AREGBEOSULA AROWOLO & ANOR V. OBA S.A. AKAIYEJO II, THE OGOGA OF IKERE EKITI (2011)

AREGBEOSULA AROWOLO & ANOR V. OBA S.A. AKAIYEJO II, THE OGOGA OF IKERE EKITI

(2011)LCN/4533(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 11th day of May, 2011

CA/AE/75/2010

RATIO

RESPONDENT’S BRIEF OF ARGUMENT: CONTENT OF A RESPONDENT’S BRIEF OF ARGUMENT ; EFFECT OF THE FAILURE OF THE RESPONDENT TO RESPOND TO ISSUES RAISED IN THE APPELLANTS’ BRIEF OF ARGUMENT

It is the law that the Respondent’s brief of argument shall answer all material facts of substance contained in the Appellants’ brief of argument and contain all points raised therein which the Respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutadis mutandis; also conform to Rule 3(1), (2), (3), (4), and (5) of this order. I therefore agree with the learned counsel for the Appellants that the failure of the Respondent to specifically answer the issues raised by the Appellants is fatal to the Respondent as they are deemed admitted and conceded to by the Respondent. See DANA Ltd vs. Oluwadare (2006) 39 WRN 121. Therefore failure to respond to issues raised in the Appellants’ brief of argument is tantamount to conceding to issues raised by the Appellants not directly answered to by the Respondent. See Eigbe vs. N.U.T (2008) 24 WRN 110. See also Inakoji vs. Adeleke (2008t30 WRN 1, wherein the Apex Court held that any party who fails to comprehensively respond to the case presented by his adversary cannot subsequently complain. PER UWANI MUSA ABBA AJI, J.C.A.

JURISDICTION: EFFECT OF THE PLAINTIFF NOT HAVING A CAUSE OF ACTION OR THE STANDING TO SUE ON THE JURISDICTION TO ENTERTAIN THE MATTER; WAYS BY WHICH A DEFENDANT WHO THINKS HE HAS A GOOD GROUND OF LAW WHICH IF RAISED, WILL DETERMINE THE ACTION IN LIMINE CAN RAISE SUCH A GROUND OF LAW

DUTY OF COURT: WHETHER A COURT TO MAKE A CASE OR RAISE ISSUES FOR THE PARTIES AND PROCEED TO RESOLVE SAME ONE WAY OR THE OTHER WITHOUT AFFORDING THEM AN OPPORTUNITY OF ADDRESSING IT ON SUCH ISSUES

It is not the function of a court to make a case or raise issues for the parties. It was also wrong for the trial court to decide on issues rather than those raised by the parties without affording them an opportunity of addressing the court on such issues. See OKOSUN V. C.B.N. (1996) 2 NWLR (PART 429) 77 at 58. A court of law ought not to raise an issue suo motu, as the trial court did on the issue of the plaintiffs (now appellants) having no cause of action, and locus standi, no matter how clear and glaring it may appear to be and proceeded to resolve same one way or the other without hearing the parties, particularly the party that may be adversely affected as a result of the point raised. In this case the appellants’ case as plaintiffs was dismissed based on the issue raised by the trial court. There was certainly a clear breach of the appellants’ right to fair hearing. See the case of ARAKA V. EJEAGWU (2000) 12 S.C.(PART 1) 99. PER CHIDI NWAOMA UWA, J.C.A.

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

HARUNA MOHD TSAMMANI Justice of The Court of Appeal of Nigeria

Between

1. AREGBEOSULA AROWOLO
2. ISAAC OGUNYEMI (For and on behalf of Agbayan Family of Odo-Oja, Ikere Ekiti) Appellant(s)

AND

OBA S.A. AKAIYEJO II, THE OGOGA OF IKERE EKITI Respondent(s)

UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Ekiti State High Court of Justice, Ikere-Ekiti, delivered by Hon. Justice D.O. Jegede on the 11th January, 2010, wherein the court dismissed the claims of the Appellants for want of cause of action and locus standi.
The Appellants as the Plaintiffs at the lower court instituted this action wherein they claimed against the Defendant now Respondent the following declaratory and injunctive reliefs as contained in paragraph 17 of their statement of claim, as follows:
a. A declaration that the Plaintiffs (Agbayan family) of Odo-Oja Quarters Ikere Ekiti is entitted to the Agbayan chieftaincy title of Ikere Ekiti.
b. A declaration that the continued refusal of the defendant to fix a date for installation of the plaintiffs’ candidate for Agbayan chieftaincy despite repeated written and verbal demands is illegal, untraditional and an abandonment of duty.
c. An order of mandatory injunction against the defendant to install the candidate presented by the plaintiff’s family to the vacant stool of Agbayan chieftaincy.
d. A general damages of N500, 000:00 for illegal refused (sic) to install plaintiff’s family candidate.
The facts of this case leading to this appeal as can be gleaned from the pleadings and the evidence of witnesses is that the plaintiffs family who are from Agbayan chieftaincy family of Odo-Oja, Quarters, Ikere Ekiti, are specifically, entitled to install a person from their family as the Agbayan but that they had approached two previous Ogogas of Ikere and the incumbent Ogoga, i.e. the present Respondent, to let them appoint somebody to the vacant stool of Agbayan to no avail. The Appellants claimed that they do not know why the Agogas have refused to allow them appoint an Agbayan, a stool that had been vacant for a period of time. The Appellants stated that a nymber of their family had been Agbayan before. They further stated that the Ajakaiye chieftaincy commission ordered the prescribed authority, being the Ogoga to appoint an Agbayan and that the Government issued a white paper on the report of the commission which was tendered in evidence. They denied the fact that it is only Ejise chieftaincy title that they have in their family.
The case of the Respondent on the other hand is that there is no family called Agbayan family in Ikere, whereas the Appellants are from Ejise family in Odo-Oja, Ikere, so there is no chieftaincy title called Agbayan known to the history of Ikere.
The parties filed and exchanged pleadings and issues were joined. The matter went to trial and witnesses testified. The respective counsel addressed the court, and in a considered judgment delivered on the 11th January, 2010, the learned trial Judge dismissed the Appellants’ claim for want of cause of action and locus standi.
The Appellants are aggrieved with the decision of the trial Court and have appealed to this Honourable Court vide a Notice of Appeal filed on the 5th February, 2010 upon two grounds of appeal. The two grounds of appeal without their particulars are hereby reproduced:-
GROUNDS OF APPEAL
1. The learned trial Judge erred in law by holding that the Plaintiffs’ case disclosed no cause of action.
2. The learned trial Judge erred in law by dismissing the plaintiffs’ case as he did.
The Appellants filed six (6) additional grounds of appeal on the 11th June, 2010 and same was deemed properly filed by order of court made on the 20th October, 2010. The six (6) additional grounds of appear are also hereby reproduced without their particulars.
Additional Grounds of Appeal
1. The trial Court erred in law when he made case for the Defendant.
2. The trial Court erred in law when he suo motu raised issues of cause of action as well as locus standi and rule on them unilaterally without allowing the parties or their counsel to address on them.
3. The trial Court erred in law by attaching no weight to Exhibit ‘D’ purely on technicality basis.
4. The trial court erred in law by failing to make pronouncement on the declaratory reliefs sought by the Appellants in the lower Court.

