EMMANUEL I. OLAGBENRO & ORS v. PRINCE SALIU OLAYIWOLA & ORS
(2014)LCN/6794(CA)
In The Court of Appeal of Nigeria
On Friday, the 24th day of January, 2014
CA/I/98/09
RATIO
WHAT CONFERS VIRES ON A COURT TO COMMENCE PROCEEDINGS
It is now settled principle of law that, a court is only competent to adjudicate over a matter, when all the conditions precedent for its having jurisdiction have been satisfied. Thus, an action began by an incompetent process will divest the court of jurisdiction to entertain the matter. In other words, where an originating process or any other process, is found to be incompetent, it cannot be used for any purpose whatsoever in the adjudication process. It is a worthless document and is only good for nothing, being nothing itself. In trials before the High Courts, one of the methods of initiating a proceeding is by a Writ of Summons which is followed by a Statement of Claim. It is therefore, only a valid Writ of Summons or Statement of Claim that confers vires on a court to commence the proceedings. Accordingly, where the Writ of Summons or Statement of Claim is incompetent, the court would lack the jurisdiction to entertain the matter. Where the matter is heard and determined on the incompetent process, the court would have only engaged in a wasteful judicial exercise, no matter the effort put in it. The entire proceeding would be void and liable to be set aside. See E.B.N. LTD. v. Halilco (Nig.) Ltd (2006) 7 NWLR (PT. 980) P. 568; N.C.C. V. MTN (Nig.) Communications Ltd (2008) 7 NWLR (PT. 1086) P. 229 and WAEC V. Adeyanju (2008) 9 NWLR (pt. 1092) p. 270.
Flowing from what I have stated above, it has since been settled in a plethora of authorities that, an originating process of court not signed by a legal practitioner known to law is incompetent and therefore liable to be struck out. Thus an originating process signed in the name of a Law Firm is invalid and incompetent, because a Law Firm is definitely not an individual enrolled to practice as a Barrister and Solicitor of the Supreme Court of Nigeria, as identified by Section 2 (1) and 24 of the Legal Practitioner’s Act. It cannot therefore sign any process to be filed in Court, and where it does so; such process becomes fundamentally and incurably defective. It cannot be amended in anyway whatsoever. See New Nigeria Bank Plc v. Denclag Ltd (2005) 4 NWLR (pt. 916) p. 549 at 473; Okafor & 2 Ors v. Nweke & 2 Ors (2007) 10 NWLR (pt. 1043) p. 521; Oketade v. Adequnmi & 4 ors (2010) 8 NWLR (pt. 1195) p. 63; C.I.C. Ltd v. Okoli (2007) 43 W.R.N. p. 36; S.L.B. Consortium Ltd. v. NNPC (2011) 9 NWLR (pt. 1252) p. 317 and Shelim v. Gobang (2009) 12 NWLR (pt. 1156) p. 435. Per HARUNA SIMON TSAMMANI, J.C.A.
WORDS AND PHRASES: CAUSE OF ACTION
In the old case of LETANG V. COOPER (1965) 1 Q.B. 222 AT PAGE 242 Lord Diplock L. J. said of cause of action.
“The words have been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.”
A plethora of other judicial authorities having defined cause of action to have the same meaning as above and have the same connotation that is: A cause of action is: the facts or fact, which establish or give rise to a right of action. It is the factual situation, which gives a person a right to judicial relief. See, EGBE V. ADEFARASIN (1987) 1 NWLR (PART 47) PAGE 1, YUSUF v. CO-OP. BANK LTD. (1994) 7 NWLR (PART 359) 676; UBN LTD. v. OKI (1999) 8 NWLR (PART 614) PAGE 244, ADIMORA V. AJUFO (1988) 3 NWLR (PART 80); OGBIMI V. OLOLO (1993) 7 NWLR (PART 304) 128. Further, a cause of action consists of every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It is a bundle or aggregate of facts, which the law will recognize as giving the plaintiff a substantive right to make a claim against the relief or remedy being sought. The factual situation on which the plaintiff relies to support his claim must be recognized by law as giving rise to a substantive right capable of being claimed or enforced against the defendant. A cause of action is therefore determined by the Statement of Claim and the averments therein. See, AJAYI V. MILITARY ADMINISTRATOR ONDO STATE (1997) 5 NWLR (PART 504) PAGE 237, OTUBU V. OMOTAYO (1995) 6 NWLR (PART 400) PAGE 247 and OLORIODE V. OYEBI (1984) 1 SCNLR 390. Per HARUNA SIMON TSAMMANI, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL KALIO Justice of The Court of Appeal of Nigeria
Between
1. EMMANUEL I. OLAGBENRO
2. ABDULRASHEED OLAGBENRO
(For himself and on behalf of Agbo Family)
3. CHIEF SALAWU ADENIJI
(For himself and on behalf of the Kingmakers of Oje-Owode)
4. SAKI EAST LOCAL GOVERNMENT
5. ATTORNEY-GENERAL OF OYO STATE
6. OYO STATE GOVERNMENT Appellant(s)
AND
1. PRINCE SALIU OLAYIWOLA
2. ALFA TIAMIYU AGEDENGBE
3. PRINCE JACOB A. OYEDEMI
(For themselves and on behalf of Dawodu, Mogaji and Olooko Ruling Houses of Oje-Owode) Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Oyo State High Court delivered on 23rd September, 2008, by M. O. Bolaji-Yusuff, J.
The 1st-3rd Respondents were the Plaintiffs in the lower Court in which they claimed against the defendants now appellants as follows:
“(a) A declaration that the Chieftaincy Declaration made pursuant to Section 4(2) of the Chiefs Law 1957 to the Customary Law Regulating the selection/appointment of the Oloje of Oje-Owode Chieftaincy approved and registered on the 12th day of February, 1958 is subsisting, valid and is the Customary Law and practice duly recognised and accepted by all and sundry in Oje-Owode Community in relation to the Oloje of Oje-Owode Chieftaincy.
(b) A declaration that the Agbo Family of Oje-Owode as represented by 1st and 2nd Defendants is not a Ruling House in Oje-Owode and is not recognised as such under the Customary Law of Oje-Owode.
(c) A declaration that the findings and recommendations of the Adio Judicial Commission of Enquiry are against the Oje-Owode Native Law, Custom Tradition the rule of law and Chiefs Law of Oyo State.
(d) A declaration that the Oyo State Government’s purported Decision or any purported White Paper based on the findings and recommendations of the Adio Judicial Commission of Enquiry concerning the Oloje of Oje-Owode stool is therefore unconstitutional, illegal, null and void.
(e) A declaration that the Daodu Ruling House is the Ruling House entitled to present candidate to fill the vacant stool of the Oloje of Oje-Owode Chieftaincy after the demise of Oloje Samuel Oyekola Olaleru.
(f) A perpetual injunction restraining the defendants either by themselves or by their servants, agents and/or privies from parading themselves as a Ruling House or from acting on the report, findings, recommendations of any commission of enquiry and any purported white paper of the Oloje Chieftaincy declaration or such purported amended declaration based thereon in appointing and installing a new Oloje of Oje-Owode.
(g) A declaration that the purported appointment of Abdul-Rasheed Oyinloye Olagbenro is illegal, null and void the same having been in contravention of the applicable custom and tradition on the appointment of an Oloje of Oje-Owode, the Oloje of Oje-Owode chieftaincy declaration, 1957 and the subsisting order of court and pending application for interlocutory injunction.
(h) An order of the Honourable Court setting aside the purported appointment of Abdul-Rasheed Oyinloye Olagbenro as the Oloje of Oje-Owode the same having been done in violation of subsisting order of the Honourable Court, in defiance of the pending application for injunction and generally being contrary the relevant native law and custom on the appointment of an Oloje of Oje-Owode and the Oloje of Oje-Owode Chieftaincy Declaration 1957.
(i) Declaration that the Oloje of Oje-Owode Chieftaincy declaration purportedly made on 15th August, 2003 and registered on 15th August, 2003 is against the Oje-Owode’s native law and custom, against the Chiefs law of Oyo State, against the rules of natural justice it is therefore null and void and ineffectual.
(j) Order setting aside the said Oje-Owode Chieftaincy declaration of 15th August, 2003 as being will (sic) void and no effect whatsoever.
(k) A perpetual order of injunction restraining Abdul-Rasheed Oyinloye Olagbenro from parading himself, holding himself out or purporting to act as the Oloje of Oje-Owode.”
The background facts on the Respondents’ side as plaintiffs are that their ancestor Kofoworola Oloje Sabe first reigned as Oloje, partly at Tapaland where he led his people to Oje-Ile (known as Oje Ayanmo). He was succeeded by his son Akinola. Members of their family reigned successively at Oje-Ile until Omololu succeeded to the throne. It was made out that due to incessant raid by the Fulani, Omololu decided to move down to Ilorin. The family broke into two, some members followed Omololu to Ilorin, whilst some followed Okunola (who succeeded Omololu) to Oje Ile for Oje Ogban.
Oje Ogban was said to be inaccessible and due to the constant raid of people of Oje Ogban by the people at Shaki, Okunola led Oje people to Oje Afote. At Oje Afote, Olude reigned. They were constantly raided by Shaki people, he approached Oba Adeyemi, the then Alaafin of Oyo for a grant of land and the land granted to them is the present Oje Ile.
It was during the reign of Oloje Aderounmu that the Government of Western Region approved a Chieftaincy Declaration for the stool of the Oloje of Oje Owode. There were three Ruling families. Olooko, Daodu and Mogaji. The common name for the Ruling family was given as Ose while an attempt by the Agbo family to become Oloje was resisted.
The said Chieftaincy Declaration was said to have been registered on 12th February, 1958.
The 1st, 2nd and 3rd Appellants as defendants denied the story of the Respondents as plaintiffs. The Appellants alleged that Oje-Owode was founded by Oloje Olaiduba the ancestor of Agbo Family. He brought the Oloje Chieftaincy from Tapa. He was said to have settled at Oje Agbon, on his demise, his son Ijan Agbo succeeded him and he led the present Oje-Owode people to Oje Ile from Oje Ajagbon. On the death of Ijan Agbo he was succeeded by his son Olukesin Agbon who was succeeded by Feyisaba Agbo.
It was said that Feyisaba had two (2) children, Ajibesin (Male) and Feyibere (Female).
In case of inter-tribal wars Oloje Feyisaba Agbo captured a female slave and her son, Feyisaba Agbo inscribed tribal marks on his cheeks.
When Feyisaba Agbo died his son Ajibesin Agbo sent his father’s slave Ganganaro to Oyo to inform Alaafin Onigbogi that his father had died and that he Ajibesin Agbo wanted to be installed but Ganganaro falsely claimed the Chieftaincy for himself and he was installed as the Oloje. The Oje people later revolted and killed him. The members of Feyibere’s husband’s family who were in-laws to the Agbo family were alleged to have killed Ganganaro. They were arrested and Alaafin wanted to kill them but Ajibesin intervened and they were spared.
When Ajibesin was released from Oyo, he did not take up the throne but he compensated Ewuwumi the son of Feyibere (Ajibesin’s sister) with the throne because of his father’s role in killing Ganganaro.
Ewuwumi the son of Feyisaba Agbo was installed as the Oloje and was nicknamed Ewuwumi Ose, hence the Ose Ruling House which is of the female line of Agbo family.
