CHIEF M. I. KUDEHINBU & ANOR v. MR. NEWTON OLUWOLE & ORS
(2016)LCN/8574(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of May, 2016
CA/B/288/2006(1)
RATIO
ISSUES OF JURISDICTION: WHEN CAN THE ISSUE OF JURISDICTION BE RAISED
This is a point of law bordering on jurisdiction and which may be raised at any stage of the proceedings and even on appeal to this Court or even the Supreme Court. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
CHIEFTAINCY ISSUES: PROCEDURE FOR BRINGING ISSUES OF CHIEFTAINCY BEFORE THE COURT
As rightly submitted by the 3rd respondents counsel on the authority of the case of Ideozu v. Ochoma (2006) 4 NWLR (pt. 970) page 392 paragraph B per Oguntade, JSC, A Chieftaincy title is not a perishable commodity. It is always there for the winner.” Why would the plaintiff not take his time and appeal to the Executive Council to exercise its power of approval if he was confident that he had been so appointed from the ruling House and in accordance with their custom?
The cases of Benin Rubber Products Ltd. v. Ojo (1997) 9 NWLR (pt. 521) Page 403 Paragraphs E- F and Bamisile vs. Osasuyi (Supra) are apt in this matter on appeal.
No formal appointment had been made and communicated to the appropriate authorities. As this Court stated in Bamisile V. Osasuyi (Supra) the action that should jumpstart the process of complaint and investigation of complaint had not yet been concluded. The suit leading to this appeal is a case of pre-emptive attack”
The appellant in Bamisile’s case was held to have failed to avail himself of the administrative remedy, which is a condition precedent to invoking the jurisdiction of the lower Court and that the lower Court was incompetent at the time to assume jurisdiction on the matter. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICE: HOW DOES JUSTICE OPERATE
Justice, is that scarce and precious commodity that is delivered with the co-operation of an honest advocacy that does not seek to merely impress or confuse the judex by untenable and self serving glorification and unfounded damnification of a trial Court with a view to hopefully provoking the sympathy of an appellate Court for an appellant to obtain or procure the condemnation of a trial decision with a view to scoring a legal point in an appeal. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICE
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
1.CHIEF M. I. KUDEHINBU
2.PRINCE RICHARD ADUBI KUDEHINBU Appellant(s)
AND
1. MR. NEWTON OLUWOLE
2. MR. TIMOTHY OLUWOLE
(For themselves and on behalf of Awoete Akata Family substituted by order of court dated 10/3/2011).
3. ILAJE LOCAL GOVERNMENT
4. GOVERNMENT OF ONDO STATE
5. ATTORNEY – GENERAL, ONDO STATE
6. PRINCE ILESANMI IKUEMONISAN MAFO Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment):This is an appeal against the decision of the High Court of Ondo State in suit No. HOK/81/1999 delivered on 15-3-2006 by Honourable Justice W. A. Akintoroye, J. where at the learned trial judge had given judgment in favour of the plaintiff at the trial Court who is now respondent and held and ordered as follows:-
“In conclusion plaintiff succeeds. The Court therefore declares in his favour as follows:-
(A) That the plaintiff is the person entitled to be enthroned as the maporure of Agerige Aheriland.
(B) An order of injunction restraining the defendants, their servants, agents, privies from engaging in any re-consultation of Ifa oracle in selecting a candidate for the stool of the Maporure of Agerige Aheriland.
I award five thousand naira (N5000.00) costs in favour of the plaintiff against the defendants.
A resume of the facts of the case as summarized in the statement of claim is that the plaintiff had claimed against the defendants who are now 1st, 2nd Appellants and 3rd, 4th, 5th and 6th respondents respectively for the following reliefs:-
1. A
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declaration that the plaintiff is the person entitled to be enthroned as the Maporure of – Agerige, Aheriland.
2. An order of injunction restraining the defendants their servants, agents, privies from engaging in any consultation of “lfa” oracle in selecting a candidate for the stool of the Maporure of Agerige, Aheriland.
Aggrieved by the decision in favour of the plaintiff, the 1st and 2nd defendants have now appealed and upon six grounds of appeal initially filed on the 16th of March, 2006. See pages 216 – 210 of the record of appeal.
This notice of appeal was amended and filed on 8 -11 -2012 and a further amended notice of appeal was filed on 9 – 3 – 2015 but deemed properly on 18 – 3 – 2015 by leave of this Court to that effect.
