CHIEF SIMEON KAYODE OLAYIOYE v. MADAM CECILIA AJIBIKE & ANOR (2011)

CHIEF SIMEON KAYODE OLAYIOYE v. MADAM CECILIA AJIBIKE & ANOR

(2011)LCN/4966(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 7th day of December, 2011

CA/IL/M.21/2007

RATIO

NON-JOINDER OF PARTY: EFFECT OF THE DECISION OF THE COURT MADE AGAINST A NECESSARY PARTY WHO WAS NOT MADE A PARTY TO THE SUIT

DECLATORY RELIEF: WHETHER DECLARATORY RELIEFS CAN BE GRANTED ON FALSE PREMISE

In other words, the false controversy created between the claimant/respondent and the defendant/respondent was a ruse to obtain the declaratory reliefs sought by the claimant/respondent in the suit in the court below for their benefit. The court below, wittingly or unwittingly, granted the declaratory reliefs based on the said fictitious footing contrary to the legal position that declaratory reliefs cannot be granted on false premise vide The Attorney-General of Anambra State v. Attorney- General of the Federation (supra) at page 610. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.

DECLARATORY RELIEF: ON WHAT GROUNDS ARE DECLARATORY RELIEFS GRANTED

True, declaratory reliefs are not granted in default of pleadings by a defendant or on admissions made by the defendants, but on hard facts proved by cogent and reliable evidence given by the claimant as stated in the cases cited on the point in the brief of argument of the appellant see also the cases of Oba Olubodun v. Oba Lawal (2008) 6 SCNJ 69, Carrena v. Arowolo (2008) 6 SCNJ 53, Dumez (Nig) Ltd. v. Nwakhoba (2008) 12 SCNJ 768 and Ikemefuna v. Okagbue (1994) 12 SCNJ 89. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.

DECLARATORY RELIEF: WHETHER DECLARATORY RELIEF CAN BE GRANTED WITHOUT ORAL EVIDENCE BY THE PLAINTIFF EVEN WHERE THE DEFENDANT EXPRESSLY ADMITTED SAME IN THE PLEADINGS

NON-JOINDER OF PARTY: VARIOUS OPTIONS OPEN TO AN APPELLATE WHERE IT REACHES THE CONCLUSION THAT AN ACTION IS IMPROPERLY CONSTITUTED BECAUSE THOSE WHO WOULD HAVE BEEN PARTIES WERE NOT MADE AND THE CASE PROCEEDED TO TRIAL

Again at pages 361-362 of the law report is the statement of the law: For completeness, it is relevant to note that counsel for both parties cited and called in aid the relatively recent decision of this Court in Okoye v. Nigeria Construction and Furniture Company Ltd, (supra) as it relates to the various options open to an appellate where it reaches the conclusion that an action is improperly constituted because those who would have been parties were not made and the case proceeded to trial. In the leading judgment, Akpata, J.S.C. identified these – options, depending on the facts of each case, as “1.To remit the case for re-trial and for those who ought to have been joined to be joined; 2. To strike out the action if a retrial would necessitate extensive and/or complicated amendments to the writ and statement of claim to reflect the joinder; 3. To join for purposes of the appeal the person who ought to have been joined in the trial court; and 4. To hold that the person complaining that he ought to have joined was not such a necessary party and that the non joinder would not defeat the cause or matter.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.

