CHIEF MATTHEW KAYODE AKINYEMI v. CHIEF SALIU LAWAL (2013)

CHIEF MATTHEW KAYODE AKINYEMI v. CHIEF SALIU LAWAL

(2013)LCN/6581(CA)

In The Court of Appeal of Nigeria

On Thursday, the 5th day of December, 2013

CA/EK/27/M/2013

JUSTICES

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

Between

CHIEF MATTHEW KAYODE AKINYEMI
(The Obaji Oke of Ise Ekiti for and on behalf of the entire Obaji Oke Family of Ise Ekiti) Appellant(s)

AND

CHIEF SALIU LAWAL
(The Obaji Odo of Ise Ekiti)
(Substituted by the order of court made on 14th day of January, 2013) Respondent(s)

RATIO

WHETHER OR NOT A STATEMENT OF CLAIM SHOULD BE CONSIDERED TO DETERMINE IF THERE IS A CAUSE OF ACTION

I am to add that it is not only to affidavit evidence a Court must always look to determine if an action is statute barred. The Statement of Claim is recognized as a matter of law, as the first place to look to determine if there be a cause of action and when it accrued. See G. O. C. v. ADIO (1995) 2 NWLR (Pt.379) 570 at 587. See also EGBE v. ADEFARASIN (SUPRA). To the question, how does one determine the period of limitation, Oputa, J.C.A. (as he then was) in that case answered thus:”The answer is simple by looking at the Writ of Summons and Statement of Claim alleging when the wrong was committed which gave the Plaintiff a cause of action and by comparing that date with the date on which the Writ of Summons was filed. This can be done without taking oral evidence from witnesses. The definition of the phrase cause of action in ADIMORA v. AJUFO (Supra) at page 17 as every fact which it would be necessary for the Plaintiff to prove, if traversed in order to support his right to judgment further supports the view that facts traversed in the Statement of Claim are relevant to determining when the cause of action accrued and the limitation period began to run”. PER AKINBAMI, J.C.A.

WHETHER OR NOT THE RIGHTS OF PARTIES IN AN ISSUE IN LITIGATION ARE DECIDED ON THE BASIS OF THE SUBSTANTIVE ORGANIC LAW IN FORCE AT THE TIME OF THE ACT IN QUESTION

A constitution like other statute operates prospectively and not retrospectively unless it is expressly provided to be otherwise. Such a legislation affect only rights which come into existence after it has been passed. Secondly it is a fundamental principle of our law that rights of parties in an issue in litigation are decided on the basis of the substantive organic law in force at the time of the act in question. This distinguishes them from adjectival or procedural laws.
These are the reasons why the Supreme Court has consistently held that it is not competent for a party to institute an action after October 1, 1979 when the 1979 Constitution came into force to challenge an act which he could not have competently challenged before the promulgation of the 1979 Constitution. See UWAIFO v. A.G. BENDEL STATE (1982) 2 SC 124; A.G. LAGOS STATE v. DOSUMU (1989) 3 NWLR (Pt.111) 552; MUSTAPHA v. GOVERNOR OF LAGOS STATE (1987) 2 NWLR (Pt.58) 539. PER AKINBAMI, J.C.A.

DEFINITION OF A CAUSE OF ACTION

The provisions of the law are quite clear and unambiguous. What remains is the application of the law to the facts and circumstances of the present case in which the area of the dispute between the parties in their submissions has been narrowed down to the date on which the Appellant’s cause of action in his claim against the Respondent accrued. This issue cannot be resolved effectively without stating what a cause of action is all about. A Cause of Action has been defined in the Dictionary of English Law, Second impression page 325 as;
“The fact or combination of facts which give rise to the right to sue”
This definition has been closely adopted in many decisions of the Supreme Court. Some of these decisions are, EGBE v. ADEFARASIN (No. 2) (1987) 1 NWLR (Pt.47) 1: SAVANNAH BANK OF NIGERIA LIMITED v. PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LIMITED (1937) 1 NWLR (Pt. 49) 212. In a recent decision of the Supreme Court in P. N. UDOH TRADING COMPANY LTD v. ABERE (2001) 1 NWLR (Pt.723) 114 at 129 the term was defined thus:
“Cause of action has been defined by Courts to mean a combination of facts and circumstances giving rise to the right to file a claim in court for remedy. It includes all those things which are necessary to give right of action and every material fact which is material to be proved to entitle the Plaintiff to succeed”.
In considering whether the Court has jurisdiction to entertain an action, it is the Appellant’s claim as endorsed on the Writ of Summons and the Statement of Claim that the Court has to consider and not the defence, see ADEYEMI v. OPEYORI (1976) 9-10 SC: IZENKWE v. NNADOZIE (1953) 14 WACA 361. PER AKINBAMI, J.C.A.

