CHIEF FATONJI WHETTO & ORS v. OBA MORUFU AYINLA AWODE & ORS
(2011)LCN/4343(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 1st day of March, 2011
CA/I/277/06
RATIO
ISSUES FOR DETERMINATION: WHETHER ISSUES FOR DETERMINATION MUST BE BASED ON THE GROUNDS OF APPEAL IN THE CASE
It is trite that an issue for determination must derive from a ground or some grounds of appeal relating to the ratio decidendi of the case before it would be competent for consideration by an appellate court – see Nwana v. Federal Capital Development Authority (2007) 4 S.C.N.J. 433. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JURISDICTIONAL MATTERS: WHETHER A JURISDICTIONAL MATTER OR ISSUE NEED NOT BE PLEADED
At any rate, a jurisdictional matter or issue need not be pleaded. Once there is evidence in the record disclosing it any of the parties or even the court may raise it- see NDIC v. CBN (2002) 18WRN 1 at 18 to 19 or (2002) 7 NWLR (Pt. 755) 272 at 296-297: “…………………………….. But as already shown the issue of jurisdiction is not a matter for demurrer proceedings. It is much more fundamental than that and does not entirely depend as such on what a plaintiff may plead as facts to prove the reliefs he seeks. What it involves is what will enable the plaintiff to seek a hearing in court over his grievance, and get it resolved because he is able to show that the court is empowered to entertain the Subject matter. It does not always follow that he must plead first in order to raise the issue of jurisdiction,” (My emphasis). See also National Bank of Nigeria v. Shoyoye (1977) 5 S.C. 181 t 186; Chief Bamisile v. Osasuyi and others (2007) 9 NWLR (Pt. 1042) and Adetayo and others v. Ademola and others (2010) 15 NWLR (Pt. 1215) 169 at 188-189. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
INTERPRETATION OF STATUTE : INTERPRETATION OF SECTION 22 (2) OF THE CHIEFS LAW OF OGUN STATE AS IT RELATES TO THE CONDITION THAT MUST BE COMPLIED WITH IN SETTLING ANY DISPUTE BORDERING ON THE QUESTION OF ELIGIBILITY OF A PERSON OR A CLAN TO A CHIEFTAINCY STOOL
In my considered opinion, the eligibility of either the appellants’ clan or the 1st-6th respondents’ clan to vie for the stool constitutes a dispute within the meaning of section 22 (2) of the Chiefs Law of Ogun State which is analogous to section 22 of the Chiefs Law of Ondo State and considered by the Supreme Court in Chief Aribisala and Another v. Ogunyemi and others (2005) 1-2 S.C.36 at 49 thus: “Under section 22 (3) of Ondo State Chiefs Law, any dispute, even if it touches only the question of eligibility as the plaintiffs/appellants contended must be submitted first to the prescribed authority for settlement and later to the commissioner for chieftaincy matters. The attempt made by the plaintiffs/appellants’ counsel to convince me that a dispute about eligibility of the 1st defendant to the Oisemo chieftaincy, which was the subject matter of plaintiffs/appellants’ suit, was not a chieftaincy dispute within Section 22(3) of the Ondo State Chiefs Law is misconceived and must be rejected.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JURISDICTION OF COURT: POSITION OF THE LAW ON WHAT SHOULD BE CONSIDERED IN DETERMINING THE ISSUE OF JURISDICTION WHERE PLEADINGS ARE FILED IN THE SUIT
The issue of jurisdiction by exhaustion of the domestic remedies under section 22 of the Chiefs Law of Ogun State was, on that score, manifested by paragraphs 41(A)-43(A) of the statement of claim (supra) and, the court below was, in my view, entitled to resort to the statement of claim to ascertain whether the internal remedies under section 22 of the Chiefs Law were exhausted by the appellants before embarking on the action in court-see Adetayo and others v. Ademola and others (supra) at pages 188-189 thus: “The law is indeed well settled that in cases initiated by writ of summons and statement of claim such as the present case, the jurisdiction of the court is determined by the plaintiffs’ statement of claim. See Adeyemi v. Opeyori (1976) 9-10 S.C. 31 at 51, Tukur v. Government of Gongola State (No.2) (1989) 4 NWLR (Pt.117) 517 and Orthopedic Hospital Management Board v. Garba (2002) 14 NWLR (Pt.788) 538 at 563. In other words, although it is necessary sometimes to hear some sort of evidence first in assistance for the purpose of the determination of or the resolution of the issue of jurisdiction of court, where pleadings are filed in a suit as in the instant case, the issue of jurisdiction ought to be determined on the plaintiffs’ statement of claim without any recourse to the defendant’s statement of defence. See Izenkwe v. Nnadozie (1953) 14 WACA 361 and Attorney General Kwara State v. Olawale (1993) 1 NWLR (Pt.272) 645. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 22(5) OF THE CHIEFS LAW OF OGUN STATE AS TO WHETHER AN AGGRIEVED PARTY MUST EXHAUST ALL THE INTERNAL REMEDIES BEFORE INVITING THE COURT TO ENTERTAIN IT MATTER
In the instant case, the appellants skipped or leap-frogged the relevant Commissioner to land in court in violation of section 22 (5) of the Chiefs Law (supra). That all, not just one out of the internal remedies under section 22 of the Chiefs Law (supra) must be exhausted before going to court was insisted upon by the Supreme Court in the lead case of Eguamwense v. Amaghizenmen (1993) 9 NWLR (Pt. 315) 1 at page 25 per Belgore. J.S.C., thus: “where a statute prescribes a legal line of action for determination of an issue, be that issue an administrative matter, chieftaincy matter or matter of taxation, the aggrieved party must exhaust all the remedies in that law before going to court.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
CHIEF FATONJI WHETTO & ORS – Appellant(s)
AND
OBA MORUFU AYINLA AWODE & ORS – Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal challenges the judgment of Mabekoje, J., of the Ogun State High Court of Justice sitting at Ilaro striking out the appellants’ chieftaincy suit on grounds of prematurity of the suit and for lack of jurisdiction of the court below to entertain it.