JUSTICES

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

Between

1. CHIEF SIMEON KAYODE OLAYIOYE Appellant(s)

AND

1. MADAM CECILIA AJIBIKE
2. JOHN KOLAWOLE ASANLU Respondent(s)

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal was brought by an interested party. It is against the decision of the High court of Justice of Kwara state holding at Omu- Aran (the court below). The judgment was given on 25/5/2005. The original parties in the court below were the present claimant/respondent, one Madam Cecilia Ajibike, and the defendant/respondent, one Mr. John Kolawole Asanlu (For the Asanlu Family Oro). At the end of the proceedings, the court below gave judgement for the claimant/respondent that there are only three Ruling Houses in the Asanlu of Oro chieftaincy. It went ahead to enter an order of permanent injunction against any attempt to increase or expand the number of Ruling Houses or Families for the Asanlu of Oro chieftaincy.
The case in the court below commenced on a writ of summons with a statement of claim traversed by a statement of defence. Only the claimant/respondent testified. She did not call any witness. The defendant/respondent declined to give evidence. He aligned himself with the claimant’s/respondent case. The court below accepted the lone evidence of the claimant/respondent to hold that by the custom of the Asanlu of Oro chieftaincy, only the three Ruling Houses or Families of Babatunde, Duntoye and Ayinde are eligible to contest the stool of the Asanlu of Oro. The court below then issued the permanent injunction earlier referred to in the discourse.
The appellant became aware of the judgment of the court below when he was served an application for interlocutory injunction praying for a restraining order against his own side of the family called the Olayioye Ruling House of the Asanlu of Oro chieftaincy challenging his installation as the Asanlu of Oro. The appellant reacted by filing a motion for enlargement of time and for leave to appeal as an interested party on 9/3/2007, but dated 5/3/2007. The Court granted the motion on 15/4/2008. The appellant filed his notice of appeal containing four grounds of appeal on 15/4/2008.
The appellant’s brief of argument prepared by his learned counsel, Mr. Koni, was filed on 26/3/2007. The respondents were served the brief of argument on 30/3/2009. They did not file their own briefs of
argument. On a motion dated 28/7/2010, but filed on 29/7/2010, the appellant successfully moved the Court on 7/2/2011, to argue the appeal on the appellant’s brief alone. The order setting down the appeal for hearing on the appellant’s brief was made on the same 7/2/2001.
The appeal was argued on 24/10/2011. The appellant’s learned counsel adopted the two issues for determination distilled from the four grounds of appeal in the course of oral argument on the appeal. The said issues for determination derived from the grounds of appeal are, for convenience, copied below:
“(1) Considering the established native law, custom and tradition of Oro people, whether there are only three Ruling Houses that are entitled to nominate and present candidates for the chieftaincy stool of Asanlu of Oro-Grounds 1, 2 and 3.
(2) Having regard to the fact that from the commencement to the conclusion of the trial of this suit, no hearing notice or any court process at all was served on the appellant or his family, Olayioye Ruling House, on the platform of which he (the appellant) ascended the chieftaincy stool of Asantu of Oro, whether or not the lower court acted in the interest of justice by making orders which completely exterminate the interest of the appellant as well as that of his Ruling Family in the said Asanlu of Oro chieftaincy stool – Ground 4.”
Submitting on issue 1, the appellant stated that both the claimant/respondent and the defendant/respondent are members of the same family, Babatunde Ruling House; the suit brought by the claimant/respondent in the court below was based on custom; the defendant/respondent filed a skimpy statement of defence and was lacklustre in defending the action by opting not to give evidence in defence of the suit; the claimant/respondent did not call any witness, nor tendered any document in evidence before she closed her case; her testimony per se did not prove the custom she projected that there are only three Ruling Houses in the Asanlu of Oro chieftaincy eligible to contest the stool; the alleged custom was not shown to be notorious or in frequent application and use in the superior court to be judicially noticed; the custom needed to be proved to the fetter or by cogent evidence, which was not met by the solitary testimony of the claimant/respondent, consequently the declaratory reliefs sought by the claimant/respondent which are not granted as a matter of course, or in default of evidence or concession/admission by the defendant, but on hard facts proved by the claimant’s evidence, should not have been granted to her following sections 14 (1) and 137 of the Evidence Act and the cases of Egharevba v. Omonghae (2001) 11 NWLR (pt.724) 318 at 336, Barje v. Gunduma (2001) 13 NWLR (pt.731) 673 at 681, Temile v. Awani (2001) 12 NWLR (pt .728) 726 at 752, Olowu v. Olowu (1985) 3 NWLR (pt. 13) 372, Agbai v. Okogbue (1991) 7 NWLR (pt.204) 391, Alomaja v. Adewale (2004) 15 NWLR (pt.897) 564 at 588, Ngege v. Igbo (2004) 4 NWLR (pt.651) 131, Romaine v. Romaine (1992) 4 NWLR (pt.238) 650 at 652.
Submitting on issue 11, the appellant contended that the claimant/respondent and the defendant/respondent, as members of the same Babatunde Ruling House of Asanlu chieftaincy, colluded to prosecute the same agenda of excluding the appellant’s family, the Olayioye Ruling House, from the Asanlu of Oro chieftaincy by the defendant/respondent readily conceding the claim in a non-committal terse statement of defence and electing not to give evidence in the course of which he urged the court below to grant the reliefs sought by the claimant/respondent.
