CHIEF JAMES OKANGI & ANOR V. MR. BAYO FATOBA OF ILASO STREET ARA-EKITI & ORS
(2011)LCN/4535(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of May, 2011
CA/AE/46/2010
RATIO
COMPETENCE OF THE COURT: EFFECT OF NON- COMPLIANCE WITH CONDITION PRECEDENT TO INSTITUTING AN ACTION BEFORE A COURT OF COMPETENT JURISDICTION
The answer that readily comes to mind is that non compliance by a person means not being legally empowered to institute an action before a court of competent jurisdiction. The payment of a deposit of N10, 000:00 at the same time the necessary court processes are filed is a condition and not a requirement as canvassed by the learned counsel for the Appellants. It is a condition precedent before any person can successfully challenge such appointment. Non compliance will tantamount to not being legally empowered to institute an action. The law is settled that you cannot put something on nothing and expect it to stay there. It will collapse. See MACFOY VS U.A.C LTD (1962) 152 @ 160: MADUKOLU VS NKEMDILIM (1962) ALL NLR (REPRINT EDITION) 581 @ 590: (1962) 2 SCNLR 341. PER UWANI MUSA ABBA AJI, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISIONS OF THE CHIEFTAINCY EDICT OF 1984 AS AMENDED BY EDICT OF 1991 AS TO WHETHER THE PAYMENT OF A DEPOSIT OF N10, 000.00 BEFORE A LITIGANT CAN CHALLENGE THE VALIDITY OF ANY APPOINTMENT MADE UNDER THE CHIEFTAINCY EDICT OF 1984 IS CONSTITUTIONAL OR AN IMPEDIMENT TO A CITIZEN’S RIGHT GUARANTEED UNDER SECTION 6 (6) OF THE 1999 CONSTITUTION
With due respect to the learned counsel, the provisions of the said Edict did not in any way abridge the right of access to court of any person and it did not in any way conflict with the provisions of Section 272 of the 1999 Constitution. The Edict is not saying that the court has no jurisdiction to hear chieftaincy disputes or matters but rather that, before a litigant can challenge the validity of any appointment made under the Chieftaincy Edict of 1984 as amended by Edict of 1991, he has to deposit at the time of filing processes a fee of N10, 000:00. Further, Section 6 (6) of the 1999 Constitution does not in any way preclude legislative bodies from inserting conditions precedent in any statute or law nor does the section remove all the established or known conditions precedent before a suit is brought under the common law. A careful reading of the Edict convinces me that the provisions are not saying that the right to sue does not exist because they talk of a person that intends to challenge the validity of an appointment by a person that has been aggrieved. The import of the provisions of the section is that a right to sue exists, but the exercise of the right is dependent on the payment of a deposit of N10, 000.00. It is settled that in instituting actions in court, conditions are imposed either by common law or a legislation, such conditions including the giving of notice as in the case of bringing an action against government or government agency, the payment of security as in the case of filing election petition, receiver and manager in liquidation under the Companies and Allied Matters Act and enforcement of fundamental rights under Fundamental Rights (Enforcement Procedure) Act. It is therefore my candid view that the payment of deposit of N10, 000:00 under the Edict before a suit in chieftaincy can be brought is constitutional since the legislation accords with the making of law for the peace, order and good governance in Ekiti State. The payment of the said N10, 000:00 deposits merely conferred the Appellants with the access to court for the purpose of the determination of their claims in accordance with the laws of the land. The Edict is therefore not an impediment to a citizen’s right guaranteed under Section 6 (6) of the 1999 Constitution but an extension of the procedural law for initiating an action on category of matters Stated in the said law. See ATOLAGBE VS AWURU (1997) 9 NWLR (PT. 522) 536 @ 588-9: ADEMUYIWA VS OLOKUNBOLA (2009) 11 NWLR (PT. 1153) 539. PER UWANI MUSA ABBA AJI, J.C.A.
COMPETENCE OF THE COURT: FACTORS THAT MUST CO-EXIST FOR A COURT TO BE COMPETENT TO ENTERTAIN THE MATTER; EFFECT OF ANY DEFECT IN COMPETENCE OF THE COURT ON THE PROCEEDINGS BEFORE IT
The effect of non compliance with a condition precedent is that the court will be robbed of its jurisdiction to entertain the matter. For a court to be competent, the following factors must co-exist:- 1. It is properly constituted as regards members and qualification of members of the bench and no member is disqualified for one reason or another; and 2. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and 3. The case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal for the proceedings are nullity, however well conducted and decided, the defect is extrinsic to adjudication. See MADUKOLU VS NKEMDILIM (SUPRA) @ 595. Since the three factors set out above are conjunctive in their operation, the absence of any one or more of them will adversely affect the power of the respective court to assume jurisdiction over the matter before it. PER UWANI MUSA ABBA AJI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
1. CHIEF JAMES OKANGI
2. ENGINEER SOLA OGUNLEYE (For themselves and other members of Okangi family of Ara-Ekiti which constitutes Adetiba Ruling House to the Alara of Ara-Ekiti) Appellant(s)
AND
1. MR. BAYO FATOBA OF ILASO STREET ARA-EKITI (For themselves and other members of Ilaso family of Ara-Ekiti)
2. THE SECRETARY OF IKOLE LOCAL GOVERNMENT, IKOLE-EKITI
3. THE ATTORNEY-GENERAL OF EKITI STATE
4. THE EXEGUTIVE GOVERNOR OF EKITI STATE Respondent(s)
UWANI MUSA ABBA AJI, J.C.A.(Delivering the Leading Judgment): This is an appeal against the ruling of Ekiti State High court delivered by Hon. Justice M.A. Agbelusi on the 25th November, 2008, whereby the Court entered judgment in favour of the Respondents against the Appellants upholding the objection of the Respondents.