It was said that when Ewuwumi died he was succeeded by his son Omololu for Ose Ruling House. Omololu later fled to Ilorin with a faction of the people remaining, Sabe from Agbo Ruling House was then installed. The successive Oloje’s were named from Ose Family.
A draft chieftaincy declaration of Oloje (Aha) Oje Owode Chieftaincy was said to have been prepared in 1957 which made provision for two Ruling Houses: Agbo and Ose Ruling Houses. It was contested between Aderounmu from Ose Family and Ojelabi from Agbo Family. Aderounmu succeeded, the name of Agbo family was excluded in the 1958 Declaration from Oloje of Oje (Aha) Owode Chieftaincy.
There were further protests against the Declaration and this led to the establishment of the Omodara Commission of Enquiry which recommended two Ruling Houses: Agbo and Ose Ruling Houses and the Kingmakers for the Chieftaincy.
It was said that the former Western State Government accepted the recommendations of the Omodara Commission of Inquiry and directed that Saki Local Government Council Chieftaincy Committee to approve the amendment which was effected and approved by the Committee at its sitting on 13/5/75.
The Amended Oloje Chieftaincy Declaration was said to have been registered on the 15th day of August, 2003 and claimed to have become the customary Law requesting the selection to the Oloje of Oje-Owode chieftaincy stool whenever the stool became vacant.
The 4th, 5th, and 6th Respondents narrated why Omodara Commission of Inquiry was set up, all the steps taken by all interested parties including the different Local Governments and the Government until the approved Declaration was registered on 15th August, 2003, the 2nd Defendant appointed and installed in accordance with the Registered Declaration.
At the close of trial before the lower court, the trial court granted all the reliefs sought by the Respondents as plaintiffs except reliefs 40(c) and (d) of the Amended Statement of Claim which had been withdrawn and struck out.
It is against the judgment that the defendants who were dissatisfied with the decision filed their respective appeals.
The 1st to 3rd Appellants originally filed five (5) grounds of appeal, and with the leave of this court granted on 7/10/09 filed five (5) additional grounds. Leave to raise new issues on appeal was granted on 11/5/11. Further, on 2/10/12 this court granted leave to the 1st – 3rd Appellants to raise a fresh issue in their amended brief of argument to wit:
“Whether or not the lower court has jurisdiction to entertain the 1st – 3rd Respondents’ action as the action is incompetent.”
Leave was also granted to the 1st – 3rd Appellants to further amend their Amended Brief of Argument by incorporating argument on the fresh issue in the Amended Brief of Argument.
All other briefs were ordered to be amended accordingly and were amended.
The 1st – 3rd Appellants distilled seven (7) issues for the determination of the Appeal. They are as follows:
“1. Whether or not the learned trial judge has Jurisdiction to hold that Agbo family of Oje-Owode is not a recognized Ruling House and/or recognized as such under the Customary Law and Tradition of Oje-Owode Chieftaincy.
2. Whether the cause of action arose on the 13th day of May, 1975 or the 12th day of March, 2003.
3. Whether or not the learned trial judge was right to hold that the power to sign exhibit F1 was not delegated to the Commissioner for Local Government and Chieftaincy Affairs who signed it.
4. Whether or not the 1st-3rd Respondents have discharged the onus of proof that Agbo family of Oje-Owode is not a Ruling House for the stool of Oloje of Oje-Owode Chieftaincy Stool.
5. Whether or not Oloje of Oje-Owode’s new Amended Declaration was duly registered on the 15th day of August, 2003.
6. Whether or not the court has jurisdiction to set aside the Amended Chieftaincy Declaration of Oloje of Oje-Owode made by the defunct Saki-Local Government Council Chieftaincy Committee on the 13th day of May, 1975 when it is caught up under Section 2(a) of Public Officer Protection Law Cap. 106 Laws of Western Region of Nigeria 1959.
7. Whether or not the lower court has jurisdiction to entertain the 1st-3rd Respondents’ action as the action is incompetent.”
On the part of the 4th Appellant, three issues were formulated for determination as follows:
1. “Whether the constitutional provision in S. 193(1) of the 1999 Constitution of the Federal Republic of Nigeria does not render inoperable the provision of S. 8(1) of the Oyo State Chiefs Law Cap. 21 Laws of Oyo State, 2000. This issue is distilled from Ground 1 of the Notice of Appeal.
2. Whether the trial Court was right when it based its decision in favour of 1st-3rd Respondents on evidence adduced by their witnesses and ignored the vital evidence of DW4 with the vital documentary evidence which he tendered and were received as Exhibits. This issue is distilled from Ground 5 of the Notice of Appeal.
3. Whether or not the lower Court has jurisdiction to entertain the 1st-3rd Respondents’ action as the action is incompetent. This last issue is a new issue which arose from the leave of this Honourable Court obtained by the 1st-3rd Appellants/Applicants to argue same and make it part of the Appellants’ Further Amended Brief of Argument.”
While the 5th and 6th Appellants distilled four (4) issues for determination of the appeal. They are as follows:-
1. “Whether the trial Court was right to have assumed jurisdiction over this case when the process of amending the 1958 Oloje of Aha (Oje-Owode) Chieftaincy Declaration started in 1973? Distilled from Ground 1.
2. Whether the Amended Oloje of Oje-Owode Chieftaincy Declaration (Exhibit “F1″) registered on 15th August, 2003 was validly and lawfully made or not? Distilled from Grounds 2, 3 & 6.
3. Whether in view of the pleadings and evidence of the parties in this case, the Plaintiffs could be said to have proved their case before the lower Court? Distilled from Grounds 4, 5, 7 & 8.
4. Whether the lower Court has jurisdiction to entertain the 1st and 3rd Respondents’ action as the action is incompetent? Fresh issue raised with the leave of this Honourable Court on 2/10/12 by the 1st to 3rd Appellants.”
While the Respondents identified three (3) issues for the determination of this appeal. They are as follows:
1. “Whether having regard to the time of accrual of the cause of action in favour of the Plaintiffs/Respondents in this case, the trial Court had jurisdiction to entertain the case and whether the action was statute barred or caught by the statute of limitation or Section 2(a) of the Public Officers Protection Act or any limitation at all having regard to the facts and circumstances of this case?
2. Whether apart from the 1958 Oloje of Aha Registered Chieftaincy Declaration, there was/is any other valid Chieftaincy Declaration known to Law that was/is applicable to the Plaintiffs/Respondents’ cause of action in the case now on appeal.
3. Whether the Plaintiffs/Respondents did not prove their entitlement to the reliefs sought by and granted to them by the trial Court and/or conversely whether the Defendants/Appellants established their entitlement to the Judgment of the trial Court to warrant a refusal of the Plaintiffs/Respondents’ claim?”
When the appeal was argued, Pastor R. A. Ogunwole (SAN) appearing with J.N. Ikezu (Miss) and J.C. Ogu Esq. for the 1st-3rd Appellants adopted and relied upon his Further Amended Brief of Argument dated 10/10/12 filed on 11/10/12 and his Reply Brief to the Respondents’ Further Amended Brief of Argument dated and filed on 5/11/13 deemed properly filed on 7/11/13 in urging us to allow the appeal.
Issues 1 and 5 that cover Grounds 3, 5, 7 and 10 were argued together. The learned Senior Counsel reviewed the averments in the 1st-3rd Appellants’ pleadings as Defendants in paragraphs 27-33 of their Amended Statement of Defence and the evidence of the DW3, DW4 and DW5 who gave account of the different transformations of the Local Government before the present one. Also, to the effect that after the 1958 Declarations, there were letters and petitions from the Agbo Family and the Chiefs and Omo Obas tendered as Exhibits “L” and “L1”, “L2” and “L3” following which the Western State Government instituted Omodara Commission of Inquiry, Exhibit “L4”, the report of the Commission was identified as Exhibit “A”. The letters approving two Ruling Houses: Agbo and Ose on the basis of the Report which amended the Oloje of Oje Owode Chieftaincy Declaration was tendered as Exhibit “L5”.
It was argued that the trial Court had no jurisdiction to set aside directly or indirectly the report and the recommendations of Omodara Commission of Inquiry which was argued to have approved that Agbo Family is, one of the two Ruling Families of Oje Owode of Owode. See: GOVERNOR OF OYO STATE V. FOLAYAN (1995) 8 NWLR (PT. 413) PAGE 292 AT PARAGRAPH 307 B-C; MUSTAPHA V. GOVERNOR OF LAGOS STATE (1987) 2 NWLR (pt. 58) 539 AT PAGES 552A- 553G and OLANIYI V. AROYEHUN (1991) 5 NWLR (PT. 194) PAGE 652 AT 686 PARAGRAPH E, to the effect that parties cannot confer jurisdiction on a Court when it has none.
It was submitted that the decision taken by Omodara Commission of Inquiry, the Government and Local Government cannot be revisited. We were urged to resolve issues 1 and 5 in the Appellants’ favour.
In arguing their issue four (4), reference was made to Exhibit “F1”, approval of the selection by the Commissioner for Local Government and Chieftaincy Affairs on 15/8/03, registered on the same day. Sections 7, 8, 9, 10 and 11 of the Oyo State Chiefs law applicable as at 2003 was referred to and reviewed by the learned Senior Counsel. Section 193(1) of the Constitution of the Federal Republic of Nigeria 1999 was relied upon in arguing that the Governor of a State may in his discretion assign to the Deputy Governor or any Commissioner of the Government of the State administrative duties in the Government.
It was submitted that although Exhibit “F1” was not registered as at the time the last Oloje died, the subsequent registration does not affect the validity of the appointment of the 2nd Defendant as the Oloje of Oje-Owode. It was argued that it was wrong for the learned trial Judge to have believed the DW5 who testified that his Ministry received Exhibit “N2” for the fact that it has no stamp. Moreso, where a Certified True Copy was tendered. It was argued that it was also wrong for the lower Court to have held that the Declaration was not registered on 15th August, 2003. We were urged to hold that the Declaration had been duly registered.
On their second issue, it was submitted that the Respondents did not join issues with the 1st to 3rd Appellants as regarding the Omodara Commission of Inquiry, the report, the recommendations and the eventual approval on the 13th day of May, 1975. It was argued that by virtue of Exhibit “B”, the earlier, Registered Chieftaincy Declaration being a chieftaincy matter, the Agbo Family acquired the right to contest for the Chieftaincy whenever a vacancy arose from 13/5/75; as per Exhibit “F1”.
Under their sixth issue raised with the leave of this Court, it was argued that the lower Court had no jurisdiction to set aside the Amended Chieftaincy Declaration of Oloje of Oje-Owode made by the defunct Saki Local Government Council Chieftaincy Committee on 13/5/75 as it is caught up by Section 2(a) of the Public Officers Protection Law Cap 106 Laws of Western Region of Nigeria 1959. See: CHIEF YAKUBU SANNI V. OKERE LOCAL GOVERNMENT TRADITIONAL COUNCIL & ANOR. (2008) 12 NWLR (PT. 1102) PAGE 691 AT PAGE 703 PARAGRAPHS B-D and C.B.N. V. UKPONG (2006) 13 NWLR (PT. 998) PAGE 555 AT PAGES 568-569 PARAGRAPHS A-B.
The seventh issue was also raised with the leave of this Court and same was incorporated in the Appellants’ Further Amended Brief of Argument.
