CHIEF ADEFIOYE ADEDEJI v. EZEKIEL OLA GUREJE & ANOR.
(2011)LCN/4886(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of November, 2011
CA/I/118/2001
RATIO
CAUSE OF ACTION: MEANING OF THE WORD “CAUSE OF ACTION”
Black’s Law Dictionary, 8th edition at page 1349 defines cause of action as: ‘A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.” In the case of Edjerode Vs Ikine (supra) the Supreme Court quoted with approval the definition of cause of action as stated by Agbaje, JSC in Amodu Vs Amode (1990) 5 NWLR (150) 356 @ 367 thus: “The term “cause of action” means all those things necessary to give a right of action whether they are to be done by the plaintiff or a third person” Hernaman v. smith (1855) 10 Exch 659, per parke B at p.666. “Cause of action” has been held from the earliest time to mean every fact which is material to be proved to entitle the plaintiff to succeed every fact which the defendant would have a right to traverse.” Cooker Gill (1873) L.R.8C.P. 107 per Brett, J. at p. 116.” PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
RIGHT OF ACTION/CAUSE OF ACTION: WHETHER RIGHT OF ACTION AND CAUSE OF ACTION MEAN THE SAME THING IN LAW
The Supreme Court per Tabai, JSC in the case of Adekoya Vs F.H.A. (2008) 11 NWLR (1099) 539 @ 551 D – F quoted with approval the dictum of the revered Oputa, JSC in Egbe Vs Adefarasin (1987) 1 NWLR (47) 1 @ 20 on the distinction between the two terms thus: “Now let us look at the meaning or cause or action. It is admittedly an expression that defies precise definition. But it can safely be defined as the fact or facts which establish or give rise to a right of action – it is the factual situation that gives rise to judicial relief. A cause of action is to be distinguished from a right of action. A right of action is the right to enforce presently a cause of action. In other words, a cause of action is the operative fact or facts (the factual situation), which give rise to a right of action, which is itself a remedial right. …” PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
JUSTICES:
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
CHIEF ADEFIOYE ADEDEJI – Appellant(s)
AND
1. EZEKIEL OLA GUREJE
2. H. R. M. OBA ADEKUNLE AROMOLARAN – Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment): By an amended statement of claim filed on 3/4/95, the Respondent herein (as plaintiff in the court below) sought the following reliefs against the appellant and H.R.H. Oba Gabriel Adekunle Aromolaran II, Obokun of Ijeshaland as 1st and 2nd defendants respectively:-
(i) “Declaration that the Plaintiff is the rightful and proper person to be installed Chief Risawe of Ilesa.
(ii) Declaration that the purported consent given to the candidature of the 1st Defendant by the 2nd Defendant to be installed as Chief Risawe and the subsequent installation are wrongful, illegal, null, void and of no effect.
(iii) Perpetual injunction restraining the 1st Defendant from further parading himself as Chief Risawe of Ilesa and from performing any function connected therewith.
By a motion on notice filed on 3/4/95, the appellant herein sought an order striking out the suit for lack of jurisdiction and abuse of judicial process. In the alternative he sought an order transferring the suit to another Judge, an order striking out the amended statement of claim for being incompetent, and in the further alternative an order for stay of proceedings. After listening to the submissions of the respective counsel, the learned trial Judge, in a considered ruling delivered on 15/6/95 dismissed the application. The appellant was dissatisfied with the ruling and consequently filed a notice of appeal containing five grounds of appeal.
The Appellant and 1st Respondent duly filed and exchanged briefs of argument in compliance with the Rules of this Court. The 2nd respondent, H.R.H Oba Aromolaran opted not to file any brief vide a letter addressed to the Chief Registrar of the Court of Appeal Ibadan dated 5/5/03. Pursuant to a motion on notice dated and filed on 22/1/08 by the Appellant, this court on 29/4/08 granted an order allowing the appeal to be heard on the Appellant and 1st Respondent’s brief alone. The 1st Respondent filed a notice of preliminary objection dated 23/3/07 challenging grounds 1, 4 and 5 of the notice of appeal. At the hearing of the appeal on 26/9/2011, Oluwole Aluko Esq., learned counsel for the respondent sought leave to rely on the preliminary objection as argued in the 1st Respondent’s further amended brief of argument dated 30/4/09 and urged the court to strike out the said grounds of appeal. He referred to paragraphs 12 and 13 of the appellant’s statement of defence at page 9 of the record and contended that the appellant himself had pleaded that there was litigation in respect of the subject matter of the suit. He submitted that the respondent could not have commenced his action in 1980 while litigation was pending. He submitted further that the threat to his legal right only arose in 1985 when the appellant was installed.