The present 1st and 2nd respondents were substituted by leave of this Court substituting the deceased plaintiff/respondent as parties in the appeal
The appellants further amended brief of argument dated and filed on 9 – 3 – 15 but deemed filed on 18 – 3 – 15 was readopted.
It is instructive to note that the appellants had by motion on notice filed on 9 – 3 – 15 been granted leave to raise and argue/new
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fresh issue of jurisdiction which was neither raised nor argued at the trial Court and to consequentially further amend its notice and grounds of appeal and their brief of argument . Upon the filing and service of the amended notice of appeal, the appellants filed their further amended brief of argument from whence the following issues were raised;
1. Whether the trial Court has jurisdiction to grant the reliefs sought by the late Abobo Oluwole now been (sic) replaced by the 1st and 2nd respondents by making chieftaincy declaration in respect of Maporure which is the exclusive function or responsibility of the State Executive; addition to issue on jurisdiction whether the plaintiff now being substituted by the 1st and 2nd respondent can raise fresh issue of jurisdiction and whether the plaintiff at the lower Court now being substituted by the 1st and 2nd respondents in this Court complied with the Statutory Provision of Section 13(1) and (2) of the Chiefs Law, Ondo State 2006.
2. Whether it is mandatory in proving existence or otherwise of a custom that a party needs more than one witness when in fact the Court himself commends the evidence given by
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that person giving the existence of that custom.
3. Whether the trial judge is correct and his verdicts should not be upturned when he made a declaration that the Late Abobo Oluwole who was the plaintiff at the Court below is the Maporure Elect, when he, himself and his witnesses admitted that he was not yet confirmed or elected by the kingmakers as the Maporure Elect and that the 2nd appellant halted the proceeding by introducing new idea.
4. Whether the trial judge properly evaluated the evidence of the traditional history of the 1st and 2nd appellants which was not controverted throughout the proceeding but was rather admitted by the parties to the effect that no person has ever been installed as the Maporure in the history of the Aheris under any ruling house apart from the Ademitufewa Ruling House
5. Whether the trial Judge should take cognizance or give weight to the one unregistered declaration made by the Ondo State Executive rather than to declare that they are not evidence of the custom of the Aheris.
6. Whether the judgment of the trial judge is against the weight of evidence.
7. whether the benefits of the personal reliefs
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granted the Late Abobo Oluwole, the plaintiff in the lower Court can be taken by Mr. Newton Oluwole and Mr. Timothy Oluwole and whether same is a misnomer and a fatal legal error as they cannot defend an appeal whose reliefs and judgment at the lower Court were personal to the deceased prince Abobo Oluwole.
On their part, the 1st and 2nd respondents adopted substantially the appellants issues for determination and argued them as such. The 3rd respondent also filed a brief of argument, whilst the 4th, 5th and 6th respondents did not file any brief of argument.
On their part, the 3rd respondent formulated only 2 (two) issues for determination, to wit;
1. Whether the proceedings and Judgment of the lower Court are not a nullity for lack of competence to entertain the suit and/or grant the reliefs sought.
2. Whether by the pleadings, evidence and general circumstances of this case, the reliefs sought and declared by the trial Court is personal to or enjoyed by any other person at the death of the named plaintiff Prince Abobo Oluwole.
Upon a careful perusal of the record of appeal and in particular the evidence led at the trial and judgment
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delivered; and also upon a scrutiny of the grounds of appeal, I am of the view that the issues formulated by the 3rd respondent are apt.
I shall decide this appeal upon those issues and upon a third issue, which is the appellants’ issue Vl.
The appellants’ issue one may be subsumed under the 3rd respondents’ issue one as they both dwell on the jurisdiction of the trial Court and competence of the suit.
lssues 2, 3, 4, and 5 of the appellants on proof may be subsumed in their 6th issue. Appellants’ issue 7 and the 3rd respondent’s issue 2 are the same.
However, the 1st and 2nd respondents appear to have treated the appeal by responding to the issues formulated by the appellants in seriatim.
I shall, however, treat the appellants issues in considering this appeal, as it is his appeal.
ISSUE ONE:
On this issue, relating to the appellants’ ground 1 of the notice of appeal, the appellants’ learned counsel submitted that it was within the exclusive jurisdiction of the Ondo State Executive council to make chieftaincy declaration which regulates the selection of a person to be the Oba or a traditional Chief. That such
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declaration will among other things include a statement of the Customary law relating to the number of Ruling Houses. That it was not a judicial function, as it was the prerogative of the executive to make chieftaincy declarations under Section 2 of the Chiefs Law of Ondo State; Adigun vs. Attorney General Oyo State (1987) 1 NWLR 678: Alhaja Munirat Oduntan Vs. Alhaja Abudu W. Akibu (2000) 7 SC Pt.2. Page 106 at 122.