THE APPLICABLE LAW TO A CAUSE OF ACTION

Being a Chieftaincy matter, the jurisdiction of the Court to entertain such matter was before the 1979 Constitution ousted. However, that position was reversed by the 1979 Constitution by virtue of Section 236 thereof. The crucial question then is whether the Appellant’s action which was not justiciable before 1979 when it accrued could be entertained by the law Court in 2007, when the 1979 Constitution was in force?
The legal position is that the applicable law to a cause of action is the law prevailing at the time the cause of action arose notwithstanding that law had been revoked at the time the action is being tried: GOVERNOR OF OYO STATE v. FOLAYAN (1995) 8 NWLR (Pt. 413) 292; MUSTAPHA v. GOVERNOR OF LAGOS STATE (1987) 2 NWLR (Pt. 58) 539; ALAO v. AKANO (1988) 1 NWLR (Pt. 71) 431; UWAIFO v. ATTORNEY GENERAL BENDEL STATE (1982) 7 SC 124;
In respect of practice and procedure, the applicable Rules of Court are those in force at the time of the trial; OWAKA v. ANYGOR ORS (1993) 3 NWLR (Pt 276) 380; ROSSEK & ORS v. A.C.B. LTD & ORS (1993) 8 NWLR (Pt. 312) 382:
In a case not too dissimilar, the Supreme Court Per Nnaemeka-Agu, JSC restated and applied the above principle in the case of OLANIYI v. AROYEHUN (1993) 5 NWLR (Pt. 194) 652.
“The next question is whether by the Constitution vesting in the Court the jurisdiction to adjudicate over Chieftaincy question the Appellant could have completely instituted this action in 1984 in order to challenge an installation which took place in 1963. The answer to this question is clearly in the negative for two many reasons. First, the Constitution was not made to have a retroactive effect. A Constitution like other statutes operates prospectively and not retrospectively unless it is expressly provided to be otherwise. Such a legislation affects only rights which come into existence after it has been passed. See on this SMITH v. COLLANDER (1901) AC 297: ALSO RE SNOWDAS GALLERY CO. LTD (1) (2) 94 LJCH 1 305. PER AKINBAMI, J.C.A.

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This appeal emanated from a chieftaincy dispute between the Plaintiff Chief Mathew Kayode Akinyemi, the Obaji-Oke of Ise-Ekiti and the Respondent Chief Saliu Lawal the Obaji-Odo of Ise-Ekiti. The dispute is over usurpation of Plaintiff’s position function in Ise-Ekiti of Ekiti State by the Respondent.

The dispute started long ago around 1971 when the Respondent was installed as the Obaji-Odo in Ise-Ekiti. The Appellant alleged that the Respondent Obaji-Odo is trying as much as he could to usurp the position and customary functions of the Obaji-Oke. That the Respondent now arrogates to himself the chairmanship of Ihare and Iwarafa Chiefs as well as the kingmakers to himself contrary to native law and customs of Ise-Ekiti.

The Appellant in his Statement of Claim gave a long history of how his forefathers, Obaji-Oke migrated from Ile-Ife to Benin, later to Okeluse and finally settled at Ise- Ekiti.

That Appellant is the head of Obaji-Oke family of Ise-Ekiti. The Respondent was installed as the Obaji-Odo of Ise-Ekiti in 1971.

Appellant wrote a letter to the Ondo State Governor Office, Department of Chieftaincy Affairs Akure.
“Application for setting up independent Judicial Investigation into position struggle among Chiefs in Ise-Ekiti and recognition of Appellant’s Chieftaincy title as the next in rank to the Arinjale of Ise-Ekiti”.
The Respondent on his part in his Statement of Defence averred that as head of Iwarafa Chiefs from Ise-Ekiti he leads and supervises all deliberations and actions to be taken in respect of the installation of an Arinjale whenever the stool is vacant. The Respondent avers that ever since he was installed the Obaji-Odo, Ise-Ekiti in the year 1971, by Oba Adeyeye he has supervised and headed the Iwarafa Chiefs in Ise-Ekiti. Respondent avers that in the hierarchy of Chiefs in Ise-Ekiti, the title of Obaji-Odo is the next to the Arinjale of Ise-Ekiti, who is the paramount Traditional Ruler.

The Respondent denied the story as told by the Appellant and insisted that through history, the Obaji-Oke does not perform any function with the Arinjale of Ise-Ekiti.

The Appellant herein as Plaintiff by the Writ of Summons issued on the 28th day of May, 2008 filed at the Ekiti State High Court, Ise-Ekiti commenced action in suit No. 1115/1/2007 against the Respondent. In paragraph 47 of the Statement of Claim the reliefs sought against Respondent are formulated thus:

(a) A declaration that by the history, native law and custom of Ise-Ekiti the Plaintiff is the Chairman of lare-Odose group of Chiefs of Ise-Ekiti as well as the king-makers to the Arinjale of Ise-Ekiti.
(b) A declaration that by the history, native law and custom of Ise-Ekiti, Plaintiff is a high Chief, Chairman of the Kingmakers and one of the Iwarefas in Ise-Ekiti, second in rank to the Oba Arinjale and head of lare Odose group of Chiefs in Odose, Ise-Ekiti.
(c) An order of perpetual injunction restraining Defendant from parading styling and calling himself an Iwarefa or Kingmaker or head of Kingmakers or head of lare group of Chiefs or head of Obaji Oke extended family and from performing any function or enjoying any salary, emolument, perquisites or honour, appertaining to the title and from usurping the position of the Plaintiff but to confine himself to his minor title under Plaintiff.

