CHIEF GABRIEL FOLORUNSO OJO & ANOR v. CHIEF SAMUEL DADA AKINYEMI (2013)

CHIEF GABRIEL FOLORUNSO OJO & ANOR v. CHIEF SAMUEL DADA AKINYEMI

(2013)LCN/6513(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 27th day of November, 2013

CA/EK/44/2013

JUSTICES

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

Between

CHIEF GABRIEL FOLORUNSO OJO & ANOR Appellant(s)

AND

CHIEF SAMUEL DADA AKINYEMI Respondent(s)

RATIO

DEFINITION OF A “REPRESENTATIVE ACTION”

A representative action is seen and considered as an action brought by the body of persons represented rather than the named plaintiff only. See: LADEJOBA v. OGUNTAYO (2004) 18 NWLR (Pt. 904) 135. In the instant case, the Respondent initiated his action at the lower court for himself and on behalf of Ilaro Street, Esun-Ekiti. Ilaro Street is definitely not a body of persons and are therefore non-juristic persons. It would have been a different consideration if the Respondent had sued for himself and Ilaro Community, Esun Ekiti. However, where a juristic person sues in a representative capacity, he being a party to the case can sustain the suit, as the only option open to the Court where a non-juristic person is named as a party to a suit would be to strike out the name of the non-juristic person. See: IDANRE LOCAL GOVERNMENT v. GOVERNOR OF ONDO STATE (2010) 14 NWLR (Pt. 1214) 509 at 525-526 PARAGRAPHS H-A. By suing in a representative capacity, a party suing has clearly joined the persons on behalf of whom he is suing as co-plaintiffs to the action. PER GALINJE, J.C.A.

WHETHER OR NOT A SUIT IS RENDERED INCOMPETENT WHERE IMPROPER PARTIES ARE STRUCK OUT

WHETHER OR NOT THE COURT CAN DEAL WITH ISSUES NOT PLACED BEFORE THE COURT

In AMADU v. YANTUMAKI (2011) 9 NWLR (Pt. 1251) 161 at 183 PARAGRAPHS E-F, this court, per Peter Odili, JCA (as he then was) said:
“When an issue is not placed before a Court, such Court has no business to deal with it, as decision of a court of law must not be founded on any ground in respect of which it has neither received argument from or on behalf of the parties before nor even raised by or for the parties, or either of them. Also, it is not competent for any Court suo motu to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before it.
(Underlining for emphasis).
See: ADETOYE v. F.I.I.R. OSHODI (2011) 14 NWLR (Pt. 1267) 350 at 379 PARAGRAPH G, ATOLAGBE v. SHORUN (1985) 1 NWLR (Pt. 2) 360. PER GALINJE, J.C.A.

PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment): The Respondent herein as Plaintiff at the Ekiti State High Court, claimed at Paragraph 50 of his statement of claim dated 20th July, 2010 and filed on the 21st July, 2010, the following reliefs:
(i) A Declaration that by the Native Law and Custom of Esun-Ekiti of Ekiti State and in compliance with the Government views on the Oluwole Chieftaincy Review Commission, 1982, the plaintiff is the Second-in-Rank to the Elesun and the Head (Olori) of Agba Esun of Esun-Ekiti in Ikole Local Government Area of Ekiti State.
(ii) An Order of Perpetual Injunction restraining the 1st Defendant from parading himself forthwith as the Head (Olori) of Agba-Esun and performing or cause to be performed by him all or any of the functions/role of the Head (Oloro of Agba-Esun both at Ujo-Owuro and Ujo-Agba Esun.
(iii) An Order of perpetual injunction restraining the 2nd Defendant, Elesun-in-Council, his Council of Chiefs, Agents, Servant and Privies or whomsoever from further recognizing, referring, addressing or calling the said 1st Defendant the Head (Olori) of Agba Esun in Esun-Ekiti in Ikole Local Government Area of Ekiti State.
(iv) An Order setting aside as being illegal, unconstitutional, improper, null and void and of no effect whatsoever the purported appointment of the 1st Defendant by the 2nd Defendant as the Head (Olori) of Agba Esun of Esun-Ekiti on 15th April, 2010.
The Appellant filed a 28 Paragraphs Statement of Defence on the 19th August 2010. Issues having been joined, the case was set down for trial. During the trial, the Respondent called three witnesses and tendered a document titled ‘Government View on the Report of the Oluwole Chieftaincy Review Commission’. The document was admitted as Exhibit ‘A’. The Appellants herein on their part called two witnesses and tendered two letters which were admitted as Exhibits ‘B’ and ‘C’ respectively. Learned Counsel for respective parties filed written addresses which were adopted on the 2nd of February, 2011. In a reserved and considered judgment, which was delivered on the 27th March, 2012, Ogunyemi, J. found for the Respondent herein and granted all the reliefs he sought. It is against that judgment that the Appellants have appealed to this Court. Their notice of appeal dated 7th March, 2013 and filed on the 8th of March, 2013, contains six (6) grounds of appeal which I reproduce hereunder without their particulars as follows:-
“(1) The trial court erred in law holding that Section 13 of the Chiefs Edict 1984 as amended is not applicable to this case and this led to a miscarriage of justice.
(2) The trial court erred in law in holding that “in my opinion, the report of the committee is in favour of the Plaintiff that was why it was not given to them. And that is why it was not tendered.” This led to a miscarriage of justice.
(3) The trial court erred in law in failing to consider the totality of the historical evidence of Esun-Ekiti adduced by the defendant’s witnesses before coming to its decision and this led to a miscarriage of justice.
(4) The trial court erred in law in believing and making use of the evidence of PW3 as a Prince in coming to a wrong decision without considering the historical evidence of DWI who is also a Prince and this led to a miscarriage of justice.
(5) The trial court lack (sic lacks) the jurisdiction to entertain the plaintiff’s case as same was brought on behalf of unknown persons.
(6) The decision of the trial court is against the weight of evidence.”

Parties filed and exchanged briefs of argument.

Mr. Kayode Akinwumi, Learned counsel for the Appellants formulated six (6) issues for determination of this appeal at Page 4 of the Appellants’ brief of argument dated and filed on the 2nd of May, 2013. I reproduce the issues hereunder as follows:-
“3.01.Whether the Learned trial Judge was right in holding that Section 13 of the Chiefs Edict 1984 (as amended) is not applicable to the facts and circumstances of this present case.

3.02. Whether or not the trial Judge was right or not in holden (sic) that the failure of the defendants to tender the report of the Committee set up by the 2nd defendant was because the report was not favourable to them when the plaintiff equally had the opportunity to tender same document but failed to do so or give evidence of its content.

3.03. Whether his Lordship, the learned trial Judge properly evaluate (sic) the evidence from the defendants witnesses before arriving at the conclusion contained in the judgment appeal (sic) against.

3.04. Whether the learned trial Judge actually placed the evidence of both PW3 and DW1 side by side on the imaginary scale to determine the weight to be attached to either of the two evidence from the two witnesses who both claimed to be members of the 2nd defendant’s family.

3.05. Whether plaintiff’s suit is competent before the trial court haven (sic) be (sic) brought on behalf of a non juristic persons.

3.06. Whether the Plaintiff actually proof (sic) his case to be entitled to the judgment of the lower court.”

Issues 1 – 6 are said to have been formulated from grounds 1 – 6 respectively.
Mr. Akinwale A. Adeyeye, Learned Counsel for the Respondent at Page 3 of the Respondent’s brief of argument dated 4th of July, 2013 and filed on the 5th July, 2013, but deemed filed on 22nd October, 2013, formulated four (4) issues for determination of this appeal. They read as follows: –
“3.01. Whether or not the trial lower court was right in holding that Section 13 of the Chiefs Edict, 1984 (as Amended) is not applicable to the facts and circumstances of this case.