A. Ogunkola, Esq., learned counsel for the appellant adopted and relied on the appellant’s brief dated and filed on 30/11/01 but deemed properly filed on 2/10/02. He also adopted and relied on the appellant’s amended reply brief dated 29/10/08 and filed on 30/10/08 in reaction to the preliminary objection. He stated that the appellant has abandoned grounds 2 and 3 of the notice of appeal. The appellant’s amended reply brief was deemed properly filed and served on 26/9/2011. Mr. Ogunkola submitted that the objection relates to the substantive appeal and urged us to dismiss it. He referred to an additional authority: A.G. Akwa Ibom State Vs Essien (2004) All FWLR (233) 1730 @ 1754 C – E in support of this contention and urged us to allow the appeal.
Mr. Aluko adopted and relied on the aforementioned 1st Respondent brief as his arguments in respect of the main appeal and urged the court to dismiss the appeal.
The appellant formulated a single issue for the determination of this appeal thus:
Whether considering all the facts culminating in the plaintiff’s cause of action, the lower court has jurisdiction to entertain the plaintiff’s claim.
The respondent formulated two issues for determination as follows:
1. Whether the cause of action in the suit accrued in 1985 when there was competing right between the plaintiff/respondent and the 1st defendant/appellant to the stool of Risawe of Ilesa having regard to the undisputed facts in the pleading that the 1st defendant/appellant was not installed as Risawe of Ilesha in 1975 when the past Risawe, Chief Folowsele Adedeji died.
2. Whether by not referring specifically to the decision in Lipede Vs Sonekan (1995) 1 NWLR (374) 668 @ 690 the learned trial Judge has not in his judgment dealt with the issue as to which law applied to the rights of the parties in this suit.
The 1st Respondent has raised a preliminary objection to all the subsisting grounds of appeal. It must therefore be considered before delving into the substantive appeal. The objection to the competence of grounds 1, 4 and 5 of the notice of appeal is that the issues raised therein are not covered by the decision of the Supreme Court in Lipede Vs Sonekan (1995) 1 NWLR (374) 668 being relied upon in support of the said grounds, Learned counsel argued that the issues involved in Lipede’s case relate to which of the two ruling houses is entitled to produce the Ashipa Egba after the demise of the last holder of the title and whether oral evidence is admissible in proof of the customary law relating to the succession of Ashipa Egba where the registered chieftaincy declaration is not exhaustive. He argued further that the issue as to when the cause of action is deemed to accrue in a chieftaincy matter was not one of the issues submitted to the apex court for consideration in that case and that the opinion of Onu, JSC on the issue was an obiter dictum. He argued that in so far as grounds 1, 4 and 5 are based on obiter dicta in the case, they are incompetent and should be struck out.
Learned counsel for the appellant in his amended reply brief argued that the grounds of appeal are based on principles of law and cannot be impeached as they do not breach any of the provisions of Order 3 Rules 2 (1) – (a) and (7) of the Court of Appeal Rules 2002. He submitted that the ground of objection is not provided for in the rules of this court and urged the court to strike it out for being incompetent.
The law is quite settled that for a ground of appeal to be competent is must relate to the decision appealed against and must be a challenge to the validity of the ratio of that decision. See: Egbe Vs Alhaji & Ors. (1990) 1 NSCC Vol. 21 (Part 1) 306 @ 352; Kennedy Vs. INEC (2009) 1 NWLR (1123) 614 @ 635-636 H-A.
In the course of his ruling at page 57 line 20 page 58 line 5 of the record, the learned trial judge held as follows:-
“The factual situation giving rise to a cause of action is the event whereby the cause of action becomes complete so that the aggrieved party can maintain his action. (See: Ademora v. Ajufo (1988) 3 NWLR (Part 80) 1 at 17; Shell Petroleum Development Co. Vs Farah (1995) 3 NWLR (382) 148 at page 186). It is common ground between the Parties that the 2nd defendant/respondent approved the 1st defendant/applicant’s appointment and installed him as Risawe in 1985. I have no difficulty whatsoever on the basis of the facts disclosed in coming to conclusion that the plaintiff/respondent’s cause of action in this case arose in 1985 when the 1st defendant/applicant was installed as Risawe. That being the case since the 1979 Constitution had already come in force as at 1985 when the plaintiff/respondent’s cause of action arose, I must hold and I so hold that this court has jurisdiction to entertain the present suit under Section 236 of the 1979 Constitution. (See: Attorney-General, Ondo state Vs Adewumi (1988) 6 SCNJ 151 at page 156; Attorney-General, Kwara State Vs Olawale (supra) at pages 665 and 676).”
Grounds 1, 4 and 5 of the grounds of appeal shorn of their particulars read as follows:
1. “The learned trial Judge erred in law in holding that the Court has jurisdiction to entertain the suit when the cause of action arose and accrued before the promulgation of the 1979 Constitution which gave jurisdiction to all courts to entertain chieftaincy matter.
4. The learned trial Judge erred in law in misapplying the law governing the cause of action in the case before him and thereon led him to a wrong conclusion.
