AWORO FAGORUS & ANOR V. HIS ROYAL HIGHNESS OBA TIMOTHY OLORUNGBOHUN IBIYINKA (2011)

AWORO FAGORUS & ANOR V. HIS ROYAL HIGHNESS OBA TIMOTHY OLORUNGBOHUN IBIYINKA

(2011)LCN/4763(CA)

In The Court of Appeal of Nigeria

On Thursday, the 7th day of July, 2011

CA/AE/28/2010

RATIO

NOTICE OF APPEAL: ESSENCE OF THE FILING OF A NOTICE OF APPEAL

It is trite that the filing of a Notice of Appeal is a necessary prerequisite for the hearing of an Appeal. It is the notice of appeal that gives an appellate court the necessary jurisdiction to hear an appeal. PER UWANI MUSA ABBA AJI, J.C.A.

NOTICE OF APPEAL: STATUTORY PROVISION ON THE PERIOD WITHIN WHICH APPEALS MUST BE FILED IN CIVIL PROCEEDINGS

Section 24 (2) (a) of the Court of Appeal Act, 2004 provides:- (2) “The periods for the giving of a notice of appeal or notice of application for leave to appeal are – (a) In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision”. PER UWANI MUSA ABBA AJI, J.C.A.

NOTICE OF APPEAL: POSITION OF THE LAW WHERE A NOTICE OF APPEAL IS FILED OUT OF TIME

An appeal is deemed therefore to have been initiated upon filing of the notice of appeal in the registry of the court which delivered the judgment appealed against. Where the notice of appeal is filed out of time, it will require a prayer of enlargement of time within which to file such a notice of appeal. It is only after that is granted that the court may deem the notice of appeal already filed as duly and properly filed. See the case of IDRIS VS AUDU (2005) 1 NWLR (PT.908) 612. PER UWANI MUSA ABBA AJI, J.C.A.

NOTICE OF APPEAL: EFFECT OF ANY DEFECT IN THE NOTICE OF APPEAL

The notice of appeal therefore is the foundation and substratum of every appeal. Any defect therein will render the whole appeal incompetent, and the appellate court will lack the required jurisdiction to entertain it or any interlocutory application based on the said appeal. See the cases of UWAZURUIKE VS A.G FEDERATION (2007) 8 NWLR (PT. 1035) 1 @ 17; A.G. FEDERATION VS GUARDIAN NEWSPAPERS LTD. (1999) 9 NWLR (PT. 618) 187. Therefore any defect in the notice of appeal goes to the root of the appeal. See the following cases SHELL INT’L PETROLEUM B’ VS. FBIR (2004) 3 NWLR (pt.859) 46; S.B.N. LTD VS M.P.I.E. (2004)6 NWLR (PT.868) 146 ABIOLA VS OLAWOYE (2006) 13 NWLR (PT.996) 1. PER UWANI MUSA ABBA AJI, J.C.A.

FINAL/INTERLOCUTORY DECISION: HOW TO DETERMINE WHETHER A DECISION OF A COURT IS FINAL OR INTERLOCUTORY

The test for the determination of the question whether a decision of a court is final or interlocutory is whether the decision finally disposes the right of the parties to the suit. it is a final decision if it finally disposes the right of the parties. However, if the decision does not then the ruling remains an interlocutory decision. See the case of OGOJA L.G. vs. OFFOBECHE (1996) 7 NWLR (PT.458) 48. A party aggrieved by an interlocutory decision of a court may bring an appeal against it within 14 days of giving the decision. See the case of TUKUR vs. GOVERNMENT GONGOLA STATE (1996) 5 NWLR (PT.447) 186. PER UWANI MUSA ABBA AJI, J.C.A.

