ALHAJI AMUSA OLAGBOYEGA & ANOR V. CHIEF AMUSA AYEGBAJEJE ANIBIRE & ANOR (2011)

ALHAJI AMUSA OLAGBOYEGA & ANOR V. CHIEF AMUSA AYEGBAJEJE ANIBIRE & ANOR

(2011)LCN/4415(CA)

In The Court of Appeal of Nigeria

On Monday, the 28th day of March, 2011

CA/I/40/2008

RATIO

STATUTORY PROVISION: PROVISIONS OF SECTION 241 (1) (B) OF THE CONSTITUTION AS TO WHETHER AN APPEAL FROM DECISIONS OF THE FEDERAL HIGH COURT OR A HIGH COURT TO THE COURT OF APPEAL SHALL LIE AS OF RIGHT WHERE IT GROUNDS INVOLVE QUESTIONS OF LAW

Section 241 (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases – (b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal Proceedings PER MODUPE FASANMI, J.C.A.

INTERPRETATION OF STATUTE: IMPLICATION OF THE PHRASE “SUBJECT TO” WHEN USED IN A STATUTE

Whenever the phrase, ‘Subject to’ is used in a statute, the intention, purpose and legal effect is to make the provisions of the Section inferior, dependent on or limited and restricted in application to the section to which they are made subject to. See the cases of LABIYI V. ANRETIOLA (1992) 8 N.W.L.R. Part 258 at 139; TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 4 N.W.L.R. Part 117 at 517; FRN V. OSAHAN (2006) 5 N.W.L.R. Part 973 at 261 and OLORUNTOBA-OJU V. ABDUL-RAHEEM (2009) 13 N.W.L.R. Part 1157 page 85 at 138 – 139 paras H-B.

JURISDICTION OF COURT: ESSENCE OF JURISDICTION OF A COURT TO ADJUDICATE UPON A MATTER AND THE EFFECT OF ABSENCE OF JURISDICTION ON THE COURT’S COMPETENCE TO TRY A CASE

The jurisdiction of a Court to adjudicate upon a matter is both a legal and a Constitutional prerequisite. Where a Court lacks jurisdiction, it lacks the necessary competence to try the case. See OKE V. OKE (2006) 17 NWLR part 1044 at 1; KALAGBOR V. GENERAL OIL LTD. (2008) ALL F.W.L.R. Part 418 at 303 and OLORUNTOBA-OJU V. ABDUL-RAHEEM Supra at 124 paras A-D. PER MODUPE FASANMI, J.C.A.

STATUTORY PROCEDURE: WHETHER WHERE A PARTICULAR STATUTE HAS PRESCRIBED PROCEDURES FOR THE DETERMINATION OF AN ISSUE, A PARTY IS DUTY BOUND TO EXHAUST ALL THE REMEDIES IN THAT LAW BEFORE GOING TO COURT

It is the law that where a particular statute has prescribed a legal line for the determination of an issue, be it administrative matter, chieftaincy matter or any matter whatsoever the aggrieved party must exhaust all the remedies in that law before going to court. See the Supreme Court case of OWOSENI V. FALOYE (2005) ALL F.W.L.R. Part 284 Page 220 at 234 paragraphs F-H. PER MODUPE FASANMI, J.C.A.

CHIEFTAINCY MATTER: WHAT ARE THE PRECONDITIONS FOR ACCESS TO THE COURT IN THE DETERMINATION OF MINOR CHIEFTAINCY DISPUTES

The supreme court in the case of ADESOLA V. ABIDOYE (2001) W.R.N page 39 at 55-56 in interpreting section 22 of the chiefs Law of Oyo State laid down the pre-conditions for access to the court in the determination of minor chieftaincy disputes in Oyo State as follows: (a) The prescribed authority must have made a determination (b) The aggrieved party must make a representation o the Commissioner for Chieftaincy matters within 21 days of the living of the decision (c) The Commissioner for Chieftaincy Affairs should have determined the dispute after due inquiry. These steps exhaust the remedy available to persons aggrieved under the exercise of the powers vested in the prescribed authority. PER MODUPE FASANMI, J.C.A.

