CHIEF OSUNGBADE AROGUNDADE AGURA & ANOR v. MR. BENJAMIN ADEMOLA ISHOLA OROBIYI & ANOR
(2012)LCN/5359(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of May, 2012
CA/I/235/07
RATIO
PROCEDURE: HOW IS PRELIMINARY OBJECTION BE FILED
The current trend is to incorporate a preliminary objection to the hearing of an appeal in the respondent brief of argument without necessarily setting out in a separate notice the preliminary objection for the purpose of Order 10 Rule 1 of the Rules of the Court – See Dakolo & Ors v. Rewane Dokolo & Ors (2011) 16 NWLR (pt.1272) 22 at 41 per the lead judgment of Rhodes-Vivour, J.S.C., as follows;
“Incorporated in the respondents brief are arguments on a preliminary objection. This is now accepted practice as it obviates the necessity of filing a separate notice of preliminary objection.
This practice makes it possible for the judge to determine the preliminary objection with the appeal, thereby saving time.”
The essence of Order 10 Rule 1 of the Rules of this Court is to afford the appellant adequate notice to meet the preliminary objection which was achieved by serving the respondents brief incorporating the preliminary objection on the appellants to which the appellants responded which, in my view, sufficiently complied with the spirit of Order 10 Rule 1 of the Rules of the Court – See Nwajuebo v Alabua (1974) 12 S.C. 21 followed in Ajide v Kelani (1985) 11 S.C. 124, Wappah v. Mourah (2006) 18 NWLR (pt.1010) 18 at 38, Odu-Agbor v. Hameson (No.2) (2003) 2 NWLR (pt.804) 355, Maigoro v. Garba (1999) 10 NWLR (pt.624) 55 at 570-572, Agbaka v. Amadi (1998) 11 NWLR (pt.572) 16. PER JOSEPH SHAGBAOR IKYEGH, J.C.A
JURISDICTION: WHEN AND WHO CAN THE ISSUE OF JURISDICTION BE RAISED
At any rate, an issue of competence or jurisdiction of the court may be raised by any of the parties to the case, notwithstanding it was raised by the part that won in the court below – See Adetipe v. Amodu (1969) 1 NMLR 62 at 65.
Be that as it may, an issue of competence of an action can also be raised suo motu by the court and arguments thereon heard from the parties. Moreover, the parties consented to and/or acquiesced in the
procedure and proffered arguments on the issue, therefore I will proceed to look into the preliminary objection – See Ibator & Ors v. Barakuro & Ors (2007) 4 SCNJ 27 at 42 – 43 following the case of Akhiwu v. Principal Lotteries Officer, Mid-West State (1972) 1 All NLR (pt.1) 229, Ilodibia v. Nigerian Cement Company Ltd (1997) 7 NWLR (Pt. 512) 174 at 190. PER JOSEPH SHAGBAOR IKYEGH, J.C.A
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
1. CHIEF OSUNGBADE AROGUNDADE AGURA
(MOGAJI) HEAD OF THE FAMILY.
2. PRINCE TAJUDEEN ADEOSUN AKINOLA AGURA
(FOR THEMSELVES AND ON BEHALF OF THE FAMILY) Appellant(s)
AND
1. MR. BENJAMINADEMOLA ISHOLA OROBIYI
2. MR. OYEBANJI OROBIYI Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A (Delivering the Leading Judgment): The appeal is from the judgment of the High Court, Oyo State, sitting in Ibadan (the court below) in which the court below dismissed the appellants’ suit for declarations that the respondents’ family the Orobiyi family is not related to Agura family and not entitled to the rights and privileges accorded members of Agura family and should be restrained perpetually from parading or holding themselves as members of Agura family.
The essentials of the suit were that Agura family is the Ruling House entitled to the Onido of Ido chieftaincy; that Agura founded Ido and was the first Oba or Onido of Ido followed by his offspring; the 1st respondent is from Orobiyi family; the appellants alleged that Orobiyi family is not a branch of Agura family contrary to the respondents’ assertion. The 1st respondent was made the Onido of Ido by the Olubadan; the appellants filed a suit in the court below seeking for a determination that the 1st respondent is not a member of Agura family and for an order of permanent restraint against the 1st respondent’s family from parading or holding themselves out as members of Agura family. The court below found against the appellants and dismissed the action.