5. The learned trial Judge erred in law when he held that the Plaintiffs lack standing to sue.
6. The learned trial Judge erred in law by raising issues of cause of action and standing at judgment stage and also dismissing Plaintiffs’ suit.
As can be seen from above, the learned Appellants’ counsel did not number the additional grounds of appeal as a continuation of the original grounds but separately numbered from the original grounds of appeal.
In consonance with the Practice and procedure of this Court, parties filed and exchanged briefs of argument. In the Appellants’ brief of argument settled by Babalola Abegunde, Esq., the following seven (7) issues were distilled for the determination of the appeal; to wit:-
a. whether or not the learned trial Judge was right in holding that Appellants’ suit discloses no reasonable cause of action.
b. whether or not the learned trial Judge was right when he made case for the Respondent.
c. whether or not the learned trial Judge was right by raising suo-motu issues of cause of action and standing and ruling on them without allowing parties to address him on them.
d. whether or not the learned trial Judge was right when he refused to attach any weight to Exhibit ‘D’
e. whether or not the learned trial Judge was right when he failed to pronounce on the declaratory reliefs sought.
f. whether or not the learned trial Judge was right in holding that Appellants lack standing to sue.
g. whether or not the learned trial Judge was right in raising the issues of cause of action and standing at judgment stage and dismissing the suit as he did.
In the Respondent’s brief of argument settled by Owoseni Ajayi, Esq., only three (3) issues were distilled for the hearing of the appeal. The issues are:-
1. Whether the learned trial Judge was right in dismissing the plaintiffs’ case having not been able to prove same.
2. Whether the learned trial Judge was right in holding that the Plaintiffs have (sic) no cause of action and that the suit is premature.
3. Whether the learned trial Judge was right in attaching no weight to Exhibit ‘D’.
At the hearing of the appeal on the 22nd February, 2011, learned counsel for the Appellants, Babalola Abegunde, Esq., adopted and relied on the Appellants, brief of argument dated and filed on the 11th June, 2010 and the Appellants’ reply brief filed on the 20th August, 2010 but deemed properly filed on the 20th October, 2010 as their argument in the appeal and urged the court to allow same and set aside the judgment of the lower Court.
Learned counsel for the Respondent, Owoseni Ajayi, Esq., adopted and relied on the Respondent’s brief of argument filed on the 29th June, 2010 as his argument in the appeal and urged the court to dismiss the appeal.
I have critically examined the seven (7) issues formulated by Mr. Abegunde Esq., for the Appellants and I am of the view that the issues are interwoven and or interrelated. For example issues, (a) (c) (f) and (g) can be taken together as all relate to issues of cause of action and standing to sue. Issues (b) and (e) relate to proof and issue (d) which relates to Exhibit D will be considered separately. Thus, Appellants’ issues (b) and (e) are same in substance with Respondent’s issue 1. Appellants, issues (a) (c), (f) and (g) which relate to cause of action is also the same in con with Respondent’s issue 2 for determination and issue (d) is the same with Respondents’ issue 3. These issues will therefore be considered in the con in which they are identified and arranged. To this extent, I will adopt the issues as formulated by the Respondent in the determination of the appeal. His issues 1 and 2 will as well be taken together.
Issue 1.
Whether the learned trial Judge was right in dismissing the Plaintiffs’ case having not been able to prove same.
Issue 2 – Whether the learned trial Judge was right in holding that the plaintiffs has (sic) no cause of action and that the issue is Premature.
Arguing issues (a), (c), (f) and (g), Mr. Abegunde, Esq., for the Appellants referred to the definition of cause of action as adumbrated in the case of Abubakar vs. Babeji Oil & Allied Products Ltd (2008) 15 WRN 1: per Muktar, JSC, at pages 38 – 39 and also the case of UBA vs. Umeoduagu (2004) 35. WRN and submitted that the Appellants 17 paragraph statement of claim discloses reasonable cause of action more particularly paragraphs 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 all to which shows the capacity of the Appellants to sue, how the Appellants came by Agbayan chieftaincy title with names of their ancestors who have occupied the chieftaincy title which they stated they have no rival claimant to the said chieftaincy. How the Appellants family nominated a candidate to fill the Agbayan chieftaincy stool and presented same to the Respondent who refused to install the nominated candidate and the letter written to the Respondent to install and fill Agbayan chieftaincy stool and also the recommendation of Justice Ademola Ajakaiye chieftaincy Review commission of 1987 set up for that purpose and the Government white paper on it in June, 1989, which contains a directive to the Respondent to fill the vacant stool of Agbayan chieftaincy. That the Appellants up till 2007 consistently requested the Respondent to comply with the Government’s white paper.
Mr. Abegunde Esq. submitted that all the averments in the statement of claim including the reliefs sought sufficiently disclosed reasonable cause of action. Learned counsel referred to the cases of Henry Stephens Eng. Ltd. vs. S.A. Yakubu (alis) Ltd. (2009) 41 WRN and Ladejobi vs. Oguntayo (2005) 7 WRN and submitted that the learned trial Judge misconceived the nature of cause of action and came to a wrong conclusion which occasioned a miscarriage or perversion of justice and urged the court to resolve the issue in favour of the Appellants.