In this issue, the Appellants challenged the court’s jurisdiction to hear the suit instituted by the Respondents as the action is incompetent; the Writ of Summons at pages 4-5 of the printed records of Appeal and the Statement of Claim filed by the Respondents at pages 6 to 12 of the records of appeal. The Amended Writ of Summons and Statement of Claim are at pages 248-258. It was submitted that the issue of jurisdiction is fundamental and could be raised anytime. See, DREXEL ENERGY & 2 ORS V. TRANS INTERNATIONAL BANK LTD. & 2 ORS (2008) 12 S.C. (PART III) 240 AT PAGE 272 PARAS 25-35, EZE VS. A.G. RIVERS STATE (2001) 12 S.C. (PART II) 21 AT PAGE 30 PARAGRAPH 101 PAGE 47 PARA 40 and UKAEGBE V. UGAJI (1991) 7 5.C. (PART II) 92 AT PAGE 96 PARAGRAPH 15. Reliance was also placed on Sections 2 and 24 of the Legal Practitioners Act.
Judicial interpretations of the above two sections, were relied upon, some of which are the locus classicus, OKAFOR VS. NWEKE (2007) 10 NWLR (PART 1043) 521. Also OKETADE V. AKINWUMI (2010) 4 SCN 1 AT PAGE 7 PARAS C-F, SLB CONSONTIUM LTD. V. NNPC (2011) 4 S.C. (PART 1) AT PAGE 97, FIRST BANK OF NIGERIA PLC & ANOR V. ALHAJI SALWANU MAIWADA, cited as unreported but now reported in (2013) 5 NWLR (PART 1348) PAGE 444 and S.C.C. (NIG.) LTD ANR ANOR V. LEVI EKENWA (2009) 27 WRN PAGE 70 AT 74.
It was submitted that the Writ of Summons dated 24/9/03 and the Statement of Claim dated 24/9/03 are incompetent as they were not signed by a legal practitioner in line with the provisions of Sections 2 and 24 of the Legal Practitioners Act, having been signed by S. O. Olanihun & Co. It was submitted that the Amended Statement of Claim dated 22/5/06 filed on the 23/5/06 along with the Amended Writ of Summons do not cure the fundamentally defective Writ of Summons and Statement of Claim. We were urged to allow the appeal.
On the part of the 4th Respondent Fasomo Falola Esq. the learned counsel to the 4th Appellant in arguing the appeal relied on his Notice of Appeal dated 20/10/08 filed on 22/10/08 at pages 508-514 of the printed records. He adopted and relied on his brief of argument dated and filed on 12/11/12 and his reply brief dated 30/5/13 filed on 3/6/13 in urging us to allow the appeal.
In arguing the first issue, it was submitted that Section 193(1) of the 1999 Constitution of the Federal Republic of Nigeria (hereafter referred to as the Constitution) renders inoperable, the provisions of Section 8(1) of the Chiefs Law of Oyo State which empowered only the Governor to approve a chieftaincy declaration and not the Commissioner for Local Government as done in this case, See LABIYI V. ANRETIOLA (1992) 8 NWLR (PART 258) 139 AT 162 PARAGRAPH E-F, also GOVERNOR OF ONDO STATE V. ADEWUNMI (1988) 3 NWLR (PART 82) 280. We were urged to allow the appeal in that the provisions of the constitution override the provisions of the Chiefs Law, which is a State Law.
On his issue two, it was the submission of the learned counsel that the trial judge did not give due attention and weight to Exhibits C, L7, L8, L13, L14, which showed the participation of members of Ose Ruling House in all the steps taken to effect a change in Oloje Chieftaincy Declaration. All stakeholders were said to have participated actively in an exercise which took place between 1970 until 2003 when the registration was said to have taken place. It was further submitted that the effect of the trial court disregarding the evidence of 1st DW which complemented that of 3rd DW was harmful to the case of the Appellant.
The 4th Appellant’s 3rd issue is a new issue which arose from the leave of this court obtained by the 1st-3rd Appellants as applicants to argue same and made same part of the Appellants’ Further Amended Brief of Argument.
It was the submission of the learned counsel that the Respondents’ Writ of Summons on pages 4-5 of the printed records of appeal filed on 24th September, 2003 and their Statement of Claim on pages 6-12 of the same records were signed by S.O. Olanihun & Co. as the Barrister who filed the Writ of Summons and Statement of Claim. The same was argued to be incompetent and had robbed the Court of the jurisdiction to entertain the matter. The arguments as to who is entitled to practice as a Barrister and solicitor in Nigeria by virtue of Sections 2 and 24 of the Legal Practitioners Act, Cap. L11 Laws of the Federation, 2004, the arguments were similar to those of the learned senior counsel and reliance was placed on the same legal authorities in support, I need not repeat same. We were urged to allow the appeal and strike out the incompetent processes.
Mr I. O. Tijani Esq. Deputy Director, Litigation and Advisory Services Oyo State Ministry of Justice on behalf of the 5th and 6th Appellants in arguing the appeal referred to his Notice of Appeal dated 22/10/08, filed the same day, at pages 493-498 of the printed records. Learned counsel adopted and relied on his Amended Brief of argument dated 13/11/12 filed on 14/11/12 and a reply brief dated and filed on 6/6/13 in urging us to allow the appeal.
In arguing their first issue it was submitted that when a cause of action accrues is determined by the Plaintiffs’ Writ of Summons and Statement of Claim, See, OSIGWE V. PS PLS MANAGEMENT CONSORTIUM LTD. (2009) ALL FWLR (PART 470) 623, PARAGRAPHS F-H. It was the contention of the learned counsel to the 5th and 6th appellants that the trial court lacked the jurisdiction to entertain the claim of the Respondents by virtue of the provisions of Section 6(6)(d) of the 1999 Constitution of the Federal Republic of Nigeria which precludes the lower court from inquiring into proceedings which seek to determine issues or questions as to the competence of any authority or person to make any existing law promulgated between 15th January, 1966 and 1st October, 1979 when the constitution came into force, see ATTORNEY GENERAL OF THE FEDERATION V. ABUBAKAR (2009) ALL (PART 449) 401 AT 422 PARAGRAPHS C-D, CHIEF OSADEBEY VS. ATTORNEY GENERAL, BENDEL STATE (1991) 1 NWLR (PART 169) 525 and BARCLAYS BANK NIG. LTD. V. CENTRAL BANK OF NIGERIA (1976) 6-7 SC 175 amongst others. We were urged to hold that the lower court lacked the jurisdiction to entertain the claim of the Respondents.
The 5th – 6th Respondents’ second issue is as to whether or not the Amended Oloje of Oje-Owode Chieftaincy Declaration registered on 15th August, 2003, Exhibit “F1” in this case, was validly or unlawfully made or not. This issue covered grounds 2, 3 and 6 of the grounds of appeal.
The learned counsel in his submissions, faulted the denial of the knowledge of the existence of the Omodara Commission of Inquiry by the PW1 (2nd Respondent) PW2 and PW5. We were urged to utilize documents in proof of the existence of the Omodara Commission of Inquiry rather than oral evidence in denial of same. See, Sections 76 and 132(1) of the Evidence Act. We were urged to disbelieve the evidence of PW1, PW2 and PW5.
It was the submission of the learned counsel that the exercise of amending a declaration is the administrative function of the State Government which cannot be fettered by a Court of Law. Further, that by the provisions of Section 193(1) of the 1999 Constitution that a Chieftaincy Declaration could be signed by the Governor or any of his Commissioners. It was the contention of the learned counsel that Exhibit “B” the 1958 Oloje of Oje-Owode Chieftaincy Declaration which the trial court based its decision on is invalid not having been registered by any Governor and not gazetted. It was argued that with Exhibit “B” being invalid, the customary law relating to Oloje of Oje-Owode would be the applicable law as declared in Exhibit “A” – Omodara Commission report, upheld by the government, reference was made to the evidence of DW3 under Cross Examination, which was argued to have been unshaken. It was submitted that with Exhibit ‘F1’ the amended declaration, Exhibit “B” ceased to be in existence.
It was also argued that the contents of Exhibits “Q” and “Q1” relied upon by the trial court showed that Exhibit “F1” had been in existence before these Exhibits came to be.
In conclusion, it was argued that with the amendment of Exhibit “B”, the respondents no longer had any vested interest in Exhibit “B” to be entitled to any vested right. We were urged to resolve the second issue in favour of the Appellants.
On their third issue, which covers issues 4, 5, 7 and 8, it was alleged by the learned counsel that from the pleadings and evidence before the court, the appellants proved their case and argued the contrary concerning the case of the Respondents. The evidence of the DW1 and PW3 were reviewed, as well as Exhibit ‘A’ the proceedings on recommendations of Omodara Commission of Inquiry tendered through PW2. The learned counsel faulted the lower court’s evaluation of the evidence and the grant of the reliefs sought by the plaintiffs.
The fourth and last issue is whether the lower court had the jurisdiction to have entertained the 1st to 3rd Respondents’ action as the action is incompetent. The original Writ of Summons and the Statement of Claim filed on 24/9/03 signed by S.O. Olanihun and Co. who is not a legal practitioner known to the Legal Practitioners Act. Also, the Writ of Summons and the Statement of Claim amended on the 23rd May, 2006 and the 2nd day of May, 2006 respectively were argued not to be capable of curing the defect on the face of the original writ of summons and statement of claim as the Rules cannot override a statutory provision.
It was argued that even though the Writ of Summons was issued by the Registrar of the lower court under the Old High Court (Civil Procedure) Rules of 1988, the Statement of Claim was signed by S. O. Olanihun & Co and that since the Statement of Claim supercedes the Writ of Summons, it means that the Writ was not supported by a competent claim as stipulated by Order 25 Rules 1 and 27 Rule 1 of the High Court (Civil Procedure) Rules 1988.
The same arguments were raised as those of the learned Senior Counsel to the effect that Sections 2 and 24 of the Legal Practitioners Act, a substantive law were not complied with. Reliance was placed on the same cases relied upon by the learned Senior Counsel in arguing the appeal on behalf of the 1st-3rd Appellants. I need not repeat same.
On an amendment not being capable of amending an incompetent process, reliance was also placed on NWANKWO V. ABAZIE (2003) 14 NWLR (PART 834) 381 AT 412 – 413 H – D and MOBIL OIL NIG. PLC. V. YUSUFF (2012) 9 NWLR (PART 1304) AT PAGE 57 A-E.
The Statement of Claim and Amended Statement of Claim were argued to be defective in law and incompetent. We were urged to allow the appeal.
In response, the Respondents’ learned counsel S.O. Olanihun Esq. appearing with Yakubu Dauda Esq. adopted and relied upon his Further Amended Brief of Argument dated 23/4/13 filed the same day, by an order of court granted on 17/4/13, granting 14 days within which to file same in urging us to dismiss the appeal. In the Respondents’ brief, the learned counsel raised a preliminary objection in which we were urged to strike out grounds 8 and 9 of the 1st-3rd Appellants’ Notice of Appeal and consequently issue 6 distilled therefrom. We were also urged to strike out issue 7 in the 1st-3rd Appellants Further Amended Brief of Argument for being incompetent. The grounds for the objection were as follows:
“i. Issue No. 6 has no reference with grounds 8 and 9 from where it was purported to have been distilled.
ii. Issue No. 6 has no reference with any of the 10 grounds of the 1st-3rd Appellants’ Notice of Appeal.
iii. Issue No. 7 did not arise from the decision of the trial court and no ground among the ten grounds of Appeal in the Notice of Appeal of the 1st-3rd Appellants’ Notice of Appeal covers same.
iv. This Honourable Court lacks jurisdiction to entertain same.”