That the trial judge descended into the arena by usurping the executive function of the government of Ondo State by making a declaration that there are 4 (four) Ruling Houses in Aheriland who can ascend to the throne of Maporure of Agerige, when infact there is none. That the decision of the trial Court be reversed on this ground.
Further on the issue of jurisdiction it was contended that the plantiff now substituted by the 1st and 2nd respondents did not comply with the provision of Section 13(1) (2) of the Chiefs Law of Ondo State before instituting this action at the trial Court.
This is a point of law bordering on jurisdiction and which may be raised at any stage of the proceedings and even on appeal to this Court or even the
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Supreme Court.
This fresh issue of law raised is sequel to leave of this Court granted on 18 – 3 – 15 pursuant to the appellants’ motion dated and filed on 9th March, 2015. Arguing this arm or limb of jurisdictional competence of the trial Court on the suit reference was made to Section 13(1) and (2) of Chiefs Law of Ondo State and consequently, contended thus;-
(1) That no notification/representation was made to the Commissioner for Local Government and Chieftaincy Affairs, Ondo State as per his/their grievance before heading for Court.
2. That no notification or communication was made by the commissioner for local government and chieftaincy affairs, Ondo State, of the appointment of the late Prince Oluwole Abobo to the Executive Council, Ondo State.
That if the plaintiff at the trial Court had any grievances, it was mandatory for him to submit such grievances to the State Executive Council within 21 days of the conclusion of the selection process. That it is/was imperative to exhaust all remedies administratively at the level of the government before approaching the State High Court for redress or intervention.
That the exhaustion of
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domestic or local remedies is a condition precedent to the invocation of the jurisdiction of the trial Court.
The learned counsel referred to the decisions of this Court in Bamisile vs. Osasuji (2007) 9 NWLR pt. 1042 and Prince Olusegun Adeola & 2 Ors. Vs. Mr. lsaac Adeyinka Ayeoba (2009) 23 WRN. page 119 and relied on same to the effect that the condition precedent to the institution of the suit had not inured to warrant the suit in the first place; counsel contended that the plaintiff/respondent was an aggrieved or unsuccessful candidate and so was his unsuccessful or aggrieved family as he complains that he had been not installed inspite his nomination or selection as the appellants scuttled same and prevented him from being presented to or to be considered by the kingmakers; the cases of Eguamwense vs. Amaguizemwen (1994) LRCN 18: (1993) 9 NWLR Pt. 315. page 1 at 25 on the need to comply with condition precedent for the institution of an action and the consequential nullity of a suit instituted otherwise for want of jurisdiction were relied upon to argue that Section 71 (1 ) of the Chiefs Law 1991 (now Section 13 of the Chiefs Law 2006 was
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disregarded. That the suit of the 1st and 2nd respondents be struck out.
Nigercare Department Co. Ltd. vs. Adamawa State Water Board and 3 Ors (2008) 2 – 3 SC Part. 2. Page 202. Cooperative Bank v. A.G. Enugu State (1992) 8 NWLR Pt.261, Pages 528. Adesola vs. Abidoye (2001) 2 NWLR 39. (1991) 14 NWLR pt. 637 at 28 were relied upon to show that where a pre-action notice was required it was a condition precedent for the validity of the action and where a domestic forum exists, it must be complied with first before any action can be taken in a Court; finally, the decision of this Court in Amaka Vs. A. G. Ondo State (2012) 12 NWLR Pt. 1313. Page 66 per Chinwe E. lyizoba, JCA to the effect that the plaintiff having not exhausted all the domestic remedies available, the institution of the action was premature and incompetent and accordingly struck out was harped upon.
On the second issue, the appellants submitted that, it was not correct to hold that proof cannot be attained by the evidence of one witness alone.
Learned counsel faulted the trial Judge, for not considering the evidence of the DW1 as sufficient even after commending the said witness.<br< p=””>
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Counsel argued that corroboration was not required in the evidence of custom as even criminal cases could be decided upon the evidence of a lone credible witness. The findings of the trial judge relating to the existence of a Ruling House was faulted as there was no credible even of facts in proof as the story of 5 Ruling Houses metamorphosing into 4 did not hold sway.