On whether the learned trial Judge was right by raising suo-motu issues of cause of action and standing without allowing parties to address him, Mr. Abegunde Esq., referred to the cases of Ogundele vs. Agiri (2010) 9 WRN: Amadi vs. Chinda (2010) 11 WRN: Ali vs. Albishir (2008) 31 RN; Shasi vs. Smith (2010) 6 WRN and submitted that these extraneous issues influenced the learned trial Judge in arriving as he did at the wrong decision which occasioned a miscarriage of justice and the court was urged to resolve the issue in favour of the Appellants.
On whether the learned trial Judge was right in holding that the Appellants lack standing to sue, Mr. Abegunde, Esq., referred to pages 61 lines 3 – 10, 65 lines 7 – 11 of the record of appeal and submitted that the learned trial Judge erred in law to have held that the Appellants did not show or prove any standing to file this action. He referred to the definition of Locus standi in the case Ladejobi vs. Oguntayo (2005) 7 WRN: Sodipo vs. Ogidan (2007) 19 WRN: Adesanoye vs. Adewole (2007) 4 WRN and submitted that paragraphs 1 – 17 of the Appellants’ statement of claim sufficiently disclose locus standi to sue, the Appellants’ interest and how the interest arose and also the fact that the Appellants sued in a representative capacity for themselves and on behalf of Agbayan family of Odo-Oja,Ikere-Ekiti. He further referred to the cases of Emezi vs. Osuagwu (2005) 30 WRN; Akanni vs. Odejide (2004) 22 WRN: Ladejobi vs. Oguntayo (2005) 7 WRN and submitted that the learned trial Judge was wrong to have stated that the Appellants’ family presented an unnamed person as Agbayan and that the learned trial Judge was wrong to have held that the Appellants have no locus standi. We were urged to resolve the issue in favour of the Appellants.
On whether the learned trial Judge was right in raising issues of cause of action and standing at the judgment stage and dismissing the suit as he did, learned counsel for the Appellants submitted that issues of cause of action’ and ‘standing’ must be raised in limine and resolved timeously in a case either way before proceeding any further as the issues border on jurisdiction of the Court. He submitted that the proper order to make where Plaintiffs’ suit discloses no cause of action or has no locus standi is to strike out the claim and not to dismiss it. He placed reliance on the following cases: N.C.C. vs. M.T.N. (2006) 38 WRN: Basinco Motors Ltd. Vs. Woermann Line (2010) 10 WRN: Ladejobi vs. Oguntade (2005) 7 WRN; Emezi vs. Osuagwu (2005) 30 WRN; Inakoju vs. Adeleke (2008) 30 WRN; Elabanjo vs Dawodu (2006) 46 WRN, He submitted that since the learned trial Judge held that the Appellants’ suit show no reasonable cause of action and standing, the learned trial Judge by implication divested himself of jurisdiction and competence to make any order than to strike out and not to dismiss the entire suit and whatever things that might have been done becomes a nullity. The court was urged to resolve the issue in favour of the Appellants.
On issues (b) and (e), Mr. Abegunde Esq., further submitted that, the learned trial Judge made a case for the Respondent by arguing the case of the Respondent. He referred to pages 59 lines 9 – 10, pages 60 -61 of the record of appeal and submitted that nowhere in the record of appeal did the learned counsel for the Respondent submitted that the Appellants’ action was premature or had no cause of action. He also submitted that the learned trial Judge made case for the Respondent by arguing the case of the Respondent when he repeatedly referred to and relied on chiefs Law which the Respondent’s counsel never mentioned throughout the entire proceedings. He referred to pages 59 to 60 of the record of appeal and submitted that a Court should not set up for the parties a case different from the one set up by the parties themselves in their pleadings and or their evidence. He cited in support the cases of Ogundele vs. Agiri (2010) 9 WRN 35: NCC vs. MTN (2006) 38 WRN: and FBN vs. Mainasara (2004) 42 WRN.
It is also his submission that the learned trial Judge erred by failing to make pronouncement on the declaratory reliefs sought. He submitted that it is the duty of a trial court to pronounce on all issues raised or brought to its notice by the parties and not to restrict themselves to one or more issues which in their opinion disposes of the case. He cited in support the following cases: Xtoudos Services Nig. Ltd vs. Taisei (WA) Ltd (2006) 46 WRN; Opuiyo vs. Omoniwari (2007) 39 WRN. On the effect of failure of a trial judge to pronounce on issue before him, reliance was placed on the case of: Lawal vs. Magaji (2010) WRN; He referred to the testimonies of the Appellant witnesses, PWs 1, 2, and 3 and submitted that the learned trial Judge ought to have given effect to the credible and unchallenged testimonies of the Appellant and his witnesses. He referred to the cases of Egom vs. Eno (2008) WRN; Oseni vs. Bajulu (2010) 4 WRN to further submit that the learned trial Judge failed to act on the heard document, Exhibit A, B, C and D and that Exhibit A, B, C and D and the evidence adduced by the Appellants sufficiently established the Appellant claim and thereby entitled the Appellant to the declaratory reliefs sought by them. It is therefore submitted that the failure of the learned trial Judge to act on the oral and declaratory evidence adduced before him particularly Exhibit A, B, C and D resulted in his failure to make pronouncement on the declaratory reliefs sought which eventually resulted in miscarriage and perversion of justice. The court was urged to allow this appeal on this ground.
The Respondent’s counsel, Owoseni Ajayi, Esq., argued issues 1 and 2 together as the issues are interwoven and interrelated.