3.02. Whether or not the trial lower court was right in holding that the failure of the Defendants to tender the Report of the Committee set up by the 2nd Defendant was because the Report was not favourable to the Defendant.

3.03. Whether or not the Plaintiffs suit is competent in taking the action in a representative capacity for himself and on behalf of his Ilaro Community.

3.04. Whether or not the plaintiff proved his case before the lower court by preponderance of evidence for the lower court to find for him on his claims.”

Learned Counsel who did not tie the issues to the grounds of appeal in the brief, orally tied issue 1 to grounds 1 and 3, Issue 2 to ground 2, Issue 3 to ground 5 and Issue 4 to ground 6.
Both counsel for the Appellants and the Respondent in formulating issues for determination of this appeal referred to the parties to this appeal as plaintiffs and defendants. Such parties are unknown to the proceedings at the Court of Appeal. Parties before this Court are either Appellant and Respondent or Applicant and Respondent. Counsel appearing before this Court must make it a duty to set out the parties correctly, or it will be taken that proper parties are not before the Court. Plaintiffs and Defendants are strange parties in appeal processes and should not be reflected as parties before this Court. The parties on the Appellants’ notice of appeal are Appellants and Respondent. Any party that is different from the ones on the notice of appeal, is a stranger to the appeal, as such any argument on his behalf will surely go to no issue. See: DUZU v. YUNUSA (2010) 10 NWLR (Pt. 1201) 80 at 103 PARAGRAPH H. However, since the notice of appeal is competent, I will nonetheless act on the argument arising from the issues as none of the parties has shown that he has been misled thereby.

The Respondent in his statement of claim at the lower court gave a long history of how his fore-fathers, the Ilaros, migrated from Ile-Ife and first settled at Igbogan-Igbale and were later joined by the people of Iremo who were led by their leader, Ojisun Ojo Abelefonpintaotao. These latter group fused with the Ilaro people under the name ‘Esun’ and appointed Abelefonpintaotao who already had a beaded crown which he brought alongside his own people to Igbogan-Igbale their King, while Obaaro Ajakaramutagun, was chosen to be second in rank to the king. According to the Respondent, Abelefonpintaotao was now to be addressed as Elesun and in order not to extinguish the title of Ojisun he was to nominate among his kinsmen to replace him as Ojisun. Between 1927 – 1928 during the reign of Elesun, Oba Ayeni Agbelusi Esun finally moved to its present location with Obaaro Amuditi who was second in Rank to Elesun and the Head (Olori) of Agba Esun. The Respondent’s further narration is that this Obaaro was the 9th to be installed in Esun history and they were all from Ilaro Street. Respondent was installed as Obaaro in 1997 and the Head (Olori) of Agba Esun. However on the 12th of February, 2010, the 2nd Appellant, the Elesun of Esun told him at a meeting which ended abruptly that he was no longer the Head (Olori) of Agba Esun and that it was the 1st Appellant that is the Head (Olori) of Agba Esun. It is this declaration that led him to initiate this case at the lower court.

The Appellants on their part in their statement of defence at the lower court averred that the Respondent, by history, custom and tradition is not the second in rank to Elesun of Esun-Ekiti and that Obaaro is in the 8th position in the order of seniority of Chiefs in Esun-Ekiti. In a further averment, the Appellants insisted that Obaaro Amuditi never acted as second in rank to Elesun of Esun-Ekiti and was never the Head (Olori) of Agba Esun at any time. The Appellants insist in their averment that the 1st Appellant, the Obadofin is the 2nd in rank to Elesun and that he is also the head of Agba Esun from time immemorial. The Appellants denied that the Respondent and his kinsmen migrated from Ile-Ife to settle at Igbogan-Igbale. According to them, the Respondent and his people left Isaba-Ekiti and settled at Iboje in Odo-Oro after which they moved to join Olurara of Urara where Igbogan-Igbale was located. The 2nd batch of the Respondent’s people came from Ilotin Section at Ere Quarters, Odo Ayedun to settle with the Respondent and they are regarded as one family called Ilaro in Esun-Ekiti. The Appellants thereafter narrated how Ojisun as the first Elesun led people out of Ile-Ife to found Ado-Ekiti and the Elesun’s problem with the Ewi of Ado which subsequently led to Elesun’s movement to Iloda in Ikole and subsequent movements before settling at Esun-Ekiti. They denied the story as told by the Respondent and insisted that through history the Obadofin has always been the second in rank to Elesun and the Head (Olori) of Agba Esun.