Indeed the story about Awoete – Akata and Awoete pepe existing as independent and separate Ruling Houses by mere fact of being of different villages (settlements) though of the same father was suspect. Learned counsel veered off from the issue on proof of custom to address prolifically on the untenability of the evidence of the plaintiffs/1st and 2nd respondents in Court.
On the 3rd issue, whether the trial judge is correct and his verdicts should not be upturned when he made a declaration that the late Abobo Oluwole now being substituted for by the 1st and 2nd respondents is the Maporure Elect, when the late Abobo Oluwole himself and his witnesses admitted that he was not yet confirmed by the kingmakers as the Maporure Elect and that the 2nd appellant halted the proceeding
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when he introduced new idea, it was contended that it was erroneous to so declare as PW1 and PW3 made it clear that the process was halted and the processes were still on, more so that only one ruling house of Adetufewa ruling house existed and vacancy in the membership of the kingmakers caused by the efforts at substituting them with warrant chiefs that are on – going. Exhibit H and page 133 lines 30 – 35 of record the testimony of DW1 at page 31 of the record. On issue lV – whether the trial judge properly evaluated the evidence of the 2nd appellant that there was only one ruling house – Adetufewa ruling house and that no person has ever been installed as maporure in the history of Aheris under any other ruling house; the appellants contend that the trial judge did not so do and was wrong in not so holding; that the PW1 , Pw2 had so testified in lines 20 -23 of page 102 of the record of appeal; and 21 and 22 of page 121 respectively that PW was a member of Adenitufewa, the only ruling house. While pw2 in cross – examination said the plaintiff has been presented to the family of Adenitufewa who is the head of Aheris as a whole:.
Counsel argued that the
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evidence in cross – examination of the PW2 – the late Abobo Oluwole was an admission under Section 75 Evidence Act, to the effect that Ademitufewa was the only ruling house; and the creation of 4 ruling houses by the late Abobo Oluwole and his witness was their making and imagination to suit their purpose, that, that creation was unknown to Aheri people and an affront to the custom of the people of Aheriland.
On the fifth issue, whether the trial judge should take cognizance or give weight to the one unregistered declaration made by the Ondo State Executive rather than declare that they are not evidence of the custom of the Aheris, it was submitted that the unregistered declaration ought to have been taken as proof of the custom and the fact of the existence of only one ruling house indicated therein the Ajakaye report would have been so noticed by the trial Court. That the evidence of DW1 corroborated the declaration.
On the 6th issue whether the judgment of the trial judge was against the weight of evidence, the learned counsel for the appellants argued that the judgment was against the weight of evidence. That the selection process of the Maporure was
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inchoate and the traditional king makers had not yet performed their duty and therefore, there was not appointment or election of the respondents/plaintiff as yet. That the plaintiff misled the trial judge who ought to have declared that all entitled persons take part in the Ifa divination. That the PW1s Awoete Akata presented candidate not in exclusivity of the right to so do, and paid N5000 to the king members like the other two branches for the exercise which never saw the light of day as the 2nd appellant kicked against the strange ideas
On the final and seventh issue it was argued that the plaintiff at the trial Court had sued the appellants in a representative capacity, but claimed personal reliefs. That the 1st and 2nd respondents substituting the plaintiff cannot defend this appeal as they are interlopers. On their part, the 1st and 2nd respondents argued in response to the appellants.
I must of course point out that the 1st and 2nd respondents’ attempt to challenge the propriety of the multi-issues raised in the appellants’ brief of argument and by their brief without first of all filing a notice of objection or setting
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out in their brief of argument their intention to contend or challenge the excess issues as raised is futile.
All arguments bordering on this complaint, though sound in law are disregarded.
These respondents formulated 4 issues for determination.
Their 3rd and 4th issues are on (i) whether there was proof of the custom (ii) the nature of chieftaincy suits and the effects of judgments thereof on other persons, respectively.
I have no difficulty in agreeing with these respondents on the 4th issue as argued by them,
On issues one and two on whether the plaintiff was the aggrieved, the learned counsel argued that he was not, and that in any case he had many representations to the appropriate authorities without success, before coming to Court.
That the trial judge’s finding and conclusion on the proof of the custom relating Maporure Agerige was right. However, I find a contradictory evidence relating to 3 and 4 ruling houses coming from 6th respondent/defendant and 1st and 2nd respondents, who were parties to the suit.
The 1st and 2nd respondents’ argument merely baked the issues and cannot be reckoned with in law to dismiss the
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appeal and uphold the trial Court’s judgment as urged upon us.
It was argued that it were the appellants and not the respondents that were in breach of any condition precedent to any action in respect of the chieftaincy in dispute.
