CHIEF F. A. MATANMI & ORS. V. THE GOVERNOR OF OGUN STATE & ORS.(2003)

CHIEF F. A. MATANMI & ORS. V. THE GOVERNOR OF OGUN STATE & ORS.

(2003)LCN/1437(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 24th day of June, 2003

CA/I/281/01

RATIO

COURT AND PROCEDURE: THE PREVAILING LAW TO APPLY

“In my view and in line with the prevailing law the learned trial judge ought to have applied the law existing at the time when the cause of action accrued in 1991 which then was the Ogun State Boundary Commission Edict No. 5 of 1991 which created the 4th respondent in the case whose action gave rise to the appellants ease and not the law existing when the jurisdiction of court was invoked. See JULIUS BERGER NIG. PLC V. R.I.O. OMOGUI (2001) 15 NWLR (Pt.736) 401, 2001 NSC QLR VOL. 6, PART 2 1062-1076; UDOH v. ABERE & ANOR (2001) 11NWLR (Pt. 723) 114, 2011 6 NSC QLR PART 1 579 P.614; ODUNTAN V. AKIBU (2000) 13 NWLR (Pt. 685) 446, (2000) 7 SC (PT. 11) 106; CHIEF MICHAEL OMODELE ALESE V. CHIEF JULIUS ALADETUYI (1995) 6 NWLR (Pt. 403) 527 7 SCNJ 40; GOVERNOR OF OYO STATE & OTHERS V. OBA OLOLADE FOLAYAN (1995) 8 NWLR (Pt. 413) 292 (1995) 9 SCNJ 50; JESSICA TRADING CO. LTD. V. BENDEL INSURANCE CO. LTD. (1996) 12 SCNJ 286; OBA OYEBADE LIPEDE & ORS V. CHIEF ADIO SONEKAN & ORS (1995) 1 NWLR (Pt. 374) 668 (1995) 1 SCNJ 184.” PER MURITALA AREMU OKUNOLA, J.C.A.

JUSTICES

MURITALA AREMU OKUNOLA Justice of The Court of Appeal of Nigeria

SAKA ADEYEMI IBIYEYE Justice of The Court of Appeal of Nigeria

VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria

Between

1.CHIEF F. A. MATANMI (The Baloro of Otta)
2. CHIEF K. A. AKINBOYEDE (The Baloye of Otta)
3. ALHAJI M. A. BELLO (The Erinfolami of Otta)
4. ALHAJI ADAMSON (Asanbe of Otta) Appellant(s)

AND

1.THE GOVERNOR OF OGUN STATE
2. THE ATTORNEY-GENERAL OF OGUN STATE
3. IFO LOCAL GOVERNMENT
4. OGUN STATE BOUNDARY COMMISSION Respondent(s)

MURITALA AREMU OKUNOLA, J.C.A. (Delivering the Leading Judgment):

This is an appeal against the ruling of B. O. Ogunade J. sitting at High Court No. 1, Otta, Ogun State delivered on the 27th day of January, 2001.

The facts of this case briefly put were as follows:

The appellants herein were the plaintiffs in the court below, said the defendants (Respondents herein) claiming the following reliefs:
1. Declaration that by tradition the people of the villages and areas in Ilogbo ward of Otta District and Ojodu Abiodun Administrative Area namely: (4) Olowo (5) Oke Oji (6) Agasa Adewale (7) Idiroko (8) Ogunwade (9) Ilugboro (10) Fagbayi (11) Ajegunle (12) Igbusi (13) Abule Oke and the people of the villages and areas around Ijoko/Otta in Otta ward II of Otta namely: (1) Agoro (2) Ijokolemode (3) Itoki (4) Oko (5) Rabiyan-Igboju (6) Mosafejo (7) Ikeja (8) Ajageoju (9) Ntabo (10) Okanran (11) Ijegemo belong to Ado-Odo/Otta Local Government.

2. Declaration that the area of the land situate lying and being at the villages mentioned in claim 1 (one) above and delineated in a plan to be filed later, form part and are components of Ado-Odo/Otta Local Government.

3. Declaration that the 5th defendant is not a competent and proper person to participate or Chairman the 6th Respondent set up by the 2nd and 3rd Respondents to adjudicate on the boundary dispute between the plaintiff and the 4th respondent

4. An order directing the 4th defendant to pay over to the Ado-Odo/Otta Local Government all monies collected by way of levies and taxes from the affected areas to the Ado-Odo/Otta Local Government.

5. Injunction restraining the 5th and 6th defendants by themselves, their agents, servants, their privies or otherwise howsoever from adjudicating on the said boundary dispute between Ado-Odo/Otta Local Government and Ifo Local Government.