ORDER/JUDGMENT: PROPER ORDER TO MAKE WHERE A COURT FINDS THAT IT LACKS THE JURISDICTION TO ADJUDICATE ON ANY MATTER

It is a well established principle of law that where a court holds that it has no jurisdiction to entertain a suit, the proper order to make is an order of striking out and not dismissal of the suit. See the case of UMANNAH vs. ATTA (2006) 17 NWLR (PT.1009) 503. Once a court lacks jurisdiction, a party cannot use any statutory provision or common law principle to impose it because the absence of jurisdiction is irreparable in law. The matter ends there and the only procedural duty of the court is to strike it out. See the case of UMANNAH vs. ATTA (supra); GALADIMA VS. TAMBAI (2000) 6 SC (PT. 1) 196. In SHAIBU vs. NAICOM (2002) 12 NWLR (PT.780) 116, it was held that where a court finds that it lacks the jurisdiction to adjudicate on any matter by virtue of an ouster clause contained in a statute, the proper order to make is an order of dismissal and not an order striking out the suit. The reason is that a court cannot confer on or vest in itself jurisdiction not specifically conferred on it by a statute or the Constitution. See the case of KLM AIRLINES VS. KUMZHI (2004) 8 NWLR (PT. 875) 231. PER UWANI MUSA ABBA AJI, J.C.A.

JUSTICES

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

CHIDE NWAOMA UWA Justice of The Court of Appeal of Nigeria

HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria

Between

1. AWORO FAGORUSI (Head of the family, Odo-Idalu Street, Ilafe Quarters, Ikun-Oba Ekiti)

2. CHIEF SAMUEL OLATUNJI TOYINBO (For and on behalf of Odo-Idalu Street, Ilafe Quarters, Ikun-Oba Ekiti) – Appellant(s)

AND

1. HIS ROYAL HIGHNESS OBA TIMOTHY OLORUNGBOHUN IBIYINKA

2. DARE ADESUYI – Respondent(s)

UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): The Appellants herein, vide a Notice of Appeal dated the 24th day of June, 2008 and filed on the 8th day of July, 2008, challenged in this Court the Ruling of Hon. Justice M. A. Agbelusi, of the High Court of Ekiti State, holden at Omuo-Ekiti, delivered on the 12th day of May, 2008 in suit No. HOM/6/2007, wherein the learned trial Judge, while ruling on the Preliminary Objection filed by the Respondents, held inter alia –

The Plaintiffs’ case is premature, it is incompetent and therefore struck out and dismissed” (See page 33 of the Record)

The brief facts of the case is that by a Writ of Summons dated the 29th day of June, 2007 and filed on the 5th day of July, 2007, the Plaintiffs (now Appellants) claimed against the Defendants (now Respondents), per the endorsement on the Writ, as follows:

i. A Declaration that the installation of the 2nd Defendant as Chief Alafe of Ilafe Quarters, tkun-Oba Ekiti in the Ekiti East Local Government Area of Ekiti State on the 1st day of April, 2005, by the 1st Defendant is wrongful, irregular, untraditional, null and void and of no effect whatsoever.

ii. A Declaration by this Honourable Court that the Chieftaincy title of Alafe of Ilafe Quarters, Ikun-Oba Ekiti is on rotational basis between the Oke-Ilea and Odo-Idalu families of that community.

iii. A Declaration that the 2nd Plaintiff is the appropriate candidate for the chieftaincy title under the Ikun-Oba Ekiti Native Law and Custom should be so appropriately declared by this Honourable Court.

The appellants thereafter filed their Statement of claim dated and filed the 22nd day of November, 2007, claiming the same reliefs as endorsed on the writ of summons.

The Respondents on their part raised a preliminary Objection on point of law in their Statement of Defence dated 5th day of December, 2007 but filed 6th day of December, 2007. They also filed a Notice of Preliminary Objection dated 1st May, 2008 but filed 2nd May, 2008 challenging the jurisdiction of the court to entertain the matter, to wit:-

“TAKE NOTTCE that the 1st and 2nd Defendants/Applicants shall at the further hearing of this Suit object to the jurisdiction of the honourable court on the following grounds:

i. The action brought by the Plaintiffs/Respondents is premature and ill timed for failure of the Plaintiffs/Respondents to comply with the statutory provisions of Part III, section 22, Chiefs Law of Ondo State, CAP 20 of 1978 or Part II, Section 13 of the Chiefs Law of Ondo State, 1984 as applicable to Ekiti State which relates to minor chieftaincy.

ii. The Plaintiffs/Respondents had not exhausted the remedies under the law relating to minor chieftaincy before instituting the suit in court.

iii. The decision of the prescribed authority is final and cannot be questioned in any court.

iv. That by virtue of the above provisions, this court lacks jurisdiction to entertain the suit.