By a writ of Summons dated the 22nd August, 2008, the Appellants as Plaintiffs at the lower court, instituted this action against the Respondents and claimed various declaratory and injunctive reliefs against the Respondents jointly and severally as contained in paragraph 39 of their Statement of claim as follows:-
(a) A Declaration that the plaintiffs as members of the Okangi family, Ara-Ekiti belong to the Adetibe Ruling House to the Alara of Ara-Ekiti who have the exclusive right to produce Alara of Ara.
(b) A Declaration that the first Defendant is a member of Ilaso family of Ara-Ekiti which family has no claim to the title of Alara of Ara as they are entitled only to Alasunka Chieftaincy title of Ara-Ekiti.
(c) A declaration that the registered declaration of Alara of Ara-Ekiti Chieftaincy registered on 1st November, 2004 is defective and inexhaustive of the custom and tradition of Ara-Ekiti and made without hearing the Plaintiffs family and therefore null and void.
(d) A declaration that the purported appointment and approval of the candidature of the first defendant as Alara by the second to fourth defendant is contrary to the custom and tradition of Ara- Ekiti and such invalid, null and void and of no effect whatsoever.
(e) An Order setting aside the purported appointment of the 1st defendant as the Alara of Ara-Ekiti (Elect).
(f) An Order of perpetual injunction restraining the first defendant from further presenting or parading himself or holding out himself or allow himself to he held out as the Alara of Ara-Ekiti and from exercising any right or performing any function ascribed to Alara.
(g) An injunctive order restraining the first Defendant and all other members of his family from styling, calling or parading themselves as members of the Adetiba Ruling House of Ara-Ekiti and from claiming entitlement to the title of Alara of Ara-Ekiti.
(h) An Injunctive order restraining the second, third and the fourth Defendants, their agents, servants, and privies from having anything whatsoever to do with the first Defendant as well as his family as regards choosing, appointing or installing of a new Alara of Ara-Ekiti
The Appellants on the 25th August, 2008 filed two applications before the court. A motion exparte praying for the following order: –
Interim injunction restraining the defendants, their agents, servants, privies or howsoever called from taking any step to install or give any instrument or staff of office and or give any recognition to the first defendant as Alara of Ara-Ekiti pending the interlocutory injunction pending before this Honourable Court.
AND For Such further order or other orders as this Honourable Court may deem fit to make in the circumstances.
The 2nd application is a motion on notice seeking for the same reliefs with the motion exparte against the Respondents pending the determination of the substantive suit. Both the motion exparte and the motion on notice were replicated on the 1st September, 2008. The motion exparte filed on the 1st September, 2008 was refused by the trial court on the 4th September, 2008.
The Appellants filed a 39 paragraph Statement of claim on the 4th September, 2008. A motion on Notice similar to the exparte motion filed on the 25th August, 2008 claiming the reliefs against the Respondents, pending the determination of the substantive suit. The 3rd and 4th Respondents through their counsel, Gbemiga
Adaramola Esq. filed a four (4) paragraph Counter Affidavit in opposition to the application on the 8th September, 2008.
Learned counsel for the 1st Respondent, S.A. Longe, Esq. filed a Notice of Preliminary Objection to the application of the Respondents seeking injunctive reliefs. The grounds of objection are Stated thus:-
(a) The Executive counsel of Ekiti State approved the candidature of 1st Defendant as Alara of Ara-Ekiti in Ikole Local Government on the 20th August, 2008 and this was announced to the whole world on the 21st August, 2008.
(b)The Plaintiffs have not exhaust (sic) the provisions of section 11 of the chiefs Law 1984 as amended having not sought the administrative remedies required by the law before going to Court.
(c) The action is premature, incompetent and the cause of action has not arisen,
Learned counsel for the 3rd and 4th Respondents also filed a Motion on Notice on the 15th/9/2008 praying the court to strike out or dismiss the suit filed by the Appellants for want of jurisdiction upon the following grounds:-
(1) This Honourable Court has no original jurisdiction by way of Declaratory Order/injunction to adjudicate disputes relating to composition and membership of Adetiba Ruling House or determining the rightful lineage in Adetiba Ruling House to the Alara of Ara-Ekiti stool or the nomination thereto or generally hear for determination, Chieftaincy matters which is the first instance jurisdiction of the Executive given under the chiefs Edict (as Amended) of Ondo State 1984 EXCEPT by way of review or supervision of matters done there under.
(2) The issues raised in the Writ of Summons, the Statement of Claim and the Declarations sought are Chieftaincy disputes, the power to hear and resolve which are given to relevant statutory bodies under the said Chiefs Edict as tribunals of first instance before calling in this Honourable Court’s jurisdiction.
(3) The mandatory fees that ought to have been paid before instituting this matter was not paid.
(4) The Plaintiffs/Respondents action is precipitate not having exhausted the statutory preconditions before the institution of this action in this Honourable court.
(5) The Plaintiffs/Respondents have no cause of action to institute this suit.
(6) The suit is an abuse of court process.
The two preliminary objections of the 1st Respondent and the 3rd and 4th Respondents were argued by the respective counsel on the 14th November, 2008. In a considered ruling delivered on the 25th November, 2008, the learned trial judge sustained the objection only on the non-payment of (N10, 000:00) deposit at the filing of the process in court as required by law, i.e. the Chiefs Edict 1984 as amended, and dismissed the other grounds of objection.
The Appellants are dissatisfied with the ruling of the court, hence, filed a Notice of Appeal dated 20th January, 2008, upon four (4) grounds of appeal. The grounds of Appeal without their particulars are hereby reproduced:-
(1) The learned trial judge erred in law when he held that the non-payment of the Security Fees by the Appellants the same day they filed the writ of summons vitiated their claims and made the action incompetent.
(2) The learned trial judge erred in law in holding that the plaintiff/Appellant did not comply with section 2 (1) (b) of the Approval Appointment of an Oba, Presentation of Instrument of Appointment and Staff of Office Edict 1991.
(3)The learned trial judge erred in law when he made an order striking out the action of the plaintiffs for late payment of security fees.
