ALHAJI PRINCE MOROOF OLADIMEJI AKINTOLA V. ALHAJI MOROOF ADEKUNLE MAGBUBEOLA & ORS.
(2011)LCN/4351(CA)
In The Court of Appeal of Nigeria
On Thursday, the 3rd day of March, 2011
CA/I/184/2009
RATIO
ISSUES FOR DETERMINATION: WHETHER AN ISSUE FOR DETERMINATION MUST RELATE TO OR ARISE FROM A GROUND OF APPEAL
An issue for determination must relate to, or arise from, a ground or grounds of appeal. See Ekung v. Udo (2002) 16 NWLR (Pt.792) 1. There being no ground 3 in the notice of appeal issue 2 purportedly from the non-existent ground of appeal is incompetent and is hereby struck out. PER NWALI SYLVESTER NGWUTA, J.C.A.
GROUND OF APPEAL: WHETHER A GROUND OF APPEAL CAN BE A GROUND OF ERROR IN LAW AND A MISDIRECTION ON THE FACTS
A ground of appeal cannot be a ground of error in law and a misdirection on the facts. It is either one of error in law or a misdirection on the facts but not both. PER NWALI SYLVESTER NGWUTA, J.C.A.
JURISDICTION: ESSENCE OF JURISDICTION AND THE PROPER ORDER THE COURT SHOULD MAKE WHERE IT REACHES THE CONCLUSION THAT IT HAS NO JURISDICTION TO ENTERTAIN THE MATTER BEFORE IT
Jurisdiction is the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. See Mobil Producing (Nig) Con Ltd. v. LASEPA (2002) 18 NWLR (Pt.798) 1 at 2 (SC) Katto v. CBN (1991) 9 NWLR (Pt,214) 126 at 149 SC Ndaeyo v. Ogunnaya (1977) 1 SC 11. The importance of jurisdiction or lack of it is such that there is need for the Court to assume jurisdiction to ascertain first and foremost whether it has jurisdiction over a matter before it. And once the Court reaches the conclusion that it has no jurisdiction the matter is incompetent and ought to be terminated. See Oyema v. Oputa (1987) 3 NWLR (Pt.60) 259 Madukolu v. Nkemdilim (1962) 2 SCNLR 341. its lack of jurisdiction to entertain a particular matter the proper order to make is an order striking out the matter- See Alutola v. University of Ilorin (2004) 9 – 12 SCM (Pt.2) 169. Even if the lower Court was right that it had no jurisdiction to determine the suit it could only make an order to strike it out. In conclusion while it is the law that failure to exhaust administrative remedies will oust the jurisdiction of the Court in a Chieftaincy matter see Okomachi v. Akinbode & Ors (2006) 5 SCM 144, there is no administrative remedy in S.20 of the Chief Law of Osun State under which the trial Court determined it had no jurisdiction in the matter. The determination that it had no jurisdiction to hear the matter and the subsequent order dismissing the appeal are made in error. PER NWALI SYLVESTER NGWUTA, J.C.A.
JURISDICTION: WHAT THE COURT WILL TAKE INTO CONSIDERATION IN DETERMINING WHETHER OR NOT IT HAS JURISDICTION TO ENTERTAIN A SUIT
In the determination of the question whether or not a court has jurisdiction to entertain a suit, it is the pleading of the plaintiff or the case put forward by the plaintiff that the court will consider. See Inakoju v. Adeleke [2007) 4 NWLR (Pt. 1025) 423 @ 588. PER CHINWE E. IYIZOBA, J.C.A
JUSTICES
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
CHINWE E. IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
ALHAJI PRINCE MOROOF OLADIMEJI AKINTOLA Appellant(s)
AND
ALHAJI MOROOF ADEKUNLE MAGBUBEOLA AND 13 ORS. Respondent(s)
NWALI SYLVESTER NGWUTA, J.C.A.(Delivering the Leading Judgment): This appeal is against the ruling delivered by Ogunsola J. (OFR) of the High Court of Osun State, Oshogbo Judicial Division on 30th March, 2009 in Suit No. HOS/26/08.
