MR. KAMALDEEN SALAHUDEEN & ORS v. PRINCE ADESINA AREMU AJIBOLA & ORS
(2019)LCN/12885(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of March, 2019
CA/IL/104/2018
RATIO
APPEAL: WHERE AN APPEALN IS MADE; DISTINGUISHING BETWEEN GROUNDS OF LAW AND GROUNDS OF FACT
“In resolving this thorny issue, calls for a thorough examination of the grounds of appeal and its particulars in ascertaining whether the grounds are of law simpliciter, or based on mixed law and facts. In the determination of the ardent question, I seek the guidance of the Supreme Court in the case of Chrome Air Services Limited and anor vs. Fidelity Bank (2017) LPELR 43470, to the effect that: It is recognized that it is often difficult to distinguish between a ground of law and a ground which is of mixed law and facts. Overtime, a general rule of thumb employed by Courts to determine the nature of a ground of appeal has evolved. Where the complaint is that the trial or appellate Court misunderstood the law to the proved or admitted facts, it is a ground of law. Where the ground of appeal questions the evaluation of evidence before the application of the law, it is a ground of mixed law and fact. There is generally no difficulty in determining whether a ground of appeal is a question of fact. See, Odunukwe vs. Ofomata…going by the direction in the case of Chrome Air services Ltd (supra), would reveal and did reveal that the grounds of appeal, just reproduced are indeed of mixed law and facts as contended by the objectors. This being the case, the position of the law is that an interlocutory appeal based on mixed law and facts could only be brought after the requisite leave has been sought and obtained. This requirement of the law is backed by the constitutional provision to the effect that, subject to the provision of Section 241 of the same Constitution, a person seeking to appeal on grounds of mixed law and facts must first seek and obtain the leave of the Court of trial or the Court of Appeal (this Court) before the filing of the appeal. The cases in this regard are legion, sufficing to mention a few. Akanbi & Ors vs. COP, Kwara State & Ors (2018) LPELR-44049 (CA), Ukachukwu vs. Govt of Borno State (2017) LPELR-43271 (CA), CBN vs. Okojie (2002) FWLR (pt. 103) 349, FGN & anor vs. AIC Ltd (2005) LPELR-6152 (CA), Deacon Olatunde Oladokun & 12 Ors vs. Jimkah Automobile Services Engineering Nig. Ltd & ors (unreported) in suit No. CA/IL/103/16, delivered on the 1st of March, 2019 per Uwa JCA.” PER HAMMA AKAWU BARKA J.C.A.
COURT AND PROCEDURE: INTERLOCUTORY INJUNCTION
“…the combined effect of Section 14 (1) of the Court of Appeal Act Cap C36 LFN 2004 and Section 242 (1) of the Constitution of the Federal Republic of Nigeria 1999 as amended, institutionalized the legal position that appeals against the interlocutory decisions of a High Court, Shall require the leave of the High Court except where the grounds of appeal are based on grounds of law alone. See Global West Vessel Specialist Nig. Ltd vs. Nigeria NLG & 1 or (supra) @ page 1144. This settled position of the law is however subjected to the provisions of Section 241 of the same 1999 Constitution of the Federal Republic of Nigeria.” PER HAMMA AKAWU BARKA J.C.A.
JURISDICTION: WHERE AN APPEALLANT RAISES QUESTION OF JURISDICTION
“Where an appellant in his issues for determination raised questions of jurisdiction, they are indisputably questions of law. An appellant can raise such issues afresh in an appellate Court. Such questions are not only competent but are also expedient in the interest of justice for an appellate Court to entertain the questions. See also Agbiti vs. Nigerian Navy (supra), Adeyemi vs. Opeyemi (1970) 9 ? 10 SC 31, Fadiora vs. Gbadebo (1978) 3 SC 219.” PER HAMMA AKAWU BARKA J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria
Between
1. MR. KAMALDEEN SALAHUDEEN
2. CHIEF SALIU ABDULSALAM
(The Esinkin Oke-Onigbin)
3. CHIEF BURAIMOH OGUNDE
(The Esa of Oke-Onigbin) Appellant(s)
AND
1. PRINCE ADESINA AREMU AJIBOLA
2. MALLAM MUSA DELODUN MOHAMMED
3. CHIEF SAMUEL ABOLARINWA
(The Oloja of Oke-Onigbin)
(for themselves and on behalf of Odo-Oja Ruling House of Oke-Onigbin)
4. THE GOVERNOR OF KWARA STATE Respondent(s)
HAMMA AKAWU BARKA J.C.A. (Delivering the Leading Judgment):
The instant appeal is against the interlocutory Ruling of Justice T.S. Umar of the Kwara State High Court sitting in Ilorin in Suit No. KWS/251/2017 between Prince Adesina Aremu Ajibola and two others for themselves and on behalf of Odo-Oja ruling house of Oke-Onigbin (the 1st – 3rd respondents) as claimants and Mr. Kamaldeen Salahudeen and four others (Appellants) delivered on the 27th of July, 2018; wherein the preliminary objection raised by the 1st – 3rd appellants as well as that raised by the 4th respondent in this appeal were dismissed for lacking in merit.
The brief facts originating the instant appeal started sometimes on the 6th of July 2017, when the 1st – 3rd claimants (now 1st – 3rd respondents) caused a writ of summons to issue against the 1st ? 5th defendants therein, (the 1st ? 4th respondents herein) claiming for the following reliefs:-
i. A Declaration that the appointment and installation of the 1st defendant as the Onigbin of Oke-Onigbin on or about 16th April, 2016 about the time the cause of action in Suit No. KWS/88/2015 and Appeal No. CA/IL/47/2016 was extant, is fraudulent, deceitful, wrongful, unlawful, unconstitutional, null and void and of no effect whatsoever.
ii. A Declaration that by Oke-Onigbin native law and custom, there are only four Ruling House that can occupy the stool of Onigbin of Oke-Onigbin in case of any vacancy which are the Egbaraojosan Ruling House Ile-Nla, Aniyaloye Ruling House Ile Odo-Oja, Amoyeniyi Ruling House Ile Baale (Ile Olotin) and Aleniloye Ruling House Ile Odogboeyin.
iii. A Declaration that the purported nomination, appointment and installation of the 1st Defendant as Onigbin, not been a member of any of the known four Ruling Houses in Oke-Onigbin, is against the native law and custom of Oke-Onigbin and be declared improper, null and void.
iv. A Declaration that by the claimants letter of 26th February, 2015, wherein they submitted the name of the 1st claimant to the 5th Defendant for confirmation as the Onigbin of Oke-Onigbin, the 1st claimant is the only validily and duly nominated candidate of Onigbin of Oke-Onigbin and entitled to be appointed and installed as Onigbin of Oke-Onigbi.
v. An Order declaring as null and void any document, instrument or certificate treating and or recognizing the Alapo Family as a Ruling House in Oke-Onigbin including any such document, instrument or certificate nominating, appointing and installing the 1st Defendant as the Onigbin of Oke-Onigbin.
vi. An Order of perpetual injunction restraining the 2nd, 3rd, 4th and 5th Defendants from treating and or recognizing the Ile Alapo Compound as a family house that has a right to the Chieftaincy stool of Onigbin of Oke-Onigbin.
vii. An Order of perpetual injunction restraining the 2nd , 3rd, 4th and 5th Defendants from treating and or recognizing the 1st Defendant as the Onigbin of Oke-Onigbin.
viii. An Order of perpetual injunction restraining the 1st Defendant from acting or parading himself as the Onigbin of Oke-Onigbin including receiving emissaries and attending public functions as the Onigbin of Oke-Onigbin.