On the raising of the fresh issue on appeal, it was argued that it was incompetently raised.
On the proof of custom, it was contended that the trial Judge was right in the view that there was insufficient proof and that resort could not be had/made to the declaration of Customary law that had not been registered as proof of the evidence of the custom.
However, that abundant evidence had been led by oral and documentary evidence justifying the findings and conclusion of the trial judge in favour of the plaintiff at the trial.
On the argument that the 1st and 2nd respondents cannot defend the appeal as the suit by the plaintiff was on a representative capacity but the claim was personal and so granted, it was contended that was untenable as leave had been so granted to sue as a representative and that a ruling having been rendered that issues cannot be re – activated as this Court is functus officio in that
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regard and cannot sit on appeal over its decision ie ruling as made.
The learned counsel further contended that if that argument were to hold, of what value was the appeal then if the plaintiffs claim was personal and had terminated?
Learned counsel contended that the suit was brought on behalf of the Awoete Akata ruling house and that the said ruling house should be allowed to enjoy the fruit of its litigation by producing the next Maporure of Aheriland.
Relying on the case of Arowolo vs. Akapa (2006) 18 NWLR (pt. 1010) 94. pages 106-109 paragraphs H-A where in the Supreme Court held In a chieftaincy matter, particularly when the dispute is as to the proper person to occupy a chieftaincy stool, as in the instance case, the history of the origin of the town and chieftaincy concerned are usually interwoven and very relevant.
In telling of the history of the origin of the chieftaincy therefore, the history of the ruling house or houses entitled to the chieftaincy is inevitable.
Thus, once one talks of membership or non – membership of a ruling house, it is not simply a personal affair of the person concerned but a substantial
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family matter. In the instant case, it was proper to substitute the deceased so as to protect the interest of the family or ruling house that presented the original appellant for the Obaship of ltele as the interest of that family in the dispute survived the death of the original appellant.”
That there was no basis for the ground of appeal that triggered the instant issue. That the judgment was in favour of the substituted respondents for the benefit of their family and should be enjoyed as decreed and the appeal be dismissed as lacking in merit.
That the trial Court judgment be affirmed. On its part, the 3rd respondent raised two issues for determination, thus;
1. Whether the proceedings and judgment of the lower Court are not a nullity for lack of competence to entertain the suit and or grant the reliefs sought.
2. Whether by the pleadings, evidence and general circumstances of this case, the reliefs sought and declared by the trial Court is personal and of such a nature that cannot be transferred to or enjoyed by any other person at the death of the named plaintiff Prince Abobo Oluwole.
This respondent had contended in agreement
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with the appellants that the trial Court had no jurisdiction to entertain the suit when it did and that its judgment was a nullity and should be set aside. lts learned counsel had dwelt exhaustively on the issue of jurisdiction; the learned counsel for the 3rd respondent had launched his exotic and scintillating submission in such a great clarity that is most helpful and commendable as against the rather dilatory and cloudy submissions of the other parties. Wade through all submissions, the Court must in the interest of justice.
I shall after a study of the record of appeal and in particular the amended notice and grounds of appeal and issues formulated by the parties, studied alongside the evidence led, adopt the 3rd respondent’s issues as formulated as the first issue on jurisdiction is a common issue to all the parties, whilst its issue 2, not only encapsulates all the appellants other issues and the other respondents but is a one-stop shop on whether the judgment was justified by the evidence led.
The contestants/parties are all agreed that the vacant stool of Maporure Agerige Aheriland is a recognized chieftaincy but which
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no registered declaration is yet applicable or available.
Section 26(1) of the Chiefs Law 1984 now 47 (1) of the Chiefs Law Cap 27 Vol Laws of Ondo State, 2006 provides as follows:
Where a vacancy occurs in a recognized chieftaincy after the application of Part 1 of this law but before the making of a declaration;
(a) The vacancy shall be filled in accordance with the Customary law applicable to that chieftaincy.
(b) The Executive Council may approve the person so appointed or set aside the appointment. Section 11(1) of the Chiefs Law 1991 Amendment, now Section 13 of the 2006 version provides that: – 1 – the Executive Council may approve or set aside an appointment of a recognized Chief.
The Executive Council shall not approve or set aside an appointment within a period of 21 days after notification in accordance with Section 12 and during that period an unsuccessful candidate or ruling house in respect of the chieftaincy who, or which alleges that proper order of rotation has not been observed or who or which has other reasons why the appointment shall not be approved, may make representations to the Executive Council in the manner
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prescribed to that effect that the appointment be set aside.