In an amended notice of appeal with 7 grounds of appeal filed on 30.4.08, the appellants expressed their grievance against the decision of the court below which they elaborated under two issues for determination in their brief of argument deemed filed on 9.10.08, as follows –
“1. Whether the appellants are estopped by the decision of Odulami J. In suit No.1/97/68 Exh “E” between Raimi Ishola Orobiyi for himself and on behalf of other members of Orobiyi family as plaintiffs and chief Alimi Akinola as the defendant from instituting this present case now on appeal against the respondent.
2. Whether on a proper and correct appraisal of the totality of the evidence in this case the judgment should have been entered in favour of the appellants or in the alternative the case should be sent back for a retrial, because of inconclusive findings of the trial court on the conflicting evidence before it”
Exhibit ‘E’, the judgment in suit No1/197/68 was referred to under the first issue to contend that it was not specifically pleaded as estoppel per rem judicata and cannot so operate, nor could Exhibit ‘E’ operate as relevant fact as parties in that case and those in the instant case are not the same; and that even if Exhibit ‘E’ was specifically pleaded as an estoppel per rem judicata, the plea could not have been sustained because the issues and parties in both actions are not the same, consequently the court below was wrong to hold that the findings that Orobiyi family is a branch of Agura family in Exhibit ‘E’ stopped the appellants from contending that Orobiyi family is not a branch of Agura family citing in aid section 55 of the Evidence Act, Ilona v. Idakwo (2003) 11 NWLR (pt.830) 53 at 89, Ogboru v. Ibori (2005) 13 NWLR (Pt.942) 319 at 416, Egbe v. Adefarasin (1987) 1 NWLR (pt.47) 1, MV Delos v. Ocean Steamship (Nig.) Ltd (2004) 17 NWLR (pt.901) 88 at 105, Chukwura v. Ofochebe (1972) 12 S.C. 189, Owonyin v. Omotosho (1961) All NLR 304 at 501, Adewumi v. Plastex Limited (1986) 3 NWLR (pt.32) 767 at 780, Afegbai v. A.G. Edo State (2001) 14 NWLR (pt.733) 425 at 457, Odua v. Nwanze 2 WACA 98 at 100-101. Honda Place Ltd v. Globe Motors Ltd (2005) 14 NWLR (pt.945) 273 at 277 – 278, Ladimeji v. Salami (1998) 5 NWLR (pt.548) 307, Dungus v. Mbudite (2005) 8 NWLR (pt.927) 292 at 296.
The appellants argued on the second issue that their traditional history as the descendants of Agura was more probable which the court below without proper and correct evaluation of the evidence rejected; that Exhibit ‘F’, the report of the enquiry on the Onido of Ido chieftaincy conducted by the Local Government Inspector, Western Circle, a Mr. J.F. Heyley, on the 5th-6th February, 1958, was rejected by Government by Exhibits ‘C’ and ‘H’ and drained Exhibit ‘F’ of evidential value, consequently the appeal should be allowed and the judgment of the court below set aside and in its place judgment be entered for the appellants vide the cases of Ebba v. Ogodo (1974) (?) 1 SCNLR 372, Akusomuan (?) v. Merchant Bank (Nig.) Ltd (1987) 3 NWLR (pt.60) 196, Nivabwoke (?) Ottih (1961) 2 SCNLR 232 at 235, Kojo v. Bonsie (1957) 1 WLR 1258.
The respondents brief of argument opened with a preliminary objection at Page 1 thereof-
“TAKE NOTICE that the Respondents intend to contend and hereby contend that this Honourable Court lacks jurisdiction to entertain this suit.
TAKE FURTHER NOTICE that the grounds of the objection are:
(i) The Appellants were under a duty at all time material to this suit to comply with section 22 (4) of chieftaincy Law of Oyo state 2000 cap 28, but the Appellant failed and neglected to comply with the provision of this law.