In arguing his preliminary objection, the learned counsel submitted that issue two (2) formulated from grounds 8 and 9 of the 1st-3rd Appellants’ Notice of Appeal is incompetent in that the issue had no bearing with the two grounds and therefore incompetent. We were urged to strike out both grounds as no issue was formulated therefrom as well as issue 6 purportedly distilled therefrom.
It was also argued that issue 7 argued by the 1st-3rd Appellants with the leave of court never arose from the decision of the trial court and was not formulated from any of the grounds of appeal. Further, that the amendment of the Appellants’ Notice of Appeal and or grounds of Appeal or the fact that it was tagged jurisdictional could not cure the defect since same did not arise from the decision of the trial court. It was submitted that this issue cannot be countenanced in this court, the leave granted notwithstanding. See, OREDOYIN V. AROWOLO (1989) 4 NWLR (PART 114) 172 AT 213 PARAGRAPHS A-E. We were urged to strike out issue 7 as it is incompetent along with the argument in its support. See, ADELAJA V. FANOIKI (1990) 2 NWLR (PART 131). AT 148 PARAGRAPH E; FBN V. ONUKWUGHA (2005) 16 NWLR (PART 950) 120 AT 152 and OGBE V. ASADE (2009) 18 NWLR (PART 1172) 106 AT 124 PARAGRAPH A. We were urged to uphold the objection and strike out issues 6 and 7 in the 1st – 3rd Appellants’ Further Amended Brief of Argument.
Should the objection be overruled the learned counsel to the Respondents argued his three issues as formulated in his Further Amended Brief of Argument.
In his issue one, it was submitted that the cause of action in this matter accrued on 12th March, 2003 when Oloje Oyekola Olaleru, the immediate past Oloje died, thus making the seat vacant from that date. See, LIPEDE v. SONEKAN (1995) 1 NWLR (PART 374) 668 AT 690 PARAGRAPHS F-G and MOSOJO V. OYETAYO (2003) 5 SC 143 AT 139. In line with the above authorities, the learned counsel defined a cause of action and when it accrues. Also, the case of ABUBAKAR V. B. O. & A. P. LTD. (2007) 18 NWLR (PART 1066) 319 AT 316 PARAGRAPHS A-B. We were urged to hold that the cause of action in this case arose in the year 2003 and that the lower court had the jurisdiction to entertain this matter, the appellants having argued that same was ousted by Section 29 of the Chiefs Law of Oyo State 1978, alleging that the appellants were wrong in contending that the cause of action arose in 1975 before the 1979 Constitution came into effect.
Reliance was placed on Sections 236 and 272 of the 1979 and 1999 Constitutions (As Amended) respectively. It was argued that Section 9 of the Chiefs Law of 1978 would be inapplicable in the face of the provisions of Sections 236 and 272 of the 1979 and 1999 Constitutions respectively.
It was argued that a High Court would have jurisdiction to entertain any chieftaincy matter whose cause of action arose after the coming into effect of the 1979 Constitution, See, BOB-MANUEL V. BRIGGS (2003) 1 SC (PART 1) 95 AT 100, (regardless of the provisions of Section 9 of the Chiefs Law of Oyo State) where the cause of action arose after the coming into force of the 1999 Constitution, See, also OSAGIE II VS. OFFOR (1998) 3 NWLR (PART 541) 205 AT 1 PARAGRAPHS 1- F.
We were urged to hold that the lower court had the requisite jurisdiction to entertain the matter since the cause of action accrued in the year 2003 after the coming into effect of the 1979 Constitution.
In alternative argument should the objection to issue No.6 be overruled, it was submitted that this court would have to decide on when the cause of action arose before deciding on whether this action was caught up by the provisions of Section 2(a) of the Public Officers Protection Act, the Statute of Limitation. The learned counsel re-emphasized that the cause of action accrued in the year 2003 and not 1975 when the declaration was made as made out by the appellants. It was argued that the declaration was never approved by the Executive Governor of Oyo State Government; it was never signed nor registered as at 1975, for these reasons it was argued to be inchoate and could not be acted upon unless the above requirements are satisfied. It was concluded on this issue that Section 2(a) of the Public Officers Protection Act could not have been applicable as at 1975. We were urged to resolve issue one vis-a-vis this fresh issue canvassed by the 1st-3rd appellants against them.
In arguing his second issue, the learned counsel re-emphasized that the 1958 declaration, Exhibit ‘B’ is the applicable declaration as at 12th March, 2003. Reliance was placed on the cases of IMOGIEMHE V. ALOKWE (1995) 7 NWLR (PART 409) 581 AT 595 PARAGRAPHS C-D, AFOLABI V. GOVERNOR OF OYO STATE (1985) 2 NWLR (PART 9) 734 and FASADE V. BABALOLA (2003) 11 NWLR (PART 830) 26 AT 45 PARAGRAPHS A-D.
On the status of the 1975 Amended Declaration, it was argued that the procedure for the amendment of a declaration was not conformed with, demonstrated by the testimonies of PW2, DW4 and DW5. PW2 (the only living member of Ose Family) denied participating in the Omodara Commission of Enquiry in 1973, the DW4 testified to the effect that the Amendment Exhibit ‘F’ was not registered because the commissioner for chieftaincy Affairs signed it as opposed to the Governor who has the statutory duty to sign same. The evidence of the DW5 (Deputy Director of Chieftaincy Matters, Ministry of Local Government and Chieftaincy Matters) was argued to be along this same line of testimony. The case of MAFIMISEBI V. EHUWA (2007) 2 NWLR (PART 1018) 385 AT PAGES 429-430, PARAGRAPHS H-A was referred to amongst others as well as Section 7(1) of the Chiefs Law of Oyo State especially sub sections 5 and 7 to the effect that the Governor is the only approving body of any amendment to a declaration, such as the one made in 1975. We were urged to hold that no other person other than the Governor had the competence to approve and sign Exhibit F1, including the Commissioner for Local Government and Chieftaincy Matters. It was further argued that Section 193(1) of the 1999 Constitution relied upon by the Appellants does not apply.
It was submitted that Sections 7 and 8 of the Chiefs Law are specific provisions which override the general provisions of Section 193(1) of the 1999 Constitution which would not defeat the provisions of the Chiefs Law. See, NIGERIAN NAVY V. GARRICK (2006) 4 NWLR (PART 969) 69 AT 108 and FMBN V. OLLOH (2002) 9 NWLR (PART 773) 475. Also relied upon are Exhibits ‘Q’, and ‘Q1’, a letter written by the Ministry of Justice dated 6/9/06 and addressed to the commissioner for Local Government and chieftaincy Matters proffering an advice that the amended Oloje chieftaincy Declaration be registered before an Oloje is installed. Also, Exhibit ‘F’, the letter from 1st-3rd Appellants’ counsel/solicitor, dated 24/11/03 praying for the Registration of the purported Amended Declaration which was said to have been written after the filing of the suit culminating in this appeal. We were urged to hold that as at the time of accrual of the cause of action in this case the 1958 Registered Declaration of Oloje Aha was the applicable declaration and resolve the issue in favour of the Respondents and dismiss the ground upon which this issue is predicated.
The third issue is as to whether the 1st-3rd Respondents as plaintiffs established their entitlement to the reliefs sought and granted in the lower court. It was submitted that the onus of proof is on the 1st-3rd Appellants who asserted positively that members of their family are entitled to the stool of Oloje of Oje-Owode and not the 1st-3rd respondents who asserted negatively that Appellants’ family members are not. The evidence of the PW1, PW2, PW3, PW5 and DW5 were reviewed. In a nutshell the learned counsel contended that the 1st-3rd Appellants who have the onus of proving the entitlement of Agbo family to the chieftaincy title of Oloje of Oje-Owode failed to discharge such burden, while the 1st-3rd Respondents proved their entitlement to the reliefs granted them by the trial court.
The second aspect of the third issue is regarding the amendment of the Writ of Summons and Statement of Claim of the 1st-3rd Respondents granted by the trial court. It was the contention of the learned counsel to the respondents that the Writ of Summons and Statement of Claim being made an issue had been amended by the ruling of the trial court at pages 216 to 230 of the printed records; the amended process at pages 248-249 of the records. Reliance was placed on the case of UNITY BANK PLC (formerly NEW NIGERIAN BANK) V. DENCLAG LTD. (2012) 18 NWLR (PART 1332) PAGE 293 AT 327 PARAGRAPHS B-G. It was argued that a situation where the case of OKAFOR V. NWEKE (supra) OKETADE v. AKINWUNMI (supra) SLB CONSORTIUM LTD. V. NNPC (supra) and FIRST BANK PLC & ANOR. V. MAIWADA (supra) would apply has not arisen. It was argued that the above cases are not applicable in the present case, in that striking out this case as urged by the Appellants would lead to technical injustice against the 1st-3rd Respondents because the resultant effect of striking out the Writ of Summons and Statement of Claim will be a permanent shut out of the 1st-3rd Respondents because re-filing of the case would not be possible because the cause of action would have been caught up by statute of limitation having regard to the fact that public officers are amongst the defendants sued at the trial Court. It was submitted that the line of cases of OKAFOR V. NWEKE (supra) and FIRST BANK PLC V. MAIWADA (supra) do not apply to the present case.
It was further argued that the Appellants had filed all the necessary processes in the lower court and that it is too late to complain about the incompetence of processes filed as far back as 2003, which was not made an issue throughout the proceedings. See, EZOMO V. OYAKHIRE (1985) 1 NWLR (PART 2) 195 AT 202 PARAGRAPH E, NOIBI V. FIKOLATI (1987) 1 NWLR (PART 52) 619 AT 632 and DAVID V. JOLAYEMI (2011) ALL FWLR (PART 571) 1545. We were urged to determine the appeal on its merit.
In the 1st-3rd Appellants’ reply to the Respondents’ Further Amended Brief in response to the preliminary objection it was submitted by the learned senior counsel that the case of ADELAJA V. FANOIKI (supra) relied upon by the Respondents does not apply in the present case, in respect of issues 6 and 7 in that the former dealt with proliferation of issues whereas issues 6 and 7 are fresh issues touching on jurisdiction which were never raised or decided in the lower court, See, ADIO v. THE STATE (1986) 2 NWLR (PART 24) PAGE 581 AT PAGES 587-588 PARAGRAPHS H-A; AJUWON V. ADEOTI (1990) 3 S.C. (PART 11) PAGE 76 AT PAGES 97-98) and BUHARI V. YUSUF (2003) 6 SC (PART 11) PAGE 156 AT 203.
It was argued that by the provisions of Section 24 of the Chiefs Law of Western Nigeria 1959 and Sections 158(4a) and 16(3) of 1963 Constitution, the court has no jurisdiction to entertain the action. The learned Senior Counsel refuted the submission that Sections 7 and 8 of the Chiefs Law override the provision of Section 193(1) of the 1999 Constitution and argued that the Constitution overrides any other law that is inconsistent with the Constitution.