Mr. Ajayi Esq., submitted that from the pleading of the Appellants they described themselves as principal members of Agbayan family of Odo-Oja and that they are suing for themselves and behalf of Agbayan family of Odo-Oja quarters Ikere-Ekiti and listed the chieftaincy titles in Odo-Oja as Ologotun, Ejise, Ekiuasa, Asao and Olukere without mentioning Agbayan as one of the chieftaincy titles in Odo-Oja. It is his view that the learned trial Judge was right in holding that this piece of evidence is fatal to the Appellants’ case more especially when the Appellants contended that Agbayan is the head of Odo-Oja. It is submitted that DW3 Ologotun of Odo-Oja and the head of Odo-Oja chiefs testified that there is no family called Agbayan family from Odo-Oja. It is also submitted that Dw4, the Edemo of Ikere Ekiti testified that he never heard of Agbayan chieftaincy or Agbayan family in Ikere Ekiti. That these averments were never contradicted.
Mr. Ajayi, Esq., for the Respondent submitted that he who asserts must prove and relied on the case of Ibori vs. Agbi (2004) 6 NWLR (Pt. 868) 78 at 136. He thus submitted that the Appellants did not prove their case with credible evidence and the court was right in dismissing same. He submitted that a party who fails to cross examine his opponent on a key issue is an acceptance that he has admitted the evidence. He cited and relied on the case of Daggash vs. Bulama (2004) 14 NWLR (Pt. 892) 144 at 240.
Mr Ajayi Esq. submitted that through the entire proceedings, the Appellants could not prove to the court the following:
1. Who was the candidate nominated by the family to be the Agbayan?
2. What procedure did they use in nominating the candidate?
3. Who followed (sic) the candidate to the Respondent?
4. Why was the candidate rejected by the Respondent?
5. Where is that candidate and why was he not in court?
It is submitted that all the above are fatal to the Appellants’ case as a party seeking for declaratory reliefs must succeed on the strength of his own case and not on the weakness of the defence, citing in support the case of Princewell vs. Amadire (2005) 3 NWLR (Pt.912) 355 at 376. It is the view of learned counsel that the fact that throughout the trial nobody came forward to say he had been nominated but rejected by the Respondent, that this makes the suit premature and an academic exercise. He submitted that at paragraph 9 of the statement of claim the Appellants said they nominated a candidate and presented him to the Respondent and the candidate was not mentioned and was not in court. He relied on the case of Owodunni vs. Celestial Church (200) 2 SC (pt. 2) 1407 at 1428 and urged the court to so hold and that the Application is premature. He relied on the cases of Ozueh vs. Ezawenuta (2005) 4 NWLR (Pt. 915) 221 at 223 – 224; Obi-Odu Duke (2005) 10 NWLR (Pt. 932) 105 at 136.
It is submitted that no name of any candidate so rejected was mentioned by the Appellants and none was pleaded and thus the case is based purely on speculation and that in effect the Appellants have no cause of action and the court will not have jurisdiction to try the matter. He submitted that the issue of jurisdiction can be raised at any time and at any stage of the proceedings and the court can even raise it suo-motu. The case of Amadi vs. NNPC (2000) 2 SCNQR 990 at 1029 was referred to. He submitted that the fact that the court raised the issue suo-motu, to suggest that the court consider or deal with the matter or issue not referred to by counsel will be a strange proposition. He referred to the cases Din vs. A.G. Federation (2004) 12 NWLR (pt. 888) 459 at 469 – 495: Finnih vs. Imade (1992) 1 NWLR (Pt. 219) 511 and (1992) 1 SCNJ 87 at 107 – 108 to submit that the learned trial Judge was right in looking at the laws guiding the issue in contention including the chieftaincy law. He also submitted that a party is not compelled to raise a point of law in his pleading relying on the case of Elebanjo vs. Dawodu (2006) 15 NWLR (Pt. 1001) 76 at 154. Learned counsel therefore urged the court to dismiss the appeal.
I have carefully reflected on the submissions of the Appellants’ counsel, Babalola Abegunde, Esq., and the issues canvassed therein and it appears to me that the substratum of the Appellants complain hinges on the pronouncement made by the learned trial Judge in his judgment which were not based on issues joined by the parties in the determination of the matter before him. The issues germane to this are issues A, C, F, and G. These issues even at the risk of repetition are hereby reproduced.
A. whether or not the learned trial Judge was right in holding that Appellants’ suit discloses no reasonable cause of action.
C. Whether or not the learned trial Judge was right in raising suo motu issues of cause of action and standing and ruling on them without allowing parties to address him on them.
F. Whether or not the learned trial Judge was right in holding that Appellants lack standing to sue.
G. Whether or not the learned trial Judge was right in raising the issue of cause of action and standing at the judgment stage and dismissing the suit as he did.