The facts of the case are apparent on the face of claim endorsed on the writ of summons issued on 28/2/08 and also set out in paragraph 24 of the Statement of Claim dated 28/2/08 and filed on the same date. The claims are hereunder reproduced:
“(i) Declaration that the presentation of candidates nominated by Olumoyere Ruling House whose turn it is to present candidates to fill the vacancy in the Olufon of Ifon-Osun Chieftaincy by the head of Olufon Ruling Houses to the traditional kingmakers for consideration and consultation of Ifa Oracle to determine who has the best portent for the good of Ifon-Osun Community is a condition precedent to the selection, appointment and approval of Olufon of Ifon-Osun.
(ii) Declaration that the traditional kingmakers are enjoined and obliged to consult Ifa Oracle as to the candidate who has the best portent for the good of Ifon-Osun before selection and appointment of Olufon of Ifon-Osun could be made.
(iii) Declaration that the purported selection and appointment of the 1st Defendant by the 2nd – 6th defendants acting as warrant kingmakers and the purported approval of the 1st Defendant as the Olufon of lfon-Osun by 13th and 14th Defendants are not in accordance with the native law and custom of Ifon-Osun fraudulent, null and void and of no effect whatsoever.
(iv) An order setting aside the purported selection, appointment and approval of the 1st Defendant as the Olufon of Ifon-Osun.
(v) An order restraining the 1st Defendant from parading himself and further parading himself and/or performing the rights, privileges and functions of Olufon of lfon-Osun.
(vi) An order of Court restraining the 13th – 14th Defendants from recognising or further recognising the 1st Defendant as the Olufon of Ifon-Osun.” See pages 2 and 5 of the records of the lower court.
The 13th and 14th defendants entered appearance on the 6th of March, 2008, the 12th defendant on 18/3/2008. The 1st to 11th defendants entered a conditional appearance on 23/6/2008 and filed a notice of preliminary objection also on 23/6/08. The preliminary objection was predicated on the following grounds:
“(i) The action is incompetent having not fulfilled the requisite condition precedent for its initiation/commencement.
(ii) This Honourable Court lacks the requisite jurisdiction in law to entertain this action.” See page 18 of the records.
The appellant filed a 19 paragraph affidavit tagged “Affidavit in Support” as well as a written address in respect of the preliminary objection. The 12th Respondent filed a 6 paragraph counter-affidavit and his learned counsel filed a “written address in support of the Counter affidavit . .. .” There is also a 13 paragraph Counter-Affidavit on behalf of the 12th Respondent deposed to by one Olasunkanmi Kujogbola who described himself as a Litigation Clerk in the firm of Soji Oyetuyo & Co of 37 Gbongan Road, Oshogbo Osun State.
Learned Counsel for the parties adopted, and expatiated on their written addresses on 17/2/09 and the trial Court adjourned to 30/3/09 for ruling on the preliminary objection.
In the ruling delivered as scheduled the learned trial Judge concluded thus:
“I have carefully examined the entire application and of the firm view that the preliminary objection is sustained and the suit is accordingly dismissed.” See page 42 of the records.
Against this ruling the appellant, in his notice of appeal dated and filed on 12th May, 2009 appealed on two grounds hereunder reproduced but shorn of their particulars:
“Ground 1 – The learned trial Judge erred in law when in upholding the 1st – 11th Defendants’ notice of Preliminary Objection he dismissed the plaintiffs case.
Ground 2 – The learned trial Judge erred in law and misdirected himself on the facts when despite the plaintiff’s challenge in his pleadings to the validity of the appointment of the warrant kingmakers, he dismissed the plaintiff’s action on the ground that the plaintiff should firstly have made representations to the Executive Council against the very action of the said Warrant Kingmakers” See page 44 of the records.