It was further submitted that Exhibits F, Q and Q1 ought not to have been admitted in evidence as they were made after the action had been filed on 24/9/03, See Section 91(3) of the Evidence Act. We were urged to disregard the evidence erroneously admitted at the trial.
It was concluded that the amended Declaration and the Report of the Enquiry have established that the Appellants are entitled to the Chieftaincy and that the court has no jurisdiction to set it aside.
The 4th and 5th-6th Appellants in their respective reply briefs reacted along the same line as the 1st-3rd Appellants’ argument in their main briefs of argument in support of the new issues raised with the leave of this court to the effect that the Writ of Summons and Statement of Claim of the respondents as plaintiffs in the trial court was incompetent, same having been signed by “S.O. Olanihun & Co.” not being a person whose name appears in the roll of legal practitioners licensed to practice, which robbed the trial court of jurisdiction to entertain same. The same authorities cited and relied upon by the learned senior counsel to the 1st-3rd Appellants were cited and relied upon. Also, that, the challenge of the lower court’s jurisdiction has been properly raised with the leave of this court and need not have been raised from the grounds of appeal.
Starting with the issues formulated by the parties, I would reformulate same which would cover all the issues as formulated by the Appellant and the three sets of respondents. They are:
“1. Whether the lower court had jurisdiction to entertain the 1st-3rd Respondents’ action as the action is incompetent?
2. Whether having regard to the time of accrual of the cause of action in this case, the trial court had jurisdiction to entertain the case and whether the action was statute barred or caught up by the statute of limitation or Section 2(a) of the Public Officers Protection Act or any limitation having regard to the facts and circumstances of this case?
3. Whether in view of the pleadings and evidence of the parties in this case, the plaintiffs could be said to have proved their case before the lower court to have been entitled to judgment?”
It is trite that where a preliminary objection has been raised against the competence of part of the issues raised or the entire case, whatever the case may be, same has to be resolved first before looking into those issues or entire case if need be.
In the present case the Respondents raised a preliminary objection challenging the competence of issues 6 and 7 in the Appellants’ brief of Argument. The arguments on both sides were earlier extensively reviewed in this judgment. In a nutshell that issue 6 did not relate to any of the grounds of appeal and that issue 7 did not arise from the decision of the trial court.
No doubt the 1st-3rd Appellants sought and obtained the leave of this court to argue fresh issues, issues 6 and 7 in the Appellants’ Further Amended Brief of Argument.
The respondents also agreed that leave was sought and obtained to argue these fresh issues. In Paragraphs 6.01 and 6.03 at page 5 of the Respondents’ Brief, the respondents acknowledged/admitted this fact; therefore it is not in dispute.
I will therefore not go into whether leave of this court was obtained or not. Issues 6 and 7 touch on jurisdiction, not raised or decided in the lower court which is the reason for seeking leave to raise and argue same before this court, which was not objected to and granted. The grounds of appeal were distilled from the decision of the lower court. An appellate court would not generally allow a fresh point to be taken before it, if such a point was not pronounced upon by the court below, See LONDON CHARGED BANK OF AUSTRALIA V. WHITE (1897) 4 A.C. 413; NABAKA’S GOVERNMENT & ANOR. V. ATTORNEY-GENERAL OF UGANDA & ANOR. (1965) 3 W.L.R. 512; (1966) A.C.1. There is an exception to this principle of law. But, when the question involves substantial points of law, substantive or procedural and it is plain that no further evidence could have been adduced which could affect the points taken to prevent an obvious miscarriage of justice. See, ATTORNEY GENERAL OYO STATE V. FAIRLAKES HOTEL LTD. (1988) 5 NWLR (PART 92) 1; ABINABINA v. ENYIMADU (1953) A.C. 207; 215; P. C. AKPENE V. BARCLAYS BANK (1977) 1 S.C. 47; ENANG V. ADU (1981) 11 – 12 S.C. 25 AT 45. But, the catch is: that leave must be specifically sought and obtained for this purpose from the appellate court, which was done in the present case. See, also ARDO V. ARDO (1998) 10 NWLR (PART 571) 700 AT 706; OSHOTOBA V. OLUJITAN (2000) 5 NWLR (PART 635) 159 AT 171; SHONEKAN V. SMITH (1961) 1 ALL N.L.R. 168 and EKPUK v. OKAN (2001) 4 W.R.N. 85 AT 100-101. The Apex court in ADIO v. STATE (1986) 2 NWLR (PART 24) PAGE 581 AT PAGES 588 His Lordship, OPUTA J.S.C. in this respect held thus:
“The general rule adopted by this court is that an appellant will not be allowed to raise, on appeal, a question which was not raised or argued in the court below. This however, is not an inflexible and rigid rule. It is subject to the demands of justice. Thus where the question involves substantial points of law – either substantive or procedural – the court may entertain the appeal all the same and prevent an obvious miscarriage of justice.”
See, also AJUWON V. ADEOTI (1990) 3 S.C. (PART 11) PAGE 76 AT PAGES 87 – 88. On this basis, I hold that issues 6 and 7 in the appellants’ briefs were properly raised and argued, leave of this court to do so having been sought and granted. The preliminary objection fails, same is overruled. It is hereby dismissed. Should the preliminary objection be overruled the learned counsel to the respondents in the alternative responded to all the issues raised by the appellants including the 1st-3rd appellants’ issues 6 and 7.
With the substantive appeal, the first issue as re-formulated, challenges the jurisdiction of the lower court to have entertained the respondents’ action which the three sets of appellants have alleged is incompetent (I will hereafter refer to the three sets of appellants as simply appellants).
The Writ of Summons and Statement of Claim signed by “S.O. Olanihun & Co.” has been faulted by the respondents on the basis that a firm is not a legal practitioner that could validly sign court processes.
These originating processes upon which the entire case is premised giving rise to this appeal was argued to be incompetent. The Writ of Summons filed on 24th September, 2003 is at pages 4-5 of the printed records. At page 5, the Writ was endorsed as follows:
“SGD.
Signature of Solicitor for Plaintiff
Name in full (In block letters).
S. O. Olanihun & Co.
PLAINTIFFS’ SOLICITORS
C/O J.I. OLANIHUN
NO. 78A ILE OGUNJINMI
AJEGUNLE QTRS
SAKI”
Similarly, the Respondents’ statement of claim filed on 24/9/03 was also signed by “S. O. Olanihun & Co.” at pages 6 – 12 of the printed records. At page 11, it was endorsed as follows:
“SGD
S. O. OLANIHUN & CO.
PLAINTIFFS’ SOLICITORS
C/O MR. J. I. OLANIHUN
NO. 78A AJEGUNLE QTRS.
SAKI”
The writ of summons and statement of claim were later amended, at pages 248-258 of the records.
It is now a well settled principle of law that the issue of jurisdiction is fundamental and it is the live wire of any proceedings. For this reason it could be raised at any stage of proceedings even at the Supreme Court. It can also be raised suo motu, which further shows its importance. See, EJIOFODOMI V. OKONKWO (1982) 11 S.C. 74; SWISS AIR TRANSPORT CO. LTD. V. A.C.B. LTD. (1971) 1 ALL NLR 37; EZOMO V. OYAKHIRE (1985) 1 NWLR (PART 2) 195; GALADIMA V. TAMBAI (2000) 11 NWLR (PART 677) 1.
The learned counsel to the respondents had argued that the issue of the incompetence of the Writ of Summons and Statement of Claim is belated and that it ought to have been raised in the lower court. Also, that the appellants had taken steps in the proceedings, but the respondents did rightly submit that the defect is substantial and touches on the jurisdiction of the lower court to have entertained the matter and that it is not a mere irregularity that could be overlooked.
On the issue of waiver, the issue of jurisdiction touches on the root of an action, it cannot be waived. It is more than an irregularity, see, CBN V. OKOJIE (222) 22 WRN 51; (2002) 8 NWLR (PART 768) 48, (2002) 9 NSCQR. In my humble view, the argument of the learned counsel to the respondents is erroneous; the issue raised is not a matter of irregularity or one that could be waived or conceded by a party, parties or counsel. There was later an amendment of the Writ of Summons and Statement of Claim contained at pages 248-258 of the printed records of appeal dated 22nd May, 2006, with the signature of counsel and the name beneath it, followed by the name and address of the law firm. The question that arises is that could the amendment cure the defect of the incompetence as urged by the learned Respondents’ counsel that it should. At this juncture it is apt to examine the provisions of the law concerning signing of court processes.
Section 2(1) of the Legal Practitioners Act, CAP 207 LFN 1990 has clearly stated who a barrister and solicitor entitled to practice as such in Nigeria, empowered to sign court processes thus:
“Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if and only if his name is on the roll.”
The above Section must be read with Section 24 of the same Act which defines who a legal practitioner is. It provides as follows:
“Legal Practitioner” means
A person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor either generally or for the purpose of any particular office or proceedings.”
Clear judicial interpretation has been given to the above provisions in the popular case of OKAFOR V. NWEKE (supra) relied upon by the Respondents amongst other cases along the same line that followed the above decision in stating who a legal practitioner is. In the above case, a Motion on Notice was signed by a law firm. His Lordship of the Apex Court, Onoghen, J.S.C. at pages 531-532, held thus:
“From the above provision, it is clear that the person who is entitled to practice as a legal practitioner must have his name on the roll. It does not say that his signature must be on the roll but his name…
The combined effect of the above provisions is that for a person to be qualified to practice as a legal practitioner he must have his name on the roll otherwise he cannot engage in any form of legal practice in Nigeria.” (Underlining mine for emphasis)
The learned counsel to the Respondents had argued that there was a signature above the name of the firm. The Legal Practitioners’ Act above talks about name in the roll. “S.O. Olanihun & Co” is not a legal practitioner as defined by law but a firm. The name of the person who signed in this case, the Writ and Statement of Claim should be beneath the signature, followed by the name and address of the firm. I have always held the view that the essence is also to ensure that court processes are signed by a person entitled to do so by law, to protect the interest and safe guard processes (originating processes for that matter) to ensure that touts, unauthorized persons such as clerks, secretaries, messengers even a security man at a firm do not sign processes coming from a legal practitioner’s firm. It is in the interest of the legal practitioner and the legal profession as a whole that court processes where required, be signed by a legal practitioner in the firm who has been called to the Nigerian Bar and his name on the roll of barristers and solicitors.
A mere look at the signature on the writ of summons and statement of Claim, one cannot tell who signed them, it is not safe. See, the case of BRAITHWAITE C. SKYE BANK PLC (2013) PART 1346) 5 NWLR PAGE 1, where the writ of summons and the Statement of Claim were signed by a law firm and same held to be defective by the Apex Court. His Lordship Fabiyi J.S.C. in FIRST BANK OF NIGERIA PLC AND ANOTHER V. ALHAJI SALMANU MAIWADA (2013) 5 NWLR (PART 1348) PAGE 444 AT PAGE 483 restated the position of the law thus:
“The purpose of a legislation is of paramount factor. The purpose of Sections 2(1) and 24 of the Act is to ensure that only a legal practitioner whose name is on the roll of this court should sign court processes. It is to ensure responsibility and accountability on the part of a legal practitioner who signs a court process. It is to ensure that fake lawyers do not invade the profession. This, in my considered opinion, accords with the sacred canon of interpretation of law. See: Ibrahim v. Barde (1996) 9 NWLR (pt. 474) 513; United Agro Ventures v. F.C.M.B. (1998) 4 NWLR (Pt. 547) 546; I.B.W.A. V. Imano (Nig.) Ltd. & Anor. (1988) 2 NSCC 245, (1988) 3 NWLR (Pt. 85) 633…
In my considered opinion, the words employed in drafting Sections 2(1) and 24 of the Act are simple and straight forward. The literal construction of the law is that legal practitioners who are animate personalities should sign court processes and not a firm of legal practitioners which is inanimate and cannot be found in the roll of this Court.”