The appellants as plaintiffs had in paragraph 62 of their joint second further amended statement of claim dated 8.3.03 averred the following reliefs against the respondents:
“1. Declaration that the plaintiffs who are of Egun tribe, in Ijofin, Yewa, Ogun State and descendants of the founder of Ijofin are entitled to nominate, present candidates and be appointed as the Baale or Oba of Ijofin in accordance with the history, tradition, customs and customary/native laws of Ijofin.
2. Declaration that any native or customary laws or enactment in Ijofin which restricts the rights to Baale or Oba of Ijofin to the Eyos (Yorubas) clan OR which deny the right of the Plaintiffs who are of Egun Clan or tribe of Ijofin and descendants of the founder of Ijofin to the Baale or Oba of Ijofin is not in accordance with the history, tradition, customs and customary/native laws of Ijofin and is therefore repugnant to natural justice, equity and good conscience and is therefore null and void.
3. Declaration that the acts of the defendants restricting the Baale or Oba of Ijofin to the Eyo (Yoruba) Clan of Ijofin to the exclusion of the plaintiffs who are of Egun Clan of Ijofin is Ultra Vires their power and against the history, native and customary laws of Ijofin.
4. Declaration that after the death of Baale Jubrila Ogunsekan in 1995 the 2nd plaintiff who is of Egun stock is the person entitled to be appointed as the Baale OR Oba of Ijofin in accordance with the history, tradition, Custom and Customary/native laws of Ijofin.
5. Declaration that the 1961 Chieftaincy Declaration of Ijofin is null and void and same is not valid as the customary law for the selection and appointment of the Baale or Oba of Ijofin.
6. Declaration that the appointment of the 1st defendant of Eyo stock as the Baale of Ijofin in 1997 after the death of Baale Jubrila Ogunsekan is irregular, illegal, unlawful and it is against the history, tradition, customs and customary/native laws of Ijofin.
7. Perpetual Injunction restraining the defendants, their agents, servants or privies from restricting or denying the rights of the plaintiffs as Egun of Ijofin from nominating candidates for the Baale or Oba of Ijofin or from producing the Baale or Oba of ljofin.
8. Perpetual Injunction restraining the 1st defendant from parading himself as the Baale OR Oba of Ijofin , as his appointment is irregular and not in accordance with the history, tradition, customs and customary/native laws of Ijofin.
The suit went to trial after pleadings were exchanged. Both parties called evidence. Briefly stated the appellants’ case was that they are natives of Ijofin town in ogun state; their ethnic group is called Egun; the 1st-6th respondents are also natives of Ijofin town, but of the Eyo ethnic extraction; that appellants’ fore-bears were the original settlers at Ijofin town producing the Baales of the town until the trend was abruptly truncated by force by one chief Borokini, an influential Eyo man; when the Baale of Ijofin died in 1997, and the appellants’ side aspired to the Baaleship, the 1st-6th respondents objected on the premise that the stool is the prerogative of their ethnic group.
Evidence for appellants in the court below went further that the appellants reported the dispute to the 7th respondent, the prescribed authority of Ijofin town, to decide the rightful ethnic group to appoint the successor to the stool; the 7th respondent advised the two contending parties to meet and resolve the dispute between them amicably; the 2nd-6th respondents flouted the advice and proceeded by force to install the 1st respondent as the Baale of Ijofin town basing their action on a Declaration made in 1961 for the Ijofin Chieftaincy post.
The 2nd-6th respondents, according to the evidence tendered on their behalf, relied on the 1961 Declaration in Exhibit B as the Ijofin customary law for the appointment, selection and installation of the 1st respondent as the Baale of Ijofin town in Exhibit A, upon which they rested their case.