5. Non-direction in law: The learned trial Judge erred in law to have ignored the decision of the Supreme Court in the case of Lipede Vs Sonekan (1995) 1 NWLR (374) 668 at 690 which decided that the cause of action arose and accrued in Chieftaincy Matters when the incumbent dies.”
With due respect to learned counsel for the respondent, the grounds of appeal clearly arise from the decision appealed against. The interpretation of the ratio in Lipede’s case is a matter for determination in the substantive appeal. I therefore hold that grounds 1, 4 and 5 of the notice of appeal are competent. Grounds 2 and 3 having been abandoned are hereby struck out. The preliminary objection lacks merit and is hereby dismissed.
I now proceed to determine the main appeal. I shall adopt the single issue formulated by the appellant for the determination of the appeal, as it fully encompasses grounds 1, 4 and 5 of the notice of appeal.
In support of the appeal learned counsel for the appellant referred to paragraphs 5, 6, 7, 8, 9 and 11 of the amended statement of claim in support of his contention that the lower court lacked jurisdiction to entertain the plaintiff’s claim. In order to fully appreciate learned counsel’s submissions the said paragraphs are reproduced hererunder:
“5. There are three Ruling Families in respect of Risawe of Ilesa Chieftaincy and they are:-
(i) Ogbonran (ii) Ijagaodun and (iii) Orija.
6. Risawe of Ijesa Chieftaincy was in the part II of the Western Region Chiefs Laws and there was a registered and approved declaration in respect of it (the Declaration is pleaded).
7. Risawe Chieftaincy was de-recognised in 1976 and thereby became a minor Chieftaincy under part III of the Chiefs Law but the provision governing the Chieftaincy as contained in the Declaration approved by the Government on 28th March, 1961 remain valid and have not been set aside.
8. The immediate past Risawe of Ilesa was Chief Folowosele Adedeji who died in 1975. He was the father of the 1st Defendant.
9. When Chief Folowosele Adedeii died in 1975, the right and entitlement to present a candidate or candidates to fill the Vacancy of the Chieftaincy title fell on the Ruling Family of the Plaintiff.
11. Ijagaodun Ruling Family to which the Plaintiff belongs then held a family meeting to decide on the candidate to be presented to the Kingmakers in respect of the Chieftaincy. Owa Obokun of Ijesaland is the head of the Kingmakers. The Ruling Family after a thorough deliberations decided on the Plaintiff and accordingly forwarded his name to H.R.H. Oba Peter Adeniran Agunlejika Owa of Ijesaland in his capacity as the head of the Kingmakers.
(The Plaintiff pleads the nomination paper)”. (Emphasis mine).
Learned counsel submitted that assuming, without conceding, that the facts pleaded in paragraphs 5, 6, 7, 8, 9 and 11 above are true, the Plaintiff’s alleged right of succession to the Risawe of Ilesa Chieftaincy stool arose in his favour and for his benefit after the death of the last incumbent of the Chieftaincy in 1975. He submitted that the facts pleaded in the afore-said paragraphs must be established by evidence in order to sustain the Plaintiffs claims, the factual situation to give the Plaintiff/Respondent a right to judicial reliefs. He submitted that it is the entire set of circumstance giving rise to an enforceable claim. He referred to: A-G. FEDERATION vs. A-G ABIA STATE & ORS. (2001) NWLR (Part 725) 689, 733 A – B, 746 C – D 771 D – E. He referred to paragraphs B and 9 of the Plaintiffs amended statement of claim and submitted that the Plaintiff’s cause of action accrued in 1975 and is therefore governed by the 1963 Constitution of the Federal Republic of Nigeria, which was in force in 1975, when the last incumbent, of the stool, Chief Folowosele Adedeji died. He submitted the Plaintiff’s cause of action being not justiciable under the 1963 Constitution, the lower court lacked jurisdiction to entertain it. He relied on: LIPEDE AND ORS. vs. SONEKAN (1995) NWLR (Part 374) 668, 690 F – G.
Learned counsel argued that the learned trial judge breached the doctrine of stare decisis by refusing to follow the decisions of the Supreme Court in LIPEDE’s case, and the case of AFOLABI vs. GOVERNOR OF OYO STATE (1975) SC 119 and as such the decision is liable to be set aside. He relied on: ADESOKAN & ORS. vs. ADETUNJI & ORS (1994) 5 NWLR (Part 346) 540, 577 – 578 H – C. He argued further that even where a decision is obviously wrong, having been based on false premise, all subordinate courts are bound thereby. He cited the case of: ILIGERIA-ABAB BANK LIMITED VS. BARRI ENGINEERING NIGERIA LTD. (1995) 8 NWLR (Part 413) 257 289 G – H. He submitted that all subordinate courts are equally bound even if the decision is reached per incuriam. He referred to: AFROCONTINENTAL NIGERIA LTD. VS. AYANTUYI & ORS. (1995) 9 NWLR (Part 420) 411 435 G – H.