(4) The Ruling of the learned trial judge is against the weight of affidavit evidence.
The 1st Respondent too was not happy with the ruling of the trial court and filed a Notice of Cross Appeal against that part of the ruling of the trial court that says that the action instituted by the Appellants is competent. The notice of cross appeal dated 3rd February, 2008 contained two grounds of appeal. The two grounds of appeal without their particulars are hereby reproduced:
(1) The lower court erred in law in holding that the action of the Plaintiff/Appellant is competent when the precondition to institute this action as set out by the chiefs Edict, 1984 as amended has not been compiled with hence, the lower court lacks jurisdiction to entertain the suit.
(2) The lower court erred in law when it misconstrue the Edict No.2 entitled, The Approval of Appointment of an Oba, Presentation of instrument of appointment and staff of office Edict, 1991 to be an amendment to the 1984 chiefs Edict, Laws of Ondo State as applicable to Ekiti State whereby holding that the action of the plaintiff is competent.
Parties filed and exchanged briefs of argument. In the Appellants’ brief of argument settled by A.A. Ojopagogo Esq., two issues were distilled from the grounds of appeal for determination of the appeal. The two issues are:-
(i) Whether non-payment of N10, 000:00 security fee the same day the writ of summons was filed will render the action of the plaintiff incompetent’
(ii) Whether late payment of N10, 000:00 security fee will rob the court of its jurisdiction to entertain the suit.
In the 1st Respondent/Cross Appellant’s brief of argument settled by S.A. Longe, Esq, the following three (3) issues were identified for determination, to wit;
(A) Whether the Appellants complied with the administrative remedy set out in section 11 (2) of the chiefs Edict 1984, Laws of Ondo State as applicable to Ekiti State as amended before initiating his action to warrant its competency.
(B) Whether the Approval of Appointment of an Oba and Presentation of Instrument of Appointment and Staff of office Edict, 1991 is an amendment to section 11(2) of the chiefs Edict 1984 as amended or the two Laws are separate Laws.
(c) whether section 2 Subsections 1 (b) and 2 of the Approval of Appointment of an Oba and Presentation of instrument of Appointment and Staff of Office Edict 1991 is a condition precedent that must be complied with by an aggrieved party before his action in court can be competent.
The 2nd Respondent did not file any brief of argument. Infact, it did not contest the appeal at all. The Appellants sought for and were granted leave to hear the appeal without the 2nd Respondent’s brief of agreement and same was granted on the 16th March, 2010.
The 3rd and 4th Respondents brief of argument settled by Gboyega Oyewole Esq., was filed on the 15th March, 2010 and same was deemed properly filed on the 16th March, 2010. Gboyega Oyewole Esq., adopted in verbatim, the submissions of learned counsel for the 1st Respondent S.O. Longe, Esq., and all issues raised and canvassed therein as the 3rd and 4th Respondents’ brief of argument.
In the Appellants/Cross Respondents’ brief of argument, settled by A.A. Ojopagogo, Esq., learned counsel also formulated three (3) issues for the determination of the cross appeal, to wit:-
1. Whether Sections 1 and 2 (1)(b) and 2 of the Approval of Appointment of Oba, Presentation of instrument of Appointment and Staff of Office Edict, 1991 as applicable in- Ekiti State are conditions precedent that must be complied with by an aggrieved party before his action in court can be competent.
2. Whether an aggrieved person who intends to challenge the appointment of another person as an Oba must comply simultaneously with Section 1 of the Chiefs
(Amendment) (No.2) Edict of 1991 and section 1 of the Approval of Appointment of an Oba, Presentation of Appointment and staff of office Edict, 1991 as applicable in Ekiti State.
3. Whether the Appellants complied with the administrative remedy set out in Section 11 (2) of the Chiefs Edict 1984 Laws of Ondo State as applicable in Ekiti State as amended before instituting their action to warrant ifs competence.
At the hearing of the appeal on the 17th February, 2011, Learned Counsel for the Appellants, T. Adenigbo, Esq. adopted and relied on the Appellants’ brief of argument filed on the 2nd/7/2009 but deemed properly filed on the 8th/10/2009, the Cross Respondent’s brief of argument filed on the 23/10/2009 and urged the court to allow the appeal and to dismiss the cross appeal. He commended to the court the case of AGBOOLA VS. AGBODEMU (2009) 37 WRN 59 @ 108 – 109.
Learned counsel for the 1st Respondent, S.A. Longe, Esq. adopted and relied on the 1st Respondent’s/Cross Appellant’s brief of argument filed on the 3rd/08/2009 and urged the court to dismiss the appeal and allow the cross appeal.
Learned counsel for the 3rd and 4th Respondents, Arogundade, Esq., adopted and relied on the 3rd and 4th Respondents’ brief of argument filed on the 15th/3/2010 but deemed properly filed on the 16th/3/2o10 and urged the court to dismiss the appeal.
In the determination of the appeal, I will first consider the main appeal, a determination of which one way or the other will lead me to the determination of the cross appeal. However, it is observed from the briefs filed before the court, the first Respondent has not at all responded to the Appellants’ brief of argument to the main appeal. His brief of argument captioned “FIRST RESPONDENT/CROSS APPELLANT’S BRIEF OF ARGUMENT” only canvassed the issue of his Cross Appeal. There is therefore no response to the main appeal. However, Order 17 Rule 8 of the Rules of this Court, 2007, provides that a Respondent may, without leave include arguments in respect of a cross-appeal or a Respondent’s notice in his brief for the original appeal and the cross appeal or Respondent’s notice.
In the instant case, I have carefully gone through the 1st Respondent’s brief of argument to the cross appeal and have not seen any where therein where argument in respect of the main appeal has been canvassed. The poser here is, what then is the consequence of not filing a Respondent’s brief of argument to the Appellants’ brief of argument?
Order 17 Rule 4 provides for the filing of a Respondent’s brief.