(ii) The Appellants as Plaintiffs in the Honourable Court below failed to bring all necessary parties to court.”
Paragraphs 18 – 20 0f the statement of claim , paragraphs 13-17A of the amended statement of defence, paragraphs 21-25A of the amended reply to statement of defence together with the evidence of PW1, PW2 were referred to submit that the registered minor chieftaincy of the Onido of Ido was the underlying dispute between the appellants and the respondents, so the appellants were obliged by section 22 (a) of the Chiefs Law Cap 28 Laws of Oyo State, 2000, to exhaust the internal remedies embodied in the law (supra) before resorting to litigation and, having failed to do so, the suit was premature and should have been struck out by the court below following the cases of Adesola v. Abidoye (1991) 14 NWLR (pt.637) 28 at 58 – 59, 65-67, Owoseni v. Faloye (2005) 14 NWLR (pt.946) 719 at 140, 757, Aribisala v. Ogunyemi (2005) 6 NWLR (pt.921) 212 at 230-231, Nwobodo v. Onoh (1984) NSCC 1 at 16, Omoboriowo v. Ajasin (1984) NSCC 81, A.G. Abia State v. A.G. Federation (2005) 12 NWLR (pt.940) 452 at 513 – 514, Rector, Kwara Polytechnic v. Adefila (2007) 15 NWLR (1056) 42 at 99, Mobil Production (Nig.) Unlimited v. Lasapa (2002) 18 NWLR (pt.798) 1 at 7.
The second limb of the preliminary objection hinged on the submission that the appellants should have sued the respondents in a representative capacity as representing themselves and the other members of Orobiyi family, as the declaratory and injunctive reliefs in the suit in the court below affected the entire members of Orobiyi family, consequently their failure to bring in the necessary party rendered the action improperly constituted which merited the striking out of the suit or ordering a retrial of it following the cases of Green v. Green (1987) 2 NSCC 1115 at 1123, Uzodinma v. Udenwa (2004) 1 NWLR (pt.854) 303 at 350 at 350, Ekpere v. Afofije (1972) all NLR (pt.1) 220, Adisa v. Oyinwole (2001) 10 NWLR (pt.674) 116 at 180.
The respondents identified three issues for determination at page 15 of their brief. It was argued that Exhibit ‘E’ was pleaded as relevant facts, not to sustain the plea of estoppel per rem judicatam as wrongly held by the court below, therefore Exhibit ‘E’ should be used for the double-edged purpose of furnishing evidence of relevant facts and estoppel by silence, especially as the appellants did not appeal against the finding that they were privies of one Raimi Akinola in Exhibit ‘E’ vide Adedayo v. Babalola (1995) 7 NWLR (pt.408) 388 at 390, Ezeanya v. Okoke (1995) 4 NWLR (pt.388) 142 at 147, Ibero v. Ume-Ohana (1993) 2 NWLR (pt.277) 510 at 515, Shitta-Bay v. L.E.D.P. (1996) 2 NSCC 252, Ogunyade v. Oshunkeye (2007) 15 NWLR (pt.1057) 218 at 257, Ibikunle v. State (2007) 2 NWLR (pt.1019) 549 at 557, Umanah v. Attah (2006) 17 NWLR (Pt.1009) 503, Omnia (Nig.) Ltd. v. Dyktrade Ltd. (2007) 15 NWLR (pt.1058) 576 at 585, Chinwendu v. Mbamali (1980) NSCC 127 at 139, and Black’s Law Dictionary (8th Edition) 590.