In reaction to the above submissions, Mr. Oluwole Aluko, learned counsel for the 1st Respondent submitted that a cause of action has been defined by our courts to mean a combination of facts and circumstances giving rise to the right to file a claim in court for a remedy and that it includes all those things which are necessary to give a right of action and every material fact which is material to be proved to entitle the plaintiff to succeed. He referred to: UDOH TRADING CO. VS ABERE (2001) 5 SCNJ 274 @ 283; A.G. FEDERATION VS A.G. ALL STATES (2001) 7 SCNJ 1 @ 32. He submitted that a cause of action arises as soon as the combination of the circumstances enumerated above accrues or takes place and that it is the act of the defendant that gives the plaintiff his cause of complaint. He referred to the following facts, which are material to this case:
a. That Risawe Chieftaincy was derecognized in 1976 and thereby became a minor chieftaincy under Part III of the Chiefs Law.
b. That the former Risawe Adedeji died in 1975.
c. According to the appellant members of his family nominated him in 1978.
d. That he was approved and installed by the 2nd defendant in 1985.
He referred to Section 236 (1) of the 1979 Constitution of the Federal Republic of Nigeria (hereinafter referred to as the 1979 Constitution) which conferred unlimited jurisdiction on the High Court of a State and submitted that the cause of action in this case arose in 1985 when HRH Oba Aromolaran, the prescribed authority, approved the appellant’s nomination and installed him as the Risawe of Ilesha. He argued that no cause of action arose in L975 when the former Risawe died or in 1978 when the appellant’s family nominated him. He contended that the appellant’s nomination by his family in 1978 was the family’s internal affair particularly as the prescribed authority had not approved the nomination.
Learned counsel submitted that a cause of action accrues when there is a threat to a vested right or denial of a legal right. He distinguished the right to succession in chieftaincy matters from a threat to that right. He argued that a cause of action in a chieftaincy matter accrues when there is a threat to or denial of the right to succession. He argued that the statement of Onu, JSC in Lipede Vs Sonekan (supra) to the effect that the appellant’s right to be appointed Ashipa Egba only accrued on 19th December 1983 when the last holder of the title died, is not synonymous with a cause of action, as there can be no cause of action until there is a threat to a vested right or denial of a legal right, He argued that Lipede’s case is distinguishable from the instant case because the interpretation of when a cause of action accrues was not a ground of appeal in that case and did not form part of the issues for determination before the apex court. He argued that “right” as used by Onu, JSC in Lipede’s case and “cause of action” have distinct legal characteristics. He argued that where the kingmakers, prescribed authority or approved authority do not dispute a person’s right to occupy a particular chieftaincy there is no threat to that right and there can be no cause of action for the purpose of initiating proceedings, He contended that the cause of action accrues the moment the right is challenged or denied. He submitted that in Lipede’s case, the issue in contention was which of the two ruling houses was entitled to produce the candidate for appointment as Ashipa Egba upon the death of the last holder of the title and whether oral evidence was admissible in proof of the applicable customary law where the registered chieftaincy declaration was not exhaustive. He submitted that the applicable law is the law in existence at the time the cause of action arose, He referred to UWAIFO VS A.G. BENDEL STATE (1982) 7 SC 124 @ 191 & 279. He submitted that the 1979 Constitution and not the 1963 Constitution (which ousted the jurisdiction of the court in chieftaincy matters) was the applicable law in 1985 when the respondent’s right to the chieftaincy was challenged.
He erroneously referred to paragraphs 10, 11, 13 and 14 of the statement of claim. The correct paragraphs are paragraphs 12, 13, 15 and 16 of the amended statement of claim, where it is averred that after the kingmakers had approved the respondent’s candidature and had urged the Owa as the prescribed authority to give his consent thereto, and after Oba Peter Adeniran Agunlejika, gave his consent but before installation, the appellant’s family instituted an action before the Osun State High Court in suit no. HIL/1/80 seeking among other reliefs an order restraining Oba Agunlejika (1st defendant) or any person acting through or under him from entertaining any claim from any of the descendants of Ashogbe and Ashipa including the 1st Respondent in this appeal (2nd defendant) and one M.B. Komolafe (3rd defendant). It was also averred that the suit was dismissed upon certain objections raised on behalf of the defendants and that an appeal against the dismissal was struck out in September 1983. It was further averred that by the time the appeal was struck out Oba Agunlejika had passed on and HRH Oba Adekunle Aromolaran (2nd Respondent herein) had been installed as Owa Obokun of Ijesha land and he subsequently installed the respondent as Risawe. Learned counsel for the 1st Respondent submitted that the judicial process that was invoked by the appellant’s family to prevent the installation of the 1st Respondent as Risawe kept the cause of action in abeyance, as no steps could be taken by him before the 1979 Constitution came into existence. He maintained that the cause of action arose in 1985 and is governed by the 1979 Constitution.