AND FOR SUCH further or other orders as Honourable Court may deem fit to make in circumstances. ”

At the trial, the 1st Appellant testified and called two other witnesses while the Respondents argued their Preliminary Objection.

In its Ruling on the Preliminary Objection, the trial Court struck out and dismissed the Appellants’ case on the ground that it was premature and incompetent.

The Appellants are aggrieved by this Ruling and have therefore appealed to this court. The Notice of Appeal which is at pages 34 – 37 of the Record of Appeal contains two grounds of appeal. The two grounds of appeal and their particulars are hereby reproduced:

GROUNDS OF APPEAL

1. That the learned trial Judge erred in law in striking out and dismissing the Plaintiffs’ case based on his conclusion that the action was premature and incompetent.

Particulars:

(a) Upon discovering or holding that the action was premature and incompetent, the proper Order for the court to make would have been an Order striking out the case.

(b) The case having been dismissed was not heard on the merit.

(d) Dismissing the Plaintiffs’ action amounts to a denial of fair hearing as it is at variance with the principle of audi alteram partem.

2. That the Ruling was against the weight of evidence adduced in the case by the Plaintiffs and their witnesses.

Particulars:

(a) There was no adduced evidence before the court to support the finding of the court that the necessary pre-action remedies prescribed by statute in minor chieftaincy dispute in Ekiti State were not complied with.

(b) The address of Counsel in arguing his Notice of Preliminary Objection dated 1st May, 2008, which resulted in the ruling appealed against cannot take the place of evidence, hence, it is legally irregular to base the lower court’s ruling thereon.

In line with the practice of this court, parties filed and exchanged Briefs of Argument. The Appellants’ Brief of Argument, settled by Chief Taiye Omonijo, Esq, JP, dated 11th day of February, 2011 was filed 17th day of February, 2011. The Respondents’ Brief of Argument, settled by Oluwole Adeyemo Esq., dated the 1sth day of March, 2011 was filed on the 17th day of March 2011. The Respondents also filed a Notice by Respondents of Intention to Rely upon Preliminary Objection filed 17/3/2011 as well as a Respondents Notice of Intention to Contend that the decision of court below be varied, filed on 17th day of March , 2011 but deemed properly filed on the 12th day of April 2011. The Appellants’ Reply Brief dated the 30th day of March, 201 1 was filed the 4th day of April, 2011.

At the hearing of the appeal, on the 4th day of May, 2011 counsel for the respective parties adopted and relied on their respective Briefs of Argument. The learned counsel for the Appellants urged this Honourable Court to allow the appeal while the learned counsel for the Respondents urged this court to dismiss the appeal.

In the Appellants’ Brief, a lone issue was distilled for the determination of this appeal to wit:

“What is the proper order to be made in law where the court holds the Appellants’ action to be premature and incompetent?”

Since the Respondents’ counsel adopted this lone issue in their Respondents’ Brief as well as the Preliminary Objection, arguments on the Preliminary Objection will be taken and decided one way or the other, before the lone issue for determination can be dealt with. See the case of UBA PLC VS. A.C.B. PLC (2005) 12 NWLR (PT. 939) 232.

PRELIMINARY OBJECTION

The Respondents filed a Notice of Intention to rely upon Preliminary Objection, dated 15th day of March, 2011, and filed the 17th day of March, 2011, challenging the jurisdiction of this Honourable Court to entertain or hear this appeal. The Objection is premised on the following grounds;

1. The Notice and Grounds of Appeal were not filed within the prescribed statutory period of time allowed to file same against the interlocutory decision/ruling of the lower court by virtue of Section 24 (1) and (2) (a) of the Court of Appeal Act, 2004.