At the close of evidence on both sides, learned counsel for the respective set of parties made their respective oral submissions with the respondents’ learned counsel attacking the suit on several prongs of objections out of which the court below upheld only the objection on the prematurity of the suit on the platform that appellants did not exhaust the statutory internal remedies in the Chiefs Law of Ogun State before filing the action. The court below accordingly declined jurisdiction in the suit which it struck out on that score.
The appellants’ notice of appeal with three grounds of appeal was filed on 25.4.2006. The appellants sought for and obtained an order of the court for the appeal to be heard on their own brief on 27.11.07. The appellants distilled three issues for determination on the appeal relating issue 1 to ground 3 of the appeal, issue 2 to ground I, and issue 3 to ground 2 of the appeal, which were canvassed in that order.
It was submitted on issue 1 that section 22 of the Chiefs Law of Ogun State was not pleaded by the respondents in their statement of defence, nor did the appellants plead non compliance with section 22 of the Chiefs Law in question, consequently the respondents were wrong to raise it in their final address in the court below without evidence on the issue, and the court below was equally wrong to uphold the objection on jurisdiction vide the cases of Ogbogu v. Ugwuegbu (2003) 10 NWLR (Pt.827) 189; Iheanacho v. Chigere (2004) 17 NWLR (Pt. 901) 130; Mba v. Agu (1999) 12 NWLR (Pt. 629) 1; Lion Building v. Shadipe (1976) 12 S. C. 135, Adegoke v. Adibi (1992) 5 NWLR (Pt. 242) 410; and Citizens Inter Bank Ltd. v. SCOA Nig. Ltd. (2006) 18 NWLR (Pt.1011) 332 at 339.
The written submissions on issue 2 referred to section 22 of the chiefs Law of ogun state to contend that the Baale of Ijofin was a minor chief as found by the court below in its judgment, therefore the Declaration contemplated by part 2 of the Chiefs Law would not apply to it; that the court below did not construe subsections (2) (3) (4) and (5) of section 22 of the Chiefs Law together; that a corporate reading of the said subsections would resolve that before section 22 of the chiefs Law can be invoked two conditions must be met to wit, first the Baale must have been appointed by those entitled by customary law to appoint him and, second that, he must have been so appointed in accordance with customary law before the prescribed authority would approve his appointment vide the cases of ; Awuse v. Odili (2004) 8 NWLR (PT. 876) 481; Chime v. Ude (1996) 7 NWLR (Pt. 461) 379 at 432 and Nwole v. Iwagwu (2004) 15 NWLR (Pt. 895) 61, on the community construction of interrelated statutory provisions’
It was submitted in addition to issue 2 that the evidence for the respondents emanating from the DW.1 and the D.W.2 in the court below disclosed that 1st respondent was appointed by the kingmakers in accordance with the 1961 Declaration, which the court below found was inapplicable to the appointment of the Baale of Ijofin; and that, with the voiding of the 1961 Declaration by The Recognized chieftaincies (Revocation and Miscellaneous Provision) order, those who appointed 1st respondent were not entitled to appoint him under customary law pursuant to section 22(2) of the chiefs Law, therefore a condition precedent to the invocation of section 22 of the Chiefs Law was not met by the 1st – 6th respondents; that it is after 22(2) of the Chiefs Law has been complied with that the other subsections can be invoked vide the cases of Lipede and Others v. Shonekan (1995) 1 NWLR (Pt.374) 668; Mosajo v. Oyetayo (2003) 5 S.C. 134 at 138; and Oladoye v. Administrator of Osun State (1995) 10 NWLR (Pt.476) 38 at 46 – 47, on the leg of submission that the 1961 Declaration became ineffective immediately after the Baale of Ijofin was derecognised.
It was submitted further on issue 2 that the 7th respondent as the prescribed authority did not resolve the dispute conclusively to approve or not to approve the appointment as enjoined by section 22(4) of the Chiefs Law to clear the way for the appellants to refer the prescribed authority’s decision to the Commissioner under section 22(5) of the Chiefs Law, consequently the condition precedent in section 22(2) (3) and (4) was not present for the court below to decline jurisdiction in the suit.
It was finally submitted on issue 2 that the facts of the cases of Abu v. Oduobo (2001) 7 NSCQR 624; Adesola v. Abidoye (1999) 10 – 12 S.C. 109; Eguanwense v. Amaghizenwen (1993) 9 NWLR (Pt.315) Page 1; and Aribisala v. Ogunyemi (2005) 21 NSCQ5R 113 relied upon by the court below are distinguishable in that in the said cases the people that appointed the chiefs had the power and the right to do so and the prescribed authority took a conclusive decision in the said cases, unlike the Present case.
The appellants argued in relation to issue 3 that the court below did not evaluate the evidence of the appellants in order to answer issue 8 formulated by it to wit-
“If the court has jurisdiction to entertain the plaintiffs’ action, whether by preponderance of evidence the plaintiffs have proved their case”.