With regard to the appellant’s contention that the learned trial Judge disregarded the decision in Lipede Vs Sonekan (supra), learned counsel argued that although the learned trial Judge did not specifically refer to the case, he reviewed the submissions of learned counsel at length before concluding that the rights of the parties were governed by the 1979 Constitution. He argued that the reasoning of the learned trial Judge showed that he considered the issue as to which law applied to the rights of the parties. He submitted that the failure to specifically refer to Lipede’s case is a mere technicality, which should not be allowed to defeat the justice of the case. Relying on the case of: NDULE VS IBEZIM (2002) 5 SCNJ 247 @ 267 and OJENGBEDE VS ESAN (2001) 12 SCNJ 403 @ 422, he submitted that it is not every mistake or error in a judgment that would result in an appeal being allowed and that it is only when the error is substantial in that it has occasioned a miscarriage of justice that an appellate court would interfere. He submitted that the appellant has not shown that he has suffered a miscarriage of justice as a result of the omission, He urged the court to resolve this issue in the respondent’s favour and to strike out grounds 2 and 3 of the grounds of appeal, having been abandoned. The said grounds have been struck out earlier in this judgment.
In the appellant’s amended reply brief, learned counsel argued that the series of events and factual situation that gave rise to the respondent’s right to relief must commence from and include the death of the last Risawe title holder. He referred to the cases of Afolabi & Ors. Vs Gov. of Oyo State & Ors. (1985) 2 NWLR (9) 734 @ 757 G & 758 B; Obaloja & Anor v. Etikan (1998) 6 NWLR (553) 320 @ 331 B; AND Adesanoye & Ors. v. Adewole (2006) 14 NWLR (1000) 242 @ 267 D – F to the effect that the cause of action in a chieftaincy matter arises upon the death of the last title holder.
I have given careful consideration to the submissions of the respective learned counsel and the authorities cited. The appropriate place to start would be to determine when the cause of action accrued in this matter. The crux of the matter is that under the 1963 Constitution the High Court of a State had no jurisdiction to entertain any chieftaincy matter. The executive had the final say. The position of the law changed with the enactment of the 1979 Constitution. Section 236 (1) thereof conferred unlimited jurisdiction on the High Court of a State in civil matters, which of course includes chieftaincy matters. See: Edjerode Vs Ikine (2001) 12 SC (Part II) 94; Dada Vs Aina (2008) Vol. 37 WRN 110 @ 122 lines 5 – 10. The issue in contention in this appeal therefore is whether the cause of action accrued before the 1979 Constitution came into effect. It is the contention of learned counsel for the appellant that the respondent’s right of action accrued in 1975 upon the demise of the last holder of the title of Risawe. The 1st Respondent on the other hand argues that the cause of action did not accrue until HRH Oba Aromolaran (the 2nd Respondent) installed the appellant as Risawe in 1985.
Black’s Law Dictionary, 8th edition at page 1349 defines cause of action as:
‘A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.”
In the case of Edjerode Vs Ikine (supra) the Supreme Court quoted with approval the definition of cause of action as stated by Agbaje, JSC in Amodu Vs Amode (1990) 5 NWLR (150) 356 @ 367 thus:
“The term “cause of action” means all those things necessary to give a right of action whether they are to be done by the plaintiff or a third person” Hernaman v. smith (1855) 10 Exch 659, per parke B at p.666. “Cause of action” has been held from the earliest time to mean every fact which is material to be proved to entitle the plaintiff to succeed every fact which the defendant would have a right to traverse.” Cooker Gill (1873) L.R.8C.P. 107 per Brett, J. at p. 116.”
From paragraphs 8, 9 and 11 of the amended statement of claim reproduced earlier in this judgment, the respondent’s case at the lower court was that upon the death of the last Risawe of Ilesa, Chief Folowosele Adedeji (father of the appellant) in 1975 the right to R11 the vacancy fell upon the respondent’s Ruling Family called Ijagaodun Ruling Family. That after deliberations by the Family the respondent’s name was forwarded to HRH Oba Peter Adeniran Agunlejika, the Owa Obokun of Ijesha Land in his capacity as the head of the kingmakers. His Royal Highness along with other kingmakers deliberated on the nomination, approved same and urged the Owa Obokun, as the prescribed authority to give his consent thereto. According to the 1st Respondent in his pleadings, the Owa accordingly gave his consent. However before he could be installed, a series of events occurred. The appellant’s family instituted an action (Suit no. HIL/1/80) before the Osun State High Court against the Owa Obokun, Oba Agunlejika, the 1st Respondent herein and one other seeking various declarations challenging the right of anyone not a lineal descendant of the first Risawe of Ilesa to be nominated for appointment to the Risawe chieftaincy. (see paragraph 12 of the amended Statement of claim at page 25 of the record).