After pleadings were filed and exchanged, the Appellant called three witnesses. Thereafter the Respondent by a Notice of Preliminary Objection dated 24th day of September, 2009, objected to the jurisdiction of the trial Court on the following grounds:

(a) That the suit is statute barred the cause of action having arose on or before 1971 which is about 36 years ago before the institution of the action.
(b) That the suit discloses no reasonable cause of action.
(c) The Court lacks jurisdiction to entertain the suit.
(d) The suit is and unmaintainable in law.
(e) Not initiated with the due process of law
(f) The suit is inchoate.

The learned trial Judge Abodunde J. heard the addresses of both counsels on the Preliminary Objection and in a considered Ruling thereon delivered on the 2nd of February, 2010, he upheld the objection predicated on the Court lacking jurisdiction to entertain the suit which is statute barred when he ruled thus:

“The Courts are not to give orders or reliefs in vain. Since I am able to find that cause of action arose in 1971 going by the Writ of Summons and Amended Statement of Claim in the instant case, I am of the persuaded view that indeed the claim and cause of action of the Plaintiff is statute barred and this has adverse implication on the issue of jurisdiction especially adjudicatory. It raises a fundamental question on the competence of the Court to entertain the suit of the Plaintiff. In my view this issue is properly raised of the earliest opportunity. In the instant case to avoid an exercise in futility as any proceedings concluded in absence of jurisdiction is rendereds nullity no matter how well conducted they might have been. See OGUNDIPE v. NIGERIAN DEPOSIT INSURANCE CORPORATION (2008) (Pt.432) ALL FWLR PAGE 1222-1224 para 1, 2, 3. It is either the Court has jurisdiction or it has no jurisdiction. In the instant case I am of the view that the Court has been divested of it’s the adjudicatoty jurisdiction, the Plaintiff having failed to seek redress timously. I am truly persuaded that suit No. HIS/7/2007 indeed in its present state lacks merit and is incompetent to proceed.

It is therefore dismissed in its entirety”.

The plaintiff appealed against the order striking out the suit. Against that judgment, the Appellant has appealed to this Court.
The Plaintiff herein after referred to as the Appellant filed a Brief of Argument. The Defendant herewith referred to as Respondent filed his Brief of Arguments, on the 12th of November, 2013. When the appeal was heard, Mr. Bamidele Omotoso Appellant’s counsel adopted the Appellant’s Brief of Argument.

Mr. Busuyi Bankole Respondent’s counsel adopted Respondent’s Brief of Arguments.
In the Appellant’s Brief of Argument the following two (2) issues were submitted for determination:

(i) Whether the Appellant’s suit is statute barred (Ground one)
(ii) Whether the failure to join the Arinjale of Ise-Ekiti (the prescribed Authority) and Ekiti State Government as defendant’s in the action was fatal to the Appellant’s Case (Ground two)

For the Respondent, the issues for determination are also two:-

ISSUE 1: whether the claim of the Appellant before the Court below is not caught up by the statute of limitation given the date the cause of action arose in 1971.

ISSUE 2: whether the failure of the Appellant to join the Ariniale of Ise-Ekiti, the prescribed authority on the Chieftaincies and the Ekiti State Government defendants will not rub the trial Court of effective adjudication in the matter.

Now coming to the issues formulated by the Appellant.

(1) Whether the Appellant’s suit is statute barred.

In arguing this issue as formulated above, Mr. Bamidele Omotoso, learned counsel for the Appellant argued that in determining whether or not the action is caught by a statute of limitation one has to examine two factors viz: Whether there is a cause of action and when did the cause of action arise? See JULIUS BERGER (NIG) PLC v. OMOGUI (2001) 15 NWLR (Pt. 736) 401 AT 417 PAGES G – H. According to the learned counsel, cause of action is defined by the Supreme Court in NOSIRU BELLO & ORS v. ATTORNEY GENERAL OF OYO STATE (1986) 5 NWLR (Pt. 45) 828 at 876.

In further argument, learned counsel submitted that the question as to whether an action is statute barred is dependent on the nature of the action and the relevant provisions of the statute of limitations. In the instant case, the Appellant’s claims are declaratory in nature and same are reproduced as follows:

(a) A declaration that by the history, native law and custom of Ise-Ekiti the Plaintiff is the chairman of lare Odose group of Chiefs of Ise-Ekiti as well as the Kingmakers to the Arinjale of Ise-Ekiti.