The respondents brief argued that Exhibit ‘A’ is written in Yoruba language without corresponding translation into English the official language of the court, – so it is of no value and should be expunged vide Kankia v. Maigemu (2003) 6 NWLR (pt.817) 496 at 506, Ogidi v. State (2005) 5 NWLR (918) 286 at 296, Abubakar v. Chuks (2007) 18 NWLR (pt.1068) 386 at 392, Owonyin v. Omotosho (1961) NSCC 179 at 180; Exhibit ‘B’ was earlier rejected in evidence but retendered and admitted in evidence contrary to law vide UBN v. Ozigi (1994) 3 NWLR (pt.333) 285 at 392, ACB Ltd v. Gwangwada (1994) 5 NWLR (pt.342) 25 at 27; the burden of proof rested on the appellants to prove the suit under section 137 of the Evidence Act read with the cases of Dunn v Dunn (1949) p 48 at 103. Agbana v. Uwa (2004) 13 NWLR (pt. 889) 1 at 4, Ayanru v Mandilas Ltd. (2007) 10 NWLR (pt.1043) 462 at 465 and Modern Nigeria Law of Evidence at 172 by Nwadialo which they did not discharge in the face of significant opposing evidence from the respondents who did not counter-claim and had no duty to prove the case leading to the careful evaluation of the evidence by the court below to arrive at the following conclusion that the appellants are from Dada Pero section of Agura family while the respondents are from Akinyemi section of the family, Orobiyi family is a member of Agura family, only male descendants of Agura family are entitle to become the Onido of Ido, the appellants failed to establish that the respondents’ side of the family is not entitled to the privileges and rights accorded members of Agura family which findings the appellants did not challenge on the appeal and should be taken as established against the appellants vide Ogunyade v. Oshunkeye (supra), Ibikunle v. State (supra).
The respondents also argued that Exhibit ‘A’ written in Yoruba was not a document upon which the court below drew its findings on who the founder of Ido, one Agura, hailed from; that Exhibit ‘F’ was an improvement of Exhibit ‘C’, while Exhibit ‘H’ tallied with the evidence that one Yesufu Ladapo was the Onido of Ido between 1958 to1964, and is of “great importance to this case than Exhibit ‘E”, so the appellants failed to prove their case and the court below adequately assessed the evidence before dismissing the appellants’ suit vide Dunn v. Dunn (supra), (supra), Ayanru v. Mandilas (supra)’ Agbana v. Uwa (supra), Mogaji v. Odofin (1978) 4 SC 91, Fagbenro v. Arobadi (2006) 6 NWLR (Pt.978) 172 at 175, Garuba v. Yahaya (2007) 3 NWLR (pt.1021) 390 at 395, 399, Mbani v. Bosi (2006) 11 NWLR (pt 991) 400 at 403, on account of which the respondents’ learned counsel, Mr. Musibau Adetunbi, requested for the appeal to be dismissed.
Mr Ibironke for the appellants made some reply submissions in the appellants reply brief that the notice containing the preliminary objection was not filed as required by Order 10 Rule 1 of the Rules of the Court read with the case of Ajide v Kelani (1985) 3 NWLR (pt 12) 248 at 249 – 50, therefore the preliminary objection raised for the first time in the respondents’ brief of argument is incompetent and should be struck out vide D.A. (Nig) AIEP Ltd v Oluwadare (2007) 7 NWLR (pt.1033) 336 at 341; alternatively, the suit was on whether the respondents are members of Agura family, not a chieftaincy dispute to bring into play section 22 (4) of the Chiefs Law, Cap. 28, Laws of Oyo state, 2000, and confining the suit to the reliefs claimed therein which the court below was entitled to grant in the event they were proved without adding any other reliefs on them, the suit did not affect any chieftaincy dispute regardless of the evidence given in the case that was unconnected with reliefs sought in the suit vide Ado Ibrahim & Co. Ltd. v. B.C.C. Ltd (2007) 15 NWLR (pt.1058) 575, Fatunbi v. Olanloye (2004) 12 NWLR (pt. 887) 229 at 335; also section 22(4) of the Chiefs Law (supra) was declared unconstitutional by this Court in the yet unreported case of Odeyale v. Olapade – CA/1/106/2006 delivered on 9.7.2009.
The reply brief added that only the parties relevant to the suit were made parties to the suit without protest by the respondents in the court below. Therefore, following Order 11 Rule 5 of the Rules of the court below read with the cases of Okoye v. N.C. and F Co Ltd (1991) 6 NWLR (pt.1026) 199 at 205, Modern Civil Procedure Law by A.F. Afolayan and P.C. Okorie at pages 71 – 72, Mohammed Pet. V. Afibank (Nig.) Plc (2006) 17 NWLR (pt.1007) 131 at 133, the action was properly constituted for its effective and effectual determination without the joinder of the entire members of Orobiyi family.