I have decided to consider the four issues together because they are interrelated and interwoven. Even though these issues were considered along with Respondent’s issues 1 and 2 which deals with issues of proof and cause of action, I still agree with the Appellants’ counsel that the Respondent’s brief of argument failed to answer the issues as distilled by the Appellants in their brief of argument. The Respondent failed to specificafly answer issues B, C, F and G of the Appellants, brief of argument. It is the law that the Respondent’s brief of argument shall answer all material facts of substance contained in the Appellants’ brief of argument and contain all points raised therein which the Respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutadis mutandis; also conform to Rule 3(1), (2), (3), (4), and (5) of this order. I therefore agree with the learned counsel for the Appellants that the failure of the Respondent to specifically answer the issues raised by the Appellants is fatal to the Respondent as they are deemed admitted and conceded to by the Respondent. See DANA Ltd vs. Oluwadare (2006) 39 WRN 121. Therefore failure to respond to issues raised in the Appellants’ brief of argument is tantamount to conceding to issues raised by the Appellants not directly answered to by the Respondent. See Eigbe vs. N.U.T (2008) 24 WRN 110. See also Inakoji vs. Adeleke (2008)130 WRN 1, wherein the Apex Court held that any party who fails to comprehensively respond to the case presented by his adversary cannot subsequently complain.
I have deliberately brought out issues A, C, F, and G to show that they are not the issues joined by the parties for determination before the trial Court. As can be seen, they all arose in the course of the judgment of the trial Court.
Now, the issue of whether or not the Appellants action discloses no reasonable cause of action or standing to sue was not an issue for determination before the trial Court. It was raised suo motu by the trial Court. It is true as contended by the learned counsel for the Appellants that having raised the issue suo-motu, the learned trial Judge ought to have called on the parties to address him.
The Appellants writ of summons and statement of claim upon which issues were joined with the Respondents inter alia includes:-
(a) A declaration that the plaintiffs’ family (Agbayan family) of Odo-Oja Quarters Ikere-Ekiti is entitled to the Agbayan chieftaincy title of Ikere Ekiti.
(b) A declaration that the continued refusal of the defendant to give a date for installation of the Plaintiffs’ candidate for Agbayan chieftaincy despite repeated (sic) written and verbal demands is illegal, untraditional and abandonment of duty.
(c) An order of mandatory injunction (sic) against the defendant to install the candidate presented by the plaintiffs’ family to the vacant stool of Agbayan chieftaincy.
The Respondent in the instant case did not file any motion before the trial court to challenge the competence of the Appellants’ case in limine or a notice of preliminary objection on ground of lack of cause of action or the standing to sue. They joined issues with the Appellants on their claim as stated above. However, the learned trial Judge misconstrued the word “speculative” used by the Respondent’s counsel in referring to the Appellants claim in his address before the court to mean as stated in his judgment “…that the plaintiffs action was prematurely filed or that they had no reasonable cause of action” and proceeded to determine the matter on that speculation. The learned trial Judge proceeded to hold in his judgment that;
“All these put together have influenced me to accept the submission of Chief Omonijo that the plaintiffs merely jumped over the fence into the court to present their case for adjudication where they have not shown that they have any reasonable cause of action.” Pages 60 – 61 of the record of appeal.
Learned counsel for the Appellants thus submitted that the learned trial Judge raised issues of cause of action and ‘standing’ suo- motu and ruled on them unilaterally without allowing the parties to address him. It has been stated and restated by this court and the supreme court that a court should and ought not to raise suo-motu an issue or issues, (although it has the discretion to so do) without inviting the parties or their counsel to address it on such issue or issues- In the instant case, it is clear that the issue of reasonable cause of action or the standing to sue was neither raised nor contested by the parties. The trial court raised the issue suo motu without calling for input from the parties’ counsel. The court thereby entered the arena and breached the principle of fair hearing. See Ogundele vs. Agiri (2010) 9 WRN. Infact the Supreme Court had in numerous cases admonished lower courts on the impropriety of raising point’s suo- motu. In the instant case, the issue of reasonable cause of action or standing to sue has not been raised in limine by the parties and the court proceeded to decide on it without affording the parties a hearing on the point i.e. before deciding upon it. This not only negate the principle of fair hearing, it infringes on the constitutional right of the parties as envisaged in section 36 of the constitution of the Federal Republic of Nigeria, 1999. The Supreme Court held in the case of Shasi vs. Smit (2010) 6 WRN, that, to raise an issue suo-motu and proceed to decide the matter on same without hearing counsel for the parties thereon is to deny the parties their right to fair hearing and the Appellate court is duty bound in the circumstance to set aside the decision so made.
The duty of the court is to decide between the parties on the basis of evidence demonstrated, canvassed and argued in court. Under the Nigerian adjudicatory system, every decision taken must be based on evidence before the court, and the decision taken contrary to the evidence before the court is perverse and must not be allowed to stand by the Appellate court. It is therefore clear from the foregoing that the lower Court has not confined itself within the issues submitted to it for adjudication by the parties and in the process stepped into the arena of dispute. A court should not set up for the parties a case different from the one set up by the parties themselves in their pleadings and or their evidence. See Agundele vs. Agiri (supra) at 35 – 36.