It was argued further that the defendant/respondent only used his statement of defence as a ploy to deceive the court below into believing both the claimant /respondent and himself were disputants or adverse parties without joining the Olayioye Ruling House in the Asanlu of Iro chieftaincy tussle, when both of them knew the outcome of the suit would prejudicially affect the interest of the appellant’s branch of the Ruling House which was the target of the suit but not joined in the action contrary to the decisions in the cases of Awoniyi v. Amorc (2000) 10 NWLR (pt .676) 522, Green v. Green (1987) 3 NWLR (pt.461) 480, Mobil Oil Plc v D.E.N.R. Ltd. (2004) 1 NWLR (pt.853) 142 at 158; and that the final order made by the court below had the adverse effect of excluding the appellant’s Ruling House or Family from occupying the Asanlu of Oro chieftaincy stool, when the appellant’s Ruling House was not made a party to the suit, therefore the appeal should be allowed following the case of Nabaruma v. Ofodile (2004) 13 NWLR (pt.891) 599 at 618.
The issues formulated by the appellant are, in my view, apt for the determination of the appeal and are hereby adopted for the purpose of the appeal. I think the starting point should be to take a bird’s eye view of the nature of the dispute and, how it was fought by the original parties in the court below
Pages 3-4 of the printed record of appeal (the record) contain the unedited statement of claim thus:
“STATEMENT OF CLAIM
1. The plaintiff says that she is a member of the Asanlu chieftaincy Family of Oro and has lived in the compound for the past 35 years and that she was born there and grew up there.
2. The plaintiff avers that she is very conversant with the custom and tradition of the Asanlu Family having lived and dinned with a number of the past aged elders of the family dead and alive.
3. The plaintiff says that the defendant is also a principal member of the Asanlu Chieftaincy Family in particular and the Asanlu Compound in general.
4. The plaintiff says that there are a number of houses within Asanlu compound, Oro and that it is not all those who live within the compound that are entitled to become an Asanlu under our tradition and custom.
5. The plaintiff says that the three Houses or units that are entitled to the chieftaincy stool of Asanlu of Oro are:
(a) Babatunde Family
(b) Duntoye Family
(c) Ayinde – Alonle Family.
The three families have the same great grandfather.
6. The plaintiff will lead evidence to show that it is an abomination with grief consequences on the compound to enstool anybody outside these three units or families as Asanlu of Oro.
7. The plaintiff says that the defendant, along side some other numbers of the family, are designing some uncustomary and untraditional increase or expansion of the number of Houses(families) that are entitled to the said stool so as to accommodate units or Houses that are not traditionally entitled to the stool.
8. The plaintiff says that the stool of Asanlu of Oro belongs to only the Makin Oro lineage residing within Asanlu compound, Oro and they only can ascend the stool; so that no matter how long a non-chieftaincy family resides in Asanlu compound they cannot ascend the stool.
9. The plaintiff will lead evidence, of custom, tradition and history to establish the fact that it is incorrect and dangerous for anybody to ascend to the stool unless he hails from one of the three families mentioned in paragraph 5 above.
10. WHEREOF the plaintiff claims as follows:-
1. A DECLARATION that there are three ruling houses constituting the Asanlu chieftaincy Family of Oro viz (a) Babatunde, Duntoye and Ayinde-Alonle Chieftaincy Houses.
2. A declaration that efforts or attempts aimed at bringing any other members of Asanlu compound into the Asanlu chieftaincy Family is uncustomary and untraditional, null and void.
3. A declaration that the chieftaincy title referred cannot be given Lo non-members of the three Houses earlier mentioned by compromise, agreement or memorandum of understanding as purportedly done by the defendant, an action rejected and abhorred by the entire people of Asanlu chieftaincy House of Oro.
4. An order that any purported agreement, oral or written, aimed at increasing or expanding the number of houses entitled to the stool of Asanlu of Oro is null and void and of no consequence.
5. An order of perpetual injunction on the defendants, their agents, or privies, or their heirs or children restraining them from attempting to increase or expanding the number of Houses or Families who are entitled to the stool of Asanlu of Oro.”
Page 6 of the record contains the unedited statement of defence thus:
“STATEMENT OF DEFENCE”
SAVE and EXCEPT as is hereinafter admitted, the defendant denies each and every allegation of fact as if each of such fact is set out and transfer seriatim.
1. The defendant admits paragraphs 1 and 3 of the statement of claim.
2. The defendant denies paragraph 2 and puts the plaintiff to a proof of her statement.
3. The defendant admits paragraph 4 of the statement of claim only to the extent that there are a number of houses within Asanlu Family.
4. The defendant says that with respect to paragraph 5, 6, 7, 8, and 9 of the statement of claim, the tradition can be liberalized or democratized.
The defendant will, at the trial, lead evidence to show that the custom can be changed”.
The remarkably short evidence of the claimant/respondent was recorded at pages 8-9 of the record thus:
“I am Cecilia Ajibike.
I live at Ile Asanlu in Oro.