In due compliance with the rules of the Court the appellant and the two sets of Respondents. 1st – 12th and 13th – 14th Respondents, through the respective Counsel filed and exchanged briefs of argument.
In his brief of argument appellant presented these two issues for determination:
“(1) Whether the case of the plaintiff as disclosed in the statement of claim was one in respect of which the learned trial Judge could decline jurisdiction for noncompliance with Section 20 of the Chiefs Law of Osun State?
Ground 2 of the notice of appeal dated 29/6/09
(2) Whether the learned trial Judge in dismissing the suit of the appellant for non-compliance with Section 20(a) of the Chiefs Law did not incorrect by apply the case of Owoseni v. Faloye (2005) FWLR (Pt. 220) 234 regard being had to the stage and manner in which the facts grounding the notice of preliminary objection were raised?(sic)
Ground 3 of the Notice of appeal dated 29/6/09.
In the 1st and 2nd Respondents’ joint brief the following two issues were formulated for resolution:
“(1) Whether the non-compliance with the provision of section 20(2) of the Chiefs Law of Osun State 2003 is not fatal to the appellant’s case. Ground 1.
(2) Whether on the face of the plaintiff’s suit as disclosed in his statement of claim and other annexure thereto the trial Court was right in dismissing the appellant’s case. Ground 2.”
In their joint brief the 13th and 14th Respondent presented the following two issues for determination.
“1 Whether the plaintiff/appellant compiled with the provisions of Sections 20(a) and (b) of the Chiefs Law of Osun State (Cap.25).
2. Whether the learned trial Judge in dismissing the suit of the appellant for non-compliance with Section 20(a) of the Chief Law of Osun State (Cap.25) has properly and correctly applied the case of Owoseni v. Faloye (2005) FWLR (Pt. 229) 234..”
The supplementary record received in the Registry of the Court on 30/6/09 is tagged “Additional Notice of Appeal.” There is no provision in the Court of Appeal Act 2004 or the Court of Appeal Rules 2007 for “additional Notice of appeal. That appears to be a creation of the Registry of the Osun State High Cour1. The process filed by the appellant is Notice of Appeal” but in preparing the supplementary record the Registry named the process additional Notice of Appeal. The name stems from the fact that the appellant had earlier filed a notice and ground of appeal and the Registry felt, perhaps, that the latter is additional to the former filed on 12/8/09.
Appellant filed two grounds of appeal but framed issues from grounds two and three. The appellant is deemed to have abandoned his grounds of appeal from which no issue is formulated.
Also there is no ground 3 in the notice of appeal from which issue 2 or any other issue at all could have been framed. The learned counsel for the appellant mistook his particulars No.3 under ground 2 for a separate ground of appeal.
An issue for determination must relate to, or arise from, a ground or grounds of appeal. See Ekung v. Udo (2002) 16 NWLR (Pt.792) 1. There being no ground 3 in the notice of appeal issue 2 purportedly from the non-existent ground of appeal is incompetent and is hereby struck out.
Ground 2 complains that the learned trial Judge “erred in law and misdirected himself on the facts … ”
A ground of appeal cannot be a ground of error in law and a misdirection on the facts. It is either one of error in law or a misdirection on the facts but not both. To save the ground and the appeal I have struck out “the misdirection on the fact” and retained the ground as one of error in law in the interest of justice.
The Respondents cannot frame an issue from a ground of appeal abandoned by the appellant.
I will determine the appeal on the one valid issue presented by the appellant.
Appellant’s issue one is whether S.20 of the Chiefs Law of Osun State applies to the appellant’s case as disclosed in the statement of claim. The appellant’s complaint in the statement of Claim can be summarized thus.