The decision in OKAFOR V. NWEKE was based on a substantive law, an Act of the National Assembly, that is: The Legal Practitioners Act which must be complied with.
In a similar situation where a process was signed by a firm of solicitors His Lordship Muhammad, J.S.C. in BRAITHWAITE v. SKYE BANK PLC (supra) at page 17 paragraphs F-G held as follows:
“Having found that Exhibits Skye 1 and 3 have not been signed by a legal practitioner as required by both rules of the trial court and extant provisions of the Legal Practitioners Act, the two originating processes are, on the authorities fundamentally defective and incapable of initiating any competent action. Suit No. LD/1850/2005 purportedly commenced by the defective originating processes being incompetent is in capable of giving rise to a competent appeal.” (Underlined mine for emphasis).
Similarly, in the case of OKETADE V. ADEWUMI (2010) 8 NWLR (PART 1195) 63 the Apex Court emphasised clearly that where a process is issued in the name of a firm and not in the name of a legal practitioner, it is not a mere irregularity, that can be brushed aside but a fundamental vice affecting the judicial process in question, and that such a process is incompetent, invalid, null and void.
In the same vein, His Lordship Rhodes-Vivour, J.S.C. in SLB CONSORTIUM V. NNPC (2011) 4 SCJ PAGE 211, (2011) 9 NWLR (PART 1252) 317 AT PAGES 337-338; PARAGRAHS H-A explained in an elementary manner how processes filed in court are to be signed thus:
“First: the signature of counsel, which may be any contraption.
Secondly: the name of counsel clearly written.
Thirdly: who counsel represents.
Fourthly: name and address of legal firm.”
His Lordship, in a mere recent decision of the Apex court in NIGERIAN ARMY V. SAMUEL (2013) 14 NWLR (PART 1375) PAGE 466 AT PAGE 485 PARAGRAPHS F-G held as follows:
“The originating process in the Court of Appeal, (the Notice of Appeal) was signed by N. O. O. Oke & Co., a firm of legal practitioners. It was not signed by a person registered to practice law as a Solicitor and Advocate in Nigeria.
Consequently, the Notice of Appeal is fundamentally defective and the proceedings in the Court of Appeal which ended with the judgment of that court are null and void. Put in simple language the judgment of the Court of Appeal no longer exists because it flows from a fundamentally defective originating process.”
The learned counsel to the Respondents had argued that with the amendment of the Writ of Summons and Statement of Claim granted by the trial court, the 1st-3rd Appellants could not be heard to complain about the incompetence of the amended processes. The learned counsel tried to distinguish OKAFOR V. NWEKE (supra), OKETADE V. AKINWUMI (supra), SLB CONSORTIUM LTD. V. NNPC (supra) and FIRST BANK PLC & ANOR V. SALMAN MAIWADA (supra) from the present case, and gave reasons why they should be distinguished, two of which are, that in the above cases, the processes were Notices of Appeal, secondly no amendment had been sought and granted to amend the original processes. This argument is not tenable in law. Whether the originating process is a Notice of Appeal, Writ of Summons or Statement of Claim, it makes no difference; once such process is not signed by a legal practitioner where required, it is incompetent.
On the issue of amendment, pages 216-230 of the printed records, the amended Writ of Summons issued by R.O. Balogun, Esq. on 23rd May, 2006 at pages 248 and 249 of the records and pages 250-258 of the same record referred. It is the law that an incompetent process cannot be amended.
A recent decision of the Apex Court in NIGERIAN ARMY V. SAMUEL (2013) 14 NWLR (PART 1375) PAGE 466 AT 483, PARAGRAPHS E – H, His Lordship Onnoghen, J.S.C in this respect held thus:
“N. O. O. Oke & Co. is not a legal practitioner registered in Nigeria to practice law and thereby clothed with the powers to sign/frank legal documents and file same in the court of law, it is also not a legal person known to law which makes its position worse…
The lack of legal capacity personality is a fundamental defect which cannot be cured even by an amendment. It is a defect that goes to the root of the proceedings and renders same void ab initio. In the eyes of the law, the notice of appeal in this case did not exist and can therefore not be accorded validity by an amendment. What is void is void.” (Underlined mine for emphasis)
Similarly, at page 486 of the above case, His Lordship Ogunbiyi, J.S.C. in this respect held thus:
“The original notice of Appeal as the initiating process must be competent for any subsequent amendment to sustain. To hold otherwise and as contended by the respondent’s counsel is to put something on nothing and which would surely crumble. The amendment has no foundation to stand thereon.”
His Lordship, Aka’ahs, J.S.C. in the same vein, supporting the above views held that:
“The originating process i.e. the Notice of Appeal (which was purportedly amended) upon which the lower court allowed the appeal from the General Court Martial was fundamentally defective which could not be cured by an amendment. Consequently the judgment of the lower court predicated on an invalid notice of appeal is a nullity.”
The case of UNITY BANK PLC V. DENCLAG (supra) relied upon by the respondents in urging us to view as competent the amended writ of summons and statement of claim, in my humble view did not overrule OKAFOR V. NWEKE (supra). The cases of F.B.N. V. MAIWADA a decision of the full court restated the position of the law and re-emphasised in subsequent decisions of the Apex Court in BRAITHWAITE VS. SKYE BANK PLC and NIGERIAN ARMY V. SAMUEL.
In conclusion, I hold that the originating processes in this case have been found to be fundamentally defective. This robbed the trial court of the jurisdiction to hear and determine the action as initiated. The initiating processes being incompetent, there cannot be a competent appeal arising from the case from the lower court.
Consequently, the judgment of the trial court predicated on an invalid writ of summons and statement of claim is a nullity.
With the purported writ of summons and Statement of Claim, the purported amendment notwithstanding, the entire proceedings before the lower court was an exercise in futility since the court was without jurisdiction to entertain same. The trial court ought to have struck out the incompetent processes.
On the first issue, I hold that the writ of summons filed on 24th September, 2003, the statement of claim filed the same day and the purported amended Writ of Summons and statement of claim filed on 22nd May, 2006 are incompetent. The trial court had no jurisdiction to entertain the matter. Both writs and statements of claim are hereby struck out. The first issue is resolved in favour of the appellants and the appeal allowed on this first issue alone.
Having struck out the original and the purported amended writ of summons and statement of claim the appeal should end here but, this court being an intermediate court that could be wrong on the stand taken on jurisdiction, I am duty bound to resolve all the other issues on their merits. In the case of NIPOL LTD. V. BIOKU INVESTMENT & PROCCO LTD. (1992) 23 NSCC (PART 1) 606 AT 618; (1992) 3 NWLR (PART 232) 727 AT 747, His Lordship Akpata, J.S.C. while relying on his previous decision in FRANCIS ADESEGUN KATTO V. CENTRAL BANK OF NIGERIA (1991) 9 NWLR (PART 214) 126 AT 149 in this respect made the following observation.
“Where trial court after holding that it had jurisdiction proceeded to determine the matter before it and an intermediate Court of Appeal thinks the trial court lacked jurisdiction, the said intermediate court should in the alternative resolve the complaints in the appeal unless both counsel, particularly respondent’s counsel, concede that the trial court lacked jurisdiction in the matter. While the Supreme Court, being the final Court of Appeal, can afford not to pronounce on other issues placed before it where it finds that the trial court lacked jurisdiction, the Court of Appeal whose stance on jurisdiction may be faulted by the Supreme Court should not ignore other issues raised in the appeal. It should pronounce on them.” (Underlined mine for emphasis)
On this note I shall proceed to resolve the other two issues. Before going into the first issue it is necessary to define or determine what a cause of action is and when it accrues before deciding whether the action is statute barred or caught up by the statute of limitation or Section 2(a) of the Public Officers Protection Act.
In the old case of LETANG V. COOPER (1965) 1 Q.B. 222 AT PAGE 242 Lord Diplock L. J. said of cause of action.
“The words have been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.”
A plethora of other judicial authorities having defined cause of action to have the same meaning as above and have the same connotation that is: A cause of action is: the facts or fact, which establish or give rise to a right of action. It is the factual situation, which gives a person a right to judicial relief. See, EGBE V. ADEFARASIN (1987) 1 NWLR (PART 47) PAGE 1, YUSUF v. CO-OP. BANK LTD. (1994) 7 NWLR (PART 359) 676; UBN LTD. v. OKI (1999) 8 NWLR (PART 614) PAGE 244, ADIMORA V. AJUFO (1988) 3 NWLR (PART 80); OGBIMI V. OLOLO (1993) 7 NWLR (PART 304) 128. Further, a cause of action consists of every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It is a bundle or aggregate of facts, which the law will recognize as giving the plaintiff a substantive right to make a claim against the relief or remedy being sought. The factual situation on which the plaintiff relies to support his claim must be recognized by law as giving rise to a substantive right capable of being claimed or enforced against the defendant. A cause of action is therefore determined by the Statement of Claim and the averments therein. See, AJAYI V. MILITARY ADMINISTRATOR ONDO STATE (1997) 5 NWLR (PART 504) PAGE 237, OTUBU V. OMOTAYO (1995) 6 NWLR (PART 400) PAGE 247 and OLORIODE V. OYEBI (1984) 1 SCNLR 390.
In the present case, we are not just concerned with the cause of action simpliciter but, in connection with the statute of limitation of action, that is a statute limiting the plaintiffs’ action. It is therefore very essential to determine the precise date upon which the cause of action arose because it is then that time will begin to run. In the present case, the respondents as plaintiffs took out the action on 24th September, 2003, the Writ was later amended on 23rd May, 2006.
A look at the Respondents’ Amended Statement of Claim, Paragraphs 40(a) to (k) except paragraphs (c) and (d) which had been struck out, the crux of the action is which of the ruling houses could be regarded as the valid ruling houses that are entitled to be included in the Oloje of (Aha) Oje-Owode Chieftaincy Declaration.
The Omodara Commission of Inquiry was set up by the Government to look into the correctness or otherwise of the 1958 Chieftaincy Declaration, Exhibit ‘B’. For this reason, in 1973 the machinery for the Amendment of the 1958 Oloje of Aha (Oje-Owode) Chieftaincy Declaration was set in motion by the setting up of the Commission. The then Government of the Western State accepted the recommendation of the Commission, in Exhibit “N”. Exhibit ‘B’ was amended in 1975 and the law in force at that time ousted the jurisdiction of the High Court to entertain actions relating to Chieftaincy questions. This is so because from the provisions of the 1959 Chiefs Law, the power of the court to question anything done in relation to Chieftaincy Matters was completely ousted. See, Section 24 of the Chiefs Law of Western Nigeria, 1959 (CAP 19) Sections 158 (4)(a) and 161(3) of the 1963 Constitution. The Omodara Commission of Inquiry and its resultant report was on Chieftaincy, by virtue of the above provisions, the trial court (or any other court) had no jurisdiction to adjudicate on the Omodara report of the Commission of Inquiry and its recommendations or outcome.