Rule 4 (1) and (2) provides as follows:-
(1) The Respondent shall also within thirty days of the service of the brief for the Appellant on him file the Respondent’s brief which shall be duly endorsed with an address or addresses for service.
(2) The Respondent’s brief shall answer all material points of substance contained in the Appellant’s brief and contain all points raised therein which the Respondent wishes to concede as well as reasons why the appeal ought to be dismissed.
From the rules of Court cited above, it is clear that the 1st Respondent has not answered all the material points of substance in the Appellants’ brief and there is no reason why the appeal ought to be dismissed. In the circumstances the 1st Respondent shall be deemed to have conceded all the points or issues raised in the Appellants’ brief.
Order 17 Rule 10 of the Rules of this court States that if the Respondent fails to file his brief of argument, he will not be heard in oral argument. The combined reading of Order 17 Rules 4 and 10 is that the Respondent shall be deemed to have conceded to all the points or issues raised in the Appellants’ brief and having not filed a brief of argument, he will not be heard in oral argument except with the leave of the Court. Be that as it may, I will now proceed to consider the issues for determination of the appeal as formulated by the Appellants. The two issues will be considered together as they correlate with each other.
Issue 1:
Whether the non-payment of N10, 000:00 security fee the same day the writ of summons was filed will render the action incompetent
Issue 2:
Whether none or late payment of N10, 000:00 security fee will rub (sic) the court of its jurisdiction to entertain this suit.
A.A. Ojopagogo, Esq. for the Appellant submitted that consequent upon filing this action before the High Court challenging the appointment and approval of the first Respondent as an Oba in Ara-Ekiti in Ikole Local Government of Ekiti State, pursuant to the announcement made on the 21st August, 2008 over the radio in Ekiti by 2nd to 4th Respondents and the filing of the suit by the Appellants on the 22nd August, 2008. They subsequently filed a Statement of Claim and later paid the sum of N10, 000:00 security fees as required by Section 2 (1) (b) of the Approval of Appointment and Staff of Office Edict 1991 of Ondo State, applicable in Ekiti State. Learned counsel submitted that at the time of filing the writ of summons, Statement of claim and payment of N10, 000:00 security fees, pleadings were yet to be completed and that time was not running, being the period the State High Court was on vacation.
Mr. Ojopagogo, Esq., submitted that the non-payment of the security fee the very day the Appellants filed their writ of summons and Statement of claim would not vitiate their claim nor render it incompetent as the Appellants also filed other processes after the payment on 9th/9/2008, citing in support the case of Ode Vs Odofin Igbana Oba in Council (2009) 14 WRN 136.
He submitted that the Appellants filed their Statement of claim on 4th/9/2008 and paid for the security fee on 9th/9/2008 in compliance with section 2 (1) (b) of the Approval of Appointment of an Oba, Presentation of Instrument of Appointment and Staff of Office Edict, 1999 before trial commenced and that the finding of the learned trial judge that security fees shall be paid at the same time the necessary court processes are filed and not before the court processes are filed, thus, makes the suit incompetent.
Learned counsel submitted that what the law contemplates is the payment of security during filing of processes, that is, before hearing commences and NOT that it be paid the very day processes are filed. Processes among others he submitted include the writ of summons and Statement of Claim which the Ondo State (Civil Procedure) Rules as applicable in Ekiti State allow to be filed separately and on a different day.
Learned counsel also submitted that the provision of section 2 (2) of the Edict only made it mandatory that security fee be paid during the filing of court processes which will include the writ of summons, Statement of Claim and Statement of Defence. He submitted that at the time of the payment of the said security fees, the Appellants had not concluded the filing of Court Processes. He reproduced the provisions of Sections 1 and 2 of the Edict and submitted that the non-payment of security fee the very day the Appellants filed their writ of summons and or Statement of claim would not vitiate their claim nor render it incompetent.
It is the view of learned counsel that the purpose of giving security is to secure the expenses to be incurred by the Plaintiffs themselves and to cover costs payable to the defendants in the case should the claim not succeed, citing in support the case of NWOBODO VS ONOH (1984) ISC1: OMOBORIOWO VS AJASIN (1984) ISC 206. He therefore submitted that the Appellant complied with the relevant law before instituting this action at the lower court even though the security fee was not paid on the date the writ of summons was issued but before the commencement of trial. He also submitted that the Appellants brought the action within seven days required by law pursuant to Section 1 of the Chiefs (Amendment) (No.2) Edict, 1991. The court was urged to allow the appeal and set aside the ruling of the trial court.
In arguing issue 2, Mr. Ojopagogo, Esq. submitted that by virtue of Section 236 (1) of the Constitution of Nigeria 1979 which is replicated in Section 272(1) of the 1999 Constitution of the Federal Republic of Nigeria, the High Court of a State has the jurisdiction to hear and determine the case of the Appellants even if the security fees is not paid at all. That the lower court should not have declined jurisdiction to hear the Appellants’ Claims on the ground of non-payment of security fee the same day the writ of summons was filed.
Learned counsel referred to Section 272 (1) of the 1999 Constitution and submitted that the Constitution of the Federal Republic of Nigeria is the ground norm of all other laws or statutes and that the Chieftaincy Edict, 1991 is subject to the Constitution and the supremacy of the constitution over other statutes has been affirmed in a plethora of cases, among others are:- BALOGUN VS ODE (2007) 47 WRN 143 @ 156 – 157 OKETULA VS AWOSANYA (2000) FWLR (PT. 25) 1666 @ 1670: DOHERTY VS BALEWA (1963) 1 WLR 949: ODE VS IDOFIN IGBANA OBA IN COUNCIL (2009) 14 WRN 136 @ 165. Learned counsel therefore submitted that the provision of Sections 2 (1) (b) and (2) of the Approval of Appointment of an Oba, Presentation of instrument of Appointment and Staff of Office Edict, 1991 of Ondo State as applicable in Ekiti State cannot override the provision of the Constitution which give unlimited jurisdiction to the High Court to adjudicate on legal right including chieftaincy matters. He cited and relied on the case of BAKARE VS A.G. FEDERATION (1990) 5 NWLR (PT.152) 516 to submit that the provision of Section 2 of the law under consideration being an inferior legislation cannot override Section 272 of the 1999 Constitution and concluded that the lower court is patently wrong to have declared the action incompetent and decline jurisdiction. The court was urged to resolve the issue in favour of the Appellant and allow the appeal.