The 12th Respondent failed in its duty under the custom of the town to present and introduce the appellant and the 1st Respondent as candidates for the Olufon of Ifon-Osun. As a result they were not screened nor was the Ifa Oracle consulted to choose who of the two candidates is better suited as the next Olufon of Ifon-Osun. Though the 2nd – 6th Respondents were purportedly appointed warrant kingmakers they did not invite the appellant for screening nor did they consult the Ifa Oracle before they purportedly appointed the 1st Respondent the Olufon of Ifon-Osun and the appointment was approved by the 13th and 14th Respondent on 18/2/08. See paragraphs 13 to 21 of the Statement of Claim.
The objection raised to the appellant’s case in the Court below is that he commenced the suit in violation of S.20 of the Chiefs Law of Osun State and that the substance of the Respondent’s argument in this appeal. The provision of the law which the Respondents argued that the appellant infringed in the commencement of this suit is hereunder reproduced.
“S.20(1) subject to the provisions of this Section the Executive Counsel may approve or set aside an appointment of recognized Chief.
(2) The Executive Council shall not approve or set aside an appointment within the period of twenty-one days after notification in accordance with Section 19 and during that period – (a) an unsuccessful candidate; or (b) a ruling house in respect of the Chieftaincy which alleges that the proper order of rotation has not been observed, may make representation to the Executive Council in the manner prescribed that the appointment be set aside.” I have considered the argument of learned counsel for the parties and the authorities cited. Counsel in their argument did not advert their minds to the provision of the law. Under the provision reproduced above either the candidate who lost the bid to be appointed Olufon of Ifon-Osun or a ruling house can make a representation to the Executive Council. This implies that the representation can be made by either the candidate who lost or the ruling home to which that candidate belongs. Whether the representation is made by an unsuccessful candidate or his ruling house the representation is limited to allegation that the proper order of rotation has not been observed. (Underlining mine).
The section of the law relied on by the Respondents in their preliminary objection does not expressly or impliedly provide a condition precedent to the commencement of an action. The only restriction it contains is to the effect that the state Executive Council cannot approve or set aside an appointment within the period of 21 days after it is notified of such appointment. The intention of the law in making the restriction is to provide time for either the unsuccessful candidates or a ruling house to complain that the order of rotation was not observed in the appointment of Olufon of Ifon-Osun. The Respondents relied on the decision of the Supreme Court in Owoseni v. Faloye (2005) All FWLR (Pt. 284) 220 I appreciate, and agree with the point made in that case by Justice Oguntade JSC to the effect that “In relation to Chieftaincy matters, were such laws not in existence the Courts would be inundated with suits on Chieftaincy matter … .” The observation made by His Lordship is relevant only in case the law makes conditions precedent to the commencement of Court action. The authority is not apposite here. The trial Court was in error to decline jurisdiction based on the alleged non-compliance with S.20 of the Chiefs Law of Osun State.
Jurisdiction is the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. See Mobil Producing (Nig) Con Ltd. v. LASEPA (2002) 18 NWLR (Pt.798) 1 at 2 (SC) Katto v. CBN (1991) 9 NWLR (Pt,214) 126 at 149 SC Ndaeyo v. Ogunnaya (1977) 1 SC 11. The importance of jurisdiction or lack of it is such that there is need for the Court to assume jurisdiction to ascertain first and foremost whether it has jurisdiction over a matter before it. And once the Court reaches the conclusion that it has no jurisdiction the matter is incompetent and ought to be terminated. See Oyema v. Oputa (1987) 3 NWLR (Pt.60) 259 Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
When a Court determines its lack of jurisdiction to entertain a particular matter the proper order to make is an order striking out the matter- See Alutola v. University of Ilorin (2004) 9 – 12 SCM (Pt.2) 169. Even if the lower Court was right that it had no jurisdiction to determine the suit it could only make an order to strike it out.