The appellants reply brief also contended that the appellants indeed appealed against the finding of the court below on Exhibit ‘E’ constituting res judicata which includes determining whether the parties in both actions are the same; that the respondents did not file the notice to vary the decision on the ground that Exhibit ‘E’ was evidence of relevant facts as required by Order 9 Rule 2 of the Rules of the Court; the appellants could not have been “guilty of estoppels by silence” or as “estoppels by inaction” as they were not parties or privies to Exhibit ‘E’ vide section 54 of the Evidence Act; Exhibit ‘A’ was admitted by consent of the parties and remains admissible upon later fulfilment of its condition and cannot be expunged on appeal on ground of admissibility vide Seismograph Service (Nig.) Ltd v. Chief Evuafe (1976) 9-10 S.C. 135 at 155, Chukura Ahinhe v. Mathews Ekundo 14 WACA 59 at 60, Alade v. Olukade (1976) 2 SC 183, Etim v. Ekpe (1983) 3 S.C. 12, Arubi v. Offshore Operation Nig. Ltd (1978) LRN 343 at 345; Exhibit ‘B’, a certified true copy of a newspaper, was properly admitted in evidence, notwithstanding the prior rejection of its original in evidence; the findings alleged by the respondents that the appellants did not appeal against were subsumed in the findings of res judiata on Exhibit ‘E’ which the respondents conceded were wrong, while the finding on chieftaincy was obiter having not been backed-up by the reliefs sought in the action by the appellants; with the concession by the respondents that the findings of fact on exhibit ‘E’ were erroneous, Exhibit ‘E’ should not have been used to sustain the respondents’ contention on relevant facts; Exhibit ‘F’ ought not to have been relied upon by the court below in the face of Exhibit ‘C’ and the court below was wrong to busy itself with it when the suit was determination of right to membership of Agura family, consequently the appeal should be allowed.
The current trend is to incorporate a preliminary objection to the hearing of an appeal in the respondent brief of argument without necessarily setting out in a separate notice the preliminary objection for the purpose of Order 10 Rule 1 of the Rules of the Court – See Dakolo & Ors v. Rewane Dokolo & Ors (2011) 16 NWLR (pt.1272) 22 at 41 per the lead judgment of Rhodes-Vivour, J.S.C., as follows;
“Incorporated in the respondents brief are arguments on a preliminary objection. This is now accepted practice as it obviates the necessity of filing a separate notice of preliminary objection.
This practice makes it possible for the judge to determine the preliminary objection with the appeal, thereby saving time.”
The essence of Order 10 Rule 1 of the Rules of this Court is to afford the appellant adequate notice to meet the preliminary objection which was achieved by serving the respondents brief incorporating the preliminary objection on the appellants to which the appellants responded which, in my view, sufficiently complied with the spirit of Order 10 Rule 1 of the Rules of the Court – See Nwajuebo v Alabua (1974) 12 S.C. 21 followed in Ajide v Kelani (1985) 11 S.C. 124, Wappah v. Mourah (2006) 18 NWLR (pt.1010) 18 at 38, Odu-Agbor v. Hameson (No.2) (2003) 2 NWLR (pt.804) 355, Maigoro v. Garba (1999) 10 NWLR (pt.624) 55 at 570-572, Agbaka v. Amadi (1998) 11 NWLR (pt.572) 16. There is, accordingly, no substance in appellants’ preliminary objection to the respondents’ preliminary objection which is hereby rejected.
The preliminary objection to non-joinder of the entire members of Orobiyi family to the suit as defendants by way of representative action is, in my view, untenable: The appellants’ immediate grouse was against the two respondents who were defendants in the court below. For the purpose of the suit the necessary defendants were before the court below for effectual, effective and complete determination of the dispute by the court below See Osunrinde & Ors v. Ajamogun & Ors (1992) 7 SCNJ 79. The preliminary objection to the composition of the suit against the respondents excluding the other members of Orobiyi family as defendants in the court below accordingly lacks substance and is hereby rejected.