Having closely examined the facts as disclosed in the record of appeal, the main contention in the Appellants’ brief is whether the non-payment of security fee the same day the writ of summons was filed will render the action of the Appellants incompetent thereby rob the court of its jurisdiction to entertain the suit.
Since the learned counsel for the Appellants hinged their argument on sections 1 and 2 of the APPROVAL OF APPOINTMENT OF AN OBA, PRESENTATION OF INSTRUMENT OF APPOINTMENT AND STAFF OF OFFICE EDICT, 1991, it becomes imperative to examine the provisions of the said Edict. For ease of reference, the sections hereby States as follows:-
1. “Any person who is aggrieved by the appointment of another person as an Oba shall within seven days of the date of such appointment institute action in the High Court challenging the appointment.
2. (i) Any person who intends to institute an action against or challenge such appointment shall give security for: –
(a) A sum of Twenty Five Thousand Naira in respect of such action instituted against the appointment in any Local Government headquarters; or
(b) The sum of Ten Thousand Naira in respect of such action instituted against the appointment in towns other than local government headquarters.
(2) any security given in pursuance of subsection (1) of this section, shall be paid into the High Court at the same time the necessary court processes are filed.”
The above provisions of law are clear and unambiguous. Section 1 clearly States that any person who is aggrieved by the appointment of another person as an Oba shall within seven days of the date of such appointment institute an action in the High Court challenging the said appointment. By section 2, sub-sections (a) and (b) thereof, any person who intends to institute an action against or challenge such appointment shall give security for the sum of N25, 000:00 (Twenty Five Thousand Naira) if the action is instituted against the appointment in any local government headquarters, or N10, 000.00, (Ten Thousand Naira) in respect of such action instituted against the appointment other than local government headquarters. Any security given in pursuance of subsection (1) of the section, shall be paid into the High Court at the same time the necessary court processes are filed.
In the instant case, the Appellants as Plaintiffs in the High Court filed an action challenging the appointment and approval of the first Respondent as an Oba in Ara-Ekiti in Ikole Local Government of Ekiti State.
The appointment of the first Respondent was made on the 21st August, 2008 over the radio in Ekiti and on the 22nd August, 2008 the Appellants filed writ of summons in Ikole-Ekiti High Court and subsequently filed their Statement of claim and later paid the sum of N10, 000:00 security fees as required by section 2 (1) (b) of the Approval of Appointment of an Oba, Presentation of Instrument of Appointment and Staff of Office Edict 1991 of Ondo State applicable in Ekiti State. The objection taken at the trial and upheld by the Court was that the Appellants in bringing the action failed to comply with the provisions of section 2(1) (b) requiring the Appellants challenging the appointment to pay a deposit of N10, 000:00 at the time of filing his process. The N10, 000:00 deposits was paid subsequently to the court and not at the time of filing his process.
The Appellants’ main contention in the appeal is that the nonpayment of the security deposit or fees the very day the Appellants filed their writ of summons and Statement of claim would not vitiate their claim nor render it incompetent as such payment of deposit is a mere requirement and not a condition precedent to instituting the action.
The provisions of section 2 (2) of the law clearly States that the payment of the said sum of N10, 000:00 security deposit shall be paid at the time the necessary court processes are filed and not before the court processes are filed. The words “shall be paid at the time the necessary court processes are filed” does not in my view envisage “after the filing of court processes.”
The law merely stipulates condition to be met before an action can be instituted in court. What then is the effect of non compliance with a condition precedent? The answer that readily comes to mind is that non compliance by a person means not being legally empowered to institute an action before a court of competent jurisdiction. The payment of a deposit of N10, 000:00 at the same time the necessary court processes are filed is a condition and not a requirement as canvassed by the learned counsel for the Appellants. It is a condition precedent before any person can successfully challenge such appointment. Non compliance will tantamount to not being legally empowered to institute an action. The law is settled that you cannot put something on nothing and expect it to stay there. It will collapse. See MACFOY VS U.A.C LTD (1962) 152 @ 160: MADUKOLU VS NKEMDILIM (1962) ALL NLR (REPRINT EDITION) 581 @ 590: (1962) 2 SCNLR 341.
Learned counsel for the Appellants Ojopagogo, Esq., further contended that the none or late payment of N10, 000.00 will not rob the court of its jurisdiction in view of the provisions of Section 272 (1) of 1999 Constitution, which is hereunder reproduced.
“Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.”
It is contended by the learned counsel for the Appellants that the Constitution of the Federal Republic of Nigeria is the ground norm of other laws or statutes, the Chieftaincy Edict of 1991 inclusive and that the provisions of Section 2(1) (b) and (2) of the Approval of Appointment of an Oba, Presentation of instrument of Appointment and Staff of Office Edict, 1991 did not and cannot override the provisions of the constitution which gave unlimited jurisdiction to the High Court to adjudicate on legal rights of persons including chieftaincy matters.
With due respect to the learned counsel, the provisions of the said Edict did not in any way abridge the right of access to court of any person and it did not in any way conflict with the provisions of Section 272 of the 1999 Constitution. The Edict is not saying that the court has no jurisdiction to hear chieftaincy disputes or matters but rather that, before a litigant can challenge the validity of any appointment made under the Chieftaincy Edict of 1984 as amended by Edict of 1991, he has to deposit at the time of filing processes a fee of N10, 000:00. Further, Section 6 (6) of the 1999 Constitution does not in any way preclude legislative bodies from inserting conditions precedent in any statute or law nor does the section remove all the established or known conditions precedent before a suit is brought under the common law.