The appellants argued that the failure of the court below to pronounce on issue 8 was wrong, as it was enjoined to consider all issues raised before it vide the cases of Owodunni v. Registered Trustees of C.C.C. (2000) 10 NWLR (Pt. 675) 315; Odunayo v. The State (1972) 8-9 S.C. (pagination not supplied); and Ifeanyi Chukwu (Osondu) Ltd. Soleh Bonch (Bonch) Ltd. (2000) 5 NWLR (Pt 656) 322. The appellants urged the court to evaluate the evidence on the record following the case of Okomolu v. Akinbode (2006) 9 NWLR (Pt. 985) 338 at 345 and enter judgment for them in terms of the reliefs sought in the suit, after allowing the appeal.
In order to appreciate the thrust of issue I, it is appropriate to start by copying it below together with ground 3 of the notice of appeal said to be tied to it. Issue 1 reads:
“Whether the learned trial judge order of striking out the suit is based on the evidence led at trial”.
While ground 3 reads:
“The judgment is against the weight of evidence”.
Ground 3, (supra) is the omnibus or general ground of appeal. It deals essentially with the evaluation of evidence and its preponderance- Macaulay v. Tukuru 1 NLR Page 35. It does not cover the question whether a statutory provision or material fact was not pleaded. The issue (1) (supra) for determination is, also, not based on the failure of the respondents to plead a condition precedent under section 22 of the Chiefs Law of Ogun State. It is trite that an issue for determination must derive from a ground or some grounds of appeal relating to the ratio decidendi of the case before it would be competent for consideration by an appellate court – see Nwana v. Federal Capital Development Authority (2007) 4 S.C.N.J. 433. The arguments on issue I (supra) are therefore, out of range and ought not to be countenanced.
At any rate, a jurisdictional matter or issue need not be pleaded. Once there is evidence in the record disclosing it any of the parties or even the court may raise it- see NDIC v. CBN (2002) 18WRN 1 at 18 to 19 or (2002) 7 NWLR (Pt. 755) 272 at 296-297:
“…………………………….. But as already shown the issue of jurisdiction is not a matter for demurrer proceedings. It is much more fundamental than that and does not entirely depend as such on what a plaintiff may plead as facts to prove the reliefs he seeks. What it involves is what will enable the plaintiff to seek a hearing in court over his grievance, and get it resolved because he is able to show that the court is empowered to entertain the Subject matter. It does not always follow that he must plead first in order to raise the issue of jurisdiction,”
(My emphasis).
See also National Bank of Nigeria v. Shoyoye (1977) 5 S.C. 181 t 186; Chief Bamisile v. Osasuyi and others (2007) 9 NWLR (Pt. 1042) and Adetayo and others v. Ademola and others (2010) 15 NWLR (Pt. 1215) 169 at 188-189.
Issue 2 was framed this way:
“Whether from the facts and evidence led in this case, S.22 (2) (3) (4) and (5) of the Chiefs Law of Ogun State are applicable to deny the appellants access to the High Court at the time they instituted this action”.
Ground 1 of the notice of appeal tied to issue 2 (supra) reads:
“The learned trial judge erred in law when he struck out the plaintiffs’ case on the ground that the plaintiffs did not comply with section 22 of the Chief Laws of Ogun State.
PARTICULARS
Section 22 of the Chiefs Law is not applicable to this case because the evidence at trial reveals that the 1st defendant was not appointed by those entitled to by customary law as specified by the said law.”
In effect ground 1 (supra) on which issue 2 (supra) is predicated relates only to whether there was evidence to show the 1st respondent (1st defendant in the court below) was not appointed by those entitled to do so by customary law as specified in the Chiefs Law of Ogun State.
It was found by the court below that the 1st respondent’s appointment by the 2nd-6th respondents was based on the Declaration of customary law made under section 4 (2) of the Chiefs Law Cap. 19, dated 15.4,1961, evidenced by Exhibit B. The evidence showed the appointment was in that wise derived from Exhibit B. The court below went ahead to hold inter-alia that:
“…. the Baale of Ijofin is a derecognized chieftaincy and that the 1951 Chieftaincy Declaration Exhibit A, (?) Hitherto made applicable to the chieftaincy ceased to have effect when the Recognised Chieftaincies (Revocation and Miscellaneous Provisions) order came into force in 1976”.
The appellants agreed with the above holding. The appellants’ grouse, however, is whether the appointment of the 1st respondent as the Baale of Ijofin town was in accordance with the history, custom and tradition of Ijofin town; and by the same token, whether any native law or custom or enactment denying the appellants’ clan the right to vie for the stool and restricting it to the Eyo (1st-6th respondents) clan of the town is right and acceptable.