JUSTICES

STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

1. ALHAJI AMUSA OLAGBOYEGA
2. OBA SAMUEL ODUGADE
(The Olubadan of Ibadan for himself and advisory Council) Appellant(s)

AND

(1) CHIEF AMUSA AYEGBAJEJE ANIBIRE
(2) AKINYELE LOCAL GOVERNMENT Respondent(s)

MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of an Oyo State High Court sitting at Ibadan. The ruling was delivered on the 23rd of April, 2007 wherein the Appellant’s application challenging the jurisdiction of the Court to entertain the action was dismissed. It is against this ruling that the Appellant has appealed to this Court.
The Plaintiff/Respondent claimed the following reliefs in the lower Court:
i. Declaration that the Plaintiff is the one entitled to fill the vacancy of the Baale of Ojoo Chieftaincy in Akinyele Local Government of Oyo State.
ii. An order directing the 2nd – 3rd Defendants to select, appoint and give instrument of office to the Plaintiff as the Baale of Ojoo in Akinyele Local Government of Oyo State.
iii. A declaration that the purported selection of the 1st defendant to fill the vacancy of Baale of Ojoo Chieftaincy is irregular, illegal and unconstitutional, not being in accordance with the customs and traditions of Ojoo land and therefore null and void.
iv. An order setting aside the purported selection of the 1st defendant by the 2nd defendant as the Baale of Ojoo in Akinyele Local Government of Oyo State.
v. An order of injunction restraining the 2nd & 3rd defendants whether by themselves, their agents, servants, privies or otherwise whosoever called from installing or giving instruction to install the 1st defendant as the Baale of Ojoo in Akinyele Local Government of Oyo State.
vi. An order of injunction restraining the 1st defendant whether by himself, or his agents, servants, privies or otherwise whosoever from parading himself as the Baale of Ojoo in Akinyele Local Government of Oyo State.

The facts of the case are that the 1st Appellant contested the position of Baale of Ojoo with Plaintiff/Respondent and the Appellant was installed on the 19th of February, 2007, See page 52 of the record. Plaintiff/Respondent wrote a petition dated 20th February, 2007 to the Governor of Oyo State which was copied to the Commissioner for Local Government and Chieftaincy Affairs. On 22nd February, 2007, the Plaintiff/Respondent filed a motion exparte for injunction to restrain the installation of the Appellant. The motion was heard and granted that same day. The appointment and installation had been done on the 19th of Feb 2007. It is the coronation that was scheduled to come up on 23rd March, 2007.
1st Appellant was served with the writ and motion on notice filed by the Plaintiff/Respondent. Appellant subsequently filed a notice that the Court lacked jurisdiction to hear the case. The application was heard and the learned trial Judge in his ruling delivered on the 23rd of April, 2007 dismissed the Appellant’s objection to the jurisdiction of the Court. Appellants being dissatisfied appealed against the ruling. Appellant filed the notice of appeal on the 26th of April, 2007. The notice of appeal contained three grounds.

The parties duly filed and exchanged their respective briefs of argument in compliance with the rules of this Court. As, a result of the substitution of the original 2nd Appellant who had died, the parties were ordered to amend their processes to reflect the name of the substituted 2nd Appellant. Appellant’s brief of argument is dated and filed on 27/6/08 while the 1st Respondent’s brief of argument is dated and filed on the 4th of August, 2008. Appellants obtained the order of the court on 19/1/10 for the appeal to be set down for hearing on the Appellant’ and 1st Respondent’s briefs for the failure of the 2nd Respondent to file any brief.
Appellants distilled a sole issue for determination thus:
Whether the learned trial Judge was right to have departed from the interpretation given by the Supreme Court to section 22 of the Chiefs Law of Oyo State in Adesola V. Abidoye by overruling it and giving his own interpretation to the section.

1st Respondent also formulated a sole issue for determination as follows:
Whether or not the learned trial Judge was right in holding that the Respondent had complied with Section 22 (3) of the Chiefs Law of Oyo State.

Learned Counsel for the 1st Respondent filed a notice of preliminary objection on the 26th of January, 2011 and incorporated the argument of the preliminary objection at page 4 paras 3-4 of the 1st Respondent’s brief of argument. Learned counsel for the 1st Respondent contended that Appellants did not obtain the leave of the Court before filing the appeal. The ruling of the learned trial Judge was on interlocutory ruling and as such, leaves of court is required before an appeal can be lodged under Section 242 of the 1999 Constitution. He urged the Court to strike out the notice of appeal since the Appellant did not obtain leave. He placed reliance on the cases of NWADIKE V. IBEKWE (1987) 4 N.W.L.R. Part 67 at 718 and N.S.S.C. v. ESV (1990) 7 N.W.L.R. Part 164 page 52 at 533. The grounds of appeal are not grounds of law but at best mixed law and fact and as such leave ought to be obtained before the notice of appeal can be filed in the Court. He contended further that the record of proceedings was collected by the Appellant on 28/2/08 while the Appellants brief was filed on the 27th of June, 2008, a period of well over 3 months without leave of Court obtained before filing of same. He urged the Court to strike out the appeal since the brief before the Court was filed out of time or put in another way that the brief filed is incompetent.