A careful reading of the Edict convinces me that the provisions are not saying that the right to sue does not exist because they talk of a person that intends to challenge the validity of an appointment by a person that has been aggrieved. The import of the provisions of the section is that a right to sue exists, but the exercise of the right is dependent on the payment of a deposit of N10, 000.00. It is settled that in instituting actions in court, conditions are imposed either by common law or a legislation, such conditions including the giving of notice as in the case of bringing an action against government or government agency, the payment of security as in the case of filing election petition, receiver and manager in liquidation under the Companies and Allied Matters Act and enforcement of fundamental rights under Fundamental Rights (Enforcement Procedure) Act.
It is therefore my candid view that the payment of deposit of N10, 000:00 under the Edict before a suit in chieftaincy can be brought is constitutional since the legislation accords with the making of law for the peace, order and good governance in Ekiti State. The payment of the said N10, 000:00 deposits merely conferred the Appellants with the access to court for the purpose of the determination of their claims in accordance with the laws of the land. The Edict is therefore not an impediment to a citizen’s right guaranteed under Section 6 (6) of the 1999 Constitution but an extension of the procedural law for initiating an action on category of matters Stated in the said law. See ATOLAGBE VS AWURU (1997) 9 NWLR (PT. 522) 536 @ 588-9: ADEMUYIWA VS OLOKUNBOLA (2009) 11 NWLR (PT. 1153) 539.
In the instant case, the Edict merely stipulated a condition to be met before an action can be instituted in court. The effect of non compliance with a condition precedent is that the court will be robbed of its jurisdiction to entertain the matter. For a court to be competent, the following factors must co-exist:-
1. It is properly constituted as regards members and qualification of members of the bench and no member is disqualified for one reason or another; and
2. The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
3. The case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal for the proceedings are nullity, however well conducted and decided, the defect is extrinsic to adjudication. See MADUKOLU VS NKEMDILIM (SUPRA) @ 595.
Since the three factors set out above are conjunctive in their operation, the absence of any one or more of them will adversely affect the power of the respective court to assume jurisdiction over the matter before it. From the pleadings of the Appellants and the affidavit evidence of the Respondents, the third ingredient is patently lacking because of the non-payment of N10, 000:00 deposit in the registry of the court at the same time the necessary court processes were filed and this precludes the court from examining the merit of the case being put forward by the Appellants. The issues are therefore resolved against the Appellants. The consequence is that the appeal is unsuccessful and it is hereby dismissed. The ruling of the lower court delivered on the 25th November, 2008 is hereby affirmed.
I will now proceed to consider the cross appeal of the 1st Respondent. I have in this judgment reproduced the issues for determination of the cross appeal as formulated by the Cross Appellant. For ease of reference, they are hereby reproduced.
1. Whether the Appellants complied with the administrative remedy set out in Section 11 (2) of the Chiefs Edict, 1984 Laws of Ondo State as applicable to Ekiti State as amended before instituting his action to warrant its competency.
2. Whether the Approval of Appointment of an Oba and Presentation of instrument of Appointment and Staff of Office Edict 1991 is an amendment to Section 11 (2) of the Chiefs Edict 1984 as amended or the two Laws are separate laws.
3. Whether Section 2 Sub-sections (1) (b) and (2) of the Approval of Appointment of an Oba and Presentation of Instrument of Appointment and staff of office Edict, 1991 is a condition precedent that must be complied with by an aggrieved party before his action can be competent.
The Cross Respondent also formulated three issues for the determination of the cross appeal, to wit:-
1. Whether sections 1 and 2(1) (b) and (2) of the Approval of Appointment of an Oba, Presentation of instrument of Appointment and staff of office Edict, 1991 as applicable in Ekiti State are conditions precedent that must be complied with by an aggrieved party before his action in court can be competent.
2. Whether an aggrieved person who intends to challenge the appointment of another person as an Oba must comply simultaneously with section 1 of the chiefs (Amendment) Edict (No.2) of 1991 and section 1 of the Approval of Appointment of an Oba, Presentation of instrument of Appointment and Staff of Office Edict 1991 as applicable in Ekiti State.
3. Whether the Appellants complied with the administrative remedy set out in section 11 (2) of the chiefs Edict 1984 Laws of Ondo State as amended before instituting their action to warrant its competence.
I have considered the issues as formulated by the respective counsel. The cross Appellants issue 3 is the same in con with Cross Respondent’s issues 1 and 2 and same had been considered in the determination of the substantive appeal and resolved in the affirmative, against the Appellants. I rest the issue there. Therefore,
Cross Appellants issues 1 and 2 and the Cross Respondent issue 3 which are the same in con will now be considered.
In arguing the issues, learned counsel for the Cross Appellant Stated the process of nomination and appointment of Alara of Ara-Ekiti as the traditional head of Ara-Ekiti and the prescribed authority of all chieftaincies in Ara-Ekiti and submitted that the Appellants who were aggrieved filed an action on the 22nd August, 2008 challenging the appointment and approval of 1st Respondent as Alara of Ara-Ekiti. He submitted that the Appellants who were aggrieved with the appointment must first comply with Section 11(2) of the Chiefs Edict of 1984. He submitted that it is a condition precedent that the aggrieved party must exhaust the administrative procedure set out in the Chiefs Edict 1984 as amended before going to Court. He cited Section 11(2) of the Chiefs Edict 1984 as amended and further submitted that the condition precedent is mandatory. He also cited and relied on the following cases:-