It is odd that the parties chose to argue the issue of incompetence of the action or jurisdiction of the court on a preliminary objection by the respondents. An appeal or a cross appeal or notice to vary the decision on other grounds might have been the appropriate procedure.
At any rate, an issue of competence or jurisdiction of the court may be raised by any of the parties to the case, notwithstanding it was raised by the part that won in the court below – See Adetipe v. Amodu (1969) 1 NMLR 62 at 65.
Be that as it may, an issue of competence of an action can also be raised suo motu by the court and arguments thereon heard from the parties. Moreover, the parties consented to and/or acquiesced in the
procedure and proffered arguments on the issue, therefore I will proceed to look into the preliminary objection – See Ibator & Ors v. Barakuro & Ors (2007) 4 SCNJ 27 at 42 – 43 following the case of Akhiwu v. Principal Lotteries Officer, Mid-West State (1972) 1 All NLR (pt.1) 229, Ilodibia v. Nigerian Cement Company Ltd (1997) 7 NWLR (Pt. 512) 174 at 190.
The statement of claim avoided the issue of chieftaincy dispute respecting the making of the 1st respondent the Onido of Ido by the Olubadan. The reply to the amended statement of defence parried the same issue particularly at paragraphs 21, 22, 23 and 24 thereof. The respondents in their paragraphs 13-16 of the amended statement of defence insisted the suit was the offshoot of the making of the 1st respondent the Onido of Ido by the Olubadan.
The PW1 testifying for the appellants in the court below answered under cross-examination inter alia –
“I know that before 1st defendant became the Onido of Ido, there was a dispute over the chieftaincy before the Olubadan between the 1st defendant’s family, Oguntusi family and the Plaintiffs’ family.
Before the Olubadan, the Plaintiff’s family contended that defendants’ family are not members of Agura family. I cannot say whether the defendants claimed before the Olubadan that they are members of Agura family because I was not there.
I am not aware of Chieftaincy declaration of Ido in 1958.
I am aware that despite the claim that the defendants are not members of Agura family, the Olubadan of Ibadan made the 1st defendant the Onido of Ido.”
The PW2, a chief Osungbade Arogundade Agura, the head of Agura family, also answered under cross-examination inter alia –
“…We instituted this action against the defendants because the 1st defendant was made the Onido of Ido by the Olubadan when he is not a member of Agura family. The defendants claimed to be members of Agura family. Agura family members are not happy when the defendants claimed to be members of Agura family….. I want this court to declare that 1st defendant has no right to the chieftaincy because he is not a descendant of Agura… since 1997 when the 1st defendant was made the Onido of Ido, we are still fighting because he is not a member of my family….”
Alleged non-compliance with the internal remedies in section 22 (3) and (4) of the Chiefs Law (supra) may be discoverable from the statement of claim or from the evidence for the claimant at the trial of the suit. The evidence of the PW1 and PW2 (supra) brought out the issue which had been harped upon by the respondents in their amended statement of defence but avoided by the appellants’ pleadings, The PW2 even conceded under cross-examination by Chief Fabunmi, respondents’ learned counsel, in the court below –
“This matter had been in court before. When the 1st respondent was made the Onido of Ido, we did not lodge our complaint with the commissioner for Chieftaincy affairs. At the end of the case, it was struck out because we did not complain to the commissioner before coming to court. It is because we were displeased with the striking out of the case that we have to institute this action.”
Although the statement of claim and the reply to the amended statement of defence disguised the root cause of the suit, the extract from the evidence of PW1 and PW2 (supra) lifted the shroud by supplying the facts that the suit was to challenge the making of the 1st respondent the Onido of Ido when he is not a member of Agura Ruling House entitled to produce the Onido of Ido. The privileges and rights of Agura family mentioned without elaboration on the pleadings of the appellants viewed in light of the revealing pieces of evidence of the PW1 and PW2 (supra) filled the vacuum to the effect that the appellants’ suit in the court below was intended to establish that the 1st respondent is not a descendant of Agura to be entitled to be made the Onido of Ido having not descended from Agura Ruling House which has the exclusive preserve to produce the Onido of Ido.