Cause of action and standing to sue is linked to the issue of jurisdiction of a court. If the Plaintiff does not have a cause of action or the standing to sue, i.e. locus standi to institute an action, the Court cannot properly assume jurisdiction to entertain the matter. It is in quo non to the exercise of jurisdiction because judicial powers are constitutionally limited to cases in which they have locus standi. The locus standi of a plaintiff in essence is a condition precedent to Court’s jurisdiction. Thus, before the court can proceed to the hearing of the matter on the merit, the Plaintiff must have locus standi. See Bewaji vs. Obasanjo (2008) 9 NWLR (Pt. 1049) 522: Unoka vs. Agiri (2007) 11 NWLR (Pt. 1044) 122: Umar vs. W.G.G. (Nig) Ltd (2007) 7 NWLR 250. Therefore, for a Plaintiff to be able to obtain reliefs in a cause, he must have the necessary standing. That is why issues of cause of action or standing to institute an action must be raised in limine before going into the merit of the matter in dispute between the parties. Thus, a defendant who conceives that ex facie, he has a good ground of law which if raised, will determine the action in limine, is entitled to raise such a ground of law. This he may do in either of the following two ways, (a) he may without filing a defence, apply to strike out the action as disclosing no cause of action or locus standi or standing, or (b) the defendant may also in his statement of defence rely on any ground of law he considers to be complete answer to the Plaintiffs’ claim. The ground will then be argued as a preliminary issue and in the event of its being successful, the plaintiffs’ action will end there. In the instant case, the Respondent’s counsel neither applied for the Appellants’ suit to be struck out for disclosing no cause of action or locus standi or standing to sue nor rely on any ground of raw to be a complete answer to the Appellants’ claim by filing a preliminary objection. These issues were raised suo-motu by the learned trial Judge in his judgment without hearing counsel for the parties. The Court thereby entered the arena of dispute and breached the principle of fair hearing as enshrined in Section 36 of the Constitution. The decision taken is perverse and therefore cannot be allowed to stand. Issues, A, C, F and G are therefore resolved in favour of the Appellants.
It is for the reasons herein stated above that I find merit in the appeal. I will however, refrain from delving into or deciding the other issues formulated for determination as that in my view will predetermine the issues to be tried in the main appeal. The appeal therefore has merit and it is hereby allowed. The judgment of the lower Court delivered on the 11th January, 2010 is hereby set aside. The case is hereby remitted to the Chief Judge of Ekiti State to be tried by a Judge of the High Court other than Justice D.O. Jegede.
There shall be costs of N20, 000:00 in favour of the Appellants.