It was further averred in paragraphs 13 – 17 of the amended statement of claim as follows:
13. “The Counsel to the defendants in the said Suit No.HIL/1/80 raised a number of objections to the suit and ruling on the objection, the presiding learned trial Judge held that as the plaintiff cannot obtain a relief against the defendants, their claim is dismissed by virtue of order 22 Rule 4 of the states High court civil Procedure Rules.”
14. The plaintiffs in the case felt aggrieved by the Ruling of the High court Judge and appealed to the court of Appeal sitting at Ibadan. The appeal was later struck out. …
15. When the appeal lodged by the plaintiff was struck out in September 1983, Oba Peter Adeniran Agunlejika had already joined his ancestor and the 2nd defendant [HRH Oba Aromolaran] herein had been installed as the Owa Obokun of Ijeshaland,
16. Instead of proceeding to install the plaintiff as the Risawe of Ilesa, as all the processes leading to the installation had been concluded by his predecessor, the 2nd defendant without verifying all facts and customary law and usage governing the Chieftaincy and without setting aside the nomination, approval and consent given to the candidature of the plaintiff and without any regard to the complaint and protest of the plaintiff went and install (sic) the 1st defendant as Risawe of Ilesa in 1985.
17. That even though Risawe Chieftaincy has become a minor chieftaincy, the tradition and custom and initial agreement still stand, that the Risawe Chieftaincy should be rotated.”
It is further averred that the respondent and members of his family protested against the installation, including writing a petition to the State Government but that notwithstanding the Government’s directive to HRH Oba Aromolaran by a letter dated 22/1/93, which was copied to him, to right the wrong done to him the situation remained unchanged, hence the suit filed in 1993.
It was the appellant’s contention inter alia that the cause of action arose in 1975 when the last holder of the title died and further that in any event the respondent ought to have filed his action in 1978 when the appellant was first appointed by his family to fill the vacant title.
Learned counsel for the appellant has argued quite strenuously that upon the authority of the Supreme Court in the case of Lipede Vs Sonekan (supra), the right of action in chieftaincy matters arises upon the death of the last holder of the title. This brings me to the question as to whether “right of action” and “cause of action” mean the same thing in law. The Supreme Court per Tabai, JSC in the case of Adekoya Vs F.H.A. (2008) 11 NWLR (1099) 539 @ 551 D – F quoted with approval the dictum of the revered Oputa, JSC in Egbe Vs Adefarasin (1987) 1 NWLR (47) 1 @ 20 on the distinction between the two terms thus:
“Now let us look at the meaning or cause or action. It is admittedly an expression that defies precise definition. But it can safely be defined as the fact or facts which establish or give rise to a right of action – it is the factual situation that gives rise to judicial relief. A cause of action is to be distinguished from a right of action. A right of action is the right to enforce presently a cause of action. In other words, a cause of action is the operative fact or facts (the factual situation), which give rise to a right of action, which is itself a remedial right. …”
His Lordship, Tabai, JSC went on to state thus at page 551 of Adekoya’s case (supra)
“In my view, a cause of action is the emergence of a factual situation which enables a party to an action in court.”
His Lordship Tobi, JSC at page 557 F (supra) opined thus:
“A cause of action arise (sic) the moment a wrong is done to the plaintiff by the defendant. And the wrong which is the basis of a dispute represents the factual situation which entitles the plaintiff to seek a remedy in a court of law by way of enforcement.”
In Lipede’s case, as submitted by learned counsel for the respondent the issue in contention between the parties was which of two ruling houses was entitled to produce the candidate for appointment as the next Ashipa Egba upon the demise of the last holder of the title. The issue was whether the rights of the parties, which had become vested before the promulgation of the Western State Legal Notice No. 6 of 1976 (W.S.L.N. No. 6), which revoked the application of the Chiefs Law to the Ashipa Egba Chieftaincy, were affected by the subsequent change in the law, which made it a minor chieftaincy. Reference was made to the case of Uwaifo Vs A.G. Bendel State (1987) 7 SC 124 where it was held that rights that have become vested would not be affected by a subsequent change in the law. The appellants were relying on the previous law wherein the Ashipa Egba Chieftaincy was a recognized chieftaincy. They maintained that the registered declaration still applied even though the Ashipa Egba Chieftaincy had been derecognized and had become a minor chieftaincy. The Supreme Court held that the effect of the amendment to the Chiefs Law by W.S.L.N. No. 6 was to wipe away the use of registered declarations in respect of Ashipa Egba chieftaincy among minor chieftaincies, which had hitherto enjoyed privileges as recognized chieftaincies. It was on this basis that the apex court held that the 3rd appellant’s right (if any) to be appointed Ashipa Egba only accrued on 19/12/83 when the last holder of the title died and that as at 19/12/83 the law applicable to the Chieftaincy by which the rights of the parties were governed was Section 22 in part 3 of the Chiefs Law 1978, part 2 thereof having similar provisions as in part 2 of the 1958 law, which ceased to apply to the chieftaincy since 1976 by virtue of W.S.L.N. No. 6.