The 1st – 3rd defendants (appellants) filed a notice of preliminary objection to the hearing of the suit, contending that the suit filed was incompetent, and the lower Court lacked the jurisdiction to entertain the suit. The objectors thereby prayed that the suit be dismissed in limine. The following grounds were raised in support of the preliminary objection.
1. The suit is caught by Section 2 of the Public Officers Protection Act.
2. The suit is caught by Section 88(1) & (2) of the Local Government (Miscellaneous) Provision Law, Kwara State.
3. The suit is caught by Section 3(3) & 15 of the Chiefs (Appointment and Deposition) Law.
4. No reasonable cause of action is disclosed.
5. That at the hearing of the preliminary objection the processes so far filed the claimant shall be relied upon or made use of.
In support of the preliminary objection is a written address dated the 4th of August, 2017. It is also on record that proceedings against the 5th defendant, Isin Local Government Area of Kwara State was discontinued pursuant to a notice of discontinuance filed on the 17/05/17.
The 4th defendant being the Governor of Kwara State (4th Respondent) equally filed a preliminary objection to the hearing of the suit on the 23rd of October 2017.
The grounds of the objection listed at pages 310 to 311 of the record are that:
i. The claimant?s writ of summon and statement of claim was filed on 6th of July, 2017.
ii. That the presence of 5th defendant in this case has robbed the Court of the jurisdiction to hear and determine this suit.
iii. The claimants are mandated to give 30 days pre-action notice to the 5th defendant.
iv. Compliance with the said provision is a condition precedent which must be fulfilled and pleaded.
v. The claimant failed to comply also with the condition precedent as provided for in Section 15(1) of the Chiefs (Appointment and Deposition) Law, 2006.
vi. The claimants suit has been caught by estoppel per rem judicata, issue estoppel and/or cause of action estoppel.
vii. The claimants suit is an abuse of Court process.
There is also a written address to the notice of preliminary objection dated the 20th of October, 2017 filed along with the objection.
Against the 1st -3rd defendants preliminary objection, the claimants filed a counter affidavit on the 18/08/2017.
The vexed ruling of the trial Court on the issue located at pages 338 – 351 of the record, is to the effect that the objections are without merit and consequently refused. In other words the challenge to the lower Court?s jurisdiction was overruled, with the deeming consequence that the Court had the requisite jurisdiction to determine the suit before it.
It is against this ruling that the appellants filed a notice of appeal on the 3rd of August, 2018 predicated on four grounds of appeal.
The record of appeal was subsequently compiled and transmitted to this Court on the 30/8/18. With the appeal duly entered, the appellants filed the appellants brief of argument on the 20th of September, 2018. The 1st – 3rd respondents in opposing the appeal, filed a respondent?s brief of argument on the 17th of October, 2018. On being served the respondents brief, appellant?s filed the Appellants reply brief on the 19/1/2019.
On the 31/1/2019, parties identified their respective briefs, and adopted same in urging the Court to grant their respective prayers. In the process of adopting his brief, learned counsel for the respondent Mr. Olarewaju, drew the Court’s attention to the respondent?s preliminary objection embedded in the respondent?s brief, specifically at pages 10-15 thereof. The 4th respondent on his part, intimated the Court of his election to file no brief in the matter.
In the appellant?s brief settled by O.J. Adeseko, the learned appellant?s counsel, four issues were recognized for the resolution of this appeal and they are as follows:-
1. Whether the failure of the trial Court to make pronouncement or findings on the validity of the expired receipt of N100,000.00 paid as deposit by the 1st ? 3rd Respondents has occasioned a miscarriage of justice on the Appellants (Ground1)
2. Whether the Notice of dispute which was said to have been submitted to the Respondent by the 1st ? 3rd Respondent met the requirement as enjoined under Section 3(3) of the Chiefs (Appointment and Deposition) Law, Kwara State and/or whether the 1st – 3rd Respondents had exhausted all the domestic or remedial avenues opened to them before the institution of the present case at the trial Court in compliance with Section 3(3) of the Chiefs (Appointment and Deposition) Law, Kwara State (Ground 2)
3. Whether the learned Trial Court was right to have held that there are exceptions such as knowledge to Public Officers Protection Act or Law (Ground 3)
4. Whether this suit filed in the Trial Court which culminated into this appeal is not an abuse of Court process in view of Suit No. KWS/88/2015 that had been finally disposed of by this Honorable Court on 23rd day of March, 2017 in Appeal No. CA/IL/47/2018 (Ground 4)
Mr Tosin Alawode leading Olanrewaju Lekan Ademola, Kabeer Osunkunle, Abdulrasaq A. Daibu, Ayokunle Olufade and Cletus I. Uduma in the brief settled for the 1st – 3rd respondents, equally distilled four issues in the determination of the appeal. They are as follows:-
1. Whether the failure of the trial Court to make pronouncement or findings on the validity of the expired receipt of N100,000.00 paid as deposit by the 1st ? 3rd Respondents has occasioned a miscarriage of justice on the Appellants.
2. Whether the Notice of dispute which was said to have been submitted to the Respondent by the 1st – 3rd Respondent met the requirement as enjoined under Section 3(3) of the Chiefs (Appointment and Deposition) Law, Kwara State and/or whether the 1st-3rd Respondents had exhausted all the domestic or remedial avenues opened to them before the institution of the present case at the trial Court in compliance with Section 3(3) of the Chiefs (Appointment and Deposition) Law, Kwara State.
3. Whether the learned Trial Court was right to have held that there are exceptions such as knowledge to Public Officers Protection Act or Law.
4. Whether this suit filed in the Trial Court which culminated into this appeal is not an abuse of Court process in view of Suit No. KWS/88/2015 that had been finally disposed of by this Honorable Court on 23rd day of March, 2017 in Appeal No. CA/IL/47/2018.
Upon a careful scrutiny of the two set of issues distilled by the parties, it is clear beyond argument that the respondents adopted the issues proposed by the appellants in the determination of the appeal, and this being so, I would proceed to determine the appeal based on the issues formulated by the appellants, and adopted by the respondents. Before proceeding to consider the issues formulated, it is commonsensical that the preliminary objection raised by the respondents in the respondents brief, be treated first in time. It is no longer a moot point that once a preliminary objection succeeds, further proceedings in the matter becomes unnecessary. This point has been settled in a host of decisions including the cases of Abe vs. Unilorin (2013) 16 NWLR (pt. 1379) 183, Achonu vs. Okuwobi (2017) 14 NWLR (pt. 1584) 256, Allanah vs. Kpolokwu (2016) 6 NWLR (pt. 1057) 1. Amongst many others.
THE PRELIMINARY OBJECTION.
The 1st to 3rd respondent in the preliminary objection raised, and argued at pages 10 to 15 of the 1st – 3rd respondents brief filed on the 17th of October, 2018, identified two issues for determination in the preliminary objection, thus:
1. Whether having regards to the provision of the enabling laws on interlocutory appeals, this appeal is not incompetent; and
2. Whether in view of the issues raised in the appellants brief of arguments, it shall not be appropriate for the Court of Appeal to apply its power under Paragraph 10(b) and (c) of the Court of Appeal practice directions 2013, and refer the matter back to the lower Court for accelerated hearing.