Now, coming to the issues formulated by the Appellants, I find issues two, three, four and six, complaining about the same thing, and that is the assessment of the evidence before the lower court and ascription of probative value to such evidence. In that wise, I am of the firm view, that these issues can be considered under a single issue which is:

Whether the Learned trial Judge properly assessed the evidence before him and ascribed probative value to such evidence in his judgment.

This being so, I will decide this appeal on the following issues:-

1. Whether the learned trial Judge was right in holding that Section 13 of the Chiefs Edict 1984 (as amended) is not applicable to the facts and circumstances of this present case.

2. Whether the learned trial Judge properly assessed the evidence before him and ascribed probative value to such evidence.

3. Whether Respondent’s suit is competent before the trial court, having been brought on behalf of non juristic persons.

These issues here have covered all the issues formulated on behalf of the Respondent. Because the third issue complains of the competence of the suit that gave rise to this appeal, I will take it and consider it first before considering other issues.

In arguing the third issue as formulated above, Mr. Kayode Akinwumi, Learned Counsel for the Appellants submitted that the Respondent initiated the proceedings in the lower court for himself and on behalf of Ilaro Street, Esun-Ekiti which is unknown to law as it is not a juristic personality.

According to the learned Counsel, those who may sue and be sued are as stated by the Supreme Court in CAREAN NIG. LTD v. UNIJOS & ANOR (1994) 1 NWLR (Pt. 323) 631 and PRINCIPAL GOVERNMENT SECONDARY SCHOOL & ORS v. IGBUDU (2006) ALL FWLR (Pt. 299) 1420 at 1442 – 1443. In a further argument, learned Counsel submitted that there was no iota of evidence as to the people that constitute Ilaro Street. Learned Counsel contended that even though the Respondent is a juristic person, by joining himself with a non juristic personality, he had robed the trial court the jurisdictional competence to try the case as any order made would not only be bound on him, but the people he claimed to represent. Learned Counsel cited in aid the case of MOBIL PRODUCING NIG. UNLIMITED & ANOR v. CHIEF MONORIPO & ANOR (2004) FWLR (Pt. 195) 575 at 648 – 649. Finally, learned Counsel on this issue urged this court to hold that the Respondent’s case before the lower court was highly incompetent and therefore the lower court lacked jurisdiction to try same having been brought on behalf of parties unknown to law.

Mr. Akinwale Adeyeye, learned Counsel for the Respondent in his argument, submitted that the Respondent’s suit at the lower court is competent. Learned Counsel submitted that PW1 who is the Respondent herein is a legal person who can sue and be sued, as such he has locus standi to sue in this case. In aid, Learned Counsel cited JIMOH AKINFOLARIN & OTHERS v. SOLOMON OLUWOLE AKINOLA (1994) 4 SCNJ 30. In a further argument, learned Counsel made reference to Paragraph 5 of the Respondent’s statement of claim and his evidence-in-chief at Page 80 line 21 of the Record of this appeal and contended that the Respondent has sufficiently explained that he brought this suit on behalf of himself and the entire people making up Ilaro Street. Finally, learned Counsel submitted that what the Court requires to look at if it has jurisdiction to entertain a matter, is the plaintiff’s statement of claim and that in this case the statement of claim at the lower court disclosed sufficient cause of action. In aid, learned Counsel cited N.A.B. KOTOYE v. MRS. F. M. SARAKI & OR. (1994) 7 – 8 SCNJ (Pt. 111) 524; HON. JUSTICE KALU ANYA & ORS v. DR. FESTUS IYAYI (1993) 9 SCNJ 53.