This mandatory provisions must be adhered to before any suit can be instituted by an aggrieved/interested person. See Bamisile V. Osasuyi (2007) 9 NWLR pt. 1042. ln this case on appeal, although the respondent claimed to have been appointed or nominated and to have satisfied all the criteria for installation as the Maporure since he admitted that he was frustrated out of it by the appellants he was therefore in that circumstance an aggrieved person who was dissatisfied as to how it turned out.
He had a duty to complain to the Executive Council within the 21 days period provided by the law to enable the Executive Council approve or set aside the appointment.
The Executive Council also had an obligation to approve or set aside the appointment, all only after 21 days following the appointment alleged. The Executive Council not having exercised this duty either way, nor the appellants having lodged any complaint within the period or at all, it is my view that the action instituted by the plaintiff culminating into this appeal was premature and in violation of the condition precedent to any
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action in respect of a recognized chieftaincy such as Maporure of Agerige Aheriland.
The 1st and 2nd respondents or the plaintiff were dissatisfied because they were aggrieved and unsuccessful in the endeavor to clinch the royal stool.
The 1st and 2nd defendants kicked against the presentation of the plaintiff by the leader of the Ademitufewa family to the 9 king makers as testified to by the PW1 i.e plaintiff himself; and his installation was stalled. Plaintiff had not been appointed; he had also not been presented to the Executive Council for approval or rejection as provided by law. Rather than ensure that there was compliance with the condition precedent, the plaintiff took a precipitate action. From the plaintiffs evidence, it is clear that the matter had not been referred to nor any action taken by the State Executive Council yet. The plaintiff, as PWl admits that protests to various authorities without success forced him into the suit. Had the appointment and installation been made? Not yet.
What cause of action existed warranting the suit? The suit was in reality or in essence one to prevent the defendants from preventing his appointment
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and installation. This could not have been a cause of action under the Chiefs appointment law.
As rightly submitted by the 3rd respondents counsel on the authority of the case of Ideozu v. Ochoma (2006) 4 NWLR (pt. 970) page 392 paragraph B per Oguntade, JSC, A Chieftaincy title is not a perishable commodity. It is always there for the winner.” Why would the plaintiff not take his time and appeal to the Executive Council to exercise its power of approval if he was confident that he had been so appointed from the ruling House and in accordance with their custom?
The cases of Benin Rubber Products Ltd. v. Ojo (1997) 9 NWLR (pt. 521) Page 403 Paragraphs E- F and Bamisile vs. Osasuyi (Supra) are apt in this matter on appeal.
No formal appointment had been made and communicated to the appropriate authorities. As this Court stated in Bamisile V. Osasuyi (Supra) the action that should jumpstart the process of complaint and investigation of complaint had not yet been concluded. The suit leading to this appeal is a case of pre-emptive attack”
The appellant in Bamisile’s case was held to have failed to avail himself of the administrative
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remedy, which is a condition precedent to invoking the jurisdiction of the lower Court and that the lower Court was incompetent at the time to assume jurisdiction on the matter.
This case is applicable to the instant appeal. I shall for the purpose of emphasis, agree with appellants that the plaintiffs action was premature and incompetent.
I am at one with the 3rd respondent’s counsel when he cited the case of Amaka Vs. A.G.Ondo State (2012) 12 NWLR pt. 1313. Page 66 per Chinwe JCA in submitting that the chiefs law was applicable to render the plaintiffs’ suit premature and incompetent, as administrative remedies provided in the relevant law had not been exhausted before going to Court.
The rational for first exhausting administrative remedies before taking out a law suit in chieftaincy matters is that the legislative intent is to stem the spate, or deluge of litigation and hopefully have amicable settlement of chieftaincy disputes. See page 71 paragraphs C – E per Chinwe E. lyizoba, JCA.
I entirely agree with the position taken by the 3rd respondent in his issue number one that the plaintiff having failed to embrace or exhaust the statutory
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administrative remedies as condition precedent to the filing of the suit, the trial of High Court had no jurisdiction to entertain, let alone grant the reliefs claimed and awarded.
There was also no cause of action in existence before the premature suit. Accordingly, I resolve the 1st issue in favour of the appellants and accordingly declare the suit and proceedings/decision pursuant thereto as nullities.
This issue settles this appeal. However, I shall discuss in brief the other arguments on whether the evidence led justified the decision made.