The applicability or otherwise of section 22 (3) and (4) of the Chiefs Law (supra) can be raised as an issue of jurisdiction based on the evidence in the record of the court below – See the cases of National Bank v. Shoyeye (1977) 5 SC 181, Barclays Bank of Nigeria v. C.B.N. (1976) 1 All NLR 409 followed by this Court in Awoyemi & Ors v. Fasuan (2006) 13 NWLR (Pt.996) 86 at 119 and Okomalu v. Akinbode & ors (2006) 9 NWLR (pt.985) 338 at 357.
Now, section 22 (3) and (4) of the Chiefs Law (Cap. 28) of Oyo State provides:
“(3) Where there is a dispute whether a person has been appointed in accordance with customary law to a minor chieftaincy the prescribed authority may determine the dispute.
(4) Any person aggrieved by the decision of the prescribed authority in exercise of the powers conferred on the prescribed authority by subsections (2) and (3) of this section may, within twenty-one days from the date of the decision of the prescribed authority, make representations to the Governor that the decision be set aside and the Governor may, after considering the representing, confirm or set aside the decision.”
In my view, any issue, dispute or question relating to a person’s eligibility as a member of a Ruling House in respect to registered chieftaincy post as in this case is a chieftaincy matter – See Aribisala & Anor v. Ogunyemi & Ors (2005) 6 NWLR (pt.921) 212 at 233 per the lead judgment of Oguntade, J.S.C. (as he was) “…any dispute, even if it touches only the question of eligibility as the plaintiffs/appellants contended must be submitted first to the prescribed authority for settlement and later to the commissioner for chieftaincy matters. The attempt made by the plaintiffs/appellants’ counsel to convince me that a dispute about eligibility of the 1st defendant to the Onisemo chieftaincy which was the subject matter of the plaintiffs/appellants’ suit, was not a chieftaincy dispute within section 22(3) of the Ondo Chiefs Law, is misconceived and must be rejected.”
See also Ayeni v. Obasa (2011) 23 WRN 103 at 131-132 and Arowolo v. Akapo (2006) 7 SCNJ 638. The appellants’ suit in the court below was therefore within the zone of section 22 (3) and (4) of the Chiefs Law (supra), in my view.
Mr. Ibironke, for the appellants, drew attention to the unreported case of Alhaji Wahab Odeyale & Anor. v. Alhaji hammed Olapade Babatunde & 3 Others – CA/1/106/2006 delivered on the 9.7.2009, where we followed the Supreme Court case of Offor v. Osagie (1998) 55 LRCN 2978 to declare unconstitutional, null and void section 22(3) and (4) of the Chiefs Law (Cap 21) of Oyo State 1978, retained by section 22(3) and (a) of Cap 21, Laws of Oyo State, 2000.
It is to be noted that this Court (differently constituted) had in the early case of Ojogbede v. Ogundipe & Anor. (2008) 12 NWLR (pt. 1101) 585 which was not referred to in the yet unreported case of Wahab Odeyale v. Olapade Babatunde (supra) decided Offor v Osagie (supra) did not render section 22 (3) and (4) of the Chiefs Law (supra) unconstitutional, null and void.
It was further held in Ojogbede v. Ogundipe (supra) at pages 600-601, per the erudite jurist Fabiyi, J.C.A., (now J.S.C) (with the concurrence of Augie and Awala, JJ.C.A.) that –
“Since his Lordship, Onu, JSC who took part in all the three appeals said the position of things in Osagie v. Offor is distinguishable from that in Eguimwense v. Amahgizemwen, I cannot be heard to say, like the learned trial Judge, that there is conflict in the judgments.