With respect to the first issue, learned counsel posits that all interlocutory appeals not based on issues of law alone, can only be filed with the leave of the Court. He drew the attention of the Court to the provisions of Section 14 (1) of the Court of Appeal Act (2010 amendment) Cap C36 LFN 2004 and Section 242 (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), as well as the cases of Global West Vessel Specialist Nig. Ltd vs. Nigeria NLG & or (2017) ALL FWLR (pt. 881) 1119 @ 1144 in that regard. He then referred to the case of Gomez vs. Cherubim and Seraphim Society (2009) 10 NWLR (pt. 1149) 223 @ 248, as to whether a decision on the preliminary objection is final or interlocutory, and submits that the Notice of Appeal challenging the interlocutory decision of the lower Court delivered on the 27th of July, 2018 at the Kwara State High Court was filed without the leave of the High Court or of the Court of Appeal.
Learned counsel in further submission argued that from the clear particulars of error supporting the grounds of appeal, the submissions of the Appellant?s counsel and the several prayers and complaint against the decision of the lower Court were of mixed law and facts.
He further referred to the earlier case of Global West Vessel Specialist Nig. Ltd (supra) on the test to be employed in distinguishing a ground of law from a ground of fact. Counsel finally on the issue urged upon the Court to strike out the appeal as being incompetent.
On the second issue, learned counsel urged upon the Court to invoke Paragraph 10 (b) and (c) of the Court?s Practice Direction and to decline hearing the appeal as doing so would be pre judging the substantive matter. He made reference to the cases of Ijaodola vs. RGT, TC & SCM (2008) 15 NWLR (pt. 1110) 387 @ 414 ? 415, Otti vs. Ogah (2017) ALL FWLR (pt. 886) 2075 @ 2111, on the need for the Court to desist from pre judging at the interlocutory stage substantive matters. Learned counsel then reviewed the four grounds and the issues distilled therefrom, and urged the Court to decline the determination of the appeal as doing so would invariably touch on the substantive dispute between the parties.
The Appellants from pages 1 to 10 of the appellant?s reply brief, responded to the preliminary objection raised. With regards to the first issue argued by the objectors, learned counsel cited and relied on the provisions of Section 241 of the Constitution of the Federal Republic of Nigeria 1999, as amended, submitting that the position held by the objectors is misconceived. He argued that appellant’s relied on the provision of Section 241(1) (b) of the Constitution, granting appellants the right to appeal as of right without leave as the grounds of appeal are of law simpliciter. On what constitutes what is a ground of law, counsel referred to the cases of Gen. Electric Co. vs. Harry Akande (2011) 46.2 NSCQR 611 @ 643 – 644, FBN vs. Abraham (2008) 36 NSCQR 1058 @ 1073, Lovleen Toy vs. Komolafe (2013) 52.3 NSCQR 129 @ 1314 – 1315, MPPP vs. INEC & Ors (2015) 10 MJSC 18 @ 31 – 32, Wema Securities and Finance Plc vs. NAIC (2015) 63 NSCQR 561 @ 599 – 600 and Comrade Alhaji Ayo Sekoni & 2 Ors vs. Comrade Abdullahi Oladapo & 3 ors (unreported) CA/IL/4/2017 delivered on the 6/7/17, and submits that where grounds of appeal are based on law i.e. jurisdiction, the leave of Court becomes unnecessary. He argued also that a critical look at the grounds show that what is being attacked is the jurisdiction of the lower Court, and therefore Section 242 (1) of the Constitution and the case of Global West Vessel Specialist Nig. Ltd (supra) are not apposite to the case at hand.
On the alternative prayer made by the 1st to 3rd respondents, it was contended for the appellants that Paragraph 10 (B) and (c) of the Practice Direction of this Court referred to is not applicable, as the subject matter does not fall within the cases described by paragraph 3 thereof. He argued that jurisdiction is the livewire of adjudication, and where a Court is robbed of same, he labours in vain. It was also contended that the issue of jurisdiction is one area that cannot be conveniently tried after trial, since the issue of jurisdiction once decided against the Court automatically truncates the suit filed. The case of Eligwe vs. Okpokiri (2014) 60 NSCQR 1 @ 63 was cited in support. Finally submits that the grounds of appeal being grounds of law simpliciter, the Court should disregard the submissions of the objectors and to disregard the alternative prayer sought.
I do agree with the submission by the learned counsel for the 1st – 3rd respondents, that the combined effect of Section 14 (1) of the Court of Appeal Act Cap C36 LFN 2004 and Section 242 (1) of the Constitution of the Federal Republic of Nigeria 1999 as amended, institutionalized the legal position that appeals against the interlocutory decisions of a High Court, Shall require the leave of the High Court except where the grounds of appeal are based on grounds of law alone. See Global West Vessel Specialist Nig. Ltd vs. Nigeria NLG & 1 or (supra) @ page 1144. This settled position of the law is however subjected to the provisions of Section 241 of the same 1999 Constitution of the Federal Republic of Nigeria.
It is equally not in dispute the fact that the leave of the lower Court and or of this Court was neither sought nor obtained, rather counsel is heard as saying that he need not apply for leave, the grounds of appeal being that based on law, and thereby appealable as of right pursuant to Section 241 (2) of the Constitution of the Federal Republic of Nigeria 1999 as amended.
In my humble opinion, the question that determines the preliminary objection is hinged on whether the grounds of appeal by the appellant in the interlocutory appeal are anchored on law alone, and thereby appealable as of right, or those of mixed law and facts, requiring leave, and further whether in the circumstance of the case at hand, the appellants needed to have asked for leave to appeal.
In resolving this thorny issue, calls for a thorough examination of the grounds of appeal and its particulars in ascertaining whether the grounds are of law simpliciter, or based on mixed law and facts. In the determination of the ardent question, I seek the guidance of the Supreme Court in the case of Chrome Air Services Limited and anor vs. Fidelity Bank (2017) LPELR 43470, to the effect that:
It is recognized that it is often difficult to distinguish between a ground of law and a ground which is of mixed law and facts. Overtime, a general rule of thumb employed by Courts to determine the nature of a ground of appeal has evolved. Where the complaint is that the trial or appellate Court misunderstood the law to the proved or admitted facts, it is a ground of law. Where the ground of appeal questions the evaluation of evidence before the application of the law, it is a ground of mixed law and fact. There is generally no difficulty in determining whether a ground of appeal is a question of fact. See, Odunukwe vs. Ofomata (2010)18 NWLR (pt. 125) 404, Anukam vs. Anukam (2008) 5 NWLR (pt. 1081) 455, Osasona vs. Ajayi (2004) 5 SC (pt. 1) 88, Global West vessel Specialist Nig. Ltd & Anr vs. Nigeria LNG Ltd & anor (supra), Otti & ors vs. Ogah & Ors (2017) LPELR 41986 (SC) per Nweze JSC.
Against the backdrop of the prevailing case law, an examination of the appellants grounds of appeal reproduced would reveal that:
Ground 1.
The Learned Trial Court erred in law in assuming jurisdiction when he refused or abdicated his sacred duty in making a pronouncement or finding as to whether the N100,000.00 made as a deposit by the 1st ? 3rd respondents had expired and/or the receipt is in respect of this suit on appeal.