The law is settled that where improper parties are struck out and there are still living parties on both sides, the suit is not rendered incompetent thereby as the living or juristic persons left are capable of sustaining the action. See: GENERAL ELECTRIC CO. v. AKANDE (2010) 18 NWLR (Pt. 1225) 596 at 616 PARAGRAPH F – G. it is therefore my considered view that even if Ilaro Street, Esun-Ekiti is struck out from the suit, the Respondent being a party to the suit at the lower court has every right to be heard, and the learned trial Judge was right when he heard and determined the case at the lower court. The Respondent’s suit at the lower court is therefore competent.

The 3rd issue as formulated by me is resolved in favour of the Respondent and the 5th ground of appeal from which this issue is formulated is dismissed.

The next issue which touches on the jurisdiction of the lower court is the first issue which questions the holding of the learned trial Judge that Section 13 of the Chiefs Edict 1984 (as amended) is not applicable to the facts and circumstances of this case. Mr. Kayode Akinwumi, Learned Counsel for the Appellants submitted that the Learned trial Judge was wrong to have held that Section 13 of the Chiefs Edict 1984 (as amended) is not applicable to this case. According to the learned Counsel, the evidence before the trial court clearly indicated that the Respondent’s grouse against the Appellants was the appointment of the 1st Appellant as the 2nd in rank to the 2nd Appellant (the Elesun of Esun-Ekiti) and Head of Agba-Esun, which appointments are traditional in nature and the position so occupied fall within the positions mentioned in Section 13 of the Chiefs Edict 1984 (as amended). It is the further argument of Learned Counsel that since the complaint of the plaintiff rested squarely on the appointment of the 1st Appellant as Head of Agba Esun and 2nd in rank to Elesun, Section 13 of the Chiefs Edict (as amended) applies, and the Respondent is duty bound to abide and follow the provisions of this statute. In aid, Learned Counsel cited CHIEF MATHEW ATAMAH & 1 OR. v. EREGHAUS EBOBELE & ORS (2010) ALL FWLR (Pt. 506) 1925 at 1943; PARAGRAPH A, REGISTERED TRUSTEES OF CHERUBIM AND SARAPHIM CHURCH MOVEMENT & 2 ORS v. MOST SENIOR APOSTLE J. O. IJAODOLA (2008) ALL FWLR (Pt. 408) 221 at 307-308 PARAGRAPHS H-B, ARIBISAIA v. OGUNYEMI (2005) ALL FWLR (Pt. 22) 451 at 465-466, EZEAMMENZE v. AMGHISENME (1933) 9 NWLR (Pt. 315) 22, KASIMU v. SHITTA BAY (2007) ALL FWLR (Pt. 356) 741 at 785 PARAGRAPH D-E.

For the Respondent, it is argued by Adeyeye of Counsel that in the instant case, the dispute is not whether the Respondent has been appointed in accordance with customary law or not. According to the Learned Counsel, the dispute is about the seniority hierarchy and therefore Section 13 of the Chiefs Edict is not applicable and the authorities cited in support of Appellants’ case are irrelevant.