In conclusion while it is the law that failure to exhaust administrative remedies will oust the jurisdiction of the Court in a Chieftaincy matter see Okomachi v. Akinbode & Ors (2006) 5 SCM 144, there is no administrative remedy in S.20 of the Chief Law of Osun State under which the trial Court determined it had no jurisdiction in the matter. The determination that it had no jurisdiction to hear the matter and the subsequent order dismissing the appeal are made in error.
I resolve the twin issues in favour of the appellant. I remit the case to the Hon. Chief Judge of Osun State for trial de novo by a Judge of Osun state High Court other than Ogunsola J (OFR). 1st to 12th Respondents are to pay costs assessed at N50, 000.00 to the appellant.
CHINWE E. IYIZOBA, J.C.A: This is an appeal against the ruling of Ogunsola J. of the High Court of Osun State, Osogbo Judicial Division declining jurisdiction to entertain the appellant’s suit filed to challenge the choice of the 1st respondent as the Olufon of Ifon-Osun on the ground of non-compliance with Section 20(a) & (b) of the Chiefs Law of Osun State. The appellant and the 1st respondent are both members of the Olumoyero Ruling House of Ifon-Osun, one of the ruling houses in respect of the Olufon of Ifon-Osun Chieftaincy. Following the death of Oba Olatoye Ilufoye Omotoyinbo II on 20/8.07, the chieftaincy of Olufon of Ifon- Osun became vacant. The appellant and the 1st respondent were nominated by the family to fill the vacant stool. Their names were sent to the Traditional Kingmakers to enable the Kingmakers perform the customary and traditional rites of determining who of the two should be the Olufon. lt was the duty of the 12th defendant, Prince Lasisi Oyedokun as the head of the ruling houses to present the appellant and the 1st respondent to the Kingmakers, the 7th – 11th respondents before they can perform their duty of selection between the two. While the appellant was waiting for this to happen, the l,3th & 14th defendants, the Executive Governor of Osun State and his Attorney General purported to appoint the 2nd- 6th respondents as warrant Kingmakers. These warrant kingmakers then purportedly selected and appointed the 1st respondent as the Olufon of Ifon-Osun. The 13th & 14th defendant approved the appointment, hence the institution of this suit by the appellant claiming the reliefs as set out in the leading judgment. Upon service of the originating process, the 1st – 12th defendants filed a memorandum of conditional appearance together with a Notice of preliminary Objection challenging the jurisdiction of the Court to entertain the suit. The appellant filed a counter affidavit. The learned trial judge after hearing the argument of the parties upheld the preliminary objection that the action was incompetent on the ground that the appellant did not comply with Section 20(2) of the Chiefs Law of Osun State. Surprisingly, instead of striking out the suit, the trial Judge dismissed the suit. Dissatisfied with the decision, the appellant appealed to this court. The issues for determination are as set out in the leading judgment. Section 20(2) of the Chiefs Law of Osun State provides:
“The Executive Council shall not approve or set aside an appointment within the period of twenty-one days after notification in accordance with Section 19 and during that period –
(a) an unsuccessful candidate; or
(b) a ruling house in respect of the chieftaincy which alleges that the proper order of rotation has not been observed, may make representations to the Executive Council in the manner prescribed that the appointment be set aside.”
It is clear in my humble view and as ably stated in the leading judgment that the above provision is applicable where an unsuccessful candidate or a ruling house is complaining that the proper order of rotation was not observed. The appellant is not complaining that the proper order of rotation was not observed. The complaint in the pleadings is that the kingmakers (the prescribed authority) had not performed their duty of selecting, in the traditional way one out of the two candidates presented by the houses. The pleadings and the affidavits of the parties confirm, as submitted by Mr. Ogungbade that the appellant and the 1st – 11th respondents are ad idem that there were five traditional kingmakers responsible for selecting and appointing a new Olufon of Ifon-Osun; that the five traditional kingmakers had not acted either as a result of non-availability of some of them (as claimed by the respondents) or as a result of non-presentation of the two candidates to them (as claimed by the appellant); that the 1st respondent was eventually appointed by mainly the warrant kingmakers.