2. There was no leave of Court applied for and obtained by the Appellants/Respondents for an extension of time within which to appeal before the appeal was lodged to this Honourable Court.

3. The 2nd Ground of Appeal which is the omnibus ground as contained in the Notice of Appeal raises issue of fact.

4. The leave of the Honourable trial court was not sought and obtained pursuant to Section 242(1) of the 1999 Constitution before filing the Notice of Appeal which contains grounds of mixed law and fact.

5. The said Notice and Grounds of Appeal filed herein are invalid and fundamentally defective.

6. The Brief of Argument filed by the Appellants/Respondents and upon which their appeal is premised is null and void.

7. The appeal is grossly and incurably incompetent.

8. This Honourable court lacks the jurisdiction to entertain and/or hear the appeal.

In arguing this Preliminary Objection, learned counsel for the Respondents Oluwole Adebayo, Esq, argued that the Notice and Grounds of Appeal, filed on 8th July, 2008 by the Appellants, upon which this appeal is predicated, are incompetent and a nullity. According to learned counsel to the Respondents, the notice of appeal is the foundation upon which an appeal is based and where the notice of appeal is defective, no proper appeal can stand. He referred to the case of ADERIBIGBE vs. ABIDOYE (2009) vol.173 LRCN 60 at 83. He referred also to Section 24 (1) and (2) (a) of the Court of Appeal Act 2004 as well as Section 318 (1) of the 1999 Constitution of Nigeria.

Learned counsel submitted further that being an appeal against an order which does not finally dispose of the rights of the parties submitted for determination, it is an interlocutory order. He relied on the case OWOH vs. ASUK (2008) vol.160 LRCN 49 AT 64. He referred also to order 6, Rule 2 (1) of the Court of Appeal Rules, 2007, and submitted that the Appellant’s Notice of Appeal filed on the 8th day of July, 2008 was filed out of time, contrary to Section 24 (2) (a) of the Court of Appeal Act, 2004. He referred also to UDOETE VS. HELL (2003) FWLR (PT.143) 362 at 377. ADELEKA VS. ECU LINE NV (2006) FWLR (PT. 321) 1213 at 1222, 1230.

Learned counsel also submitted that where an Appellant is clearly out of time within which to appeal, it is mandatory for him to apply and obtain leave for an extension of time to appeal before he can file an appeal to the Court of Appeal. Failure to do this is fatal to the appeal and renders it in competent. He referred to the case of UDOETE vs. HEIL (2003) FWLR (PT.143) 362 at 378 PARAS. A – B.

He submitted further that the failure of the Appellants to obtain leave before filing the Notice of Appeal is a grave irregularity which cannot be regarded as mere technicality but an incurable defect which cannot be ignored. He referred to the cases of; F.B.N. PLC VS. T.S.A. INDUSTRY LTD. (2010) Vol. 187 LRCN 1 at 32; MADUKOLU VS NKEMDILIM (1962) 0 2 SCNLR 341; AUTO IMPORT EXPORT VS ADEBAYO (2003) FWLR (PT. 140) 1686 At 1703.

He referred also to Sections 241 (1) (b) and 242 (1) of the 1999 Constitution and submitted that it is mandatory for Appellants to seek and obtain leave of the trial court or appeal court before he can file his notice and grounds of appeal. Absence of such leave renders the appeal incompetent and divests the court of jurisdiction to entertain the appeal. He referred to the cases of OKOYEKWU VS OKOYE (2009) 6 NWLR (PT.1137) 350 @ 379 – 380; OKON VS EKANEM (2003) FWLR (PT. 136) at 993 paras D -E.S.

He therefore submitted that since there is gross fundamental breach by the Appellants of the mandatory Constitutional requirement to seek and obtain the requisite leave before the relevant Notice of Appeal was filed the Notice of appeal is incompetent, incurably defective and liable to be struck out.