In his judgment at Page 148 of the Record of this appeal, the Learned trial Judge held:
“In the first place the law as ensconced by the courts is that where a statute has prescribed a particular remedy, an aggrieved party should first exhaust the remedy. See: (1) AWONIYI v. FASUAN (2006) 13 NWLR (PART 996) PAGE 86 (2) ADEOLA v. AYEOBA (SUPRA). As stated earlier the 1st issue attacks the jurisdiction of this court. And the easy way out would have been to strike out this case for want of jurisdiction.
However, a very close look at the provision of Section 13(3) of the Chiefs Edicts put paid to this.
The operative words in the subsection are:-
‘Where there is a dispute whether a person has been appointed in accordance with customary law…….’
In the instant case, the dispute is not whether either the plaintiff has been appointed in accordance with customary law or not.
The dispute is about the seniority hierarchy. So I find and hold that the provisions of Section 13 of the Chiefs Edict is not applicable to this case”
What then is Seniority? The Advanced English Dictionary defines ‘seniority’ as
“higher rank than that of others, especially by reason of longer service or a position of superior status,”
Blacks Law Dictionary, 6th Edition at page 1362, defines Seniority as follows:
“Precedence or preference in position over others similarly situated.”
An example of seniority as provided in the Blacks Law Dictionary, 6th Edition is with reference to job seniority. Worker with most years of service is first promoted within range of jobs subject to seniority and is the last laid off, proceeding so on down the line to the youngest in point of service. By these definitions, it will appear that a conflict of seniority will involve those in the same employment, where each will like to take precedence over the other. This is not so in this case. The Respondent’s anger that led him to court is that he was allegedly removed from his position as Head (Olori) of Agba Esun of Esun-Ekiti, a position which made him 2nd in rank to the Elesun of Esun-Ekiti and the 1st Appellant was appointed to that position. At paragraph 4 of the writ of summons filed at the Lower Court, the Respondent claimed as follows:
“An Order setting aside as being illegal, unconstitutional, improper, null and void and of no effect whatsoever the purported appointment of the 1st Dependant by the 2nd Defendant as the Head (Olori) of Agba Esun of Esun-Ekiti on 15th April, 2010.”
(Underling is mine)

This claim is repeated at paragraph 50 (iv) of the statement of claim.

So the Respondent himself has stated in his writ of summons and the statement of claim that he is challenging the appointment of the 1st Appellant to the position of 2nd in rank to the Elesun of Esun-Ekiti and Head (Olori) of Agba Esun. Is the Learned trial Judge then allowed to make a case for the parties?

In AMADU v. YANTUMAKI (2011) 9 NWLR (Pt. 1251) 161 at 183 PARAGRAPHS E-F, this court, per Peter Odili, JCA (as he then w

as) said:
“When an issue is not placed before a Court, such Court has no business to deal with it, as decision of a court of law must not be founded on any ground in respect of which it has neither received argument from or on behalf of the parties before nor even raised by or for the parties, or either of them. Also, it is not competent for any Court suo motu to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before it.
(Underlining for emphasis).
See: ADETOYE v. F.I.I.R. OSHODI (2011) 14 NWLR (Pt. 1267) 350 at 379 PARAGRAPH G, ATOLAGBE v. SHORUN (1985) 1 NWLR (Pt. 2) 360.
I am therefore of the view that the Respondent’s suit at the Lower Court challenged the appointment of the 1st Appellant as the Head (Olori) of Agba-Esun of Esun-Ekiti. It is not about seniority hierarchy.
At Paragraphs 28 and 29 of the Respondent’s statement of claim, the following averment was set out as follows:
“The plaintiff avers that the Government views (of the old Ondo State) on the Oluwole Chieftaincy Review Commission, 1982 in respect of the Elesun Chieftaincy clearly set out the title chiefs, in Order of hierarchy, who constitute the kingmakers in Esun-Ekiti and it is a notorious fact that the plaintiff who holds the title of Obaaro of Esun-Ekiti is the head of these kingmakers, who also doubles as the Head (Olori) of Agba-Esun. The said Oluwole Chieftaincy Review Commission, 1982 in hereby pleaded and shall be relied upon at the trial of this suit.
29. The plaintiff avers that the 1st Defendant, being a junior Chief, who ranks No. 8 in hierarchy to him at Ujo-Owuro, where the Elesun is the Head cannot be the Head (Olori) of Agba Esun. This shall be founded at the trial of this suit.”
In his evidence-in-chief, the Respondent testified at Page 84 as follows:

“I have a traditional fly-whisk (Irukere) it is small and black and it is different from that of the other Chiefs. Without anything untowards happening I don’t bring it. The Irukere belonged to my forefathers. 1st Defendant was installed as a chief in 1983 and I was installed as a Chief in 1997.”
The Respondent having averred that he is relying on the Oluwole Chieftaincy Review Commission of 1982 and his admission that he is one of the Chiefs in Esun-Ekiti, has clearly brought himself under Section 13 of the Chiefs Edict 1984 applicable in Ekiti State.
The relevant subsections of Section 13 of the Chiefs Edict (as amended) are hereunder reproduced as follows:
“2 When a person is appointed whether before or after the commencement of this Edict to fill a vacancy in the office of a minor chief by those entitled by Customary law to appoint and in accordance with customary law to appoint the prescribed authority may approve the appointment.
3. Where there is dispute whether a person has been appointed in accordance with Customary Law to a minor Chieftaincy, the prescribed authority may determine the dispute and the person concerned shall be notified of the decision.
4. Any person who is not satisfied with the decision of the prescribed authority may within twenty one days from the receipt of the notification make representation to the Commissioners 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.
5. Before exercising the powers conferred by sub-section (4) of this Section, the Commissioner may cause such inquiries to be held as appear to him necessary or desirable.”
Subsections 3, 4 and 5 of Section 13 of the Chiefs Edict 1984 (as amended) have clearly provided internal mechanism for redress before an aggrieved person who is dissatisfied with the decision of the prescribed authority could head to Court. Where an aggrieved person such as in the instant case rushes to Court without first exhausting all the remedies for redress available to him within the domestic forum he would be held to have jumped the gun and the matter would be declared bad for incompetence.
See: AKINFEMI v. ONWUMECHILLI & ORS (1985) NWLR (Pt. 1) 68 at 81 UNIVERSITY OF ILORIN & 1 OR. v. IDOWU OLUWADARE (2006) 27 NSCQLR 4 at 43, UNIVERSITY OF LAGOS & 2 ORS v. DR. DADA (1971) 1 UILR (Pt.111) 344; THOME v. UNIVERSITY OF LONDON (1966) 2 Q.B. 237, R v. DUNSHEATH EX-PARTE MEREDITH (1951) 1 K.B 127.
In the case of UNIVERSITY OF ILORIN & 1 OR. v. IDOWU OLUWADARE (SUPRA) My Lord Tabai, JSC, distinguished the decisions in GARBA & ORS v. UNIVERSITY OF MAIDUGURI (1986) 1 NSCC 245 and PARTRICK D. MAGIT v. UNIVERSITY OF AGRICULTURE MAKURDI & ORS (2005) 24 NSCQLR 143 and held at Page 44 thus:
“It is clear from above review of the cases decided by the Supreme Court, that matters which involve serious criminal allegations against the state such as arson, stealing indecent assault etc. the suspect should for obvious reasons be tried in a court or tribunal properly so called under the constitution. But where the matters involve civil causes and matters such as award of degrees, diplomas and certificates and matters incidental thereto like examination malpractices an aggrieved party, be he a student or a lecturer should first exhaust all the internal machineries for redress before a recourse to Court. Where he rushes to Court without first exhausting all the remedies for redress available to him within the domestic forum as was the case of AKINFEMI v. ONWAMICHELLI (SUPRA) he would be held to have ‘jumped the gun’ and the matter would be declared bad for incompetence.”
Even though most of the cases cited above were decided on matters between students, lecturers and Universities, the principal focus is that where matters are civil in nature, the same principle applies. In the instant case, the appointment of the 1st Appellant as the Head (Ori) of Agba Esun is purely a civil matter within the traditional institution of Esun-Ekiti, where the Elesun of Esun-Ekiti, the second Appellant is recognized by both the 1st Appellant and the Respondent as the custodian of history, custom and tradition of Esun-Ekiti and the prescribed authority over all the minor Chiefs in Esun. This being so, the Respondent’s failure to first of all exhaust the internal machinery for redress as provided for under Section 13 of the Chiefs Edict (1984) (as amended) has rendered his case at the lower Court bad for incompetence.