6. Injunction restraining the 4th defendant by itself, its agents, its servants, or its privies or otherwise howsoever from administering the affected areas stated in reliefs 1 and 2 above.

7. Injunction restraining all the defendants from treating and or administering the affected areas stated in Relief 1 (one) above as part of Ifo Local Government.

The gravamen of the Appellants’ objection as argued in the lower court was that the court, subject to Ogun State Boundary Commission Edict No.5 1991 which set up the Ogun State Boundary Commission, whose action the appellants complained about has jurisdiction to hear and determine the matter. The appellants files their writ of summons and statement of claim which was amended on the 10th of May 1999 and upon service of same on the Respondents, they filed their statement of defence.

After filing and arguing some applications, the respondents filed a motion on Notice dated 13th day of October 1999 contending that by virtue of Local Government and Community Boundary Settlement law Cap. 64, 1978 Law or Ogun State, the court below lacks jurisdiction to entertain this matter. The argument proffered on behalf of the appellants as can be found on pages 68 to 69 of the records was that the Ogun State Boundary Commission whose action the appellants are challenging in the court below was created by virtue of Ogun State Boundary Commission Edict NO.5 of 1991, while the Local Government in question was contained in Cap. 64, Law of the Federation 1990, Furthermore, that the Edict No. 5 by section 1 (one) had superseded the Local Government and Community Boundaries Settlement Law 1978. The learned trial judge delivered his ruling on the 27th day of August over-ruling the argument of the appellant and ruled that the Local Government and Community Boundaries Settlement law 1978 is applicable and therefore he had no jurisdiction.

Dissatisfied with this ruling, the appellants filed their Notice of Appeal dated 8th February 2001 containing two grounds of appeal.

From the two grounds of appeal the appellants formulated the issues that call for determination in this appeal thus:
“1. Whether the learned trial judge correctly interpreted S.1 of Ogun State Boundary Commission Edict No. 5 of 1991.
2. Whether the provision of S.1 Ogun State Boundary Commission Edict No, 5 1991 Cap. 64 of Laws of Ogun State shall still be operational.
3. Whether the learned trial Judge was right in applying Cap. 64, Laws of Ogun State 1975 in resolving the issue of jurisdiction in a matter that arose from the action of a body or commission created by Ogun State Boundary Commission Edict NO.5 of 1991 and
4. Whether the learned trial Judge was correct when he held that the plaintiff’s cause of action arose in 1989.

The Respondents from the grounds of appeal also filed two issues which but for framing and the language used boil down to the two merged issues formulated by the appellants. These are:
“(1) Whether the learned trial judge was right when he held that the plaintiffs’ cause of action arose in 1989.”
If the 1st issue is resolved in the affirmative, then:
(2) Whether the learned trial Judge correctly interpreted the provisions of the Local Government and Community Boundaries Settlement Law Cap. 64, Laws or Ogun State, 1978 in declining jurisdiction to entertain the plaintiffs’ suits.”

Both learned counsel to the parties filed their briefs of argument on behalf of their respective clients. On 28/4/03 when this appeal came up before us, learned counsel to the appellants, Mr. Uche Ameyo adopted and relied on the Appellants’ brief filed herein on 5/2/03 and the appellants’ reply brief filed herein on 15/4/03, By way of reply learned counsel to the Respondents, Chief O. Oyebolu, Attorney-General and Chief Justice Ogun State adopted and relief on the Respondents’ brief filed herein on 2/8/03. I have considered the submissions of both learned counsel to the parties vis-a-vis the records and the prevailing law.

In my view their arguments boil down to the two issues formulated supra by the Respondents which I recopy below:
“(1) Whether the learned trial judge was right when he held that the plaintiffs’ cause of action arose in 1989.
If the 1st issue is resolved in the affirmative, then:
(2) Whether the learned trial Judge correctly interpreted the provisions of the Local Government and Community Boundaries Settlement Law Cap. 64 Laws of Ogun State, 1978 in declining jurisdiction to entertain the plaintiffs’ suits.”