In my considered opinion, the eligibility of either the appellants’ clan or the 1st-6th respondents’ clan to vie for the stool constitutes a dispute within the meaning of section 22 (2) of the Chiefs Law of Ogun State which is analogous to section 22 of the Chiefs Law of Ondo State and considered by the Supreme Court in Chief Aribisala and Another v. Ogunyemi and others (2005) 1-2 S.C.36 at 49 thus:
“Under section 22 (3) of Ondo State Chiefs Law, any dispute, even if it touches only the question of eligibility as the plaintiffs/appellants contended must be submitted first to the prescribed authority for settlement and later to the commissioner for chieftaincy matters. The attempt made by the plaintiffs/appellants’ counsel to convince me that a dispute about eligibility of the 1st defendant to the Oisemo chieftaincy, which was the subject matter of plaintiffs/appellants’ suit, was not a chieftaincy dispute within Section 22(3) of the Ondo State Chiefs Law is misconceived and must be rejected.”
The appellants pleaded the dispute and its reference by them to the 7th respondent, the prescribed authority, and his inability to settle the dispute himself in paragraphs 41A to 43A of their second further amended statement of claim as follows:
“41A. The Yorubas (Eyo) have produced 2 successive Bales in Ijofin namely Alidu Salako and Jubrila Ogunsekan. Bale Alidu Salako was succeeded by Bale Jubrila Ogunsekan. After the death of Jubrila Ogunsekan, in 1995 the plaintiffs who are of Egun Stock and the descendants of the original settler of Ijofin demanded for their right to present the Bale of Ijofin as it was their turn to do so but the defendants who arrogated to themselves the power to select and appoint a Bale for Ijofin and in contravention of the customs and history of Ijofin unlawfully chose the 1st defendant an Eyo man as the Bale of Ijofin.
42. The Plaintiffs complained to Oba of Ipokia. Oba Raufu Adeole on the issue immediately after the death of Jublila Ogunsekan. The Oba informed them that he was handicapped because the Eyos insisted on producing the Bales. The Oba advised the elders of the town to meet and resolved the rotational issue of the Baleship between the two ethnic groups (Eyos and the Eguns) peacefully.
43. Severally meetings were held at Ijofin immediately after the death of Bale Jubrila Ogunsekan towards resolving this issue peacefully between the plaintiffs and the defendants but the defendants who are of Eyo stock and who came later to join the plaintiffs in Ijofin insisted on always Producing the Bale’
43A. The plaintiffs, their entire family and the Egun clan in Ijofin later met and unanimously selected the 2nd plaintiff as the next Bale of Ijofin but the defendants with the aid of thugs prevented the 2nd plaintiff from bein installed as Baale of Ijofin town and instead forcefully installed the 1st defendant as Bale in 1997. The said appointment of the 1st defendant is irregular and not in accordance with the history, native laws and customs of Ijofin as the appointment were based on the chieftaincy declaration of 1961 which is not applicable to the selection and/or appointment of the Bale or Oba of Ijofin.”
By the Combined impact of paragraphs 41(A)-43(A) of the statement of claim (supra), the appellants, in my considered view, introduced the statutory role of the 7th respondent as the prescribed authority to settle the dispute through the internal remedies provided in section 22 of the Chiefs Law. The issue of jurisdiction by exhaustion of the domestic remedies under section 22 of the Chiefs Law of Ogun State was, on that score, manifested by paragraphs 41(A)-43(A) of the statement of claim (supra) and, the court below was, in my view, entitled to resort to the statement of claim to ascertain whether the internal remedies under section 22 of the Chiefs Law were exhausted by the appellants before embarking on the action in court-see Adetayo and others v. Ademola and others (supra) at pages 188-189 thus:
“The law is indeed well settled that in cases initiated by writ of summons and statement of claim such as the present case, the jurisdiction of the court is determined by the plaintiffs’ statement of claim. See Adeyemi v. Opeyori (1976) 9-10 S.C. 31 at 51, Tukur v. Government of Gongola State (No.2) (1989) 4 NWLR (Pt.117) 517 and Orthopedic Hospital Management Board v. Garba (2002) 14 NWLR (Pt.788) 538 at 563. In other words, although it is necessary sometimes to hear some sort of evidence first in assistance for the purpose of the determination of or the resolution of the issue of jurisdiction of court, where pleadings are filed in a suit as in the instant case, the issue of jurisdiction ought to be determined on the plaintiffs’ statement of claim without any recourse to the defendant’s statement of
defence. See Izenkwe v. Nnadozie (1953) 14 WACA 361 and Attorney General Kwara State v. Olawale (1993) 1 NWLR (Pt.272) 645.”
The court below did not stop there. It evaluated the evidence adduced in the suit and found as a fact that the appellants initiated the journey on the settlement of the dispute by the internal machinery provided in section 22 of the Chiefs Law by reporting the dispute to the prescribed authority, the 7th respondent, pursuant to section 22(3) of the Chiefs Law, in these words:
“The dispute was reported to the 7th respondent, the prescribed authority, according to P.W.3, which evidence I prefers and believes.”