Learned Counsel for the Appellants in his reply brief filed on 15/8/08 on the preliminary objection submitted that any decision on any application as to the jurisdiction of the Court is a final decision and no leave is needed to appeal against such a ruling or decision. He relied on the case of WESTERN STEEL WORKS LTD & ANOR V. IRON AND STEEL WORKS UNION OF NIGERIA & ANOR (1986) 6 S.C page 35 at 43-54 particularly at 47.
As to the issue of not filing the brief within time of the receipt of the record of appeal, learned Counsel for the Appellants submitted that by the time the record was received, the 2nd Appellant had died and hence there was need to make application to Court for substitution of the present second Appellant before briefs could be properly filed in this appeal. The brief could not have been filed until the application made to the Court on 11th March, 2008 was heard and granted on 18th June, 2008. The brief was subsequently filed on 27th June, 2008. He argued that the filing of the brief was in order and urged the Court to overrule the objection.
I have noted the preliminary objection raised by the learned Counsel for the 1st Respondent for failure to obtain leave before filing the appeal.
Section 241 subsection 1 (b) of the Constitution of the Federal Republic of Nigeria 1999 Provides:
Section 241 (1)
An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal Proceedings
Section 242 of the 1999 constitution which the learned counsel for the 1st Respondent referred to in his preliminary objection is subject to the provisions of section 241 of the 1999 Constitution.

In effect Section 242 of the Constitution can not be read in isolation of Section 241. Section 241 & 242 are to be interpreted together to give the section its true meaning. I have noted that the grounds of appeal filed are purely on the issue of jurisdiction which involves questions of law. The jurisdiction of a Court to adjudicate upon a matter is both a legal and a Constitutional prerequisite. Where a Court lacks jurisdiction, it lacks the necessary competence to try the case. See OKE V. OKE (2006) 17 NWLR part 1044 at 1; KALAGBOR V. GENERAL OIL LTD. (2008) ALL F.W.L.R. Part 418 at 303 and OLORUNTOBA-OJU V. ABDUL-RAHEEM Supra at 124 paras A-D.
I am of the view and also hold that the grounds of appeal are on questions of law which do not require any leave of court. See TANKO V. U.B.A. PLC (2010) 17 N.W.L.R. Part 1221 page 80 at 91 para A.
On the issue of not filing the Appellant’s brief within time of the receipt of the record of appeal, record of appeal was received on 28/2/08, the motion for substitution of the 2nd Appellant who had died was filed on the 11th of March, 08. The motion for substituted service was heard and granted on the 18th of June, 08. Appellants brief was filed on 27th of June, 08. Order 17 rule 2 of the Court of Appeal. Rule 2007 provides:
“The Appellant shall within forty five days of the receipt of the record of appeal from the Court below file in the Court a written brief being a succinct statement of his argument in appeal.”

If the record was received on the 28th of February, 2008 and there was need to make application for substitution which application was filed promptly on the 11th of March, 08 and heard on the 18th of June, 08 while the Appellant’s brief was filed on 27th June, 08. I hold the view that the filing of the Appellant’s brief was in order. The preliminary objection is misconceived and it is bound to fail. It is hereby overruled and dismissed accordingly.

Now to the issue for determination, the issue formulated by the Appellant deals with the real issue in controversy between the parties in this appeal. The appeal will be determined on the sole issue formulated by the Appellants.

Issue one
Whether the learned trial Judge was right to have departed from the interpretation given by the Supreme Court to Section 22 of the Chiefs law of Oyo State in Adesola v. Abidoye by overruling it and giving his own interpretation to the Section.
Learned Appellants Counsel argued that the contest between the 1st Appellant and the Plaintiff/Respondent in this appeal is on the Baaleship of Ojoo Township in which the 1st Appellant was appointed by the 2nd Appellant, the prescribed authority, in preference to the Plaintiff/Respondent on 19th February, 2007. He contended that the Supreme Court in ADESOLA V. ABIDOYE (2001) H.R.N. Part 2 at page 39 in interpreting section 22 of the Chiefs Law of Oyo State laid down the various preconditions that must be met before having access to court. They are:
(a) The Prescribed Authority must have made a determination
(b) The aggrieved person should have made a representation to the Commissioner for Chieftaincy Affairs within 21 days of the giving of the decision and
(c) The Commissioner for Chieftaincy Affairs should have determined the dispute after due enquiry.