I am at home. I am not doing any work. I have been living in Asanlu’s house since my birth. I have been living there for the past 70 years thereabout.
I live there as a result of my being born there. I have the same father with the defendant. I know the defendant very well. We are of the same father. I know a bit of the history and custom of Asanlu family.
There are three of them who are of the same father. They are Kolawole, Duntoye and Ayinde Alole. I know that Kolawole has the baptismal name of Emmanuel. There are other residents in Asanlu compound.
According to the custom in Asanlu family, Kolawole would be the first to ascend the stool of Asanlu. He would later be followed by Duntoye and lastly, Ayinde.
They are the only people entitled to the Asanlu stool. I brought Kolawole to court because Kolawole, Duntoye and Ayinde involved our neighbours who are not part of Asanlu. I have told the court that these three are the only people entitled to the chieftaincy and they cannot bring in any other people who do not belong to the Asanlu family.
Since they are not members of Asanlu family they cannot ascend the stool as it is an abomination.
I want the court to restrain any person other than Kolawole, Duntoye and Ayinde from contesting the Asanlu chieftaincy. I also want the court to restrain Kolawole, Duntoye and Ayinde from giving out the title to any other person or family.
Xx Defendant xx
It is an abomination for those who are of Asanlu family to partake in the Asanlu Chieftaincy as same would scatter (disintergrate) our family.
RE-EXAMINATION
NIL” (My emphasis).
The claimant/respondent then closed her case and the court below observed at the same page 9 of the record:
“Court: The court is grateful to the plaintiff who has testified in Support of her case.”
Quite an unusual observation by a court after a party has given evidence and closed his or her case! The defendant/respondent had this to say at page 9 of the record:
“Mr. Kolawole (Defendant)
I am in agreement with the evidence of the plaintiff that to bring in the other people who are not member of Asanlu family into the chieftaincy is an abomination and that such an act can scatter or disintegrate our family. I pray the court to allow the prayers of the plaintiff.” (my emphasis).
There is no gainsaying it that from the above gleeful posture of the defendant/respondent, it is clear the claimant/respondent and the defendant/respondent, as members of the same Ruling House, connived and arranged the suit by making one of them the claimant and the other the defendant, respectively, as a smoke screen to scheme out the appellant’s family from the Asanlu of Oro chieftaincy when they knew the said family was aspiring to the stool. With their game plan perfected by having the suit filed in the court below when both of them are members of the same family and had the same target of shutting out the appellant’s side of the family from the chieftaincy stool, they engaged in the shadow boxing or mock dispute of the claimant/respondent presenting her case and the defendant/respondent readily conceding defeat to the extent of doing the work of the claimant/respondent by urging the court below to grant the prayers of the claimant/respondent.
The claimant/respondent and the Defendant/respondent, therefore, knew the common opponent lurking in the background at the time the suit was instituted. Part of the evidence on oath of the claimant/respondent in the court below (pages 8, 9 of the record) stated in that wise thus:
“I have the same father with the defendant. I know the defendant very well. We are of the same father.
I brought Kolawole to court because Kolawole, Duntoye and Ayinde involved our neighbours who are not part of Asanlu. I have told the court that these three are the only people entitled to the chieftaincy and they cannot bring in any other people who do not belong to the Asanlu family.
Since they are not members of Asanlu family they cannot ascend the stool as it is an abomination.
I want the court to restrain any person other than Kolawole, Duntoye and Ayinde from contesting the Asanlu chieftaincy. I also want the court to restrain Kolawole, Dontoye and Ayinde from giving out the title to any other person or family”. (My emphasis).
The claimant’s/respondent branch of the chieftaincy family of the Asanlu of Oro therefore knew the “other people” or “our neighbours” referred to in the record (supra), vying for the chieftaincy stool with them, yet they arranged or colluded between themselves (the claimant/respondent and the defendant/respondent) to take the dummy role of plaintiff and defendant, respectively, in the court below when both of them were fighting a common cause without joining in the suit the actual and real defendant (appellant) that was perceived by them to be the obstacle to the chieftaincy stool.
The real defendant was, therefore, deliberately excluded from the suit by the machination and subterfuge of both the claimant/respondent and defendant/respondent. The non-joinder of the appellant to the suit in the court below when the claimant/respondent and the defendant/respondent knew he was the only necessary party (defendant) to the suit made the suit a sham, in my view.
For a necessary party was defined by the supreme court in the recent case of Bwacha v. Ikenya and others (2011) 3 NWLR (pt.1235) 610 at 626 to mean:
“As to who are necessary parties, this court explained in the case of Kalu v. Uzor (2004) 12 NWLR (pt.886) 1 at 33 as follows-
“Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their Absence, the proceedings could not be fairly dealt with. In other words, the question to be settled in the action between the existing parties must be a question, which cannot be properly settled unless they are parties to the action instituted by the plaintiff.”