I shall now consider the arguments of both learned counsel to the parties on the two principal issues. On the two principal issues which border on whether the learned trial judge was right when he held that the plaintiffs cause of action arose in 1989 and whether or not the lower court had jurisdiction in the matter, both learned counsel to the parties addressed us copiously, orally and in their respective brief. Learned counsel to the appellants by way of summary on paragraph 6.01(1) of the appellants’ brief submitted on both issues that:
“(1) The learned trial judge misconstrued the case of the plaintiffs when he held that the plaintiffs’ case accrued in 1989 while the plaintiffs clearly in the claim are complaining about the act of the Ogun State Boundary Commission created by Edict No. 5 1991.
(2) The learned Trial judge also misconstrued and misinterpreted the provisions of section 1 of the Edict NO.5 of 1991 which states that notwithstanding the provisions of the Local Government and Community Boundary/Boundaries Settlement Law 1978, when he went ahead to apply the 1978 law in this matter that arose in 1991 and denied himself jurisdiction.
(3) The learned trial judge ought to have applied the law existing at the time the cause of action accrued in 1991 which then was the Ogun State Boundary Commission Edict No.5 of 1991 which created the 4th respondent in the case whose action gave rise to the appellants’ case.”

By way of conclusion learned counsel to the appellants urged this court to allow the appeal, set aside the ruling or the lower court and hold that the lower court has jurisdiction to hear and determine this matter.

By way of reply learned counsel on both issues to the 1st-4th Respondents submitted by way of summary on page 9 paragraph 6.1 of the Respondents’ brief that:
“(1) The right sought to be protected by the plaintiffs relate to the delineation of the boundary between Ado-Oda/Otta Local Government and the composition of each.
(2) Both the Appellants and the Respondents agreed in their pleadings that Ado-Odo/Otta Local Government was created in 1989.
(3) Since the right sought to be protected by the Appellant arose sequel to the creation of Ado-Odo/Otta Local Government in 1989, the plaintiffs/appellants cause of action arose in 1989.
(4) The law on Local Government Boundary Settlement at the time the Ado-Odo/Otta Local Government was created was the Local Government and Community Boundaries Settlement law Cap.64 Laws of Ogun State, 1978.
(5) The Ogun State Boundary commission Edict NO.5 of 1991 is inapplicable as it has its commencement date as 6/5/91.
(6) The Local Government and Community Boundaries Settlement Law Cap. 64 Law of Ogun State 1978 is an existing law in that it was not revoked by any subsequent laws enacted on Local Government Boundary Settlement.
(7) Since the Plaintiffs/Appellants agreed that Ado-Odo/Otta Local Government was created in 1989, then the right sought to be protected accrued and crystallized in 1989 as Ogun State Boundary Commission Edict No.5 of 1991 which commencement date was 6/5/91 was later in time.
(8) The provisions of Local Government and Community Boundaries Settlement Law Cap. 64, Laws of Ogun State 1978 oust the jurisdiction of the trial court.”

Learned counsel to the 1st-4th Respondents urged this Honourable Court to hold that this appeal lacks merit and that same be dismissed with substantial costs.

I have considered the submissions of both learned counsel to the parties vis-a-vis the records and the prevailing law. The arguments of both learned counsel to the party boil down to when the cause of action really accrued. Learned Counsel to the Respondents said it accrued at the creation of Ado-Odo/Otta Local Government while learned counsel to the appellants said it accrued in 1991. I have considered the evidence of witnesses and the addresses by learned counsel all the printed records and the respective briefs of the parties.

In my view the creation of Ado-Odo/Otta Local Government did not give any cause of action to the appellants to complain hence the cause of action did not arise in 1989. The cause of action however arose in 1991 when the Government ‘team’ came to draw a boundary different from the pronouncement of the Ogun State Government in 1989. This gave the appellants cause to complain and go to court. In this regard the cause of action accrued in 1991.

Consequently I agree with the submissions of learned counsel to the appellants that the learned trial judge misconstrued and misinterpreted the provision of section I of the Edict No.5 of 1991 which states that notwithstanding the provisions of the Local Government and Community Boundary/Boundaries Settlement law 1978 when he went ahead to apply the 1978 law in this matter that arose in 1991 and denied himself jurisdiction.

In my view and in line with the prevailing law the learned trial judge ought to have applied the law existing at the time when the cause of action accrued in 1991 which then was the Ogun State Boundary Commission Edict No. 5 of 1991 which created the 4th respondent in the case whose action gave rise to the appellants ease and not the law existing when the jurisdiction of court was invoked. See JULIUS BERGER NIG. PLC V. R.I.O. OMOGUI (2001) 15 NWLR (Pt.736) 401, 2001 NSC QLR VOL. 6, PART 2 1062-1076; UDOH v. ABERE & ANOR (2001) 11NWLR (Pt. 723) 114, 2011 6 NSC QLR PART 1 579 P.614; ODUNTAN V. AKIBU (2000) 13 NWLR (Pt. 685) 446, (2000) 7 SC (PT. 11) 106; CHIEF MICHAEL OMODELE ALESE V. CHIEF JULIUS ALADETUYI (1995) 6 NWLR (Pt. 403) 527 7 SCNJ 40; GOVERNOR OF OYO STATE & OTHERS V. OBA OLOLADE FOLAYAN (1995) 8 NWLR (Pt. 413) 292 (1995) 9 SCNJ 50; JESSICA TRADING CO. LTD. V. BENDEL INSURANCE CO. LTD. (1996) 12 SCNJ 286; OBA OYEBADE LIPEDE & ORS V. CHIEF ADIO SONEKAN & ORS (1995) 1 NWLR (Pt. 374) 668 (1995) 1 SCNJ 184.