Particulars.
a. By virtue of the Section 15 of the Chiefs (Appointment and Deposition) Law of Kwara State, the 1st ? 3rd respondents ought to have made a non-refundable deposit of N100,000.
b. The receipt attached as evidence of payment for the deposit only covered a time frame of between 3/30/15 and 3/31/16.
c. This action was instituted by the respondents on the 6/7/17 which was more than a year after the said N100,000 that was said to have been deposited was made by the 1st ? 3rd respondents.
d. The deposit made by the 1st ? 3rd respondents was before the appointment of the 1st appellant.
e. The deposit was made in respect of suit No. KWS/88/2015.
f. The deposit was made before the approval of the appointment of the 1st Appellant was made by the 4th Respondent.
g. No finding was made in respect as to the authenticity of the receipt.
h. This has occasioned a miscarriage of justice.
Ground 2.
The Learned Trial Judge erred in law in assuming jurisdiction when he held as follows:
In paragraph 32 there was a notice of dispute challenging the appointment of the 1st defendant dated 5th day of May, 2017 and received by an Administrative Officer by name J.S. Olawale at the Kwara State Government House on 8th May, 2017. The Notice of dispute was also widely circulated in some Newspaper. What remains is to ascertain the veracity or otherwise of these claims in the substantive suit. That head of the objection is overruled?.
Particulars.
a. The Court did not make pronouncement or findings as to whether the letter of dispute dated 5th May, 2017 which was addressed to the 4th defendant met the requirement as enjoined under Section 3(3) of the Chiefs (Appointment and Deposition) Law of Kwara State.
b. The Chiefs (Appointment and Deposition) Law of Kwara State does not enjoin the circulation of such a notice of dispute to the 4th Defendant in the Newspaper.
c. There was no evidence that the 4th Respondent had made any enquiry as enjoined under the law before the 1st ? 3rd respondents went to Court.
d. It is the statement of claim that determines the jurisdiction of the Court.
e. No evidence that the name of the 1st respondent was submitted to Oke-Onigbin Kingmakers i.e. the 2nd and 3rd appellants before they went to Court.
f. This has occasioned a miscarriage of justice.
Ground 3.
The Learned Trial Judge erred in law when he held as follows:
There are exceptions to limitation law such as knowledge of the act complained of, the issue of when the plaintiff received the communication of the complaint and the allegation of fraud, concealment, deceit and connivance which was pleaded by the claimant/respondent in this case. I therefore agree with the submission of counsel for the respondent that the cause of action in this case had not accrued until they became aware of the appointment of 1st defendant/applicant as the Onigbin of Oke-Onigbin which was alleged not to be published. Equally there was an allegation of fraud, concealment, deceit and connivance pleaded in this case. See UBA Plc vs. BTL Ltd (2006) 19 NWLR (pt. 1013) 61. Accordingly I hold that this suit is not statute barred.
Particulars.
a. Section 2(a) of Public Officers Protection Act did not provide or create for such exceptions as held by the trial Judge before the law can come to operation.
b. Ignorance of the law is not an excuse.
Ground 4.
The learned Trial Judge erred in law in assuming jurisdiction when he held as follows:
The suit cannot also be an abuse of Court process because what was decided at the High Court and the Court of Appeal was an interlocutory application which has not finally determined the right of the parties. The claimants were in my view right to have chosen to take the hint of the Court of Appeal and initiated this action.
Particulars.
a. This suit is similar to KWS/88/2015. The parties, claims, subject matter are the same.
b. No adequate findings were made in respect of this issue.
A sober but dispassionate examination of the grounds of appeal and its supporting particulars, and going by the direction in the case of Chrome Air services Ltd (supra), would reveal and did reveal that the grounds of appeal, just reproduced are indeed of mixed law and facts as contended by the objectors. This being the case, the position of the law is that an interlocutory appeal based on mixed law and facts could only be brought after the requisite leave has been sought and obtained. This requirement of the law is backed by the constitutional provision to the effect that, subject to the provision of Section 241 of the same Constitution, a person seeking to appeal on grounds of mixed law and facts must first seek and obtain the leave of the Court of trial or the Court of Appeal (this Court) before the filing of the appeal. The cases in this regard are legion, sufficing to mention a few. Akanbi & Ors vs. COP, Kwara State & Ors (2018) LPELR-44049 (CA), Ukachukwu vs. Govt of Borno State (2017) LPELR-43271 (CA), CBN vs. Okojie (2002) FWLR (pt. 103) 349, FGN & anor vs. AIC Ltd (2005) LPELR-6152 (CA), Deacon Olatunde Oladokun & 12 Ors vs. Jimkah Automobile Services Engineering Nig. Ltd & ors (unreported) in suit No. CA/IL/103/16, delivered on the 1st of March, 2019 per Uwa JCA.
The appellant while conceding that appeals based on fact or mixture of fact and law comes under Section 14 of the Court of Appeal Act, and Section 242 of the Constitution, forcefully argued that the instant appeal is solely based on law and therefore comes under Section 241 (1) (b) of the Constitution granting him the right to appeal as of right. Learned counsel in that regard drew the Court?s attention to the guidance by the Apex Court in the case of Gen. Electric C vs. Harry Akande (2011) 46.2NSCQR 611 @ 643 – 644 on the principles for determining whether a ground of appeal is that of law, fact or mixed law and facts. The decision of the Apex Court just cited is as solid as gold, the question however still remains whether the grounds in the appellants Notice of Appeal are grounds of law alone.
The learned counsel for the appellant tenaciously holds on to his submission that the Notice of Appeal attacked the jurisdiction of the trial Court leading to the delivery of the vexed ruling. I do wholly agree with the learned counsel that a ground of appeal which challenges the trial Court’s exercise of jurisdiction is certainly a ground of law. See the cases of Lovleen Toy vs. Komolafe (2013) 523 NSCQR 129 @ 1314 ? 1315. The issue of jurisdiction being pivotal to adjudication, the need for any leave from any Court, is not required. See MPPP vs. INEC (supra), Wema Securities and Finance PLc vs. NAIC (supra), all supplied by the appellant are apposite. In fact this Court is reminded to have stated that:
The thrust of the instant appeal?. Is the question whether the lower Court had the jurisdiction to entertain the case filed before it. It certainly is a jurisdictional matter for which this Court must determine. From the position of the law I am of the view that the grounds of appeal being that which raised the issue of jurisdiction, leave to appeal is not a precondition.
This is from the unreported judgment of self, in the case of Comrade Alhaji Ayo Sekoni & 2 Ors vs. Comrade Abdullahi Oladapo & 3 ors. (unreported) CA/IL/4/2017 delivered on the 6/7/2017. I believe this is still the position of the law. See Agbiti vs. Nigerian Navy (2011) LPELR ? 2944 (SC).