CHIDI NWAOMA UWA, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother UWANI MUSA ABBA AJI, J.C.A. I agree with the reasoning and conclusion arrived at in allowing the appeal.
It is not the function of a court to make a case or raise issues for the parties. It was also wrong for the trial court to decide on issues rather than those raised by the parties without affording them an opportunity of addressing the court on such issues. See OKOSUN V. C.B.N. (1996) 2 NWLR (PART 429) 77 at 58.
A court of law ought not to raise an issue suo motu, as the trial court did on the issue of the plaintiffs (now appellants) having no cause of action, and locus standi, no matter how clear and glaring it may appear to be and proceeded to resolve same one way or the other without hearing the parties, particularly the party that may be adversely affected as a result of the point raised. In this case the appellants’ case as plaintiffs was dismissed based on the issue raised by the trial court. There was certainly a clear breach of the appellants’ right to fair hearing. See the case of ARAKA V. EJEAGWU (2000) 12 S.C.(PART 1) 99.
I also hold that the appeal has merit and it is also allowed by me. The judgment of the’ trial court delivered on 11th January, 2010 is set aside. The case is remitted to the Chief Judge of Ekiti State for re-assignment to another judge of the High Court other than D. O. Jegede, J. I abide by the order as to costs made in the leading judgment.

HARUNA M. TSAMMANI, J.C.A.: I had the advantage of reading before now, the judgment delivered by my learned brother, Uwani M. Abba Aji, J.C.A.
I concur with the reasons given and the conclusion reached at that this appeal has merit and should be allowed. I have nothing to add. Consequently, I also hold that the appeal has merit and is hereby allowed. The judgment of the lower court delivered on the 11th January, 2010 is hereby set aside, and is remitted to the Chief Judge of Ekiti State for retrial by a judge other than D.O. Jegede, J.
I abide by the order as to cost.

Appearances

Babalola Abegunde Esq.,For Appellant

AND

Owoseni Ajayi Esq.,For Respondent