In the light of foregoing authorities, this appeal is meritorious and same is allowed. The ruling of the lower court made on 27/1/00 is hereby set aside as the lower court has jurisdiction to hear and determine the matter. There will be no order as to costs.

SAKA ADEYEMI IBIYEYE, J.C.A.: I have had the opportunity of reading in advance the judgment just delivered by my learned brother, Okunola, J.C.A. I entirely agree with his conclusion that the extant law when the cause of action arose in 1991 is the Ogun State Boundary Commission Edict No. 5 of 1991 Cap 64 of Laws or Ogun State which created the 4th respondent whose alleged misdeed prompted the appellants’ case. It is trite that the applicable law to any matter in Court is the existing law at the time the cause of action accrues. The lower Court ought not to have denied itself of jurisdiction over the instant matter. I also hold that the lower Court has jurisdiction to hear and determine the matter before it to finality.

VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.: The appeal is against the ruling of Ogunade J. of the Ogun State High Court, which was delivered at Otta on 27th January 2001. The ruling is on the motion on notice filed by the defendants/respondents in this appeal. In the motion the defendants submitted that the learned court below has no jurisdiction to entertain hear and determines the declaratory reliefs sought by the plaintiff’s because under the provision of the Local Government and Community Boundary Settlement Law, Cap. 64 of 1978, Laws of Ogun State of Nigeria only the boundary commission created by the law is possessed of jurisdiction to hear any complaints of delimitation of boundary not the court of law, consequently the High Court, does not have jurisdiction to determine the reliefs sought by the plaintiff appellants.

In the court below prior to the filing of the motion by the defendants, pleadings had been exchanged between the plaintiffs and the defendants. The plaintiffs had set out the reliefs sought as follows:
(1) Declaration that by tradition, the people of the village and areas in Ilogbo Ward of Otta district and Ojodu Abiodun administrative belong to Ado Odo/Otta Local Government. The villages are Mero Akinde, (ii) Oniyanmo, (iii) Olori. (iv) Olowo, (v) Oke Oji, (vi) Agasa Adewale, (vii) Idiroko, (viii) Ogunwande, (ix) Ilugboro (x) Fagbayi (xi) Ajegunle (xii) Igbusi (xiii) Abule Oke, and the people of the villages and areas around Ijoko Otta in Ward II of Otta, namely; (i) Agoro (ii) Ijekolemade (iii) Itoki (iv) Oko (v) Rabiyan Igbola (vi) Mosapejo (vii) Ikija (viii) Ajegboju (ix) Ntabo (x) Okaran and (xi) Ijegemo.
(2) Declaration that the area of land situate and lying in all the villages mentioned in claim one above and “deliminated” in a plan to be filed from part and are components of Ado/Odo Local Government.
(3) Declaration that the 5th defendant is not competent and proper person to participate or chairman the 6th respondent set up by the 2nd and 3rd respondent to adjudicate on the boundary dispute between the plaintiff and the 4th respondent.
(4) An order directing the 4th defendant to pay over to the Ado/Odo Local Government all monies collected by way of levies and taxes from the affected areas to Ado/Odo Local Government.
(5) Injunction restraining the 5th and 6th defendants by themselves their servants, agents, their privies or otherwise howsoever from adjudicating on the said boundary dispute between Ado/Odo Local Government and Ifo Local Government.
(6) Injunction restraining the 4th defendant by itself, its agents, its servants or its privies or otherwise howsoever from administering the affected areas Stated in reliefs 1 and 2 above.
(7) Injunction restraining the defendants from treating and administering the affected areas Stated in relief (1) above as part of Ifo Local Government.”

In the said motion paper; the defendant applicant in the court below also asked in its objection of the defendant now the respondent was in the court below made under the provisions of Order 24 Rule (2), 35 Rule 5 of the Ogun State High Court Civil Procedure rules. In his ruling, the court below held in page 74 viz. “The totality of the facts in those paragraphs relate to the delineation pf the boundary between Odo Ado/Otta Local Government and Ifo Local Government, and the composition of each.” On page 79, of the record the judgment continues, all the parties had agreed that the Ado/Odo Local Government was crated in 1989.