In his response learned counsel for the Appellants, Chief Taiye Omonijo, Esq, argued that the question is whether the decision of the lower court delivered on the 12th day of May, 2008, amounted to a final judgment or an interlocutory judgment of the suit. He referred to Section 318 (1) of the 1999 Constitution and the case of AKNSANYA vs. UBA (1986) 4 NWLR 273 at 276. OMU NUWA VS OSHODI (1985) 2 SC 1.

He submitted that by striking out and dismissing the Appellants’ suit by the trial court based on lack of jurisdiction, it amounted to a final decision as it renders the court functus officio hence this appeal. He submitted further that there was no need to obtain leave having filed within the prescribed three months period stipulated by law and urged the court to overrule the objection.

Learned counsel further argued that the Respondents’ contention that the omnibus ground contained in the Notice of Appeal raises issues of fact is erroneous and the Respondents did not state clearly how the second Ground of Appeal raised issues of fact. He relied on the cases of GODFREY ANUKAM VS FELIX ANUKAM (2008) 2 SCNJ 62 at 69 – 70: AMUDA VS ADELODIN (1993) 8 NWLR (Pt. 360t 23 at 30. Omonijo, Esq., submitted further that the courts are encouraged to avoid technicalities in the administration of justice. He referred to the cases of BELLO vs. A – G, OYO STATE (1986) 5 NWLR (PT.45) 828 at 885 – 886, and NNEJI VS CHUKWU (1988) 3 NWLR (PT.81) 186 at 188.

It was his further opinion that the Appellants Brief was not premised upon an incompetent Notice of Appeal and urged this court to overrule the Preliminary Objection in its entirety and proceed to hear this appeal on its merits.

From the foregoing, it is obvious that the fulcrum of this Preliminary Objection is the competence of the Notice of Appeal filed on the 8th day of July, 2008. Learned counsel for the Respondents submitted that where the prescribed time for filing a Notice of Appeal in an interlocutory appeal has elapsed, the leave of first the trial court and where necessary, the Court of Appeal must be obtained, before the Notice of Appeal can be competent.

Section 24 (2) (a) of the Court of Appeal Act, 2004 provides:-

(2) “The periods for the giving of a notice of appeal or notice of application for leave to appeal are –

(a) In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision”.

Therefore any defect in the notice of appeal goes to the root of the appeal. See the following cases SHELL INT’L PETROLEUM B’ VS. FBIR (2004) 3 NWLR (pt.859) 46; S.B.N. LTD VS M.P.I.E. (2004)6 NWLR (PT.868) 146 ABIOLA VS OLAWOYE (2006) 13 NWLR (PT.996) 1.

In the instant case, the learned trial Judge held that the Appellants’ case is premature and incompetent. He then went on to strike out, and dismiss the suit. The contention of the learned counsel for the Respondents in the Preliminary Objection is that this is an interlocutory appeal and that the Appellants ought to have appealed against this ruling within 14 days, as provided for by Section 24 (2) (a) of the Court of Appeal Act 2004.

However, the learned counsel for the Appellants’ argued that having struck out and subsequently dismissed the suit, this amounted to a final judgment and so the Notice of Appeal was filed within the period prescribed by Section 24 (2) (a) of the Court of Appeal Act 2004, for filing an appeal against a final judgment.

The learned counsel for the Appellants did not appeal within 14 days. His reason is that the appeal is against the final judgment of the court and that leave of the court was not required, since the Notice of Appeal was filed within the 90 days prescribed by Section 24 (2) (a) of the Court of Appeal Act, 2004 for filing an appeal against a final judgment.

The law is trite that where a court decides that it lacks jurisdiction to entertain a suit, the proper order it should make is one of striking out the matter and not of dismissal. See the following cases of – OKOLO vs. U.B.N. LTD (2004) 3 NWLR (PT. 859) 87; AFRIBANK NIG PLC VS. BONIK IND LTD. (2006) 5 NWLR (PT. 973) 300; REPUBLIC BANK LTD. VS CBN (1998) 13 NWLR (507) 306.