(b) A declaration that by the history, native law and custom of Ise-Ekiti Plaintiff is a High Chief, Chairman of the Kingmakers and one of the Iwarafas in Ise-Ekiti, second in rank to Oba Arinjale and head of lare Odose group of Chiefs in Odose, Ise- Ekiti.

(c) An order of perpetual injunction restraining Defendant from parading, styling and calling himself an Iwarafa or Kingmaker or head of Kingmakers or head of lare group of Chiefs or head of Obaji Oke extended family and from performing any function or enjoying any salary, emolument perquisites or honour, appertaining to the title and from usurping the position of the Plaintiff but to confine himself to his minor title under Plaintiff”.
See pages 32 – 38 of the record.

Learned counsel submitted that in determining the existence and accrual of a cause of action the court will first look at the Writ of Summons and Statement of Claim before turning to any affidavit filed by the parties in respect of the issue. Learned counsel cited in aid the case of KOLO v. F.B.N. PLC (2003) NWLR (Pt.806) 216 at 234 paras E – G. Learned counsel submitted further that the Appellant’s claim clearly showed that the Appellant is not challenging the appointment and installation of the Respondent but is only asserting that he is the Chairman of lare Odose group of Chiefs of Ise-Ekiti as well as the Kingmakers to the Arinjale of Ise-Ekiti. See pages 1- 9 of the record. That the Appellant’s suit is anchored on the native law and custom of Ise-Ekiti and not on any particular statute, legislation, action or omission of the Respondent.

According to the learned counsel the Supreme Court held in the case of ODUGBO v. ABU (2001) 14 NWLR (Pt.732) at pages 111 – 112 para. H – E that declaratory action can be used in a great variety of circumstances and is usually accompanied by ancillary relief. It can be used in disputes as to title to land held under the customary law and disputes to Chieftaincy title.

In further argument, learned counsel submitted that in the instant case it is a dispute relating to seniority among Chiefs in Odo-Ise and Ise-Ekiti. A declaratory relief is independent and a separate cause of action on its own. It is trite law that the jurisdiction of the court to make a declaration is not confined to cases where a Plaintiff has a complete and subsisting cause of action, but may also be employed in all cases where the Plaintiff conceives he has a right. See DANTATA v. MOHAMMED (2000) 17 NWLR (Pt. 664) 176 at 204 para D-G.

Learned counsel submitted that a claim for declaration is itself a cause of action. The law only enjoins a claimant for a declaration to prove the existence of a legal right, subsisting or in the future and that the right is being contested. DANTATA v. MOHAMMED (SUPRA) 196 para E-F.

Learned counsel contended that the learned trial Judge erred in law when His Lordship held on page 98 of the records stated thus:

“Since I am able to find that cause of action arose in 1971 going by the Writ of Summons and Amended Statement of Claim in the instant case I am of the persuaded view that indeed the claim and cause of action of the Plaintiff is statute barred and this has “adverse implication on the issue of jurisdiction especially adjudicatory”.

Learned counsel agreed that the Respondent’s predecessor in office was installed in 1971 as the Obaji Odo of Ise-Ekiti. It was very clear from Appellant’s claim before the Lower Court that he was not challenging the installation of the Respondent’s predecessor-in-office.

He then further submitted that it is the claim of the Appellant as contained in the Writ of Summons and Amended Statement of Claim that now determines whether the action is statute barred or not. See MUHAMMED v. M. A. PLATEAU STATE (2001) 16 NWLR (Pt.740) 524 at 550-551 para H – G.

Learned counsel submitted that the Appellant was installed as Obaji Oke in 1986 whilst the Respondent’s predecessor in office was installed as Obaji Odo in 1971. Therefore Appellant could not have had any cause of action against the Respondents’ predecessor in office prior to the date of his installation which was in 1986.

The third point raised by learned counsel is that Appellant’s suit was anchored mainly on the hierarchy of Chiefs in lare Odose group of Ise-Ekiti Chiefs on one hand and kingmakers to the Arinjale of Ise-Ekiti on the other hand. The Appellant only approached the Court for the declaration of his right as the Respondent’s senior in rank. Learned counsel noted that Appellant’s reliefs are declaratory in nature and there need not be any cause of action before the institution of this action. See IKINE v. EDJERODE (2001) 18 NWLR (Pt.745) 446 at 482 para F – G.