see also Nabaruma v. Ofodile (supra) at page 618 thus:
“In short, the suit filed by the respondent against the 1st – 5th appellant without joining the 6th appellant was not properly constituted. The 6th appellant, no doubt, is a person whose presence before the lower court as a defendant was necessary in order to enable the court to effectually and completely adjudicate or settle all the questions involved in the suit filed by the respondent. See again Green v. Green (supra) at p.492. As the 6th appellant was not joined to the suit, he was not heard by the court before the order of prohibition was slammed on 1st – 5th appellants to put the 6th appellant’s petition on hold. The decision made against the 6th appellant who was not made a party to the suit was to no avail. It cannot be allowed to stand. The competence of the suit hangs in the balance. The decision in the case of Madukolu v. Nkemdilim (9162) 2 SCNLR 341; (1962) All NLR 587 at 589 is here in point. (My emphasis).
In reality the dispute was not between the claimant/respondent and the defendant/respondent who were in the same camp. For the claimant/respondent stated in part of her evidence that:
“I want the court to restrain any person other than Kolawole, Duntoye and Ayinde from contesting the Chieftaincy…”
( My emphasis).
“Kolawole” underlined above was the person the claimant/respondent sued in the court below, yet he prayed the court below not to restrain him from contesting the Stool, the crux of the action in the court below.
And for an action to be complete there must be a dispute between the parties- See Attorney-General of Anambra State v. Attorney-General of the Federation and others (2005) 9 NWLR (pt. 931) 572 at 565 thus:
“To begin with, a dispute is by the authority of the case Air via Ltd. v. Oriental Airlines Ltd. (2004) 9 NWLR (pt.878) 298 defined as a conflict of claims or rights or demand on one side met by contrary allegations on the other side.”
The alleged intruding Ruling House the suit in the court below was calculated to prevent from joining the other three Ruling Houses on the rotation table of the chieftaincy was not sued. The passing off of the defendant/respondent as the sole defendant in the court below when he had no dispute with the claimant/respondent smacked of spurious litigation.
In other words, the false controversy created between the claimant/respondent and the defendant/respondent was a ruse to obtain the declaratory reliefs sought by the claimant/respondent in the suit in the court below for their benefit. The court below, wittingly or unwittingly, granted the declaratory reliefs based on the said fictitious footing contrary to the legal position that declaratory reliefs cannot be granted on false premise vide The Attorney-General of Anambra State v. Attorney- General of the Federation (supra) at page 610.