However, in the case of ALAMIEYESEIGHA VS. IGONIWARI NO.1 (2007) 7 NWLR (PT.1034) 506 at 519 – 520, the court, per Thomas J. C.A. held thus:

“The ruling of a trial court that it lacks jurisdiction is a final decision.”

What then is the purport of this decision to the case at hand? For emphasis and clarity the Grounds upon which the Preliminary Objection at the lower court are brought, are reproduced hereunder to wit:-

1. The action brought by the Plaintiffs/Respondents is premature and ill-timed for failure of the Plaintiffs/Respondents to comply with the statutory provisions of Part III, Section 22, Chiefs Law of Ondo State, CAP 20 of 1978 or Part II, Section 13 of the Chiefs Law of Ondo State 1984 as applicable to Ekiti State, which relates to minor chieftaincy.

2. The plaintiffs/Respondents had not exhausted the remedies under the law relating to minor chieftaincy before instituting this suit in court.

3. The decision of the prescribed authority is final and cannot be questioned in any court.

4. That by virtue of the above provisions, this Honourable court lacks jurisdiction to entertain the suit.

It is my candid view that by upholding this Preliminary Objection, upon the grounds stated above, and holding that the Lower court lacked the jurisdiction to entertain the suit, the rights of the parties in this suit have been disposed of. The remedy open to the Appellants in issues relating to minor chieftaincy is as prescribed by Part II, Section 13 of the Chiefs Law of Ondo State, 1984, as applicable to Ekiti State, which relates to minor chieftaincy. The ruling of the trial court therefore on this suit is final. There is nothing else requiring determination at the lower court.

I therefore agree with learned counsel for the Appellants that this is a final decision of the trial court, as envisaged by Section 341 of the 1999 Constitution. Accordingly, the Notice of Appeal, filed by the Appellants on the 8th day of July, 2008 is competent and does not require the leave of court. I hold that this Preliminary Objection lacks merit and it is hereby overruled.

I now return to the lone issue for determination in this appeal, which is,

“What is the proper order to be made in law where the court holds the Appellants’ action to be premature and incompetent?”

The Respondents’ lone issue for determination is a rephrased version of the Appellants’ lone issue for determination of this appeal.

In arguing this lone issue, learned counsel for Appellants Omonijo, Esq, referred to the following cases: NWAONU VS OSUCHUKWU (2007) ALL FWLR (PT. 374) 313 at 330; MADUKOLU VS NKEMDILIM (1962) 2 SCNLR 341; ENYIBROS FOODS PROCESSING COMPANY LTD VS NDIC (2007) ALL FWLR (PT.367) 793 at 816; in elucidating the ingredients of jurisdiction.

He submitted that the competence of an action is basic to the court’s jurisdiction to entertain the action. According to him, where there exists certain feature in an action precluding the court from exercising its jurisdiction then the action is incompetent. He referred to the case of NTIA VS JONES (2007) ALL FWLR (PT. 351) 1600 AT 1608 – 1610; MADUKOLU VS NKEMDILIM (Supra)

His further submission is that where a court finds that an action is incompetent and accordingly it lacks jurisdiction to entertain the matter, the proper order to be made in the circumstances thereof is an order striking out the case and not to dismiss it as was done by the trial court. He relied on the following authorities: DAYO ADELEYE MINING & CONSTRUCTION CO. LTD VS. JAKURA MARBLE IND LTD. & ANR (2007) ALL FWLR (PT. 390) 1531 at 1549; EKONG VS UDO (2003) FWLR (PT. 139) 1595; OKOYE VS NIGERIA CONSTRUCTION & FURNITURE CO. LTD (1991) 6 NWLR (PT. 199) 501; DIM VS A.G. FEDERATION (1986) 1 NWLR (PT17) 471; OKOLO VS UBN LTD (2004) ALL FWRL (PT. 197) 981.