Learned counsel assumed without conceding that the cause of action in this suit arose in 1971, he submitted that the Limitation law of Ondo State (Cap. 61) 1978 as applicable to Ekiti State was not in existence or in operation as at 1971. It is trite law that the law applicable to a matter is the law prevailing as at the time the cause of action arose. See P. N. UDOH TRADING CO. LTD v. ABERE (2001) 11 NWLR (Pt.723) 114 at 142 para D.
Learned counsel on issue one (1) prayed the Court to resolve the same in favour of the Appellant and hold that the Appellant’s action is not statute barred.
Argument and Statement on Issue No. 2 “whether the failure to join the Arinjale of Ise-Ekiti (the Prescribed Authority) and Ekiti State Government as Defendants in the action was fatal to the Appellant’s case”

Learned Appellant’s counsel quoted the Ruling of the learned trial Judge. I have earlier reproduced the said Ruling in this Judgment.
He cited order II Rule 5 (1) of the Ondo State Rules of the High Court as applicable to Ekiti State that it empowers the Court before whom a matter is pending to direct that persons who may likely be affected by the result of a suit and have not been made parties to the suit, be made defendants in the suit. For purpose of clarification, he reproduced order II Rule 5 (1) of the Ondo State Rules of the High Court as applicable to Ekiti State viz:
“5 (1) if it shall appear to the Court, at or before the hearing of a suit, that all the persons who may be entitled to or who claim some share or interest in the subject matter of the suit or who may be likely to be affected by the result, have not been made parties, the Court may adjourn the hearing of the suit to a future day, to be fixed by the Court, and direct that such person shall be made either Plaintiff or Defendants in the suit or as the case may be.

In such case the Court shall issue a Notice to such persons which shall be served in the manner provided by these rules for the service of a Writ of summons or in such other manner as the Court thinks fit to direct and on proof of the due service of such notice, the persons so served, whether he shall have appeared or not, shall be bound by all proceeding in the cause”.

The learned counsel contended that the learned trial Judge having discovered that the Arinjale of Ise-Ekiti and the Ekiti State Government are necessary parties who ought to have been joined, the order the Court ought to have made is to direct the Arinjale of Ise-Ekiti and Ekiti State Government be joined and not to have held, as it erroneously did, that the case was incompetent.

He submitted that non-joinder of a necessary party is a procedural irregularity which does not affect the competence or jurisdiction of the trial Court to entertain the matter before it. See AYOADE v. ONI (2000) 3 NWLR (Pt 650) 348.

Learned counsel further submitted that non joinder of Arinjale of Ise-Ekiti and Ekiti State Government cannot by itself defeat the Appellant’s action, having regard to the provisions of the said order II Rule 5(1) of the Ondo State Rules of the High Court as applicable to Ekiti State.

Learned counsel prayed this Court to allow the appeal, set aside the Ruling of the lower Court and transfer this case back to the Chief Judge of Ekiti State Judiciary for purpose of assignment to another Judge.

Mr. Busuyi Bankole, learned counsel for the Respondent in his Reply argument, submitted that the Appellant by his Amended Statement of Claim, claimed against the Respondent the reliefs which are contained in paragraph 47 in pages 37 of the Record of Proceedings and which I have already reproduced in this judgment.

Learned counsel then submitted that the Appellant equally by paragraph 31 of the Amended Statement of Claim as contained in page 34 of the Record of Proceedings confirmed that the cause of action in this case arose in 1971. Paragraph 31 states as follows:

“On the strength of this recommendation the Defendant was installed as the Obaji Odo of Ise-Ekiti in 1971”.

In further submission, learned counsel states that the Plaintiff’s suit is founded on Torts and by Section 4 (1) of the Limitation Law Cap. 61 Laws of Ondo State 1978, as applicable in Ekiti State the Plaintiff had 6 years to challenge the recognition of the Defendant or his Chieftaincy as Obaji-Odo of Ise-Ekiti with all the powers to perform the functions the Appellant is now challenging by his action recognition of the Respondent or his Chieftaincy as Obaji-Odo of Ise-Ekiti with all the powers to perform the functions the Appellant is now challenging by his action.

Learned counsel contended that since the performance of these functions as a Chief in Ise-Ekiti dates back to at least 1971 when the substituted Respondent was installed a Chief, accrual of action was the said 1971, and since the Appellant filed the suit in 2007 thirty-six years after the installation of the Respondent as a Chief performing the roles which the Appellant is now contending to be roles that ought to be performed by him. The learned counsel submitted that the case of AREMO II v. ADEKANYE (2000) 2 NWLR (Pt. 644) 257 at 272 para G – F; is on all fours with this suit, because the Plaintiff is not complaining of recent act of the Respondent going by paragraphs 31 of the Amended Statement of Claim.

Learned counsel contended that the action of the Appellant being statute barred, the Court ought to dismiss same. See the case of ELABANJO v. DAWODU (2006) 15 NWLR (Pt. 1001) 76 at 136. Learned counsel further argued that the Court is enjoined to discountenance the argument of the Appellant that, since the cause of action in this case arose in 1971, and since the Limitation Law of Ondo State came into force in 1978, then the Law should not apply. Learned counsel submitted that the 1978 law came after the cause of Action arose in 1971, learned counsel noted that there had been an applicable law which is in pari-material with the Ondo State 1978 Law applicable in Ekiti State and this is the Western Region of Nigeria Laws Cap. 64 of 1959.