Learned Counsel for the Appellants argued further that the Respondent complied with subsections 2-4 of section 22 of Chiefs Law but he did not comply with the provisions of subsections 5-7 before coming to court to institute this action by not awaiting the decision of the Governor or the Commissioner for Chieftaincy Affairs before coming to court on his petition or Appeal to the Governor. The appeal was dated 20/2/07 and he came to court on 22nd February, 2007. He submitted that the learned trial Judge therefore exceeded his powers and was in error by trying to give his own interpretation to the provisions of section 22 of Chiefs Law of Oyo State and thereby erroneously overruled the Supreme Court or departed from the decision of the Supreme Court on the interpretation of the section, a thing he has no power to do.

Learned Counsel for the Appellants also referred to another decision of the Supreme Court even though, not on matters of Chieftaincy dispute, had this to say on where a law gives exclusive power to a body to decide, in the case of:
OGOLOGO & ORS V. UCHE & ORS (2005) 131 LRCN 2534 at 2557 AF as per Belgore JSC as he then was said:
“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.”
He opined that the 1st Respondent had to await the outcome of the decision of the Governor or the Commissioner of Local Government before coming to court which he has not done.

Learned Counsel for the Appellants urged this court to allow the appeal, set aside the ruling and all other decisions of the learned trial Judge on the case on the ground that it lacked jurisdiction to hear the case, and striking out the suit based on all the arguments and submissions made in the brief.

Learned Counsel for the 1st Respondent in reply submitted that the installation of the 1st Appellant was to take place on the 23rd of February, 2007.
In order to comply with the provisions of the law, the Respondent immediately sent a representation to the Governor on the 20th of February, 2007. In order to forestall the purported selection of the 1st Appellant, the 1st Respondent took out a writ of summons. There was no other option available to the 1st Respondent since there was only 4 days between the selection of the Appellant and the date fixed for his installation.

He went further to state that there is nothing which makes it mandatory to wait for the Governor to take a decision before coming to court. Since a representation had been made to the Governor, section 22 had been complied with.

In the alternative, he submitted that the 1st Respondent was not bound to follow section 22 of the Chiefs Law before coming to court. To do so is to derogate from the Constitutional right of the Respondent under section 236 of the 1999 Constitution. He referred to the cases of EGUAMWENSE V. AMAGHIEZEMWEN (1993) 9 N.W.L.R. Part 315 and OSAGIE II V. OFFOR (1998) 3 N.W.L.R. Part 541 at page 215 where the court had this to say:
“In my view, an aggrieved party may at any stage in the selection process of a candidate in a Chieftaincy matter properly challenge the same in a court of law.”

In conclusion, learned counsel for the 1st Respondent submitted that apart from complying with the Oyo state Chief’s Law, an aggrieved party cannot be barred from coming to court and the trial Judge was right to have dismissed the application. He urged the court to dismiss the appeal.

The supreme court in the case of ADESOLA V. ABIDOYE (2001) W.R.N page 39 at 55-56 in interpreting section 22 of the chiefs Law of Oyo State laid down the pre-conditions for access to the court in the determination of minor chieftaincy disputes in Oyo State as follows:
(a) The prescribed authority must have made a determination
(b) The aggrieved party must make a representation o the Commissioner for Chieftaincy matters within 21 days of the living of the decision
(c) The Commissioner for Chieftaincy Affairs should have determined the dispute after due inquiry.
These steps exhaust the remedy available to persons aggrieved under the exercise of the powers vested in the prescribed authority.