1. OWOSENI VS FALOYE (2005) 10 ALL NLR 398 @ 402, OR (2005) ALL FWLR (PT. 284) 220.
2. ADESOLA VS. ABIDOYE (1991) 11 & 12 SCNJ 61 @ 85-88.
3. ARIBISALA VS OGUNYEMI (2005) ALL FWLR (PT. 252) 451 @ 466.
4. BAMISILE VS. OSASUYI (2008) ALL FWLR (PT.423) 1300 @ 1339.
5. ADEOLA VS. AYEOBA (2009) ALL FWLR (PT.458) 355 @ 377 – 378 AND 381.
He further Stated that the Ekiti State Executive Council approved the candidature of 1st Respondent on the 20th August, 2008 and announced on the radio on 21st August, 2008 and that the Appellants did not show that they took any step to comply with the provision of Section 11(2) of the Chiefs Edict before going to Court on the 22nd August, 2008. It is the view of learned counsel that if the condition precedent set out in Section 11(2) of the Chiefs Edict as amended has not been complied with or exhausted by the Appellants, their action will be incompetent and the court will lack jurisdiction to entertain it. The following cases were relied upon.-
1. USMAN VS. KADUNA STATE HOUSES OF ASSEMBLY & ORS (2008) ALL FWLR (PT.397) 78 @ 108.
2. WESTERN STEEL WORKERS LTD. VS IRON AND STEEL WORKERS UNION OF NIGERIA (1986} 3 NWLR (PT. 30) 295; and submitted that the Appellants had failed to exhaust the administrative remedies set out by the Chiefs
Edict, 1984 as amended before rushing to court on the 22nd August, 2008.
Arguing further in respect of his issue 2, Learned Counsel submitted that Chiefs Edict 1984 as amended and the Approval of Appointment of an Oba and Presentation of Instrument of Appointment and Staff of Office Edict 1991 are separate laws dealing with different stages of appointment of an Oba. He also submitted that the Approval of Appointment of an Oba and the Presentation of Instrument of Appointment and Staff of Office, Edict 1991, is not an amendment to the Chiefs Edict as construed by the trial court. It is his view also that the learned trial judge failed to advert his mind to the citation of the two laws to show clearly that the laws are not the same and neither are they an amendment to each other.
He submitted that the citation of the amendment to the Chiefs Edict in 1991 as shown in Section 2 of Law reads that the Edict may be cited as the Chiefs Edict (Amendment) No.2 Edict 1991 and shall be deemed to have come into force on the 3rd day of January, 1984, while the citation of the Approval of Appointment of an Oba and Presentation of Instrument of Appointment and Staff of Office Edict 1991 as shown by Section 6 of the law reads that the Edict may be cited as the Approval of Appointment of an Oba, and Presentation of Staff of Office Edict 1991 and shall be deemed to have come into force on the 3rd day of January, 1989. It is therefore his view that the two sections quoted from the two laws are separate laws and not an amendment to each other and the Court was urged to so hold. He also urged the court to reverse that part of the trial court’s decision which says that the second law is a further amendment to the first law and to hold that each of the laws are separate and have separate effect and further submitted that failure to comply with section 11(2) before going to court is fatal to the Appellants case, relying on the case of ADEOLA VS. AYEOBA (2009) ALL FWLR (PT.458) 355 @ 382.
Responding learned counsel for the Cross Respondents submitted that the Appellants/Cross Respondents have complied with section 11(2) of the chiefs (Amendment) (No.2) Edict of 1991 before instituting this action. He referred to a previous suit filed No. HCL/17/2004 to challenge the selection of the 1st Respondent for the position of Alara of Ara before the institution of the present suit No: HCL/12/2008 which was discontinued on the instruction of the 4th Respondent. He also referred to paragraphs 8, 9, 10, 11, 12, 13, 14 and 15 of the Affidavit in support of the motion on notice dated and filed on 1st September, 2008.
He further submitted that the trial court did not hold that the Appellants complied with section 11(2) of chiefs Edict before instituting this action but that they complied with Section 1 of the Approval of Appointment of an Oba, Presentation of Instrument of Appointment and Staff of Office Edict, 1991. Learned counsel also submitted that the Chiefs (Amendment) (No.2) Edict, 1991 as applicable in Ekiti State, which was made earlier in time on 3rd September, 1991 provides that an aggrieved person who wishes to challenge, “May make representations to the Executive Council that the appointment or approval be set aside”. That, the Approval of Appointment of an Oba, Presentation of Instrument of Appointment and Staff of Office Edict, 1991 as applicable in Ekiti State, which was enacted after the Chiefs (Amendment) (No.2) Edict of 1991 on 23rd December, 1991, provides that an aggrieved person who wishes to challenge the appointment of another as an Oba shall within seven days institute an action in the High Court challenging the appointment.
It is therefore submitted that the Approval of Appointment of an Oba, Presentation of Instrument of Appointment and Staff of Office Edict, 1991 as applicable in Ekiti State having been enacted after the Chiefs (Amendment) (No.2) Edict 1991 has superseded and dispensed with the administrative remedy making representation to the Executive Council before having recourse to court. That in the instant case, the appointment of the Cross Appellant as the Alara of Ara-Ekiti was approved on the 21st August, 2008 and on the 22nd August, 2008 the Cross Respondents challenged the appointment before the High Court of Ekiti State. It is submitted that all authorities cited by the Cross Appellant, are distinguishable with the present appeal as in none of these cases was the existence of Approval of Appointment of an Oba, Presentation of Instrument of Appointment and Staff of Office Edict, 1991 brought to the notice of the court and therefore the Edict was not considered.
It is therefore contended that the action filed within seven days to challenge the appointment of an Oba is competent, citing the case of AKINNUOYE VS MILITARY ADM. ONDO STATE (1997) 1 NWLR PT.483) 564 @ 572. The court was urged to resolve all issues in favour of the Cross Appellant.
The main contention under this issue is that the Appellants have not exhausted the administrative remedies provided by Section 11(2) of the Chiefs Edict, 1984 as amended before instituting this action to warrant its competency.
Section 11(2) of the Chiefs Edict 1984 States as follows:-
2. The Executive council shall not approve or set aside an appointment within the period of Twenty one days after notification in accordance with section 10 and during that period-
(a) An unsuccessful candidate; or
(b) a ruling house in respect of the chieftaincy which alleges that the proper order of rotation has not been observed or has other reasons why the appointment shall not be approved, may make representations to the Executive council in the manner prescribed that the appointment be said aside.