From the avalanche of evidence led, there was no basis for arriving at the conclusion that the plaintiff at the trial was entitled to and had been appointed the Maporure of Agerige Aheriland.
Although the trial Court made no declaration of Customary law as known to law, it however purported to make a finding on what the Customary law was; this was however perverse the evidence led.
What is more what the appellants claimed to be a declaration of Customary law was not done by the committee of the local government council i.e of the 3rd respondent and in the nature indicated in Section 2(2) of the
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Chiefs Law of Ondo State. The power to make a chieftaincy declaration, vested only in the Executive, had not and could not have been usurped by the trial Court as contended by the appellants.
The trial Court only exercised its power of evaluation of evidence but came to a wrong conclusion regrettably even if it had jurisdiction to have entertained the suit (which it lacked).
A review of the evidence led, shows clearly that there was no chieftaincy declaration in existence; that there was only one family with branches which were not shown to have sub – branches that were considered as independent and distinct Ruling Houses.
There existed the antagonistic claim of the plaintiff through PW3 that he was presented as a sole candidate in 1996 and by the king makers; whose names or titles were not stated. This is in the face of a rival claim and evidence of 6th defendant that he too was presented in 1993 by the same Ademitufewa Ruling House as the Oba.
I agree with the 3rd respondent that the documents relied upon by the Court of trial to justify his view of the Customary law were made in 1997 and 1998 after the dispute had arisen and could not
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have been the basis for the nomination/appointment, as claimed. The documents were made by interested parties when litigation was contemplated. No probative value should have been placed thereon. See Section 83 (3) of the Evidence Act.
Indeed, the opinion of the trial judge on Exhibit BB1 clearly shows that no consensus had been reached on the memoranda submitted (if any), as claimed by the plaintiff at the trial. The ambivalent evidence in that regard as relating to some Ruling Houses or family submitting and others not yet, clearly shows the inchoate nature of the activities in respect of the chieftaincy stool. This would have dawned on the trial Court and guided it against any finding that the process had been consummated in favour of the plaintiff.
The Learned counsel for the 3rd respondent, is therefore right when he argued at paragraph 5.16 thus-
“Hence from this statement quoted by him, His Lordship ought to know that in administrative parlance, memoranda/resolution are submitted before a fact finding panel or body with a view to finding administrative or quasi-judicial solutions to existing crisis or dispute by government”.
It is
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strange to say the least that the scenario of rushing to Court in the circumstances narrated, fearing that the 1st defendant could single handedly install the 2nd defendant, his cousin be taken as producing any agreement worthy of judicial proof.
The paucity of evidence can also be seen in the withholding of the evidence from one Rev. Olowofoyekun to whom the plaintiff claimed that he was presented as a candidate, he as the head of the Ademitufewa family and who in turn, he claimed presented him to the king makers. None of the king makers was also called as a witness!
I agree with the 3rd respondent that the trial judge ought to have rejected his story in line with Section 167 of the Evidence Act.
The rejection of the evidence of 2nd and 6th defendants in preference to the plaintiffs evidence had no basis.
I painstakingly studied the record and do not see the basis for the finding that there were 4 Ruling Houses proved by evidence at the trial Court. Upon the aforesaid, the findings of the learned trial judge in respect of the Customary law relevant, had no basis in the evidence led.
lf the milieu of custom is that which enjoys the
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force of law, as the Supreme Court in the case of Adeyeri ll V. Atanda (1995) 5 NWLR (pt. 397) P. 512 at 352 held, in that custom as a rule which in a particular district or area had, from long usage obtained the force of law, then what is the effect of consensus of the parties that there was never in existence 4 Ruling Houses and upon which any appointment had been made previously? Then, that was not a customary rule of the people as adjudged by trial Court.
The proposal of limiting or creating 4 ruling houses based on names or exigencies had not been shown to be the accepted practice. There appeared to have been a confusion of the royal branches with ruling house, such that the trial Court merely conjectured in accepting the story of 4 ruling houses.
I agree with the 3rd respondent, when he argued at paragraph 6.07 of his brief of argument, at page 23 thereof, that the findings of the trial judge cannot be correct as the plaintiff had himself agreed that there are other children of osobita who are also entitled to the throne and who were neither captured in the so – called 4 ruling houses nor were parties in the suit. The families are royal family
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branches of the same ruling house, which is Ademitufewa.
The situation in this case is as in the case of Mafimisebi V. Ehuwa (pt. 355) 2007 ALL FWLR where Ojadele was recognized as the only ruling house with royal branches named after his children who had expectedly been Obas.