The Ogun State boundary commission Edict No 5, has its commencement date on 6th May 1991, it therefore seems to me that the law which governs the determination of boundaries of Local Government court areas at the time the Ado/Odo Local Government was crated was the Local Government boundaries settlement law, Cap 64, Laws of Ogun State, It is my considered view that the plaintiffs action falls under that Law.” Page 79, “It is for the reasons stated above that I shall uphold the first ground of the issue stated, and I hold that this court has no jurisdiction to entertain the plaintiffs claim in this suit. On the second issue stated the court ruled on page 81, thus I am satisfied on the pleadings that the plaintiffs have pleaded sufficient facts which confer “standing” on them to institute the action. I therefore reject the applicants’ contention on the 2nd issue.”

It is against the above ruling that the plaintiff/appellant filed his appeal on two grounds and formulated the following issues for determination of the appeal.
“Whether the learned trial judge correctly interpreted Section 6, of the Ogun State boundary Commission Edict No 5, of 1991.
(2) Whether with the provision of Section 1 Ogun State boundary Commission Edict No 5, of 1991 Cap 64 of Laws of Ogun State shall still be operational.
(3) Whether the learned trial judge was right in applying Cap 64 in resolving the issue of jurisdiction in a matter that arose from the action of a body or commission created by Ogun State Boundary Commission Edict No 5 of 1991.
(4) Whether the learned trial judge was correct when he held that the plaintiffs’ cause of action arose in 1989.

In the brief filed on behalf of the 1st, 2nd, 3rd and 4th respondents the following two issues are formulated;
(1) Whether the learned trial judge was right when he held that the plaintiffs’ cause of action arose in 1989; if the first issue is resolved in the affirmative then.
(2) Whether the learned trial judge correctly interpreted the provisions of the Local Government and Community Boundaries Settlement Law Cap.64 Laws of Ogun State 1978, in declining jurisdiction to entertain the plaintiffs’ Suits.”

In the four issues formulated by the appellants and the two issues of the respondents, the one screaming issue is put simply hereunder. In this matter; there is a claim by the plaintiffs’ which require resolution. Who should resolve it? Put simply the issue in contention in this appeal is whether or not the appellants’ cause of action in the court below arose when the Ado/Odo Local Government was crated by statute in 1989, and the applicable law to resolve the claim as ruled by the court below Cap 64 Law of Ogun State 1978; or whether the cause of action of the appellant accrued when the boundary commission of Ogun State in 1991 created Edict No 5 of 1991.

The respondent has submitted in support of the ruling of the court below that the appellants’ right of action accrued in 1989. When the said Local Government was created and that being so, the law in operation al the time of the creation of the commission is applicable. That Law known as the Local Government and Community Boundary Settlement Law Cap. 64, 1978. Laws of Ogun State of Nigeria confer jurisdiction for settlement of boundary disputes on the Boundary Settlement Commissions. In 1991, there was created a boundary classification and verification learn, which made some recommendation in Ogun State which was published in 1991. It is the appellants’ submission that the recommendation of the team was made under the provisions of the Boundary Commission Edict No 5 of 1991. In his reply brief the appellant show that as he had submitted in his brief of argument, that the plaintiffs’ were dissatisfied with the recommendation made under the Edict No. 5 of Ogun State, they had gone to the court below.

The appellants’ submitted that their complaints is not against the creation of the Ado/Odo council; but against the recommendation made in 1991, which removed from their council certain areas of its jurisdiction in which event, the appellants’ submitted that the proper forum to adjudicate in the matter is the High Court as now constituted under the constitution of 1999, not the boundary commission under the law of 1978 in Cap 64.

I have considered the submission of the appellants and the respondents, and “I am of the view and so hold as the respondent submitted, while your cannot be dissatisfied and aggrieved against what was not in existence, it is also time that your grouse may be in this case the grouse arose when provisions are made after your existence which displease you, against which you are dissatisfied. The appellant has submitted that his cause of action did not arise in 1989; that was when the council was created; the cause of action arose, when recommendations were made, which seeks to reduce its area of jurisdiction. It is therefore correct to say that the cause of action arose in 1991; not 1989.”

Consequently the court below was in error to hold that the plaintiff’s cause of action arose in 1989; and that the dreads of claim as the reliefs sought by the plaintiffs can only be resolved by the boundary commissioners created in Cap. 64, of the Boundary Settlement Commission of 1978; and thereby refused jurisdiction in the High court. The appeal succeeds; the ruling of the court below is set aside. It is hereby directed that the suit be heard before a High Court other than this in Ogun State.

Appeal allowed.

Appearances