Sections 168 (4)(a), 161(3) of the 1963 Constitution and Section 24 of the Chiefs Law of Western Nigeria ousted the jurisdiction of the Courts and I so hold. This was the position of the law before the 1979 Constitution came into effect on October 1, 1979. But now, the courts have jurisdiction over such matters. See, ENWEZOR V. ONYEJEKWE (1964) 1 ALL NLR 14; (1964) NSCC 9 and GOVERNOR OYO STATE v AFOLAYAN (1995) 8 NWLR PT 413 PAGE 292 AT 307 PARAGRAPHS B-C.
It is noteworthy that Section 6(6) (d) of the 1999 Constitution precludes the lower court from inquiring into proceedings which seek to determine issues or questions as to the competence of any authority or person to make any existing law promulgated between 15th January, 1966 and 1st October, 1979 when the new Constitution came into force. I agree with the submissions of the learned counsel to the 5th-6th Respondents along these lines.
Further, ouster clauses oust the jurisdiction of the court. As I stated earlier in this judgment, the issue could be raised at any time even at the Supreme Court for the first time, it is for this reason that leave was sought and obtained by the learned senior counsel to the 1st-3rd appellants from this court to raise same. See, ATTORNEY GENERAL OF THE FEDERATION V. ABUBAKAR (2009) ALL FWLR (PART 449) 401 AT 422, PARAGRAPHS C – D, PAGE 424 PARAGRAPHS C-E, ATTORNEY GENERAL, LAGOS STATE V. DOSUNMU (1989) 3 NWLR (PART 111) 147 and UWAIFO V. ATTORNEY GENERAL, BENDEL STATE (1982) 7 SC 124.
The court’s jurisdiction could be limited as in this case by ouster clauses in some legislation such as enumerated above by the Constitution. See, AGWUNA V. ATTORNEY GENERAL OF THE FEDERATION (1995) 5 NWLR (PART 396) 418 AT 437. Also, SHODEINDE V. REGISTERED TRUSTEES, AHMADIYYA MOVEMENT – IN – ISLAM (1930) 1-2 S.C. 163, OLANIYI V. AROYEHUN (1991) 5 NWLR (PART 194) 652 AT 686 and ATTORNEY GENERAL OF THE FEDERATION V. SODE (1990) 1 NWLR (PART 128) 500 AT 517.
Having held that the court, in this case the trial court had no jurisdiction to set aside or look into the Amended Chieftaincy Declaration of Oloje of Oje-Owode made by the defunct Saki Local Government Council Chieftaincy Committee on the 13th day of May, 1975, what is the effect on the present action instituted on 24th September, 2003? Section 2(a) of the Public Officers Protection Law CAP 106 Laws of Western Nigeria 1959 provides as follows:
“Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any law or of any public duty or authority, or in, respect of any alleged neglect or default in the execution of any such law, duty or authority, the following provisions shall have effect:-
(a) action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof.”
(Underlined mine for emphasis)
See, CHIEF YAKUBU SANNI V. OKENE LOCAL GOVERNMENT TRADITIONAL COUNCIL & ANOR (2008) 12 NWLR (PART 1102) PAGE 691 AT PAGE 703 PARAGRAPHS B-D, CBN V. UKPONG (2006) 13 NWLR (PART 998) PAGE 555 AT PAGE 568-569 PARAGRAPHS H-B. I hold that the trial court had jurisdiction to entertain the matter. See, also ADEBOWALE V. MILITARY ADMINISTRATION OF OGUN STATE (1995) 4 NWLR (PART 392) 733 AT 571 PARAGRAPHS F-G, GOVERNOR OYO STATE V. FOLAYAN (1995) (SUPRA) AT 307 PARAGRAPHS C-E; 321 PARAGRAPHS D – E AND 329 PARAGRAPHS D-E.
On whether the respondents’ action is caught by the Statute of Limitation (Section 2(a) of the Public Officers Protection Act) on examining when the cause of action arose, the appellants argued that it arose on 13th May, 1975 while the learned counsel to the respondents submitted that it arose on 12th March, 2003 when the immediate past Oloje, Oba Samuel Oyekola Olaleru died, which made his stool vacant from that date, by which date the respondents made out that the 1958 declaration had been duly registered, Exhibit ‘B’, thus complying with Section 9 of the Chiefs Law of Oyo State, and that the 1975, Amended Declaration Exhibit ‘F’, had not been registered as at 12th March, 2003 and therefore not applicable. This argument is not tenable, because the law applicable to a cause or matter determines the jurisdiction of the court, it is determined by the existing law or the law prevailing at the time the cause of action in dispute arose and not by the existing law at the time the court’s jurisdiction is invoked. It does not matter that the law had been repealed. See, MUSTAPHA V. GOVERNOR LAGOS STATE (1987) 2 NWLR (PART 58) 539, KOTOYO v. SARAKI (1994) 7 NWLR (PART 357) 414 ADEYEMI V. ATTORNEY GENERAL OYO STATE (194) 1 SCNLR 525, and OLANIYI V. AROYEHUN (1991) 5 NWLR (PART 1494) 651 and OSADEBEY V. ATTORNEY-GENERAL BENDEL STATE (1991) 1 NWLR (PART 169) 525. I therefore, resolve the second issue in favour of the appellants.
The third issue is as to whether the respondents as plaintiffs proved their case before the lower court to have been entitled to the judgment of that court. Assuming the trial court properly assumed jurisdiction to try the case, it is the permanent power of the government to make a new Chieftaincy declaration or amend the existing one.
Assuming the trial court had jurisdiction to try this case, it is the power of the government to make new chieftaincy declarations or to amend existing ones, see, ADIGUN V. ATTORNEY-GENERAL, OYO STATE (1987) 1 NWLR (PART 53) 678 AT 702. From the Provisions of the Chiefs Law, and as earlier held in this judgment, the court cannot assume the functions of the Chieftaincy Committees in respect of making declarations of customary laws governing the selection and appointment of Obas and Chiefs. See, ADESOYE V. ADEWOLE (2006) ALL FWLR (PART 340) 1000 AT 1020-1021 PARAGRAPHS G-A.
Contrary to the evidence in Exhibits “A”-“A4” (The report of the Commission) and “C” to “C4″ the PW1, PW2 and PW5 testified that they had never heard of the Omodara Commission of Inquiry during which members of their families participated and the PW2 also denied endorsing part of Exhibit ‘A”. It is trite that oral evidence cannot be adduced or utilized to contradict the contents of official proceedings, see, Sections 76 and 132(1) of the Evidence Act, see, also ABIODUN V. CHIEF JUDGE, KWARA STATE (2008) ALL FWLR (PART 448) 340 AT 377 PARAGRAPH B. I am therefore at one with the argument of the learned counsel to the 5th and 6th respondents that the denial of not having participated in the Commission of Inquiry should not be believed by this court as made out by the respondents through the evidence of PW1, PW2 and PW5.
From Exhibits “G” to “G7′, tendered by the DW1 an independent witness who neither belongs to Agbo or Ose Ruling houses showed the list of those who attended the Omodara Commission of Inquiry which included the respondents’ witnesses above.
I am of the humble view that the respondents and their representatives participated in the Omodara commission of Inquiry proceedings, they cannot rightly make out that they did not. Even though it is the duty of the trial court that heard and saw the witnesses to assess the credibility of the witnesses but where the decision is perverse or leads to a miscarriage of justice then this court could interfere with the decision of the trial court. See, GBAFE V. GBAFE (1996) 6 NWLR (PART 455) 417 AT 413; NSIRIM V. NSIRIM (1990) 3 NWLR (PART 138) 285.
I hold the view that the evidence of the respondents through PW1, PW2 and PW5 ought not to have been believed and utilized by the trial court to arrive at its decision.
No doubt, it was Exhibit “N2” (the recommendations of the Commission of Inquiry) which was carried out to produce an Amended Oloje of Oje-Owode chieftaincy Declaration made in May, 1975 which was registered on 15th August, 2003, Exhibit ‘F1′.
It is the duty of the government to amend a declaration pursuant to its administrative powers to do so, not the court. Except where in making the declarations those who ought to be heard are not heard which was not the case, only then could the courts interfere. I hold that the respondents participated in the amendment of the 1958 Chieftaincy Declaration as members of Ose Ruling house (the Omodara Commission) contrary to the evidence of the respondents and argument of the learned counsel to the respondents.
The learned counsel to the respondents had argued that Exhibit “F1” (The Amended Oloje of Oje-Owode Chieftaincy Declaration made in May, 1975, registered on 15th August, 2003) was not signed by the Governor as required, while the Appellants argued that the Chieftaincy Declaration or its amended version could be signed by the Governor or any of his Commissioners by virtue of the provisions of Section 193(1) of the 1999 Constitution of the Federal Republic of Nigeria. The Section provides:
“The Governor of a State may, in his discretion assign to the Deputy Governor or any Commissioner of the Government of the state responsibility for any business of the Government including the administration of any department of Government”
The learned Counsel to the Respondents had argued that the above provision made it mandatory that it is only the Governor that could approve and sign Exhibit “F1” and no one else, not even the commissioner for Local Government and Chieftaincy Matters and that the Governor cannot assign such duty of approval of a Declaration under the Chiefs Law. The learned Counsel to the Respondents strongly relied upon Sections 5, 7 and 8 of the Chiefs’ Law of Oyo State, 2000, Cap 28 and urged us to interprete the word “may” in Section 7 as mandatory meaning that only the Governor and no other person had the duty, right and competence to approve and sign Exhibit “F1”, not even the Commissioner for Local Government and Chieftaincy Matters. Section 7(1) of the Chiefs’ Law of Oyo State provides as follows:
“7 (1) The Governor may approve or refuse to approve a declaration made by a committee of a competent council…
(5) Upon a declaration in respect of Chieftaincy being made by the governor every declaration made under this law or the replaced law relating to that chieftaincy that is not approved shall be void and of no effect.”
Section 8 provides:
“8 (1) Every declaration of a committee of a competent council approved by the governor and every declaration made by the governor shall be registered and retained in safe custody by such officer of the department of the government of the state as the governor may direct.”
It had been argued that the above provisions specifically mention the governor as the approving authority. It was argued that any amendment not approved by the governor is void such as that of 1975. While the learned Senior Counsel to the 1st-3rd Appellants had argued that by virtue of the provisions of Section 193(1) of the Constitution, the Governor could assign a Commissioner to perform duties on his behalf, in this case, he assigned the Commissioner for Chieftaincy Matters who signed Exhibit “F1”. I am in agreement with the argument of the learned Senior Counsel that by the provisions of Section 193(1) of the 1999 Constitution, the Governor could and did rightly assign part of his duties to the Commissioner for Chieftaincy Matters who signed Exhibit “F1”. I disagree with the argument of the learned Counsel to the Respondents that Sections 7 and 8 of the Chiefs’ Law of Oyo State being specific provisions override the provisions of Section 193(1) of the 1999 Constitution which was alleged to be general in nature. The constitution is supreme and the Chiefs Law a product of same. The provisions of the Chiefs’ Law cannot by any means override the provisions of the constitution. It is a State Law. Where there is conflict in the state law, it gives way to that of the constitution. See; KWARA V. INNOCENT (2009) ALL FWLR (Pt. 460) Page 719 at 745 Paragraphs E-H.