I am inclined to agree with learned counsel for the respondent that in Lipede’s case, the distinction between a cause of action and a right of action did not arise and was not deliberated upon by the Court. In that case the determination of which ruling house was entitled to produce the next candidate for appointment to the vacant chieftaincy was dependent upon the law in existence at the time the last holder of the title died.
Similarly in the case of Afolabi & Anor v. Gov. of Oyo State & Ors. (1985) 2 NSCC Vol. 16 1151 @ 1170 lines 27 – 29, Aniagolu, JSC held thus:
The right to be announced as the Ruling House to produce the next Oba enured to the Kayode Ruling House immediately upon the death of Oba Bakare on 26th July 1981.”
The issue in the instant case is not the customary law guiding the right of the parties to succeed the deceased title holder but the jurisdiction of the court to entertain the plaintiff/respondent’s claims. Whether or not the court has jurisdiction to entertain the plaintiff/respondent’s claims in the circumstances of this case is determined by the time the cause of action arose. Thus, although the respondent might have had a vested right in the Risawe of Ijeshaland Chieftaincy upon the demise of Folowosele Adedeji in 1975, did any cause of action accrue at that time?
Bearing in mind the earlier definition of a cause of action, what was the factual situation or culmination of series of facts that entitled the respondent to seek a remedy in court? The facts are that the last titleholder died in 1975 creating a vacancy. The procedure for the appointment of the new Risawe of Ijeshaland was progressing smoothly with the 1st Respondent being nominated by his family and necessary steps being taken for consent and approval by the Authority. At that stage, he had no complaint against anyoneand no notice that there was any adverse claim to the title. He had no reason to believe that the process would not continue to its logical conclusion. There was no factual basis upon which to institute an action in 1975. The problem arose first with the suit filed by the appellant’s family in 1980 and subsequent litigation up to the Court of Appeal. By the time the appeal before the Court of Appeal was struck out in 1983, the previous Owa of Obokun, HRH Oba Agunlejika who had consented to the respondent’s installation had died. The new Owa, HRH Oba Aromolaran did not complete the process but rather installed the 1st defendant/appellant instead. I agree with the learned trial Judge that the installation of the appellant in 1985 constituted the factual situation that gave the respondent the right to seek a remedy in court.
The appellant had also contended alternatively that the cause of action arose when the appellant’s family appointed him in 1978. The learned trial Judge had this to say at page 57 of the record:
“There is also the allegation that the 1st defendant/applicant was appointed by his family in 1978. Assuming that this is true, the best that could be made of it is that the purported appointment was [the] internal affair of the 1st defendant/applicant’s Chieftaincy Family. And since there was nothing to show that the plaintiff/respondent had any notice of the appointment at the material time, he could not be held to have got any cause of action against the 1st defendant/applicant as at 1978. …It is common ground between the parties that the 2nd defendant/respondent approved the 1st defendant/applicant’s appointment and installed him as Risawe in 1985. I have no difficulty whatsoever on the basis of the facts disclosed in coming to the conclusion that the plaintiff/respondent’s cause of action in this case arose in 1985 when the 1st defendant/applicant was installed as Risawe. That being the case since the 1979 Constitution has already come into force as at 1985 when the plaintiff/respondent’s cause of action arose, I must hold and I do hold that this Court has jurisdiction to entertain the present suit under Section 236 of the 1979 Constitution.”
I am of the considered view that the above analysis accords with common sense and the position of the law. Furthermore, it is evident that although the learned trial Judge did not specifically refer to Lipede’s case, the facts of that case were different from the facts of the case before him. He had adequately considered relevant authorities on the point and came to the correct conclusion that the respondent’s claims were justiciable under the 1979 Constitution. The omission, if any, has not been shown to have occasioned a miscarriage of justice.
In conclusion the sole issue for determination in this appeal is hereby resolved against the appellant. I hold that the appeal lacks merit. It is accordingly dismissed. The ruling of the Osun State High Court sitting at Ilesa in suit no. HIL/57/93 delivered on 15/6/95 per Hon. Justice (Dr.) T.A. Ademakinwa is hereby affirmed. It is hereby ordered that the suit shall be given an accelerated hearing. There shall be costs assessed at N50,000.00 in favour of the 1st respondent.