I must now pose another question, are the grounds of appeal raised by the present appellant jurisdictional? I think that the grouse of the appellant is the assumption of jurisdiction by the lower Court in spite of the areas of complaint spelt out in the particulars. Learned counsel for the 1st ? 3rd respondents in the objection in arguing that the appeal is incompetent, complained that all the particulars of error listed against the grounds of appeal are of mixed law and facts. I agreed with him. Thus the Learned counsel also complained that this Court is being asked to review pieces of evidence which have not yet been given and the veracity of documents which are yet to be tendered, in questioning the ruling of the lower Court. The apex Court faced with a similar situation in the case of A. G. Oyo State vs. Fairlakes Hotels Ltd (1988) 5 NWLR (pt. 92) 1, also reported as (1988) LPELR 24926) (SC), adumbrated situations where fresh issues on appeal can be raised and granted or refused. It however re-united with the general legal view that:
Where an appellant in his issues for determination raised questions of jurisdiction, they are indisputably questions of law. An appellant can raise such issues afresh in an appellate Court. Such questions are not only competent but are also expedient in the interest of justice for an appellate Court to entertain the questions. See also Agbiti vs. Nigerian Navy (supra), Adeyemi vs. Opeyemi (1970) 9 ? 10 SC 31, Fadiora vs. Gbadebo (1978) 3 SC 219.
On the second leg, which is whether this Court in view of the issues raised in the appellants brief of argument, it shall not be appropriate for the Court of Appeal to exercise its powers under Paragraph 10(b) and (c) of the practice directions of this Court and refer the matter back to the lower Court for accelerated hearing, I agree with the appellant?s counsel that where the jurisdiction of a Court is challenged, the Court has the first duty to determine whether it has jurisdiction or not. The simple reason being that jurisdiction being fundamental,
25
a Court lacking in same labors in vain. The appellants challenge being anchored on the lower Court?s lack of jurisdiction, same cannot be waived.
The totality of the entire discourse is that the preliminary objection of the 1st ? 3rd respondent is devoid of merit, and consequently discountenanced.
Main Appeal.
Issue one.
The submissions of the learned counsel for the appellant on the issue spans from pages 3 to 11 of the appellants brief of argument. Therein it was argued that the lower Court failed, refused and or abdicated its duty in making a finding as to whether the N100,000 made as deposit by the 1st ? 3rd respondents is valid, having been contended upon before the trial Court. He submits based on the authority of Honey Well Flour Mills Plc vs. Ecobank (Nig.) Ltd (2016) LPELR 40221 (CA), that a Court is duty bound to consider all issues joined upon by the parties, and to give judicial consideration thereto. He submits also, that having raised the validity of the receipt evidencing the mandatory payment of the N100,000, and the lower Court having failed to make any findings or pronouncement on same, failed in its duty and therefore called upon this Court to resolve same and thereby affirm the appellants preliminary objection on the issue.
Responding to the issue from pages 16 – 19 of the 1st – 3rd respondents brief, learned counsel for the afore mentioned respondents urged the Court to resolve the issue in their favor and to dismiss the appeal on same. He argued that the summary of all the grievances of the learned appellants counsel on the issue relates to the refusal of the trial Court to make a pronouncement bordering the authenticity of the receipt of the N100,000 deposited by the claimants. Alluding to the lower Courts holding on the issue, counsel contended that the lower Court was not obliged to mention or list all the materials considered before arriving at his decision. Submits that appellants counsel delved into adducing evidence outside pleadings, further contending that the Chief’s (Appointment and deposition) law does not provide for any specific or statutory period in which deposits should run or lapse. He urge the Court in line with the decision inAwuse vs. Odili (2003) 18 NWLR (pt. 851) 116 to give the provisions of the Chiefs law its ordinary grammatical meaning, further contending that by the provision of the law, a person can make the deposit even when the appointment has not been made.
In Honeywell Flour Mills Plc v. Ecobank Nigeria Ltd (2016) LPELR-40221 (CA), Oseji JCA, re stated the position of the law in that it is the duty of a Court, whether as a Court of trial or as an appellate Court to consider all the issues that have been joined by the parties and raised before it. It has been stated that this principle of adjudication is of great importance in the administration of justice, and parties having canvassed and argued same, the Court must give it a judicial consideration and thus make a pronouncement one way or the other so as to avoid a miscarriage of justice. The only known exception is where a Court rules that it has no jurisdiction. In that case, further proceeding amounts to an idle exercise, academic in nature and of no utilitarian value. See Ikechukwu vs. FRN (2015) 7 NWLR (pt. 1457) 1, Oni vs. Cadbury Nig. Plc (2016) 9 NWLR (pt. 1516) 80, FUTA vs. BMA Ventures (NIG) Ltd (supra) @ 496.
The pinpoint of the appellants complaint with regards to this issue is simple. The appellants while contending that all issues raised must be resolved one way or the other, thus accusing the trial Court of shying away from determining the authenticity and or validity of a receipt pleaded in the statement of claim, argued that the receipt in question cannot be the receipt in respect of the respondents case having been dated earlier in time. I have dispassionately looked at the appellants complaint on the issue. Mr Alawode points out that while the Court is bound by the record before it, the learned counsel for the appellant fell into a misconception of relying and giving evidence not pleaded by them. I accept learned counsel?s contention that counsel cannot by his submission, advance evidence. See Olonade vs. Sowemimo (2014) ALL FWLR (pt. 750) 1311 @ 1329. In the circumstance therefore I am of the humble view that without evidence placed before the Court, it cannot examine a document in vacuum. I think the lower Court was right in reverting to the originating processes filed before it when its jurisdiction was challenged, and having concluded that the process being complained of as a condition precedent was indeed pleaded and frontloaded, it would amount to determining the substantive case before it determining the authenticity of the document at that stage, when the document was not tendered nor evidence adduced on it. Indeed the submissions of learned counsel on the veracity or value to be placed on the document did not arise at that stage, and can only arise when the substantive suit is heard. In the same vein the application of whether Sections 15 (1) or 15(2) of the Chief?s law, is relevant in the authenticity to be given to the receipt of N100, 000 under contemplation can only arise when the substantive case is being considered. I fail to understand the complaint by the appellant that the lower Court?s failure to make any pronouncement and or finding on the validity of the alleged expired receipt occasioned any miscarriage of justice. If I may ask, how does learned counsel know that the receipt is an expired receipt, when there is no evidence in that regard. I totally agree that the contention of the appellants on the issue is misconceived and the issue determined against the appellants.
Issue Two
The appellants argued this issue from pages 11 to 20 of the brief. The contention of the appellants herein is whether the Notice of dispute said to have been submitted to the 4th respondent met the requirements of Section 3(3) of the Chief?s (Appointment and deposition) law, and whether the 1st – 3rd respondents exhausted all the domestic or remedial avenues open to them before the institution of the case before the trial Court. Alluding to the holding of the lower Court on the issue, counsel argued that it is mandatory that any dispute arising from the filling of the vacant graded chieftaincy stool must first be referred to the Governor. He claims that the instant case is apposite with the case of the AG of Kwara State & 1 or vs. Alhaji Saka Adeyemo & 7 Ors (2017) ALL FWLR (pt. 868) 616 @ 645 per Rhodes-Vivour, and Odili JSC. Learned counsel drew the Courts attention to its decision in suit No. CA/IL/47/2016 per Ugo JCA, which can be found at page 82 of the record, contending that the name of the 1st respondent ought to have been forwarded to the appropriate quarters through the kingmakers for consideration as one of the contestants, which was not done. Submits that the 1st respondent was therefore in breach of the process outlined in the provisions of Section (3) (1) (2) and (3) of the Chief’s (Appointment and Deposition) Law of Kwara State. Submits that the 1st respondent lacks a cause of action and therefore risks his case being dismissed as held in the case of Adesanya vs. President, Federal Republic of Nigeria (1981) 5 SC 112 @ 148 amongst others. He urged the Court to resolve the issue in favor of the appellant and to allow the appeal accordingly.