Learned counsel submitted further that striking out the case and at the same time dismissing it amounted to a conflicting legal order. In the circumstances of the instant case, the conflicting dismissal order should have the effect of a striking out order. He referred to the case of O.B.M.C. LTD. VS M.B.A.S. LTD. (2005) LTD (2005) ALL FWLR (PT. 261) 216 at 232.

He further argued that an order of dismissal signifies that the trial court made the order after an inter partes hearing i.e. after the matter was heard on merit. Having not heard the matter on the merit, the learned trial court was wrong to have dismissed the case. He relied on the case EZE VS OGINWA (2007) ALL FWLR (PT.390) 0 15188 at 1527-1528

His further contention is that an order dismissing the Appellants’ case in the present circumstances, without hearing all the partes thereto, amounts to a denial of fair hearing as the doors of justice had been shut against the Appellants. He referred to the following cases’. D.A.M. & C. Co. LTD VS J.M.L LTD (2007) ALL FWLR (PT. 390) 1531 at 1546 – 1547; OLUMESAN VS OGUNDEPO (1996) 2 NWLR (PT. 433) 628.

His conclusion is that once a court holds that it has no jurisdiction to entertain and determine a matter, the matter should be struck out and not dismissed. He therefore urged this Honourable court to allow the appeal and set aside the dismissal order of the lower court.

In his response, learned counsel for the Respondents Oluwole Adeyemo, Esq, submitted that the competence of an action is a threshold question and once raised like locus standi and/or jurisdiction of the court, the court is duly bound to ascertain the competence of the suit by examining the Plaintiff’s claim which is the determining factor. He relied on the case of SALAMI VS OSENI (2003) FWLR (PT. 136) 917 at 922 – 923; MADUKOLU VS NKEMDILI (1962) 2 SCNJ 341. His further view is that once a claim is not initiated by due process of law, the claim is incompetent. He referred to the case of WAEC VS. AKINKIINMI (2009) Vol. 169 LRCN at 184 P.

He further submitted that where a court comes to a conclusion that it has no jurisdiction to entertain an incompetent action, it does not dismiss that action but merely strikes it out. He relied on the case of INAKOJU & ORS VS ADELEKE & ORS (2007) Vol. 143 LRCN 1 at Z and 68A. He also submitted that a dismissal of an action is adjudication on the merits and there can be no adjudication on the merits where there is no jurisdiction or competence to adjudicate on the subject matter. He relied on the following authorities: INAKOJU & ORS VS ADELEKE & ORS SUPRA; OJORA VS ODUNSI (1959) 4 FSC 189; ONAGORUWA VS I.G.P. (1991) 5 NWLR (PT.113) 593; ALHAJI GOMBE VS PW (NIG) LTD (1995) 6 NWLR (PT. 402); UDO VS CROSS RIVER STATE NEWSPAPER CORPORATGION (2001) 14 NWLR (PT. 732) 116.

Learned counsel for the Respondents submitted that the decision of the Honourable lower court dismissing, the Appellants’ suit after it had struck out same is an erroneous order made within jurisdiction which can only be set aside on appeal. He referred to the following authorities – OKON VS EKANNEM (2003) FWLR (PT. 136) 981 at 100; MADUKOLU VS NKEMDILIM (1962) 1 ANLR 587 at 589; UDUETE VS HEIL (2003) FWLR (PT. 143) 362) 362) at 378-379.

He therefore submitted that since the learned trial judge was vested with the necessary jurisdiction to hear and determine the preliminary objection to the competency of the Appellants’ suit, this Honourable appellate court vested with power by virtue of the combined effect of Order 18 Rule 11 (1) and (2) of the Court of Appeal Rules, 2007 and Section 15 of the Court of Appeal Act, 2004, to vary the dismissal order of the trial court made on the 12th day of May, 2008, and substitute same with a striking out order. He referred to the case of PAVEX CO. NIG. LTD. VS I.B.W.A. LTD. (2000) FWLR (PT.26) 1891 at 1921 – 1922.

He therefore urged this Honourable court to determine this appeal on its merit and vary the dismissal order of the lower court and substitute same w1h a striking out order of the Appellants’ suit before the trial court.