CHINWE E. IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, K.M.O. Kekere-Ekun JCA. I agree with the reasoning contained therein and the conclusions arrived thereat. The main issue in this appeal is: when did the respondent’s cause of action arise? Is it in 1975 when the last Risawe Folowosele Adedeji died or in 1978 when the appellant was nominated Risawe by members of his family or 1985 when the appellant was approved and installed Risawe by the 2nd defendant/respondent? If the cause of action arose in 1975 or 1978, then the applicable law would be the 1963 Constitution which ousted the courts jurisdiction to entertain Chieftaincy matters. If the cause of action arose in 1985 when the appellant was installed Risawe, then the applicable law would be the 1979 Constitution which had restored the jurisdiction of the courts to entertain Chieftaincy matters. The definition of the phrase “cause of action” was fully dealt with in the leading judgment. It is trite that cause of action is the factual situation, the existence of which entitles a person to obtain from the court a remedy against another person” Letang v. Cooper (1965) 1 QB 222 @ 242: Adimora v. Ajufo (1988) 3 NWLR (Pt.174) 379: A.G. Kwara State v. Olawale (1993) 1 NWLR (Pt.272) 645 @ 674.
As at 1975, when Risawe Chief Folowosele Adedeji died, the respondent was confident that he would be appointed the next Risawe. Nothing had happened to give rise to any complaint against anybody. He had no cause of action then. In 1978, when the appellant’s family nominated the appellant as the next Risawe, the respondent may not have known and at any rate, as at that stage it was still an internal matter of their family. The appellant’s nomination was not then approved by the prescribed authority. The respondent had no reason to doubt that it is his own nomination by his family that would be approved by the prescribed authority and so no cause of action had arisen. The respondent’s cause of action arose when the nomination of the appellant was approved and he was installed by the prescribed authority, the 2nd respondent. It was at that point that a factual situation arose which entitled the respondent to go to court for a remedy. The cause of action consequently arose in 1985 when the 1979 Constitution was already in force.
The facts set out in paragraphs 5 – 11 of the plaintiff/respondent’s statement of claim alluded to in the appellant’s brief (circumstances surrounding the selection of the respondent as the next Risawe of Ilesa after the death of Risawe Adedeji in 1975) cannot as argued by the appellant constitute the cause of action as at that point in time, nothing had happened to necessitate the respondent seeking remedy in court against anyone. To this extent the cases of Lipede v. Sonekan [1995] 1 NWLR (Pt. 374) 668 @ 690 F-G and Afolabi v. Governor of Oyo State [1985] 2 NWLR (Pt. 9) 734 heavily relied on by the appellant are not apposite. The import of the two cases is that rights which have become vested will not be affected by subsequent change in the law. Right in the sense used in the cases is quite different from cause of action. For example, in the appeal before us, the respondent’s right to be appointed Risawe arose in 1975 when his right to the stool ripened by the death of the incumbent Risawe. Any changes in the law subsequent to that date not specifically made retrospective will not affect those rights.Cause of action is quite a different thing and is distinct from vested rights. I agree with learned counsel for the respondent that there is a distinction between legal right and cause of action which remains in abeyance until there is a threat to the legal right. In the instant appeal, the respondent’s legal right was not threatened until 1985 when the appellant was installed the Risawe. For this and the detailed reasons given in the leading judgment, I hold that this appeal lacks merit. I too, hereby dismiss the appeal. I abide by the order as to accelerated hearing and costs in the leading judgment.
MOORE A. A. ADUMEIN, J.C.A.: I read before now the judgment just delivered by my learned brother:- KEKERE-EKUN (JCA). The issue raised in this appeal was adequately dealt with and roundly resolved in the lead judgment.
The difficulty of precisely defining the phrase “cause of action” was clearly captured by the learned authors of BLACK”S LAW DICTIONARY, EIGHTH EDITION, page 235 where they defined or explained the phrase as follows:
“A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person;
………………………………
“What is a cause of action? Jurists have found it difficult to give a proper definition. It may be defined generally to be a situation or state of facts that entitles a party to maintain an action in the judicial tribunal. This state of facts may be – (a) a primary right of the plaintiff actually violated by the defendant or (b) the threatened violation of such right, which violation the plaintiff is entitled to restrain or prevent, as in the case of actions or suits for injunctions; or (c) it may be that there are doubts as to some duty or rights, or the right beclouded by some apparent adverse right or claim, which the plaintiff is entitled to have cleared up, that he may safely perform his duty or enjoy his property.” Edwin E. Bryant, The Law of Pleading under the Codes of Civil Procedure (2d ed. 1899).”
In the instant case, the 1st respondent had no factual reason or cause to file an action in court before 1985 as there was then no threat to his alleged right to Risawe of Ilesa Chieftaincy Stool.
I completely agree with my learned brother that this appeal ought to be dismissed for lacking merit. I also dismiss the appeal.
I abide by all the consequential orders in the lead judgment, including the order as to costs.
Appearances
A. Ogunkola For Appellant
AND
Oluwole Aluko For Respondent