However, in the instant case, the defendant/respondent conceded or admitted the claim of the claimant/respondent after the claimant/respondent gave evidence in the suit. There was, therefore, some oral evidence from the claimant/respondent aside the admissions made by the defendant/respondent distinguishing the case from the cases cited in the appellant’s brief of argument on the issue- See Ogolo v. Ogolo (2006) 5 NWLR (Pt.972) 163 at 184 thus:
“It must be noted that the reliefs claimed by the respondent at the trial court and which were granted in the default judgment, included a declaratory relief. The law is settled that such a relief cannot be granted without oral evidence by the plaintiff even where the defendant expressly admitted same in the pleadings, the said relief being equitable in nature”. (My emphasis).
The next hurdle to cross has to do with the quality of the oral evidence adduced by the claimant/respondent: whether it was positive and strong or cogent to justify the declaratory reliefs granted to her by the court below. Custom is a question of fact to be proved by evidence, unless it is judicially noticed by superior courts acting upon it on numerous occasions. See section 14 of the Evidence Act. In the instant case, the claimant/respondent did not establish any instance the custom in question had been applied in the superior court of record to make it judicially noticed to off-load the burden put on her to prove the custom by evidence. The only evidence towards proof of the alleged custom came from the claimant/respondent. No other witness testified.
At least a witness conversant with the alleged custom should have testified to flesh up the skeletal evidence of the claimant/respondent which, in my view, appeared insufficient or unsatisfactory to prove the alleged custom as it was lacking, for instance, in specifics on the time the alleged custom took root in the Asanlu of Oro chieftaincy and the time or occasions it has been in use to accord with the definition of custom in section 2(1) of the Evidence Act as-
“… a rule which, in a particular district, has from long usage, obtained the force of law.” (My emphasis).
See also the definition of “custom” in the authoritative Blacks Law Dictionary (Eighth Edition) page 413, where it is stated:
“custom, n.1. A practice that by its common adoption and long unvarying habit has come to have the force of law.” (My emphasis).
Sections 59 and 62 (1) of the Evidence Act go on to stipulate that:-
“59. In deciding questions of native law and custom the opinion of native chiefs or other persons having special knowledge of native law and custom and any book or manuscript recognized by natives as a legal authority are relevant.
62 (1) when the court has to form an opinion as to the existence of any general custom or right, the opinions, as to the existence of such custom or right, of persons who would be likely to know of its existence if it existed, are relevant.”
I most respectfully revisit the issue that no witness acquainted with the alleged custom testified. The evidence of the claimant/respondent was not enough, in my view, to support the decision of the court below that the claimant/respondent proved the alleged custom satisfactorily and was entitled to the declaratory reliefs granted her by the court below-see Ex-parte Expenga v. (1962) Ozogula II 2 N.S.C.C. 193 at 195 as follows:
“It is convenient to deal first with the second ground. The only point counsel made on this was that the Judge said in his judgment that the appellant did not call any witness; he argued that this should not prejudice his case. It is not correct, in my view, to put the attitude of the judge that away. In effect the position is as follows: This is a case involving an issue of Native Law and Custom. The dispute is between a Head chief and one of his sub-chiefs. The Head chief gave evidence stating his own version of what is Native Law and Custom on the point.
He did not call one witness. The learned trial Judge felt that he was unable to accept the uncorroborated evidence of the Head Chief. There was no other evidence-oral or otherwise-to support his story. Out of the twenty sub-chiefs of the class, the learned Judge felt that at least one of them should have been called in support of the assertions of the Head Chief. I cannot agree more with the views expressed by the learned Judge in the circumstances of this case. It was of the greatest importance that the Native Law and Custom be strictly proved. It is correct that a custom is not proved by the number of witnesses called, but it is not enough that one who asserts the custom should by the only witness”. (My emphasis).
See further the other cases cited on the issue (supra) in the appellant’s brief.
The court below ended its judgment by stating:
“Finally therefore, the case of the plaintiff succeeds and judgment is entered for her as per the writ.”
The writ upon which the judgement of the court below hung stated:
“THE PLAINTIFF’S CLAIM FOR:
1. A DECLARATION that there are three ruling houses constitution the Asanlu chieftaincy family of Oro viz: (a) Babatunde, Duntoye, and Ayinde-Alonfe Chieftaincy Houses.
2. A declaration that efforts or attempts aimed at bringing any other members of Asanlu compound into the Asanlu Chieftaincy Family is uncustomary and untraditional null and void.
3. A declaration that the chieftaincy title referred cannot be given to non-members of the three Houses earlier mentioned by compromise, agreement or memorandum of understanding as purportedly done by the defendant, an action rejected and abhorred by the entire people of Asanlu chieftaincy House of Oro.
4. An order that any purported agreement, oral or written, aimed at increasing or expanding the number of houses entitled to the stool of Asanlu of Oro is null and void and of no consequence.
5. An order of perpetual injunction on the defendants, their agents, or privies, or their heirs or children restraining them from attempting to increase or increasing of expanding the number of Houses of Families who are entitled to the stool of Asanlu of Oro.”
It is clear from the writ (supra) that non-members of the Babatunde, Duntoye and Ayinde-Alonle families would not be allowed to aspire to the Asanlu of Oro chieftaincy such and that any agreement to bring such non-members into the chieftaincy office should be perpetually restrained by the court. Those excluded from the chieftaincy office therefore included the appellant who was not made a party to the suit but came to know of it after he ascended the throne after the suit had concluded in favour of the claimant/respondent.
Consequently, the non-joinder of the appellant, the sole defendant, to the suit in the court below was, in my view, wrong and made the suit inchoate. Since the actual or real sole defendant was deliberately left out of the suit by the claimant/respondent, the suit was improperly constituted – See Ayorinde and others v. Oni and Anor. (2000) 3 NWLR (Pt.649) 348 at 361 thus:
“If there is no competent defendant on record, before the case went to trial and throughout the trial, certainly the action in respect thereof would be struck out on the ground that it is improperly constituted. Anything to the contrary will be absurd and unacceptable. The circumstances of the case in hand may be likened to those in the case of Ekpere & ors v. Aforije & ors (1972) 1 All NLR (pt.1) 220 which learned counsel for the respondents cited and relied on. Here, the plaintiffs sought a declaration as representatives of the Mosagan community of Jesse Clan which is effect meant that the Jesse Clan had no interest in the land in dispute the said Jesse clan not having been made a defendant in the action through appropriate representation.
Delivering the judgment of the Supreme Court, Lewis, JSC at p.228:
“Now as to chief Williams’ first point, as we have already indicated, in our view it was absolutely clear both on the claim as formulated in the writ and in the Statement of claim that the plaintiffs were seeking to obtain declarations that the Jesse Clan as such, had no interest in the land in dispute as it was Mosogan Village Community land and had no right accordingly to deal with the land on behalf of the Jesse clan through its representatives when they made the lease (Exhibit JUI) and that the lease should therefore be declared null and void. That being so we do not understand why the plaintiffs saw fit when bringing the action, not to make the Jesse Clan through appropriate representation a defendant to the action.”
By this, the Supreme Court upheld the contention of Chief Williams that the ‘action was entirely wrongly constituted as the relief sought was against the Jesse Clan yet the Jesse Clan as such was never made a party to the action.’ In the result, the court ordered that the action be struck out with costs.”