The appellant in this appeal felt aggrieved with the decision of the 1st respondent, the Olubadan of Ibadan land, the prescribed authority in approving the appointment of the 2nd respondent as the Baale of Atan village. The appellant did not make representation to the Commissioner for Chieftaincy Affairs as provided by the law. He did not file an action for certiorari in the High Court to quash the decision of the 1st respondent. It occurs to me that by filing an action at the High Court for declaratory reliefs, he lumped the gun. The decision of the 1st respondent remains valid and effective. The authorities in Eguamwense’s case and Adesola v. Abidoye (supra) are clearly in point.
The appellant had a duty to fulfil the statutory requirement of submitting his grievance to the prescribed authority for determination and if not satisfied, he should have approached the Commissioner for Chieftaincy Affairs for appropriate action. It is immaterial that suit No. 1/411/98 was earlier filed by the 2nd respondent and thereafter withdrawn.
In sum, I find that the learned trial Judge was right when he held that the action was premature and incompetent. He was right in relying on the decision in Adesola v. Abidoye (supra) wherein it was pronounced that the law does not violate constitutional provisions. He was also right in finding that his court lacked jurisdiction. The suit was properly struck out. See Governor of Kogi State v. Hassan Yakubu & Anor. (2001) FWLR (Pt.43) 350 at 368; (2001) 6 NWLR (pt.710) 521”.
In my respectful view, the decision in Ojogbede v. Ogundipe (supra) is preferable to Odeyale (supra). I follow Ojogbede v. Ogundipe (supra) to humbly hold that section 22 (3) and (4) of the Chiefs Law (supra) is extant, constitutional and valid.
There are also several decisions of the Apex Court to the effect that the internal remedies in section 22(3) and (4) of the Chiefs Law (supra) and other similar statutory provisions are constitutional and must be exhausted by an aggrieved person before resorting to litigation in court – See for example Eguamwense v. Amaghizemwen (1993) 9 NWLR (pt 315) 1 at 25, Aribisala v. Ogunyemi (supra) at 230 – 232, Ogologo v. Uche (2005) 131 LRCN 2534 at 2557; Adesola v. Abidoye (2001) 2 WRN 39, Akuneziri v. Okenwa (2001) 1 FWLR (pt 35) 604. Owoseni v. Faloye (20o5) 7 S.C. (pt 11) 79 – 105. This Court also toed the same line in the cases of Ayeni v. Obasa (supra), Ojogbede v. Ogundipe (supra), Efiok v. The Governor of Cross River State & Ors (2010) 34 WRN 42, Itok v. Thomas (2011) 7 WRN 144, Sarumoh v. Asanike (1996) 7 NWLR (pt. 460) 370, for example.
The appellants did not exhaust the internal remedies in section 22(3) and (4) of the Chiefs Law (supra) before they filed the suit in the court below. It is amazing that after the sister aspect of the dispute was struck out by Boade J., on the ground that section 22(4) of the Chiefs Law of Oyo State (supra) was not complied with by the appellants, the appellants rather than comply with the preconditions in section 22(4) of the Chiefs Law (supra) detoured to re-open litigation in the court below to circumvent the said statutory requirements. I think the appellants were mistaken in so doing. The matter being an issue of jurisdiction, there shall be no need to consider the appeal on the merit – See Ehirim v. Imo State I.E.C. (2o08) 15 NWLR (pt 1111) 443 at 476.
Accordingly, the suit in the court below was premature and robbed that court of the jurisdiction to entertain it. I hereby strike out the suit in the court below without costs.
ADZIRA GANA MSHELIA, J.C.A.: I have read in draft the lead judgment of my learned brother IKYEGH J.C.A just delivered. I completely agree with both the reasoning and conclusion that the first limb of the Preliminary Objection is meritorious and should be sustained. The suit in the court below was premature as such the court lacked jurisdiction to entertain it. I also strike out the suit in the court below without costs.
MODUPE FASANMI, J.C.A.: I had the advantage of reading the lead judgment of my learned brother Ikyegh J.C. A.
I agree entirely with his reasoning and conclusion. The suit in the court below was premature and robbed that court of the jurisdiction to entertain it. I abide by the consequential orders made therein including costs.
Appearances
MR. BAMIDELE IBIRONKEFor Appellant
AND
MR. MUSIBUA ADETUNBIFor Respondent