The 1st – 3rd respondent responded to the issue at pages 20 – 22 of the respondent?s brief. Therein learned counsel alluded to paragraphs 31 – 35 of the pleadings of the 1st – 3rd respondents located at pages 9 and 10 of the record, and submits that the complaint of the respondents before the Court was the muteness of the 4th respondents. Further alluding to the holding of the lower Court on the issue of the Notice of dispute, learned counsel submitted that the case of AG of Kwara State vs. Alhaji Saka Adeyemo (supra) is not apposite to the instant case. He posits that the issue of locus standi raised by the appellants is a fresh issue and should be discountenanced. In conclusion learned counsel urged the Court to dismiss the appeal after resolving the issue in its favor.
Two issues have been raised under the issue. Firstly whether the respondents met the requirements of Section 3(3) of the Chiefs (Appointment and Deposition) Law of Kwara State 2006, and whether the respondents exhausted all the domestic or remedial avenues opened to them before the institution of the case. In the latter case, this Court held that the doctrine of exhaustion of internal remedies in legislation does not affect the right of access to Court as enshrined by Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended. It was further held that the doctrine of internal remedies does not drain or abolish the jurisdiction of the Court to entertain a case, but where procedural steps are prescribed before the embarking on litigation cannot be treated as ousting the jurisdiction of the Court. See Prosafe Production Services Ltd vs. OSBIR (2018) 18 NWLR (pt. 1650) 86 @ 110, per Obuinya JCA. Similarly the apex Court in the case of Ogologo vs. Uche (2005) LPELR ? 2312 (SC), held the view that:
Where a law has given exclusive power to a body to decide, the Court cannot come in before that body has exercised that power. Court can come in only where there is exhaustion of all remedies before that body and Court will then be able to decide whether that power had been exercised lawfully. See also Kwara State vs. Adeyemo (2017) 1 NWLR (pt. 1546) 173,Bukoye vs. Adeyemo (2017) 1 NWLR (pt. 1546)173. My learned brother Ugo JCA, in the case of Mr. Delodun Mohammed & Ors vs. Mr Kamaldeen Salaudeen & others (unreported) in Appeal No CA/IL/47/2016, captured it thus;
It is after that inquiry and the Governor takes a decision to appoint or not to appoint the person selected that a right to challenge that decision in Court will enure to any person aggrieved with the decision. That is what is referred to as exhaustion of remedies.
The question that definitely arises is at what stage does the Court hold that all the remedies have been exhausted? I think the answer can be found in the decision of Rhodes ? Vivour JSC in the case of AG Kwara State vs. Adeyemo (supra) cited by the appellants, where the eminent jurist stated that: My lord after examining the evidence available.
We have been referred to paragraphs 31 ? 35 of the respondents statement of claim, detailing the steps taken by the claimants in pursuit of their grievance. The lower Court averting its attention to the claims before it, and arrived at the conclusion that to be ascertained is the authenticity of the claims. In other words there was no evidence upon which the Court could reach the decision as found in the case of AG Kwara State vs. Adeyemo (supra). This decision of the lower Court cannot be faulted. The same applies to the second leg of contention in the issue, i.e, whether the requirements of Section 3(3) of the Chiefs Law was met. Appellants submissions are being advanced in vacuum as there are no evidence upon which the lower Court could have based its decision at that stage. The issue is also resolved against the appellant.
Issue Three
The appellants argued this issue at pages 20 – 25 of the brief. The learned counsel referred to the holding of the trial Court at pages 350 of the record, contending that the holding of the lower Court to the effect that knowledge is an exception to the limitation law is not in consonance with the law. Also referring to the case of Akibu & sons vs. Azeez & ors (2003) 12 NSCQR 199 @ 222, Learned Counsel opined that knowledge is not a precondition. He urged the Court in the spirit of the cases of Amasike vs. R.G., CAC (2010) 43 NSCQR 581 @ 629, that in the interpretation of statutes, the Courts should accord them their simple and clear unambiguous meaning and avoid going beyond the intendment of the legislators. He alluded to the provision of Section 2 (a) of the Public Officers Protection Act 2004, and submits that the law did not provide for any exception.
Expressing his opposition to the issue at pages 22 ? 26 of the brief, learned counsel alluded to the lower Courts finding on the issue of the application of the Public Officers Protection Act, stating that the lower Court predicated its decision on:
a. That what determines when a matter is statute barred is when the cause of action accrues and not when it arises.
b. That knowledge of the wrong doing is very important to determine when the cause of action accrued, and
c. That allegation of fraud, concealment, deceit and connivance are exceptions to the application of the statute of limitations. The case of UBA PLC vs. BTL Ltd (2006) 19 NWLR (pt. 1013) 61 was relied on. He alluded to the pleadings of the 1st 3rd respondents as claimants before the lower Court contending that the cause of action accrued on the 15th of April, 2017 when the respondents became aware of the appointment and not the 16th of April, 2016 when the instrument appointing the 1st Appellant as the Onigbin of Oke-Onigbin. He cited a host of cases in that regard. Against the background of the arguments made on the issue, urged the Court to resolve the issue against the appellants and to dismiss the appellant?s appeal.
The fulcrum of the appellants contention is straightforward. It is whether there are exceptions to the application of the Public officers Protection Act with regards to knowledge. My simple answer is to agree with the lower Court, having held that:
I therefore agree with the submission of counsel for the respondent that the cause of action in this case had not accrued until they became aware of the appointment of the 1st defendant/applicant as Onigbin of Oke-Onigbin which was alleged not to be published equally there was an allegation of fraud, concealment, deceit and connivance pleaded in this case.
The case of A.G Rivers State vs. A. G Bayelsa State & Anor (2012) LPELR 9336 (SC) gives some of the exceptions to the Act. See also Hassan vs. Borno State Govt. (2016) LPELR ? 40250 (CA), Hon Minister of the FCT vs. J. Alucon Ltd (2017) LPELR 42870(CA). This issue is similarly determined against the appellant.
Issue Four.
The grouse of the appellants in respect of this issue is that the trial Court erred in law in assuming jurisdiction without making adequate findings, the respondents action being an abuse of Court process. He complains that the parties in the action originating this appeal, and that decided in KWS/88/2015 up to the Court of Appeal, were the same, and having been determined to conclusion, there cannot be any further litigation upon the same subject matter. The case of Sylva vs. INEC (2015) ALL FWLR (pt. 310) 1121 @ 1156 was cited in support. It was urged upon the Court to set aside the ruling of the lower Court in that regard, allow the appeal and to affirm the preliminary objection.
In his response to the issue, learned counsel for the respondent?s referred to the case of Sifax Nig. Ltd & Ors vs. Migfo Nig. Ltd & Anor (supra) to the effect that striking out of the plaintiff/appellants action does not finally determine the respective rights of the parties in the dispute placed before the trial Court for determination. He submits that what was decided by the High Court and the Court of Appeal in suit No. KWS/88/2015 and CA/IL/47/2016 did not determine the rights of the parties, but merely determined the issue of improper service of the originating process. He referred the Court to the cases of Agbeniyi vs. Abo (1994) 7 NWLR (pt. 359) 735 @ 747, IGP vs. AIGBIREMOLEN (1999) 13 NWLR (pt. 635) 443 @ 454 and Ezeonu vs. Agheze 4NWLR (pt. 187) 631 @ 646 to submit that what was decided at the High Court and the Court of Appeal was an interlocutory application which did not finally determine the rights of the parties.