Again at pages 361-362 of the law report is the statement of the law:
“For completeness, it is relevant to note that counsel for both parties cited and called in aid the relatively recent decision of this Court in Okoye v. Nigeria Construction and Furniture Company Ltd, (supra) as it relates to the various options open to an appellate where it reaches the conclusion that an action is improperly constituted because those who would have been parties were not made and the case proceeded to trial. In the leading judgment, Akpata, J.S.C. identified these – options, depending on the facts of each case, as
“1.To remit the case for re-trial and for those who ought to have been joined to be joined;
2. To strike out the action if a retrial would necessitate extensive and/or complicated amendments to the writ and statement of claim to reflect the joinder;
3. To join for purposes of the appeal the person who ought to have been joined in the trial court; and
4. To hold that the person complaining that he ought to have joined was not such a necessary party and that the non joinder would not defeat the cause or matter.”
The circumstances of the case under appeal were rather curious, as earlier observed, in that the learned trial Judge found as a fact that the defendants/respondents were falsely sued as children and grand children of Yisa Giwa and castigated the appellants that they were wrong to have sued the defendants as children and grand children of Yisa Giwa. I am clearly of opinion that in the circumstances of this case two alternatives are open to this Court, namely, either to remit the action for retrial after the proper defendant i.e. true descendants of Yisa Giwa would have been ascertained and then joined as party or to strike out the action on the ground that it was improperly constituted. I would adopt the latter approach as the former may be fraught with further procedural difficulties of embarking on series of amendments of the writ and statement of claim.” (My emphasis)
See also Mozie v. Mbamalu (2006) 7 S.C.N.J 411 at 423.
Based on the discourse above, I find substance in the appeal. I allow it. The decision of the court below is set aside. The suit in the court below is struck out in consequence. The claimant/respondent shall pay N30,000 costs to the appellant.

