law, which purports to limit the jurisdiction of the courts in hearing and determining civil rights, is contrary to the provisions of the Constitution and is therefore null and void. ”
In order to realize the inapplicability of this Law, Viz-a-Viz the provisions of the Constitution which is the bedrock upon which the foundation of jurisdiction of our Courts is based, I am obliged to reproduce same to effect the essence of the jurisdiction of the High Court to try the suit
without declining jurisdiction. See Section 15 of The Chiefs (Appointment and Deposition) Law, CAP28, Laws of Kwara, 1994 which states thus:
1. Where the Governor or the appointing authority has approved the appointment of a person as a chief, any person who intends to challenge the validity of such appointment shall first deposit with the State Accountant- General a non-refundable sum of Ten Thousand Naira (N10,000.00)
2. Where the Governor or the appointing authority has not approved any appointment to a vacant chieftaincy stool, any aggrieved person who institutes any Court action in connection with the vacant chieftaincy stool and joins the State Government or any of its agencies as a party to any such court action shall first deposit with the State Accountant-General a non-refundable fee of Ten Thousand Naira (N10,000.00).
(3) In this section-
“The appointing authority” shall include the Traditional Council having jurisdiction in the area concerned”.
The Supreme Court in the case of Salami Vs. Chairman L. E. D.B. (1989) 5 NWLR (pt. 123) 539 S.C. held thus:
“The High Court of a State is by virtue of section 236 (1) of the Constitution of the Federal Republic of Nigeria, 1979 conferred with unlimited jurisdiction to hear and determine civil and criminal matters unless such matters are specifically precluded by the Constitution. A State law cannot therefore derogate from the jurisdiction conferred on the High Court.
Also in the case of Bakare Vs. A. G. Federation (1990) 1 SCNJ 43, the Supreme Court held inter alia, that any legislation that abridges the right of access of any person to court is not in consonance with the provisions of the Constitution of the Federal Republic of Nigeria, 1979. Section 15 (1) of the Chiefs (Appointment and deposition) Law, CAP 28, Laws of Kwara State, 1994 being a legislation which abridges the right of access to court of persons whose civil rights and obligations are for determination in a Chieftaincy dispute is null, void and of no legal effect whatsoever and cannot be enforced by our courts, the Court below inclusive.
In the light of the foregoing, the Court below is wrong to have enforced the provision of section 15 (1) of the Kwara State Chiefs (Appointment and Deposition) Law, Cap 28, Laws of Kwara State, 1994 to derogate from the jurisdiction conferred on by the Constitution by declining jurisdiction to hear the Appellants’ case, and I so hold. Issue 1 is accordingly resolved against the Respondents.
ISSUE 2
Whether as at the time 14th March, 2002 that the appellant filed this suit, the 3rd Respondent had been approved as the Oba of Idofin Igbana by the Governor or the Oke-Ero Traditional Council of Kwara State.
The Appellant filed his case by the 14th of March, 2008 whereas there is no evidence as to the date the 3rd Respondent was made an Oba of Idofin Igbana before the purported installation.
The provision of section 15 (1) can only apply in a case where a chief has been appointed by either the Governor or ‘the appointing authority’ and his appointment has been approved by either the Governor or the ‘Appointing Authority’. In the instant case the 3rd Respondent has not been appointed and has his appointment approved by either the Governor or the ‘Appointing Authority’ before the institution of this case. This takes the case outside the operation of the provision of section 15 (1) of the Chiefs Law. Issue 2 is resolved against the Respondents and in favour of the Appellants.
ISSUE 3
Whether the Oke-Ero Local Government of Kwara State can usurp the official function of the Governor or the Oke-Ero Traditional Council in appointing an Oba for Idofin Igbana Town.
The Oke-Ero Local Government was established by “Kwara State in 2005” which was assented to by the Kwara State Governor on 29th day of May, 2005.
A careful look at the 70-page Local Government Law, will show that there is no place where the Local Government is empowered to appoint Chiefs or to approve the appointment of chiefs in Kwara State.
Therefore, the Oke-Ero Local Government Council of Kwara State is not empowered under the law to appoint or approve the appointment of Traditional Chiefs in the State or usurp the official function of Governor of the State or the Oke-Ero Traditional Council in appointing an Oba for Idofin Igbana Town and I so hold. I also resolve issue 3 against the Respondents.
ISSUE 4
Whether in the learned trial judge can remove the arrangement and convenience provided by the creation of Judicial Divisions under the High Law of Kwara State.
This issue having been withdrawn and deemed abandoned by the Applicants does need consideration by me.
I will now consider, separately, the two issues formulated by the Respondents serially, thus
1. Whether the trial court was in order, when it held that this suit can not be instituted without the Appellant’s first Complying with Section 15 (1) of Chiefs (Appointment and Deposition) law of Kwara State 1994 and failure which oust its jurisdiction (Grounds 1 and 3).
The Provision of Section 15 (1) of Chiefs (Appointment and Deposition) law (supra) makes deposit of Ten Thousand Naira (N10,000.00)is a condition precedent which have to be fulfilled
before challenging or instituting any action on Chieftaincy matter in Kwara State.
But, the Provision of Section 15 (1) of Chiefs (Appointment and Deposition) law (Supra) affects only the Chiefs that have been appointed either by the Governor of the State or the appointing authority and whose appointment has been approved by either the Governor of the State or the appointing authority. In this matter, the 3rd Respondent has not been shown to have been appointed by the Governor or the appointing authority or that his purported appointment shown to have been approved by the either the Governor or the appointing authority before the institution of this case.
The decision in case of Bakare Vs. A. G. of Federation (1990) 1 SCNJ 43, decided by the Supreme Court wherein the Apex Court held inter-alia, that any Legislation that abridges the right of access to Court of any person is not in consonance with the provisions of the Constitution of the Federal Republic of Nigeria, 1979 and Section 15 (1) of the Chiefs (Appointment and Deposition) Law, CAP 28, Laws of Kwara State of Nigeria, 1994 is a legislation which abridges the right of access to Court of a person whose civil rights and obligations are for determination in a Chieftaincy dispute, knocks the bottom off the decision of the Court below in which it held that it does not have jurisdiction to hear and determine the Appellants’ case on the basis of the Appellants’ not fulfilling the condition precedent to the institution of their suit.
Finally, I, therefore hold that notwithstanding the non-payment of the sum of Ten Thousand Naira (N10, 000. 00) deposit to the Accountant-General Kwara State as prescribed by the said section 15 (1) of Chiefs Law of Kwara State, the Court below still has jurisdiction to entertain the Appellants’ case and determine his claims.
Respondents’ issue 2:
Whether the learned trial judge was right when he held that filing of the Motion on Notice in another registry of the same High Court instead of the registry of Omu-Aran High Court has not in any way affected jurisdiction of the trial Court.
Going by the Provision Section 270 of the Constitution of the Federal Republic of Nigeria, 1979, there is only one State High Court in every State of the Federation.
The Judicial Divisions of the High Court are just for administrative conveniences, and they do not have exclusive district and Separate jurisdiction from each other and each of the judicial divisions exercises the power of State High Court as a High Court of that State and not as a High Court of that judicial division and I so hold.
For the foregoing reasons and the fuller reasons given by my learned brother, Jummai Hannatu Sankey, JCA, I also allow this appeal and set aside the decision of the Court below declining jurisdiction to hear the appellants’ case. I abide by the consequential orders in the lead judgment.
I also abide the order as to costs.