It will be recalled that the learned trial court struck out and dismissed the Appellants’ case based on the Respondents’ Preliminary Objection. The question calling for determination here is the proper order to be made where a court holds that it lacks the jurisdiction to entertain a suit.

In SHAIBU vs. NAICOM (2002) 12 NWLR (PT.780) 116, it was held that where a court finds that it lacks the jurisdiction to adjudicate on any matter by virtue of an ouster clause contained in a statute, the proper order to make is an order of dismissal and not an order striking out the suit. The reason is that a court cannot confer on or vest in itself jurisdiction not specifically conferred on it by a statute or the Constitution. See the case of KLM AIRLINES VS. KUMZHI (2004) 8 NWLR (PT. 875) 231.

However, the courts guard their jurisdiction jealously. Where statute ousts the jurisdiction of the court, the language of such statute must be construed rather strictly but once it is crystal clear that an ouster or restriction is intended or imposed and that the facts of a particular case comes squarely within the four corners of the cold embrace of the ouster clause, the hands of the court are tied and it has no alternative except to hold that it lacks jurisdiction. See the following authorities: INAKOJU vs ADELEKE (2007) 4 NWLR (PT. 1025) 423; AMADI VS N.N.P.C. (2000) 6 SC (PT.1) 66 at 95.

Thus where a person’s right of access to justice is taken away or restricted by either the constitution or any statute; the language of such provision is usually construed very cautiously and strictly. In the course of interpreting such provision, its language will not be extended beyond its least onerous meaning unless clear words are used to justify such extension. See the case of INAKOJU vs ADELEKE (supra) A.G. BENDEL STATE VS. AGBOFODOH (1999) 2 NWLR (PT. 592) 476 SC.

In the instant case, a combined reading of Sections 13 – 22 of the CHIEFS EDICT, 1984 i.e. CHIEFS LAW OF ONDO STATE 1984 as applicable to Ekiti State which relates to minor Chieftaincy, would reveal that there is no express provision that the jurisdiction of the court has been ousted by the statute. All that the above mentioned sections did was to provide steps that an aggrieved party can take in relation to the settlement of dispute arising from minor chieftaincy.

Therefore the case of SHAIBU VS NAICOM supra and KLM AIRLINES vs. KUMZHI supra cannot be applied here, as there is no express ouster clause in the applicable law ousting the jurisdiction of the courts.

I agree therefore with the learned trial court in his ruling that the suit is premature. There is nothing in the Records to show that the prescribed steps for settling such minor chieftaincy issues were followed.

I hold therefore that the Appellants’ suit before the lower court is premature and the proper order to have been made by the lower court is that of striking out and not dismissal.

Accordingly, this appeal succeeds and it is hereby allowed. The decision of the learned trial Judge, made on the 12th day of May, 2008 dismissing the Appellants’ suit is hereby set aside and the same is substituted with an order of striking out. There is no order as to costs.

CHIDI NWAOMA UWA, J.C.A.: I read before now the judgment of my learned brother Uwani Musa Abba Aji, J.C.A. I agree with his reasoning and conclusion affirming the ruling of the trial court that the suit is premature. Where the court found that the suit was instituted prematurely the proper order to have made is that of striking out rather than a dismissal.

In any case, if a suit is struck out there is nothing left to dismiss. I also allow the appeal and set aside the order of the learned trial judge and substitute same with the appropriate order of striking out. I abide by the order made as to costs in the leading judgment.

HARUNA M. TSAMMANI, J.C.A.:

I had the advantage of reading before now, the lead judgment just delivered by my learned brother, Uwani Musa Abba Aji, J.C.A.

I agree with the reasoning and conclusions arrived at by my learned brother. In that respect, I also hold that the appeal be allowed in terms as contained in the lead judgment. I have nothing else meaningful to add. I abide by the order as to cost.

Appearances

Chief Taiye Omonijo, EsqFor Appellant

AND

Oluwole Adeyemo, EsqFor Respondent