The Respondent being dissatisfied with the decision of the 2nd Appellant ought to have reported to a member of the Executive Council saddled with the responsibility on chieftaincy affairs in Ekiti State to review the decision of the Elesun of Esun-Ekiti in compliance with Section 13(4) of the chiefs Edict 1984 (as amended). Having failed to do so, the entire action of the Respondent is premature and incompetent. This being so, the lower Court lacked jurisdiction to hear the case.

The Lower Court’s order would have been a striking out of the suit for lack of jurisdiction since the Respondent failed to first of all exhaust the internal machinery to redress his grievances in connection with his removal as Head (Olori) of Agba Esun of Esun Ekiti and subsequent appointment of the 1st Appellant into the same position by the 2nd Appellant. Since the Lower Court failed to do so, this Court is in a position to do so. Accordingly, this issue is resolved in favour of the Appellant and the ground of appeal it is distilled from is allowed. The suit of the Respondent, as constituted at the Lower Court is struck out for being incompetent.

Having struck out the suit, it will be a waste of time to consider the remaining issue as to whether the Learned trial Judge properly assessed the evidence before him and ascribed probative value to such evidence.
There shall be cost of prosecuting this appeal which I assess at Thirty Thousand Naira only (N30,000.00) in favour of the Appellants and against the Respondent.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have been privileged to read in advance the erudite and succinct lead judgment of my learned brother, Paul Adamu Galinje, JCA. He has decisively dealt with the live and salient issues which arose for determination in this appeal and I have nothing to add thereto. I also strike out the suit and abide by all the consequential orders made in the said lead judgment, inclusive of the order as to costs awarded in favour of the appellants.

FATIMA OMORO AKINBAMI, J.C.A.: I have had the privilege of reading in draft, the well articulated judgment of my Learned Brother Paul Adamu Galinje, JCA.
My brief comments are in concurrence with the reasoning and conclusion in the lead judgment and by way of emphasis.
This appeal is premised on a chieftaincy dispute between the 1st Appellant and the Respondent viz a viz their seniority as Chiefs in Esun Ekiti.
Parties joined issues, and the case was set down for trial. At the close of hearing in a reserved judgment delivered on the 27th March, 2012, Ogunyemi J, found for the Respondent herein, and granted all the reliefs he sought. It is against that judgment that the Appellants have appealed to this Court.
The central dispute between the parties is that, the Appellants averred that the Respondent, by history and custom and tradition is not the second in rank to Elesun of Esun-Ekiti and that Obaaro is in the 8th position in the order of seniority of Chiefs in Esun-Ekiti.
The issues canvassed in this appeal have been exhaustively dealt with in the lead judgment by my Learned Brother Paul Adamu Galinje JCA. I agree with his reasoning and conclusions reached therein, that the lower Court’s order would have been a striking out of the suit for lack of jurisdiction since the Respondent failed to first of all exhaust the internal machinery to redress his grievances in connection with his removal as Head (Olori) of Agba Esun of Esun Ekiti, and subsequent appointment of the 1st Appellant into the same position by the 2nd Appellant.
I also resolve the issue in favour of the Appellant and the ground of appeal it is distilled from is allowed.
I also strike out the suit of the Respondent as constituted at the lower Court. The suit having been struck out I agree with the position that it would be a waste of time to consider the remaining issue as to whether the learned trial Judge properly assessed the evidence before him and ascribed probative value to such evidence.
I abide by the order as to costs.

Appearances

Kayode AkinwumiFor Appellant

AND

Akinwale A. AdeyeyeFor Respondent