Let me refer to what Kutigi JSC said in Musa Yar?adua vs. Atiku Abubakar & Ors (2008) LPELR 3513 (SC):
It is an abuse of process of Court for a plaintiff to re-litigate an identical issue which had been decided against him.
This pronouncement seems to unknowingly have in mind the contention by the appellants, who now argued that the parties in an earlier case, KWS/88/2015, pursued to the Court of Appeal level in appeal with NO. CA/IL/47/2016, per Ugo JCA, and the issues therein settled to finality are the same with the issues for which the respondents seek to pursue. Relying on the authorities of Ebba vs. Ogodo (2000) ALL FWLR (pt. 27) 2094, and Alhaji Safianu Aminu & 2 Ors vs. Isiaka Hassan & 2 Ors (2014) ALL FWLR (pt. 725) 205 @ 221, counsel sought to expose the settled legal position that where an issue has been competently and conclusively determined by a Court of competent jurisdiction between a particular set of parties, the same issue cannot be brought up again by the same parties or their privies for litigation, unless on appeal. To do so would amount to what is termed an abuse of Court process. Where however the situation is as held in the case of Sifax Nig. Ltd & 4 Ors vs. Migfo Nig. Ltd & Anor (supra), where the Court held that: striking out of the plaintiff’s /appellant’s action does not finally determine the respective rights of the parties in the dispute placed before the Court for determination. In this situation where the claims or rights of the parties have not been examined or looked into by the trial Court and appropriate findings made thereon resulting in a determination, these claims or rights effectively remain pending and can be reviewed by any of the parties in any other Court or concurrent jurisdiction or even the same Court” see also the cases of Agbeniyi vs. Abo (1994) 7 NWLR (pt. 359) 735 @ 747, IGP vs. Aigbiremolen (1999) 13 NWLR (pt. 635) 443 @ 454, and Ezeonu vs. Agheze (supra).
The lower Court on the issue held the view that what was decided at the High Court in the case of KWS/88/2015 and the Court of Appeal in appeal with No. CA/IL/47/2016 was an interlocutory matter which had not finally decided the rights of the parties. A critical examination of the cases referred to as having disposed the rights of the parties, i.e. KWS/88/2015, and CA/IL/47/2016, and particularly in the latter case, where the 1st issue contended upon was whether having regard to the affidavit evidence and the annexed exhibits it could be truly said that the internal remedies were not exhausted by the appellants before instituting or resorting to litigation. The lower Court as can be seen from the records declined jurisdiction and struck out the suit. On appeal, this Court examined the two issues submitted on and dismissed the appeal. Drawing from the decision of the Apex Court in the case of Sifax Nig. Ltd (supra), the lower Court having struck out the action before it for lack of jurisdiction, did not determine the rights of the parties, and cannot therefore constitute abuse of process. This issue is also determined against the appellant.
Hence all the issues having been determined against the appellant, the appeal fails and it is hereby dismissed by me.
The Cross Appeal
The 4th Respondent herein filed a cross appeal on the 26th of October, 2018 predicated on one ground. The sole ground reads:
The Learned Trial Court erred in law and in fact when he held that:
It is trite that in the determination of the jurisdiction to determine a matter, particularly where issue of statute of limitation and none compliance with a condition precedent are raised, the only document to be relied upon by the Court is the originating processes. I have gone through the originating process filed, the claimant averred in paragraph 31, that they have made a deposit of N100,000 into the coffers of Kwara State Government which they pleaded and relied on the receipt payment.
Let me place on record also that though the 4th ? 6th cross respondents in this appeal filed a notice of cross appeal, on the 17th of October, 2018 it is apparent from the record that no brief was filed thereto.
In the cross appellants brief settled by H. A. Gegele, the learned Director Civil Litigation Kwara State Ministry of Justice on behalf of the 4th respondent in the main appeal, a sole issue was distilled therein. It is:
Whether the 4th ? 6th respondents complied with the condition precedent required by Section 15(1) of the Chiefs (Appointment and Deposition) law as amended before commencing this action.
The learned counsel argued the sole issue from paragraphs 3.00 – 4.01 of his brief. He contended that the issue raises the vexed issue of jurisdiction, and deserved to be treated first in time. He contended also that the suit was not initiated by due process of law, having failed to comply with Section 15 (1) of the Chief?s Law of Kwara State. He harps that the issue being a jurisdictional issue, and fundamental to the adjudicatory powers of the Court, same can be raised anyhow and at any stage of the proceedings. The cases of Ngere vs. Eneyo (2010) ALL FWLR (pt. 550) 1375, and Olafemi vs. Ayo (2010) ALL FWLR (pt. 526) 547 @ 582 were cited in support of the legal preposition. He also cited and relied on the case of Alfa vs. Zakari (2010) ALL FWLR (pt. 515) 283 @ 306 on when the Court is said to be competent to adjudicate on matters, submitting that the Court needs to look at the writ of summons and the statement of claim to determine if the suit is competent.
Counsel submits that one of the condition precedent in commencing a suit against any graded stool is that the 4th ? 6th respondents should pay a non-refundable deposit of money to the state accountant General as provided for under Section 15 (1) of the Chiefs (Appointment and Deposition) Law of Kwara State 2006, (herein after called the Chiefs law). Alluding to the provisions of Section 15 (1) of the Chiefs Law, which was interpreted in the case of Adejola vs. Bolarinwa (2011) 12 NWLR (pt. 1261) 380, counsel submits that the requirement of Section 15(1) of the law precedent to the institution of the claim by the 4th ? 6th respondents was not fulfilled. Submits that the failure to pay the mandatory sum of N100,000 Robbed the Court of jurisdiction to entertain the suit. On the receipt of N100,000.00 paid on the 3rd of May, 2015 at page 156 of the record, attached and pleaded by the 4th ? 6th respondents, it was the argument of learned counsel that the said payment was in respect of an earlier case dismissed by the Court of appeal in suit with No. CA/IL/47/2016. He posits that it is only where the Governor or appointing authority has approved the appointment of a person as a chief, that any person who intends to challenge the validity of the appointment that pays the prescribed N100,000. He noted that though the appointment and installation of the 1st respondent was done on the 16th of April, 2016 the payment in issue was made on the 3rd of May, 2015. He maintained that the failure of the 4th ? 6th respondents to make payment of the prescribed sum as required by the Chiefs Law, contravened the provisions of the law thus robbing the trial Court the jurisdiction to entertain the action. He urged the Court in interpreting the provision of the Chiefs Law, to give it its clear ordinary meaning. In conclusion, learned counsel urged the Court to resolve the issue in favor of the cross appellant and to strike out the 4th & 6th respondents suit for non-compliance with the law.