In submitting further on Issue 1, learned counsel made recourse to determine the meaning of the phrase “Cause of Action” and the time it arose in this case before proceeding to determine whether the court is conferred with jurisdiction to determine same. Learned counsel cited the case of AKILU v. FAWEHINMI (No. 2) 1989 2 NWLR (Pt. 102) 122 at 169 wherein KARIBI WHYTE, JSC held “Cause of Action” to mean every fact which is material to be proved to entitle on Appellant to succeed or all those things necessary to give a right to relief in law or equity”. Also in the case of AMODU v. AMODE (1990) 5 NWLR (Pt.150) 358 at 361. It was held that “the term Cause of Action means all those things necessary to give a right of Action whether they are to be done by the Plaintiff or a third party”.

Learned counsel noted that the Appellant in their Brief of Argument agreed that the case before the Court is a Chieftaincy matter between the Appellant and the Respondent. And the Appellant equally agreed that the “Cause of Action” in this case arose in 1971 upon the installation of the substituted Respondent as the Obaji-Odo of Ise-Ekiti in 1971, and this is reinforced by paragraph 31, of the Appellant’s Statement of Claim as contained in page 32 of the Record of Proceedings.

Learned counsel further submitted that this suit relates to chieftaincy matters and that the cause of action arose in 1971 and as at the time the Cause of Action arose the applicable law was the Nigerian Constitution of 1963, which by its ouster provision in Chieftaincy matters in Section 161 (3) ousted the jurisdiction of the court to entertain the suit. Then the “Cause of Action” not being justiciable in 1971 when it arose, the Trial Court therefore lacked jurisdiction to entertain same, presently. In aid, learned counsel cited the case of MOSOJO v. OYETAYO & ORS 5 SCNJ 199 at 204.

Learned counsel contended that paragraph 31 of Appellant’s Amended Statement of Claim confirmed that the cause of action in this case allegedly arose in 1971 when the Respondent in this case was installed the Obaji-Odo of Ise-Ekiti wherein he was installed a Chief performing the functions which the Appellant by his claim in paragraph 47 of the Amended Statement of Claim is now challenging and now asking the Court to confer on him as a holder of the chieftaincy title of Obaji-Oke in Ise-Ekiti even when he the Appellant was installed after his father in the year 1986. Learned counsel then submitted that it is too late in the day for the Plaintiff to be asking the Court to declare him as the person entitled to be performing the functions which the Respondent had been performing since 1971.

Learned counsel argued that this present suit was filed against the Respondent on the 10th day of September, 2007 which was about 36 years after the Respondent had been performing these functions of Obaji-Odo. The Appellant is now claiming to be entitled and about 21 years after the installation of the Appellant as Obaji-Oke in Ise-Ekiti watching the Respondent performing these functions, he is now asking the Court by his claim to confer on him as the person entitled to perform these functions and roles.

Learned counsel contended that the present action of the Appellant is statute barred since the Limitation Law of the Ondo State 1978 came into force in 1978 the same law being in pari-material with Western Region Law of Nigeria Cap. 64 of 1959 and since it took the Appellant about 29 years after the law to realize that he ought to challenge the Respondent over the alleged usurpation of his functions as a Chief by the Respondent even when the Claim is founded on Tort, and going by the provisions of Section 4 (1) of the Limitation Law of Ondo State 1978 as applicable in Ekiti State. The case of the Appellant is statute barred.

The Appellant in this case by his claim is challenging the appointment and installation of the Respondent which was done in the year 1971, the appointment and installation as Obaji-Odo of Ise-Ekiti which conferred on him the function and roles which the Appellant is asking the Court to confer on the Appellant by his present action. Learned counsel submitted that this suit is non justiciable and statute barred and therefore it should be dismissed in its entirety for lack of jurisdiction. See the case of ODUBEKO v. FOWLER (1993) 7 NWLR (Pt. 308) 637: F.R.I.N. v. GOLD (2007) ALL FWLR (Pt 380) 1444: ACB PLC v. NTS NIG LIMITED (2007) 1 NWLR (Pt.1016) 596 NWAONONU v. OGUCHUKWU (2007) ALL FWLR (Pt. 374) 313.

On Issue 2, Respondent’s counsel referred to the Appellant’s claim in this case being one that challenged the Gazette No. WSN 630 No. 43 Vol. 20 of 12th August, 1971 which confirmed the installation of the Respondent in the year 1971 and the 1965 Chiefs Law of Western Nigeria which confirmed the Respondent as a chief in Ise-Ekiti and as the head of Iwarafa Chiefs (kingmakers in Ise-Ekiti).

The Gazette and the Chiefs Law had been tendered by the Appellant as Exhibits ‘P’ and ‘G’ respectively before the trial Court.

The learned counsel answered the question whether this present case of the appellant as it is presently Constituted can be determined without joining the Arinjale of Ise-Ekiti as the prescribed authority over the Chieftaincy as well as the Ekiti State Attorney General and Commissioner for Justice. He answered the question in the negative.