This, therefore, makes the logic in the reasoning of the 3rd respondent’s counsel when he urged us to note that at page 108 of the record, the writ of summons refers to the plaintiff family as Awoete – Akata family and not as a ruling house – very sound and reasonably dependable.
This issue is resolved in favour of the appellants.
The 3rd issue this issue asks the question whether by the pleadings, evidence and general circumstances of this case, the declaration by the Court can be transferred to or enjoyed by any other party than the plaintiff now deceased.
There is no doubt that the plaintiff sued in a representative capacity. Even then, even if the claims or reliefs sounded or appeared personal, the law is that so long as it related to a ruling house, the interest transcends the individual interest of a single person. The success or loss of the action is the
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success or loss of the family represented.
Contrary to the 3rd respondent’s and appellant’s posture, it does not matter how the claims or reliefs were couched. lt is still a representative action which tenor of judgment binds the family and therefore is transferable.
It is not an action of the category of chose in personam. lt is an action in rem. The action is not rendered void by this fact as contended by the 3rd respondent. Their argument is of a character that smarks off an objection to the competence of an appeal by the substituted respondents.
That issue had long been settled at the stage when their motion for substitution for the plaintiff was granted and for the benefit of the family as the action subsisted even after the demise of the plaintiff.
I must say that this issue is now, however, an academic one and of no utilitarian value in the face of the resolutions made in issues one and two.
On the basis of the resolution of issue No.2, as made, this appeal ought to be allowed and the judgment of the trial Court set aside and quashed; however in the face of the resolution of the 1st issue on jurisdiction, it is my decision that
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the Suit No. HOK/81/1999 filed at the Okitipupa Judicial Division of the Ondo State High Court on the 17th of November, 1999 was incompetent.
It is accordingly struck out, as there was neither a cause of action in existence nor jurisdiction in the trial Court to entertain the suit.
As a corollary, the counter claim of the defendants is also struck out for incompetence, having been hinged on an incompetent suit and having no footage. You cannot put something on nothing as expect it to stand. See Mcfoy V. UAC 1962 AC.
Before concluding this judgment, I should observe that the appellants by their reply brief of argument which was largely a re – argument of the appeal (and which is prohibited in law) sought to argue, strangely though that there were no arguments and a considered ruling on the motion for joinder and that this Court was therefore not functus officio.
That is strange! A party or counsel who compromises a procedural requirement or rule of practice cannot complain later on against it.
Counsel admits that the application was moved unopposed and yet says there was no ruling. How come that the 1st and 2nd respondents have become
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parties to this appeal? The appellants’ reply brief in this respect is a hold to a slimy straw and the exhibition of a penchant to argue for its sake.
Justice, is that scarce and precious commodity that is delivered with the co-operation of an honest advocacy that does not seek to merely impress or confuse the judex by untenable and self serving glorification and unfounded damnification of a trial Court with a view to hopefully provoking the sympathy of an appellate Court for an appellant to obtain or procure the condemnation of a trial decision with a view to scoring a legal point in an appeal.
This is what the appellants reply brief seeks to achieve at pages 13 – 14 when it set out to justify the view that this Court was not functus officio in respect of the issue of joinder of parties made
Having said this, it is my judgment that —-the Suit No. HOK/81/1999 be and it is accordingly struck out and the decision/judgment arising therefrom delivered on 15th March, 2006 by Hon. Justice W, A. Akintoroye J is accordingly set aside and quashed for being a product of an incompetent suit and proceedings.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read before now in
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draft the judgment just delivered by my learned brother Mohammed A. Danjuma, JCA, For the reasons contained in the lead judgment, I too allow the appeal. Suit No. HOK/81/1999 is incompetent and it is accordingly struck out.
I abide by the consequential order(s) contained therein.
JAMES SHEHU ABIRIYI, J.C.A.: I had the privilege of reading in advance in draft the lead judgment just delivered by my learned brother Danjuma, JCA.
He has dealt exhaustively with all the issues for determination.
I have nothing more to add.
The action of the Appellant having been begun prematurely should have been struck out. For this reason, the judgment of the lower Court in Suit NO: HOK/81/1999 is hereby set aside and the suit struck out.
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Appearances
Olutunde Abioje, Esq.For Appellant
AND
1st and 2nd Respondents represented by Chuckwuyem Atewe Esq.
Tosin Omotayo Esq. 3rd Respondent.
4th and 5th Respondents filed no Brief of Argument and were not represented by counsel.
6th Respondent filed no Brief and not represented by counselFor Respondent