The response by the 4th & 6th cross respondents is contained in the brief settled by Tosin Alawode and filed on the 2nd of November, 2018. Therein learned counsel made reference to paragraphs 31 of the statement of claim located at page 9 of the record, paragraph 38, of the written deposition of Chief Olabisi Adeshina at page 19 of the record, paragraph 37 of the written deposition of Prince Adeshina Ajibola at page 28 of the record and paragraph 37 of the written deposition of Mallam Musa Adelodun Mohammed at page 37 of the record as well as the conclusion of the lower Court on the issue at page 347 – 348 submitting that no evidence was led on the issue, and counsel cannot give such evidence in his submission. The cases of Olonade vs. Sowemimo (2014) ALL FWLR (pt. 750) 1311 @ 1329, Ajanaku vs. Osuma (2014) ALL FWLR (pt. 727) 695 @ 741, Jev vs. Iyortyom (2014) ALL FWLR (pt. 747) 749 @ 780 and Omisore vs. Aregbesola (2015) ALL FWLR (pt. 813) 1673 @ 1752 were cited on the legal point. Submit that the Court is bound by the record and cannot consider any piece of evidence not before it, Boukoru vs. Erefiyai-Eweke (2017) ALL FWLR (pt. 894) 1520 @ 1546. Submit that what is required by the 4th ? 6th respondents at his stage is to plead the fact that they made the required payment which was done, and every other issue arising therefrom is to be determined in the substantive matter. Submit that for the Court to pronounce on the issue at this stage would amount to prejudging the matter. The cases of Ijaodola vs. RGT TC & SCM (2008) 15 NWLR (pt. 1110) 387 @ 414, and Otti vs. Ogah (2017) ALL FWLR (pt. 886) 2075 @ 2111 were cited and relied upon.
In further response to the cross appellant?s arguments at paragraphs 3.16 & 3.22, of the brief, learned counsel submitted that Section 15(2) of the Chiefs Law, allows a prospective litigant to make such deposit before the appointment is made by the Governor, where the wrong person is already being considered for the appointment.
With respect to the cross appellants submission in paragraph 3.15, counsel submits that the appointment to the Chieftaincy stool made by the Governor is an act where the Public Officers Protection Act applies, thus the cross respondent?s pleadings at paragraphs 31 ? 35 of the statement of claim.
In conclusion counsel urged the Court to resolve the issue in its favor and to dismiss the cross appeal with costs.
The crux of the instant cross appeal relates to the interpretation of Section 15 (1) of the Chiefs (appointment and Deposition) law of Kwara State 2006, as it relates to the payment of the sums of N100,000.00, as a condition precedent to the filing of any action against the cross appellants in chieftaincy matters.
Firstly, the importance of a Court to have jurisdiction to hear a matter before it is sacrosanct. This is because where a Court is drained of jurisdiction to entertain a matter, the proceeding flowing from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparence and objectivity injected into it will be marooned in the intractable web of nullity. FUTA vs. BMA Ventures (NIG) Ltd (2018) 17 NWLR (pt. 16490 477 @ 491 per Ogbuinya JCA. There is therefore wisdom in diligently giving due consideration to the issue of jurisdiction once raised. It must be determined one way or the other. Once the Court finds that it lacks the jurisdiction to entertain the action, the yardstick being as established in the age old case of Madukolu vs. Nkendilim (1962) MJSC (pt. 111) 146, and Alfa vs. Zakari (2010 ALL FWLR (pt. 515) 283 @ 306. The cross appellant?s complaint as earlier indicated relates to the payment of the sum of N100,000.00 as a condition precedent demanded in Section 15 (1) of the Chiefs (Appointment and deposition) law 2006.
The lower Court having been challenged on the issue, reasoned thus:
It is trite that in the determination of the jurisdiction to determine a matter particularly where issue of statute of limitation and noncompliance with a condition precedent are raised, the only document to be relied upon by the Court is the originating processes. I have gone through the originating processes filed, the claimant averred in paragraph 31 that they have made a deposit of sum of N100,000.00 (One Hundred Thousand Naira) into the coffers of Kwara State Government which they pleaded and relied on the receipt of payment.
What remains to ascertain is the veracity or otherwise of these claims in the substantive suit. That head of the objection is overruled.
It is elementary the fact that in discerning whether a court has jurisdiction to entertain a matter before it or not, it is the writ of summons and the statement of claim that is examined. See Obiuweubi vs. CBN (2011) 7 NWLR (pt. 1247) 465, NEPA vs. Edegbero (2002) 18 NWLR (pt. 798) 79.
The lower Court was therefore right to have examined the originating processes before it, and having found that the issue before it was pleaded, and in this case a receipt relied upon, the fact of whether the said sums of money was paid in obedience to the dictates of the Chiefs Law, is an issue of fact which can only be determined from evidence. For this Court, based on the say so of counsel, even where he may be right, is to advance the submissions of counsel to evidence, which this Court and any other Court is precluded from doing. It has been held so many times, that no matter how sugar coated the submissions of counsel may be, it can never take the place of evidence. See Olonade vs. Sowemimo (2014) LPELR ? 22914 (SC), Olufosoye vs. Fakorede (1993) 1 NWLR (pt. 272) 774 @ 783 per Fabiyi JSC. Furthermore as rightly submitted by counsel for the cross respondent?s, in determining the validity of the purported payment of the sum of N100,000.00 evidenced by the receipt, would amount to determining issues in the substantive suit and thereby pre-empt and prejudice the determination and outcome of the substantive action at the interlocutory stage. See OTTI vs. Ogah (2017) ALL FWLR (pt. 886) 2075, Ijaodola vs. RGT TC & SCM (2008) 15 NWLR (pt. 1110) 387 @ 414-415. I resolve the sole issue canvassed against the cross appellant. The resultant effect is that the cross appeal is lacking in merit, and hereby dismissed. The 4th ? 6th Respondents shall have costs of N50, 000.00 as costs against the cross appellant.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I have had a preview of the draft of the Judgment just delivered by my learned brother, Barka, JCA. Having equally read the briefs of argument of the respective learned counsel vis- a-vis the records of appeal, I concur with the far-reaching reasoning therein to the conclusive effect that the instant appeal is devoid of merits. I adopt the said reasoning and conclusion as mine, and accordingly dismiss the appeal.
THE CROSS APPEAL
I concur with the reasoning postulated by my learned brother, Barka, JCA in the cross appeal to the conclusive effect that the instant cross appeal is equally devoid of merits. Accordingly, the cross appeal in question is hereby dismissed by me. I abide by the Fifty Thousand Naira (N50,000.00) as Costs awarded in favour of the 4th – 6th Respondents against the Cross.
BALKISU BELLO ALIYU J.C.A.: I have had the privilege of reading before today in draft the lead judgment just delivered by my learned brother H. A. BARKA JCA. I agree entirely with the reasoning leading to the resolution of the four issues for determination in the main appeal. I adopt the reasoning as mine in resolving the 4 issues against the appellants, and I dismiss the appeal in its entirety.
Cross Appeal
I agree with the conclusion reached in the lead judgment to the effect that the cross appeal lacks merit and it is hereby dismissed by me. I abide by the order of cost made in the lead judgment on the cross-appeal.
Appearances:
O. J. Adeseko with him, L.O OlaosunFor Appellant(s)
Olarewaju Ademola with him, A.A. Daibu, Sekinat A. Daibu and Cletus Uduma for the 1st, 2nd and 3rd Defendants.
A.A. Daib (CSC) with him, O. Michael (SSC), M.A.Z. Usman (SC1) and R.K Abdulkadri (SS1) for the 4th Respondent/Cross-Appellant
For Respondent(s)