Learned counsel argued that the suit is incompetent for its failure to join necessary parties to the suit. See GREEN v. GREEN (1987) 3 NWLR (Pt. 61) 381: AJAYI v. JOLAYEMI 6 NSCQR (Pt. 633) AT 652.
Finally, learned Respondent’s counsel urged this Court to affirm the Ruling of the trial Court dismissing the suit of the Appellant and dismiss the appeal against the Ruling of the trial Court.

The law is clear that where the issue whether an action is statute – barred has been raised the starting point is to determine when the cause of action accrued. See ADIMORA v. AJUFO (1988) 3 NWLR (Pt.80) 1. In that case Oputa, J.S.C. stated the principles. He said in dealing with limitation of actions, one of the most fundamental questions to answer is when did the cause of action accrue? See also EGBE v. ADEFARASIN (No. 2) (1987) 1 NWLR (Pt.47) 1. This is because time begins to run when the cause of action accrues. FADARE v. A.G. OYO STATE (1982) 4 SC 1. It is not easy in some cases to identify this time for the reason that its determination depends on the surrounding and at times peculiar circumstances of the case. This difficulty becomes understandable when it is realized that a cause of action is said to Consist of every fact which the Plaintiff ought to prove when set out in his pleading to support his entitlement to judgment.

“The answer is simple by looking at the Writ of Summons and Statement of Claim alleging when the wrong was committed which gave the Plaintiff a cause of action and by comparing that date with the date on which the Writ of Summons was filed. This can be done without taking oral evidence from witnesses. The definition of the phrase cause of action in ADIMORA v. AJUFO (Supra) at page 17 as every fact which it would be necessary for the Plaintiff to prove, if traversed in order to support his right to judgment further supports the view that facts traversed in the Statement of Claim are relevant to determining when the cause of action accrued and the limitation period began to run”.
I have examined the record of appeal, including the Ruling of the Court below complained of, the grounds of appeal and the Brief of Argument of the parties. I intend to use the two (2) issues raised by the Appellant’s counsel in determining this appeal. The way it is, the complaints which the Appellant presents are geared to show that the decision of the Court below could not stand but for the facts wrongly considered relied upon and applied by the Court. The issue involved was an issue of law, the question being when did the cause of action in the suit arise? The Court below, in its ruling after reviewing the submissions of counsel for both parties, determined the issues thus:
Looking at the Writ of Summons dated 11th September, 2007 endorsed by the Registrar of the Ekiti State High Court and Statement of Claim it is easy to determine whether the action is statute barred or not. It’s clear that the Appellant’s grievance originated from the findings of the Morgan Judicial inquiry and the recognition given to the Respondent as Obaji-Odo of Ise-Ekiti over the Appellant as far back as 1971, as rightly decided in my view by the learned trial judge. I agree with the learned trial Judge that the action commenced in 2007 is statute barred.

AREMO II v. ADEKANYE (1999) LPELR CA
Constitutional Law – Retrospective effect of the Constitution in Chieftaincy Matters: Whether rights of parties in an issue in litigation are decided on the basis of the substantive or organic law in force at the time of the act in question with respect to the application of the 1979 Constitution of the Federal Republic of Nigeria on a Chieftaincy matter which arose or accrued before the coming into effect of the said Constitution.
A constitution like other statute operates prospectively and not retrospectively unless it is expressly provided to be otherwise. Such a legislation affect only rights which come into existence after it has been passed. Secondly it is a fundamental principle of our law that rights of parties in an issue in litigation are decided on the basis of the substantive organic law in force at the time of the act in question. This distinguishes them from adjectival or procedural laws.
These are the reasons why the Supreme Court has consistently held that it is not competent for a party to institute an action after October 1, 1979 when the 1979 Constitution came into force to challenge an act which he could not have competently challenged before the promulgation of the 1979 Constitution. See UWAIFO v. A.G. BENDEL STATE (1982) 2 SC 124; A.G. LAGOS STATE v. DOSUMU (1989) 3 NWLR (Pt.111) 552; MUSTAPHA v. GOVERNOR OF LAGOS STATE (1987) 2 NWLR (Pt.58) 539.

Applying the above principles to the instant case, it is clear that by the promulgation of the 1979 Constitution which vested the jurisdiction to adjudicate over Chieftaincy matters in Courts, the Appellant did not acquire the right to challenge a Chieftaincy issue the cause of action which arose in 1971. The jurisdiction of the Court remains completely ousted.

In this connection a careful reading of the six reliefs claimed by the Appellant in paragraph 47 of the Statement of Claim as set out in the introductory part of this judgment reveals that they relate to a Chieftaincy title in Ise-Ekiti.