In the determination of the question whether or not a court has jurisdiction to entertain a suit, it is the pleading of the plaintiff or the case put forward by the plaintiff that the court will consider. See Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423 @ 588.
If the trial judge had kept this rule in mind and focused his attention on the claims of the appellant, it would have been obvious that Section 20 of the Chiefs law was inapplicable.
The Learned Trial judge in wrongly declining jurisdiction on account of noncompliance with Section 20 of the Chiefs Law relied heavily on the Supreme Court case of Owoseni v. Faloye (2005) 14 NWLR (Pt.946) 719. Undoubtedly, the case is authority for the view that laws which require a litigant to take some procedural steps to resolve a dispute before embarking on actual litigation are not unconstitutional as they afford the body to which such disputes are referred to the opportunity to resolve them, if they can before recourse is had to the courts.
But the facts of Owoseni are quite different from the case at hand. At page 20 of his brief of argument, Mr. Ogungbade observed:
“…………..at the time the notice of Preliminary objection was heard and the Plaintiffs case dismissed, the only process before the Court was the writ of summons and statement of claim. The alleged noncompliance with the Chiefs Law was not apparent on the face of the Statement of claim and neither had the 1st – 11th defendants’ objectors filed their statement of defence. In effect, at the time the suit was dismissed, there was no material upon which the Learned Trial judge could in line with the decision of the Supreme Court in Owoseni v. Faloye, determine the question of whether the plaintiff was in breach of the Chiefs law. This is so for the objection was one dependent on facts.”
With all due respect, Mr Ogungbade failed to advert his mind to the fact that the preliminary objection was supported by an affidavit in opposition to which the appellant filed a counter affidavit. It is therefore not correct to say that the learned trial judge did not have material upon which he could determine the question. The materials were there but he, with all due respect, erred in the application of Owoseni to the facts of this case. it is my humble view that learned counsel appears to have placed undue emphasis on the view of the Supreme Court in Owoseni’s case “that before a defendant can raise the matter before evidence is led, the material giving rise to the complaint of absence of jurisdiction in the court before which the suit is brought must be apparent on the face of the statement of claim. Alternatively the defendant may plead the issue himself as a defendant is not entitled to rely upon a defence, which is based on facts not stated in the statement of claim unless he alleges such facts specifically in his pleadings by way of special defence.” This issue came to the fore in the case because the matter of non compliance with Section 13 (a) of the Chiefs Law, Ondo State 1984 was not raised in the trial court. The issue surfaced for the first time in the court of appeal. It will be a non issue where the contention arose in the court of first trial because if it comes up by way of preliminary objection, the necessary facts will be deposed to in affidavits. If it does not arise in limine, then pleadings will have been filed by both sides. The necessary facts will consequently always be before the trial court.
For the above reasons and the more detailed reasons in the lead judgment of my learned brother Ngwuta JCA, I also allow the appeal. The ruling of Ogunsola J. in Suit No. HOS/26/08 is set aside. I also order that the case be sent back for trial de novo by another judge. I abide by the consequential order as to cost made by my learned brother in the lead judgment.
MOORE A.A. ADUMEIN, J.C.A: I read before now the judgment just delivered by my learned brother, NGWUTA, JCA. The reliance by the learned trial judge, on section 20 of the Chiefs Law of Osun State, in dismissing the appellant’s suit for want of jurisdiction was wrong.
There is nothing in the said section of the Chiefs Law of Osun State ousting the jurisdiction of the court to entertain the appellant’s suit.
I agree with my learned brother’s reasoning and conclusion that this appeal has merit and it is hereby allowed.
I abide with the consequential orders in the lead judgment.
Appearances
Oluwasina Ogungbade Esq;For Appellant
AND
Kehinde Adesiyan Esq;For Respondent