In the instant case, 1st Respondent in this appeal met conditions (a) and (b) in that the 2nd Appellant has appointed and installed the 1st Appellant on the 19th of February, 2007. See page 52 of the record of proceedings. 1st Respondent has made a representation to the Governor on the 20th of February, 2007. However, 1st Respondent failed to meet condition C above by not allowing the Governor or the Commissioner for Chieftaincy Affairs to act on his representation before embarking on the suit which he filed in court on the 22nd of February, 2007. His petition was written on the 20th of February, 2007. Nobody is certain of the day it was delivered. By the date the Respondent came to court, there is no way the Governor or the Commissioner would have taken a decision on the petition of the Respondent. 1st Respondent has therefore not complied with the provisions of Section 22 subsections 5-7 of the Chiefs Law of Oyo State before going to court to institute this action. He did not await the decision of the Governor or the Commissioner for Chieftaincy Affairs before coming to court on his petition or appeal to the Governor.

I am unable to agree with the submission of the learned counsel for the 1st Respondent that section 22 of the Chiefs Law of Oyo State has put a wedge on the Constitutional right of the 1st Respondent by stipulating the conditions to be exhausted before going to court. In my view the laws which prescribe that some procedural steps be taken to resolve a dispute before embarking on actual litigation are not and cannot be treated or categorized as putting a clog on the constitutional right of the 1st Respondent or any aggrieved party. It should also not be seen as ousting the jurisdiction of the courts. Indeed if such laws attempt to do so, they would be in conflict with the provisions of the constitution. In my humble view, the laws serve the purpose of preventing actual litigation in court where it is possible in relation to chieftaincy matters. Were such laws not in existence, the courts would have been inundated with suits on chieftaincy matters given the bitterness with which chieftaincy disputes are pursued and regularity with which such disputes occur. It is pertinent to note that none of the sections disallowed an aggrieved party from exercising his fundamental human rights as he was not precluded from having access to court on the decision of the prescribed authority. See Owoseni v. Faloye supra at page 248 paras B-F.

Learned Counsel for the 1st Respondent with due respect has misinterpreted section 22 of the Oyo State chiefs Law out of con in the appeal at hand because his petition was written on the 20th February, 2007. Nobody knew when it was delivered. 1st Respondent filed this suit in court on the 22nd of February, 2007. By the time 1st Respondent filed his action, there is no way the Governor or the commission would have taken a decision on the petition of the 1st Respondent. The action was premature having not exhausted the conditions laid down under the Chiefs Law of Oyo State. The High court has no jurisdiction to entertain the suit until the commissioner for chieftaincy Affairs has determined the dispute after due enquiry. See also EGUAMWENSE v. AMAGHIZENWEN (1993) 11 S.C.N.J at P7.

In the light of the above pronouncements of the Supreme Court on cases of this nature, it was wrong of the learned trial court to have held that it had jurisdiction to hear the case when there were facts before him that 1st Respondent had not exhausted all the remedies available to him under the chiefs Law of Oyo State before instituting the action.

Finally I hold that the appeal is meritorious and it is hereby allowed.
The ruling of the lower court in suit No. 1/140/2007 delivered on the 23rd of April, 2007 in this case is hereby set aside on the ground that it lacked jurisdiction to hear the case having not exhausted the preconditions stated under section 22 of the Chiefs Law of Oyo State before instituting court action. Consequently suit No. I/140/07 filed on the 22nd of February, 2007 is hereby struck out. N30,000.00 cost is hereby awarded in favour of the Appellants and against the 1st Respondent.

STANLEY SHENKO ALAGOA, J.C.A.: I read in advance the judgment of my brother Fasanmi J.C.A. just delivered and I agree that the appeal has merit and should be allowed and I allow same. I abide by the order/s contained in the said judgment including order on costs.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the privilege of reading in draft the judgment prepared by my learned brother, Fasanmi, J.C.A., to which I fully subscribe.
The appellant did not exhaust the domestic remedies under the relevant Chiefs Law before taking the dispute to court. Appellant’s suit in the court below was therefore premature and, the court below was wrong to have assumed jurisdiction on the premature suit – see Ojogbede v. Ogundipe and Another (2009) 12 NWLR (Pt.1101) 585 at 598 – 601, where this Court stated in the lead judgment of Fabiyi, J.C.A, (now J.S.C.) that under section 22 of the Chiefs Law of Oyo State, relevant to this appeal, the appellant was obliged to submit the dispute to the prescribed authority for determination and if not satisfied, the appellant should have approached the relevant Commissioner for appropriate action and if not satisfied, appellant would then have sued.

The appeal succeeds. It is hereby allowed. I abide by the consequential orders contained in the judgment of my learned brother, Fasanmi, J.C.A.

Appearances

J. O. A. AjakaiyeFor Appellant

AND

O. A. OlasopeFor Respondent