TIJJANI ABDULLAHI (PJ), J.C.A.: My learned brother, Ikyegh JCA availed me with a copy of the judgment just delivered. My lordship has exhaustively dealt with all the issues presented to us for determination in this appeal.
It needs to be stressed that the role our police men are playing in cases that are purely civil in nature leaves much to be desired. Instead of concentrating in maintaining law and order which is their primary assignment, you see them all over the place delving into matters that are purely civil. It is hoped that with the security challenges that are stirring us in the face, the police should, as matter of extreme urgency concentrate on matters that are within their jurisdiction and leave debt collection alone.
For this reason and the fuller ones ably set out in the lead judgment. I too allow the appeal and abide by the consequential orders as contained in the lead judgment.

ITA GEORGE MBABA, J.C.A.: This Appeal is against the decision of the High court of Kwara state in what can be described as a sham case, arranged by the parties to cheat the Appellant who, in fact, would have been the credible defendant in the case at the Lower court if the claimant and the so called “Defendant’ at the lower court did not scheme to keep him in the dark, or away from the suit. The case therefore had no real defendant and was improperly constituted. AROYINDE vs. ONI (2000) 3 NWLR (Pt.649) 348 at 361.
It is sad and worrisome that litigants would go to that extent of feigning a suit and using the court to make judicial pronouncement, innocently, which pronouncement turns out to validate deceit and falsehood, and enthrone injustice.
Thankfully, the vigilance of the Appellant in this appeal has burst that scam.
But what should be done to a party (and his counsel) who, knowingly, falsely takes out the process of court to defraud, and misleads the court to make its orders in vain?
Appellant has, however, not made any prayer about that. I therefore implore the BAR to take up the challenge and do something to purge its ranks of members who would goad and assist litigants to use the judicial process to cheat and defraud others and to desecrate justice.
I have had the privilege of reading the draft of the judgment, just delivered, by my learned brother, J.S. Ikyegh JCA in this case. I completely agree with his .reasoning and conclusions, which are very sound and exhaustive on the issues about this unfortunate decision of the Lower Court.
The Appeal has merit and is allowed.
I abide by the consequential orders in the lead Judgments.

Appearances

MR. I. KONIFor Appellant

AND

Respondent: Absent and UnrepresentedFor Respondent