The appellants did not question the above finding of fact on this appeal. It remains undisturbed, in my view. The court below was equally right to use the above evidence to resolve the issue of jurisdiction- see Awoyemi and others v. Fasuan (2006) 13 NWLR (Pt. 996) 86 at 119 where Ikongbeh, J.C.A., (now of blessed memory) held interalia that an issue of jurisdiction:
“Could be taken on the basis of the evidence received: see Barclays Bank of Nigeria Ltd. v. Central Bank of Nigeria (1976) 1 ALL NLR 409….”
The pivot of the appeal, in my view, is whether the appellants should have taken the dispute to the commissioner responsible for chieftaincy matters after the prescribed authority had abdicated his statutory responsibility to resolve the dispute decisively, before filing the action in court. The court below held that the appellants should have gone to the said Commissioner before resorting to court in these words:
“The 7th defendant however told the plaintiffs that he was helpless on the matter as the yorubas insisted that it was their right to produce Baales in Ijofin. He directed the two tribes to dialogue and resolves the dispute. The verdict of the 7th defendant on this dispute, no doubt, is not conclusive, but the plaintiffs are obliged under the
Law to appeal to the Commissioner charged with the responsibility of chieftaincy matters to review the decision. This Commissioner, if he considers it necessary, may even cause an inquiry to be held into the dispute. The plaintiffs however did not bother to make representations to the Commissioner to whom responsibility for chieftaincy affairs is assigned for the said decision to be set aside before they filed this action in Court. The issue as to whether or not, the prescribed authority subsequently approved the appointment of the 1st defendant is totally irrelevant to the matter under consideration.
In my view, the plaintiffs have failed to exhaust all the remedies available to them before having recourse to Court in this action.”
The appellants contended, on the other hand, that there was no decision from the prescribed authority for them to take to the relevant Commissioner under section 22 (4) and (5) of the Chiefs Law. To the appellants, that was the end of the road for settlement of the dispute through the internal measures in section 22 of the Chiefs Law and, that the only course opens to them was to go to court.
It is convenient at this juncture to reproduce section 22(1) to (6) of the Chiefs Law of Ogun State below:
“(1) The Executive Council may appoint in respect of the area (which expression shall in this part and Part 4 be deemed to include a reference to part of an area) of any Local Government of group of Local Governments, an authority (in this Part referred to as the prescribed authority) consisting of one person, or of more persons than one, who may be the Chairman and other members of a committee, established by section 5, to exercise the powers conferred by this section in respect of the office of any minor chief whose chieftaincy title is associated with a native community in that area.
(2) Where a person is appointed, whether before or after the commencement of this Law, to fill a vacancy in the office of a minor chief by those entitled by customary law so to appoint and in accordance with customary law, the prescribed authority may approve the appointment.
(3) Where there is a dispute whether a person has been appointed in accordance with customary law to a minor chieftaincy the prescribed authority may determine the dispute.
(4) The decision of the prescribed authority-
(a) To approve or not to approve an appointment to a minor chieftaincy; or
(b) Determining a dispute in accordance with subsection (3) of this section shall be-final and shall not be questioned in any court.
(5) Any person aggrieved by the decision of the prescribed authority in exercise of the powers conferred on the prescribed authority by subsections (2), (3) and (4) of this section may, within twenty-one days from the date of the decision of the prescribed authority, make representations to the Commissioner to whom responsibility for chieftaincy affairs is assigned that the decision be set aside and the Commissioner may, after considering the representations, confirm or set aside the decision. (No. 1 of 1976)
(6) Before exercising the powers conferred by subsection (5) of this section, the
Commissioner may cause such inquiries to be held in accordance with section 21 as appear to him necessary or desirable.”
Section 22 of the Chiefs Law read together, as rightly submitted by appellants’ learned counsel, contemplates in subsection (1) of section 22 the establishment of a prescribed authority and, in respect of the Ijofin town, the 7th respondent was at all material times the prescribed authority. Subsection (2) thereof enjoins the prescribed authority to approve the appointment of a minor chief such as the Baale of Ijofin town upon his appointment by those entitled by customary law to make the appointment.
In the instant case, the quarrel of the appellants was that the 1st respondent was not appointed by those entitled under customary law to make the appointment. It was, according to the appellants, a cabal comprising the 2nd – 6th respondents who are not entitled under customary law to appoint the Baale of the town that made the appointment and, that was the origin of the dispute. The appellants then took the dispute to the 7th respondent to decide that by customary law their own clan was the one eligible to aspire to the Baaleship in accordance with subsection (3) of section 22 of the Chiefs Law. Subsection 4 thereof required the 7th respondent as the prescribed authority of the town to take a definite decision on the dispute referred to him by the appellants.
The definite decision 7th respondent qua prescribed authority of the Ijofin town was to make on the dispute would have been to either approve or not approve the appointment of the 1st respondent, or alternatively, the 7th respondent would have decided on the eligibility of the appellants’ clan to present a person to fill the vacancy of the Baaleship and, further, whether the 1st respondent’s appointment was done by those entitled under customary law to so do. The 7th respondent as already stated in this discourse refused to decide the dispute.