Secondly, it is a fundamental principle of our law that rights of parties is an issue in litigation are decided on the basis of the substantive or organic law in force at the time the action in question took place. This distinguishes them from adjectival or procedural law. See on this LAMIKORO OJOKOLOBO & ORS v. LAPADE ALAMU & ANOR (1987) 3 NWLR (Pt. 61) 377; KPEMA v. THE STATE (1986) 1 NWLR (Pt. 17) 396; OBADIARA v. UYIGWE (1986) 3 SC 39 AND ADEYEYE v. AJIBOYE (1987) 3 NWLR (Pt.61) 432, 444. Those are the reasons why this Court has consistently held that it is not competent for a party to institute an action after October 1st 1979 when the 1979 Constitution came into force to challenge an act which he could not have competently challenged before the promulgation of the 1979 Constitution. See UWAIFO v. ATTORNEY GENERAL BENDEL STATE (1982) 2 SC 124; ATTORNEY GENERAL LAGOS STATE v. DOSUMU (1989) 3 NWLR (Pt. 111) 552; MUSTAPHA v. GOVERNOR OF LAGOS STATE (1987) 2 NWLR (Pt.58) 539.
Applying the above principles to the instant case, it is clear that by the promulgation of the 1979 Constitution which vested the jurisdiction to adjudicate over Chieftaincy matter in our Courts, the Appellant did not acquire the right to challenge a Chieftaincy issue the cause of the cause of action on which arose in February, 1963. The jurisdiction of the Court remained completely ousted”.

From the exposition of the applicable law in the above illuminating judgment, it is clear that the Appellant’s action in respect of the cause of action that accrued before 1979 when the jurisdiction of the Court to entertain it was ousted could not be justiciable in 2007. It is my considered view that the Appellant’s suit was not justiciable. As this is the case, it would not have been necessary to consider the issue dealing on Limitation Law but since counsel have made submissions in their brief on the matter l am inclined for the sake of completeness to express my opinion on the issue.

Sometimes the legislature prescribes certain periods of limitation for instituting certain actions. The statutes that prescribe such periods and regulate the subsistence of causes of action are known as statutes of limitation.
Where a statute of limitation prescribes period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where an action is statute barred a Plaintiff who might otherwise have had a cause of action loses the right to enforce it by process of law because the period of the time laid down by the limitation for instituting such an action has elapsed. See the cases of EBOIGBE v. NNPC (1994) 5 NWLR (Pt. 347) 649; ODUBEKO v. FOWLER (1993) 7 NWLR (Pt. 308) 637; EKEOGU v. ALIRI (1991) 3 NWLR (Pt. 176) 258.

The rationale of supporting the existence of statute of limitation includes the following:
(1) That long dormant claims have more cruelly than justice in them: R. B. POLICIES AT LLOYD v. BUTLER (1950) 1 KB 76 AT 81 – 82.
(2) That a defendant might have lost the evidence to disprove a stale claim JONES v. BELLGROVE PROPERITES LTD (1949) 2 KB 700 AT 704.
(3) That person with good cause of action should pursue them with reasonable diligence BOARD OF TRADE v. CAYZER INSURANCE & CO (1927) AC 610 AT 625.

The period of limitation begins to run from the date on which the cause of action accrued. To determine whether an action is statute barred, all that is required is for one to examine the Writ Summons and the Statement of Claim alleging when the wrong was committed which gave the Plaintiff a cause of action and comparing that date with the date on which the Writ of Summons was filed. If the time on the Writ is beyond the period allowed by the limitation law, then the action is statute barred: see the case of EGBE v. ADEFARASIN (1987) 1 NWLR (Pt. 47) 1 AT 20 – 21.

Looking at the Writ of Summons dated on the 11th of September, 2007 endorsed by the registrar of the Ekiti State High Court and the Statement of Claim, it is easy to determine whether the action is statute barred or not, it is clear that the Appellant is challenging the power of the Respondent to be performing the functions bestowed on him as the holder of the stool of Obaji-Oke Ise Ekiti as the 2nd in rank to the Arinjale of Ise-Ekiti as the head of lare Odo Ise-Ekiti the head of Iwarafa kingmakers Ise-Ekiti and the head of lare Chiefs in Odose Ise-Ekiti. It is to be noted that the Respondent was installed in 1971. If the Appellant was challenging an act that took place in 1986 when he was installed the action would not have been statute barred but he is challenging the Respondent who was installed as Obaji-Odo in 1971. I therefore agree with the learned trial Judge that the action commenced in 2007 is statute barred.
Having regard to all the foregoing, it is my view that the appeal is devoid of any substance. It is accordingly dismissed with Thirty Thousand Naira Only (N30,000.00) costs to the Respondent.

PAUL ADAMU GALINJE, J.C.A.: I agree.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the benefit of reading in advance the lead judgment just delivered by my learned brother, Fatima Omoro Akinbami, JCA. I agree with the reasoning and conclusion that the appeal lacks substance and it is devoid of any merit.
My learned brother has effectively demonstrated why the conclusion arrived at in the said lead judgment should be as reached therein and not otherwise. Indeed, I have nothing meaningful to add thereto and I cannot improve on the same. I therefore order accordingly. I also abide by the consequential orders made in the said lead judgment, inclusive of the one made as to costs.

Appearances

Emmanuel Bamidele Omotoso Esq.For Appellant

AND

Busuyi Bankole Esq.For Respondent