In the instant case, that the Chiefs Edict of 1984 suffered series of amendments particularly Section 11 of the law thereof. In 1991, the Chiefs Edict of 1984 was amended as follows:-
THE MILITARY GOVERNOR OF ONDO STATE NIGERIA OF HEREBY MAKES THIS EDICT AS FOLLOWS:-
1. Section 11 of the chiefs Edict is hereby amended by deleting sub-section (2) thereof and substituting therefore the following:
2. (2) Any unsuccessful candidate who or a ruling house which alleges that the proper order of rotation-has not been observed or has other reasons why the appointment would not be approved may make representations to the Executive council that the appointment or approval be set aside.
In this new law, there is no time limit of twenty one days of making the representation to the Executive Council that the appointment or approval be set aside.
However, in the same year, 1991, the 1984 Edict suffered another amendment as follows:-
AN EDICT TO MAKE PROVISIONS FOR THE APPROVAL OF APPOINTMENT OF AN OBA, PRESENTATION OF INSTRUMENT OF APPOINTMENT AND STAFF OF OFFICE EDICT, 1991.
THE MILITARY GOVERNOR OF ONDO STATE OF NIGERIA HEREBY MAKE THIS EDICT AS FOLLOWS:-
1. Any person who is aggrieved by the appointment of another person as an Oba shall within seven days of the date of such appointment institute action in the High Court challenging the appointment.
2. (1) any person who intends to institute an action against or challenge such appointment shall give security for:-
(a) A sum of Twenty five thousand Naira in respect of such action instituted against the appointment in any local government headquarters; or
(b) A sum of Ten Thousand Naira in respect of such action instituted against the appointment in town other than Local government headquarters.
(3) Any security given in pursuance of sub-section (1) of this section shall be paid into the High Court at the same time the necessary court processes are filed.
(4) The appointment of a person as an Oba is deemed to have been completed on the date of approval of the appointment by the Executive Council in accordance with the provisions of the Chiefs Edict.
Now, which of the laws are the Appellants expected to comply with before they can challenge the appointment and approval of the first Respondent? The Appellants averred in paragraph 21 of their Statement of Claim that on the 21st August, 2008, they surprisingly heard that the name of the first Respondent had been announced over the Radio of Ekiti as Alara Elect. The following day after the announcement, precisely on the 22nd August, 2008, the Appellants instituted this action. Is there no compliance with the amended law that provides for the institution of the action within seven days? There is, in my view a substantial compliance with the provisions of Section 1 of the Chiefs Edict as amended in 1991 by bringing their action within the seven days period stipulated by the law. The amended edict does not provide for administrative remedies or steps to be taken first before filing or instituting an action in a court of law as required by Chiefs Edict 1984. The Cross Appellant is therefore under a misconception of the law when he Stated that throughout the writ of summons and the Statement of claim of the Appellants, there is no where they pleaded the fact that they made any presentation to the 4th Respondent not to approve or set aside the approval given to the candidature of the 1st Respondent as the Alara of Ara-Ekiti.
The Chiefs (Amendment) (No.2) Edict 1991 heavily relied upon by the Cross Appellant to contend that it was not complied with by the Cross Respondents in that no representation was made to the 4th Respondent not to approve or set aside the approval given to the candidature of the 1st Respondent as the Alara of Ara- Ekiti was made earlier in time on 3rd September, 1991. However, the Approval of Appointment of an Oba, Presentation of Instrument of Appointment and Staff of Office Edict, 1991 was enacted after the Chiefs (Amendment) (No.2) Edict 1991, thereby amending or repealing Chiefs (Amendment) (No.2) Edict of 1991, leaving the Approval of Appointment of an Oba, Presentation of Instrument of Appointment and Staff of Office Edict, 1991 as the extant law. The only legislation available for any person intending to challenge the appointment of another person as an Oba must within seven days of the said appointment institute an action in the High Court. It is not in dispute that the Cross Respondents complied with the provisions of the said Edict by instituting the action within seven days of the appointment of the Cross Appellant as the Alara of Ara-Ekiti. The finding of the learned trial judge that the action filed by the Cross Respondents was competent having complied with the provisions of the new law by filing the writ within the seven days requirement is unimpeachable even though it suffered a set-back as it was struck out for being incompetent on other grounds. This finding by the learned trial judge cannot be faulted. This issue is therefore resolved against the Cross Appellant. The Cross appeal therefore lacks merit and it is hereby dismissed. The ruling of the trial court delivered on the 25th November, 2008 holding that the action filed by the cross Respondents being filed within the seven days requirement of section 1 of the Approval of Appointment of an Oba, Presentation of Instrument of Appointment and Staff of office Edict, 1991 is competent is hereby affirmed. There shall be no order as to costs. Each party is to bear their own costs.
CHIDI NWAOMA UWA, J.C.A.: I read before now the judgment of my learned brother UWANI MUSA ABBA AJI, J.C.A. His Lordship has comprehensively dealt with the issues raised and resolved same. I adopt same as mine in affirming the decision of the trial court delivered on 25th November, 2008 and dismissing the cross appeal for lacking in merit. I abide by the order awarding no costs.
HARUNA M. TSAMMANI, J.C.A.: I was privileged to have read in draft the judgment delivered by my learned brother, Uwani M. Abba Aji, J.C.A.
I am in complete agreement with the reasoning and conclusion of my learned brother in this appeal. In that respect, I hereby dismiss the appeal and affirm the ruling of the lower court the subject of this appeal for the reasons given by my learned brother which I adopt as mine. I also dismiss the cross-Appeal as being without merit.
I abide by the order as to cost.
Appearances
TUNDE ADENIGBO, ESQ.For Appellant
AND
1. S.A. LONGE, ESQ.
2. A.E. AROGUNDADE, ESQ.,
3. M.O.J. EKITI STATEFor Respondent