The next line of action was for appellants to have made representations to the relevant Commissioner under section 22(5) of the Chiefs Law (supra). But their learned counsel argued that there was no decision from the 7th respondent qua prescribed authority to refer to the relevant Commissioner. I think there was something to ground the representations taking into account the evidence of the P.W.3, one chief Whetto Emmanuel, which the court below believed to wit:
“When the 1st defendant was about to be installed as Baale of Ijofin we the plaintiffs protested to the 7th defendant. The 7th defendant said he was helpless as the Yorubas had insisted that it was their right to produce Baales in Ijofin. He advised the Egun and Yoruba elders in the town to dialogue and resolves the dispute in such a way that the two ethnic groups will be producing Baales in rotation. All the meetings held were unsuccessful as the Yorubas insisted on producing Baales. Having seen the stand of up Yorubas we too appointed our own Baale in the person of the 2nd plaintiff. The yorubas however did not allow us to install him as Baale. They used their influence and education to make the installation impossible for us.”
The representations appellants were to make to the relevant commissioner under section 22(5) of the chiefs Law (supra) would have been in form of a petition or remonstrance fashioned on the above quoted portion of the P.W.3’s evidence, all the more so the 7th respondent as the prescribed authority was helpless and had washed his hands off the matter. If the relevant commissioner had done nothing to the representations, then the coast would have been clear for the appellants to resort to litigation. That the representations need not be formal was highlighted in the case of Owoseni v. Faloye and Another (2005) 7 S.C. (Pt.11) 79 at 105 thus:
“The law itself has not prescribed the form in which representations to the commissioner in charge of chieftaincy matters should take. It may therefore be formal or informal, that is, oral or written. Indeed it seems to me sufficient if the relevant commissioner has been afforded an opportunity through any medium to resolve the matter. In the instant case, commissions of inquiry were set up under the authority of the relevant commissioner.” (My emphasis)
In my view, the importance of affording the relevant Commissioner as the highest domestic arbiter under section 22 of the Chiefs Law (supra) an opportunity to resolve the dispute left unresolved by the 7th respondent as the prescribed authority beneath him cannot be over-emphasized – see Owoseni (supra) at page104:
“such laws (S.22 of the Chiefs Law) only afford the body to which such disputes must be referred to in the first instance an opportunity to resolve the dispute if it can before a recourse is had to the court. In other words, they serve the purpose of preventing actual litigation in court where it is possible or desirable to resolve the dispute. In relation to chieftaincy matters, were such laws not in existence, the courts would be inundated with suits on chieftaincy matter given the bitterness with which chieftaincy disputes are pursued and the regularity with which such disputes occur”. (My emphasis)
See also Adesola v. Abidoye and Another (1999) 14 NWLR (Pt.637) 28 at 69, where Ayoola, J.S.C., held:
“The intendment of these provisions is to ensure, within the ambit of the Chiefs Law, comprehensive and speedy machinery for determining questions arising from disputed appointments with less formality than would attend litigation…..”
It is in this sense that it is more expedient to yield primacy to the remedies it provides and the machinery it established for any claim to those remedies….”
(My emphasis)
In the instant case, the appellants skipped or leap-frogged the relevant Commissioner to land in court in violation of section 22 (5) of the Chiefs Law (supra). That all, not just one out of the internal remedies under section 22 of the Chiefs Law (supra) must be exhausted before going to court was insisted upon by the Supreme Court in the lead case of Eguamwense v. Amaghizenmen (1993) 9 NWLR (Pt. 315) 1 at page 25 per Belgore. J.S.C., thus:
“where a statute prescribes a legal line of action for determination of an issue, be that issue an administrative matter, chieftaincy matter or matter of taxation, the aggrieved party must exhaust all the remedies in that law before going to court.
(My emphasis)
In Owoseni (supra), for example, both the prescribed authority and the relevant Commissioner refused to act on the complaint of the aggrieved party and the Supreme Court held (Per Musdapher, J.S.C.) inter-alia at pages 91 and 92 of the law report that;
“But in the instant case, the prescribed authority, the 2nd respondent, clearly made no determination nor did the commissioner in charge of the chieftaincy matters “confirm or reject the “determination” made by the 2nd respondent… In my view, the appellant was entitled to sue and seek the declarations as he did since the prescribed authority and the commissioner in charge of the chieftaincy matters had neglected or refused to exercise the power…
As shown above, the appellant had done all what was required of him under the statute. The fact that the Commissioner for Chieftaincy Affairs failed to do his duties should not be counted against the appellant….”
Unlike Owoseni (supra) where the prescribed authority did not determine the dispute, yet the aggrieved party still made representations to the relevant Commissioner who did not act on it, the present appellants never took the dispute to the relevant Commissioner after the 7th respondent qua prescribed authority refused to determine it as to reap the benefit of the Owoseni case (supra). In other words and at the risk of repetition, though the prescribed authority refused to determine the dispute, it was still imperative for appellants to make representations to the relevant Commissioner for the purposes of exhausting all the internal or domestic remedies under section 22 of the Chiefs Law (supra) before going to court as happened in the Owoseni case (supra).