The trial Court while relying on the provisions of Sections 7, 8, 10 and 11 of the Chiefs’ Law, Cap 28 Laws of Oyo State, 2000 held that only the Governor has the statutory duty to approve a registered Chieftaincy Declaration Amended, the Chiefs law so provides but, it is contrary to the constitutional provision allowing delegation or assignment of his duties to the deputy governor or commissioner, page 478 of the printed records. As far as the inconsistency or conflict with the provisions of the constitution, it is clear on the provisions of the Chiefs Law, the inconsistent provisions as in Sections 7 and 8 are incompetent and of no effect. The supremacy of the constitution over all other acts of parliament makes Exhibit “F1” signed by the Commissioner for Local Government and Chieftaincy Matters acceptable and the submissions of the learned Counsel to the respondents not tenable in law. The Governor can delegate powers conferred on him to his Deputy Governor or Commissioners, whatever the case may be, in this case Commissioner for Chieftaincy Matters. Sections 7 and 8 of the Chiefs Law derive their authority from the constitution and must be read and interpreted along with Section 193(1) of the Constitution. See: A-G ABIA STATE V. A-G. FEDERATION (2006) 16 NWLR (Pt. 1005) page 265 at Pages 290 and 291which spelt out the supremacy of the Constitution over and above every statute, be it an Act of the National Assembly or a law of the House of Assembly of a State, as in the present case. Also see, AINABEBHOLO V. EDO STATE UNIVERSITY WORKERS FARMERS MULTI-PURPOSE CO-OPERATIVE SOCIETY LTD. & ANR. (2007) 2 NWLR (PART 1017) PAGE 33 AT PAGE 50 PARAGRAPH G AND P 151 PARAGRAPHS C-D. The learned counsel to the 4th Appellant also argued along this line.
In my humble view, Exhibit ‘B’ the 1958 Oloje of Oje-Owode Chieftaincy Declaration on the basis of which the trial court arrived at its decision has been amended. Once an amended declaration has been registered it becomes the constitution of the chieftaincy to which it relates and the earlier one gives way. With the coming in of Exhibit “F1”, Exhibit “B” ceases to be in operation contrary to the view of the learned trial judge that Exhibit “B” the 1958 Declaration of Oloje Aha (now Oje-Owode) was and is still the applicable declaration. This view is erroneous.
Exhibit “B” was amended to produce Exhibit “F1” which Amended Declaration is the applicable one.
In all civil cases, the initial duty is always on the plaintiff to prove his case unless the burden shifts. From the pleadings and evidence before the court, the respondents as plaintiffs were unable to tilt the scale against the Appellants. In my humble view the evidence of the DW1, DW3 and DW5 were not properly evaluated. Also the evidence of PW2 who participated in the Omodara Commission of Inquiry and later denied participation irrespective of documentary evidence showing that he did, Exhibits ‘L7’ and ‘C’.
In the present case, the evidence before the trial court was not limited to oral evidence where the trial court would enjoy the exclusive privilege of seeing and hearing the witnesses and forming opinion therefrom in its assessment of evidence but, the evidence in the present case were also documentary heavily relied upon by the parties and the trial court. Although it is the position of the law that an appellate court in reviewing the exercise of discretion by the lower court should not substitute its own discretion or opinion for that of the lower court, but where it is satisfied that the discretion has been exercised outside the circumstances of the particular case, this court would interfere with the exercise of such discretion or the trial court’s decision. See, NZERIBE V. DAVE ENG. CO. LTD. (1994) 8 NWLR (PART 361) 124 and UNITED SPINNERS LTD. V. C.B. LTD. (2001) 14 NWLR (PART 732) 195 AT 219-220 PARAGRAPHS G-A. The trial court’s evaluation in my view is perverse.
In my humble view the trial court ought not to have granted the plaintiffs’ reliefs. With the Amended Declaration, the trial court had no jurisdiction to set it aside and I so hold. In conclusion, I hold that the Respondents as plaintiffs did not establish their entitlement to the reliefs granted to them by the trial court.
The judgment of the Oyo State High Court delivered on 23rd day of September, 2008 in Suit No. HSK/15/2003 is hereby set aside.
In sum, assuming that I am wrong in the resolution of the first issue in favour of the appellants and allowing the appeal on issue one alone, the alternative is that the appeal has merit and is hereby allowed in respect of issues two and three and I so hold.
Parties to bear their respective costs.
HARUNA SIMON TSAMMANI, J.C.A.: I had the privilege of reading in advance the judgment delivered by my learned brother Chidi Nwaoma Uwa, JCA.
My learned brother admirably and exhaustively considered the pertinent issues that arose for determination in this appeal. I agree entirely with his reasoning and conclusions therein. I only wish to add a few words of mine on the competency of the Writ of Summons, Statement of Claim and the Amended Statement of Claim upon which the matter was heard and determined by the trial court. This is in view of the fact that the writ of summons and statement of claim were endorsed, thus:
SGD
S.O. OLANIHUN & CO.
PLAINTIFFS’ SOLICITORS C/O MR. J. I. OLANIHUN
NO. 78A AJEGUNLE QTRS
SAKI.
It has been argued, in this appeal that, the Writ of Summons and Statement of Claim having been endorsed by “S.O. OLANIHUN & CO”, which is not a person registered to practice as a Barrister and Solicitor of the Supreme Court of Nigeria, but a firm of legal practitioners, was incompetent. That the endorsement by a firm of legal practitioners rendered those originating processes incompetent and therefore, the trial court had no jurisdiction to entertain and determine the matter.
It is now settled principle of law that, a court is only competent to adjudicate over a matter, when all the conditions precedent for its having jurisdiction have been satisfied. Thus, an action began by an incompetent process will divest the court of jurisdiction to entertain the matter. In other words, where an originating process or any other process, is found to be incompetent, it cannot be used for any purpose whatsoever in the adjudication process. It is a worthless document and is only good for nothing, being nothing itself. In trials before the High Courts, one of the methods of initiating a proceeding is by a Writ of Summons which is followed by a Statement of Claim. It is therefore, only a valid Writ of Summons or Statement of Claim that confers vires on a court to commence the proceedings. Accordingly, where the Writ of Summons or Statement of Claim is incompetent, the court would lack the jurisdiction to entertain the matter. Where the matter is heard and determined on the incompetent process, the court would have only engaged in a wasteful judicial exercise, no matter the effort put in it. The entire proceeding would be void and liable to be set aside. See E.B.N. LTD. v. Halilco (Nig.) Ltd (2006) 7 NWLR (PT. 980) P. 568; N.C.C. V. MTN (Nig.) Communications Ltd (2008) 7 NWLR (PT. 1086) P. 229 and WAEC V. Adeyanju (2008) 9 NWLR (pt. 1092) p. 270.
Flowing from what I have stated above, it has since been settled in a plethora of authorities that, an originating process of court not signed by a legal practitioner known to law is incompetent and therefore liable to be struck out. Thus an originating process signed in the name of a Law Firm is invalid and incompetent, because a Law Firm is definitely not an individual enrolled to practice as a Barrister and Solicitor of the Supreme Court of Nigeria, as identified by Section 2 (1) and 24 of the Legal Practitioner’s Act. It cannot therefore sign any process to be filed in Court, and where it does so; such process becomes fundamentally and incurably defective. It cannot be amended in anyway whatsoever. See New Nigeria Bank Plc v. Denclag Ltd (2005) 4 NWLR (pt. 916) p. 549 at 473; Okafor & 2 Ors v. Nweke & 2 Ors (2007) 10 NWLR (pt. 1043) p. 521; Oketade v. Adequnmi & 4 ors (2010) 8 NWLR (pt. 1195) p. 63; C.I.C. Ltd v. Okoli (2007) 43 W.R.N. p. 36; S.L.B. Consortium Ltd. v. NNPC (2011) 9 NWLR (pt. 1252) p. 317 and Shelim v. Gobang (2009) 12 NWLR (pt. 1156) p. 435.
It is therefore my view, which I hereby hold that, the Statement of Claim in this case, upon which the court below purported to have amended, and subsequently heard and determined the matter thereon, was an incompetent process, having been shown to have been signed by a Law Firm. A Law Firm is not such a person known under the Legal Practitioners’ Act and thus incapable of signing the said Statement of Claim or any other court process. The Writ of Summons was therefore fundamentally defective ab initio, and cannot be amended. It is as if it never existed, and thus, no human ingenuity can amend it, having been deemed in law to be non-existent. Being void ab initio, it was incapable of conferring jurisdiction on the court below. In other words, the court below had no jurisdiction to entertain the suit before it on such incompetent statement of claim. The only duty it had to perform was to strike out such incompetent process before it. The end result therefore is that the entire proceeding before it was incompetent and therefore a nullity. In the same vein, the originating process which kick-started the case at the lower court was incompetent and is hereby struck out by me. The appeal before us, being founded upon an incompetent process is also incompetent. See also F.B.N. Plc & Anor v. Maiwada (2013) 5 NWLR (pt. 1348) p. 444; Braithwaite v. Skye Bank Plc (2013) 5 NWLR (pt. 346) p. 1 and Nigerian Army v. Samuel (2013) 14 NWLR (pt. 1375) p. 466.
It is for the above stated reason and the other reasons in the lead judgment that I agreed that the appeal has merit and should be allowed. Consequently I hereby set aside the judgment of the Oyo State High Court delivered on the 23rd day of September, 2008 in suit No. HSK/15/2003. I abide by the order on costs
OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading the Judgment just delivered, of my Lord Chidi Nwaoma Uwa J.C.A. and I agree with the reasoning and conclusion reached. I wish only to make a little contribution on the effect of the writ of Summons and the Statement of Claim at the lower court which were signed by a law firm, S. O. Olanihun & Co. The provision of Section 2(1) of the Legal Practitioners Act is crystal clear. It states that subject to the provisions of the Act, a person shall be entitled to practice as a barrister and solicitor if and only if his name is on tire roll. The roll referred to is the roll maintained in pursuance of Section 23(1) of the Legal Practitioners Act Cap. 207 Laws of the Federation, 1990. The roll is kept and maintained by the Chief Registrar of the Supreme Court. That roll is not meant for law firms. Where therefore a law firm signs a court process, such as a Writ of Summons, it is acting in a manner antithetical to the provisions of the Legal Practitioners Act. The case of Okafor v. Nweke (2007) 10 NWLR part 1042 p. 521 et al. comprehensively enunciate the position of the law.
Now it was argued by Respondents Counsel that it was too late for the Appellants to complain about the incompetence of the writ of summons considering when it was filed and considering also that the Appellants did not complain in the lower court. That argument may be evocative of sympathy, but the law remains the touchstone by which a case must be decided and the law is the Legal Practitioners Act and the decided cases especially of the Supreme Court that have properly expounded it.
The signing of the Writ of Summons by a law firm is clearly aberrant.
For this reason and the fuller reasons given in the lead judgment, I will also allow the appeal.
Appearances
Pastor R. A. Ogunwole (SAN) for the 1st-3rd Appellants with J. N. Ikezu (Miss) and J. C. Ogu Esq.
Fasomo Falola Esq. for the 4th Appellant.
I. O. Tijani Esq. (Deputy Director, Litigation and Advisory Services, Oyo State Ministry of Justice) for 5th and 6th Appellants.For Appellant
AND
S. O. Olanihun Esq. with Yakubu Dauda Esq.For Respondent