Again, at the risk of repetition, it was not enough for the appellants to lodge the dispute with the prescribed authority alone, nor would it have been right to jump the prescribed authority and make the representations to the relevant Commissioner. The sequence of first taking the dispute to the prescribed authority, regardless whether or not he determined it, before making representations to the relevant Commissioner, regardless whether or not the relevant Commissioner decided it, must all be complied with before the aggrieved party goes to court’ Some few examples may suffice – In Aribisala (supra), the representations were made to the Ondo state Government, but the supreme court held at Page 48 of the law report that:
“The representations, which plaintiffs claimed they made in their letter in 1979 to the Ondo State Government, ought to have been made to the prescribed authority; and later to the commissioner for Chieftaincy matters.”
In Owoseni (supra), both the prescribed authority and the relevant commissioner were afforded an opportunity to resolve the dispute, but they neglected or refused to do so, and the Supreme Court held that the aggrieved party had exhausted all the domestic remedies and was right to sue in the circumstances, which was not the case here. And, in Adesola v. Abidoye (supra), the aggrieved party took the dispute to the prescribed authority without; also, making representations thereafter to the relevant Commissioner before filing the action and, the Supreme Court held that the aggrieved party had not exhausted all the internal remedies.
Further, in Okomalu (supra) relied upon by appellants, both the prescribed authority, the Olubadan in that case, and the Governor of Oyo State were apprised of the dispute by the aggrieved party and the latter flagrantly closed the case against the aggrieved party and, on the facts of that case, the Supreme Court held that the aggrieved party had exhausted all the internal remedies under the Chiefs Law and was right to file the suit in the circumstances, which is poles apart from the present case, as the appellants did not take the dispute to the relevant commissioner to complete the domestic cycle under section 22 of the Chiefs Law (supra).
Then, in Awoyemi and Others v. Fasuan (supra), the aggrieved party, like the appellants, took the dispute to only the prescribed authority and from there they sued in court deleting the role of the relevant commissioner as happened in the instant case. And this court (Ilorin Judicial Division) held at pages 106 to 108 of the law report that the suit was premature having been filed without exhausting all the administrative remedies under the relevant Chiefs Law.
Flowing from the above discourse, I resolve issue 2 against the appellants. The failure of appellants to make representations to the relevant Commissioner under section 22(5) of the Chiefs Law (supra), after the prescribed authority, the 7th respondent, declined to settle the dispute infringed section 22(5) of the Chiefs Law (supra). And, the court below held, aright, in my view, that the appellants had not exhausted all the remedies under section 22 of the Chiefs Law (supra) to vest it with the jurisdiction to adjudicate on the merits of the suit. The court below was on that premise right to decline jurisdiction in the suit.
Issue 3 tied to ground 2 of the notice of appeal is:
“Whether the Learned trial judge was right when he failed to take a decision on all the issues raised before him at the trial particular by issue 8 as formulated in his judgment.”
Issue 8 which were raised in the court below reads:
“If the court has jurisdiction to entertain the plaintiffs’ action, whether by preponderance of evidence the plaintiffs have proved their case.”
The court below said of issue 8 (supra) thus:
“In the light of the conclusion reached above, the last issue which touches on the merit of the plaintiffs’ case cannot be considered.”
With deference to the court below, it is bound to consider all material issues placed before it. The duty becomes pronounced, especially, where the court below raised the issues for determination as it did in this case. The court below was; therefore, wrong to jettison issue B (supra) – see Owodunni (supra) at page 347 cited by appellants’ learned counsel:
“….this court was, in a number of cases frowned at the failure of lower court to decide issues placed before them.”
Issue 3 (supra) is, accordingly, resolved in favour of the appellants.
The resolution of issue 3 (supra) in appellants’ favour does not, in my view, improve the fortune of the appeal. Because the jugular issue 2 (supra) on jurisdiction was earlier resolved against the appellants. In the final analysis, the appeal fails and is hereby dismissed. The consequential order of the court below striking out the suit on grounds of prematurity of the suit and for lack of jurisdiction is hereby upheld.
STANLEY SHENKO ALAGOA, J.C.A.: I have read in draft the lead judgment of my learned brother Ikyegh, J.C.A. just delivered. I agree with his reasoning and conclusion that the appeal fails and should be dismissed. I dismiss same and abide by the consequential order made therein.
SIDI DAUDA BAGE, J.C.A.: I have had the opportunity to read in draft the lead judgment delivered by learned brother, Joseph Shagbaor Ikyegh, J.C.A.
I agree with his reasoning’s and conclusions reached and I entirely agree that the appeal lacks merit and it ought to be dismissed. I also dismiss same and I abide by the consequential order contained in the lead judgment.
Appearances
Mr. O. O. IdowuFor Appellant
AND
For Respondent
