CHIEF SUNDAY AYELABOLA & ORS v. CHIEF AJIJOLAOGUN ODE & ANOR (2014)

CHIEF SUNDAY AYELABOLA & ORS v. CHIEF AJIJOLAOGUN ODE & ANOR

(2014)LCN/7335(CA)

In The Court of Appeal of Nigeria

On Monday, the 30th day of June, 2014

CA/IL/41/2014

RATIO

PRACTICE AND PROCEDURE: BRIEF WRITING; WHETHER THE FRAGMENTATION OF GROUNDS OF APPEAL LEADING TO PROLIFERATION OF ISSUES FOR DETERMINATION IS NOT ALLOWED IN BRIEF WRITING

CUSTOMARY LAW: TRADITIONAL RULERS AND CHIEFS LAW OF BENDEL STATE; THE PROVISIONS OF THE TRADITIONAL RULERS AND CHIEFS LAW OF BENDEL STATE

The provisions of the Traditional Rulers and Chiefs Law of Bendel State applied in the case are sections 21 & 22, which provide as follows:
22(1) The conferment of a traditional Chieftaincy title shall be in accordance with customary law and shall be subject to the approval of the prescribed authority or where the provisions of section 23 have been applied, to the approval of the Executive Council.
(2) Where a traditional Chieftaincy title is conferred on a person by those entitled by customary law so to do and in accordance with customary law the prescribed authority or the Executive Council as the case may be, may approve the appointment.
(3) Where there is a dispute as to whether a traditional chieftaincy title has been conferred on a person in accordance with customary law or as to whether a traditional chieftaincy title has been conferred on the right person, the prescribed authority, or the Executive Council as the case may be, may determine the dispute.
(4) The decision of the prescribed authority or the Executive Council as the case may be-
(a) To approve or not to approve the conferment of a traditional chieftaincy title on a person; or
(b) Determining a dispute in accordance with subsection (3) of this section, shall not be questioned in any court.
(5) The prescribed authority shall not withhold approval of the conferment of a traditional chieftaincy title on a person if such conferment is made in accordance with the customary law regulating the conferment of the chieftaincy title.
(6) The Executive Council may, on the application of an aggrieved party:
(a) Review the decision of a prescribed authority under subsection (3) of this section and substitute its decision therefor; or
(b) Approve the conferment of a traditional chieftaincy title on a person if such approval was withheld by the prescribed authority contrary to subsection (5) of this section.
(7) Before exercising the power vested in it by subsection (6) of this section, the Executive Council may cause such enquiries as appear to it to be necessary or desirable to be held in accordance with section 27 of this Edict.” per. HUSSEIN MUKHTAR, J.C.A.

JUSTICES

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

MUSA HASSAN ALKALI Justice of The Court of Appeal of Nigeria

Between

IDOFIN-IGBANA OBA-IN-COUNCIL
As Represented By:
1. CHIEF SUNDAY AYELABOLA
(The Odofin of Idofin-Igbana)
2. CHIEF SUNDAY ATOFOLAKI
(The Asanlu of Idofin Igbana)
3. MR. SAMUEL OLAWUYI OLORUKOBA
(Party interested) Appellant(s)

AND

1. CHIEF AJIJOLAOGUN ODE
2. MALLAM IBRAHIM MUSTAPHA
(For themselves and on behalf of Ile – Olowu Family of Idofin – Igbana Oke-Ero Local Government Area of Kwara State) Respondent(s)

HUSSEIN MUKHTAR, J.C.A (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Kwara State delivered on 27th January 2014 by T.S. Umar, J wherein the learned trial judge dismissed the defendants/appellants ‘preliminary objection for incompetence. Disgruntled by that decision the appellants filed a notice of appeal dated 30th January 2014 and filed on 31-01-2014 premised on the following lone ground:
“The learned trial judge erred in law in assuming jurisdiction when he held that.
“…the Chiefs (Appointment and Deposition) Law of Kwara State deals with appointment already made by the Governor. In this particular case, the complaint is on selection process. As such the authorities cited by the applicants are not appropriate to this case.”

The learned counsel for the appellant and respondent alike both raised and argued a single issue distilled from the lone ground of appeal thus:
Whether the Chiefs (Appointment and Deposition) Law of Kwara State deals only with appointment already made by the Governor and does not extend or apply to complaint on selection process making judicial authorities cited by Appellants irrelevant.

Hostilities between the appellants and the respondents were triggered when the respondents, as claimants took out writ of summons against the appellants (defendants) on the 14th March 2006 claiming for a declaration that it was the turn of Ile Ilowu family in Odo-Eru Ruling House to produce an Oba for Idofin-Igbana In Oke-Ero Local Government Area of Kwara State and not Alomilogba and that the appointment of 3rd Defendant by the Oba-in-Council as represented by 1st and 2nd defendants was wrongful, null and void. The Respondents consequently prayed the court to order the 3rd Defendant to stop parading himself as the appointed candidate for the stool of Oba Idofin-Igbana.

When the writ and other processes were served on the Appellants, they filed a preliminary objection on ground that the condition precedent to filing the suit, i.e. payment of N10,000.00 fee, was not complied with and prayed the lower court to dismiss the suit. The lower court through Honourable Justice Akoja sitting of Omu-Aran upheld the objection and struck out the suit. The appellants appealed against that ruling. The Court of Appeal allowed the appeal, set aside the ruling and sent the matter back to lower court, for trial before another judge.

The appellants herein filed another notice of preliminary objection on 31st July 2012 praying that the respondents has not complied with the requirements of section 3(3) of the Chiefs (Appointment and Deposition) Law of Kwara State which is a condition precedent before suits like this can be instituted and prayed the court to strike out the case for being incompetent. (See pp. 54-87 of the record).

The lower court heard the parties and delivered its ruling on 27th January 2014 consequent upon which the objection was dismissed on ground that the law is inapplicable, hence this appeal premised upon a single ground and the above lone issue was vehemently argued by the learned counsel on both sides.

The learned counsel for the appellants argued that the trial judge erred in his ruling that chiefs (Appointment and Deposition) Law of Kwara State applies only to where appointment had already been made by the Governor, and not where the complaint is on selection processes.
Reference was made to the earlier judgment of this court in Appeal No. CA/IL/15/2007 delivered on 11th June 2008 where it was held thus:
“Upon a sober examination of the averments and the reliefs sought by the Appellants in their statement of claim at page 12-15 of the record (which reliefs has been reproduced earlier in the body of this judgment), it is evident that the Appellants are challenging the selection process conducted by the Oba-in-Council which threw up the 3rd Respondent as the candidate for appointment as chief of Idofin-Igbana. It is their position that selection to the stool is by rotation and presently, it is the turn of the Ile-Olowu family in Odo-Eru Ruling House to produce the Oba of Idofin-Igbana. They contend that the Ile Olowu family produced three suitable candidates for selection by the Oba-in-Council, the Appellants further contend that instead of complying with tradition and approving a candidate from the claimants family, the Oba-in-Council picked a candidate from the Alomilogba family, which had already taken its turn in the rotation. If is quite obvious that what is being challenged in the claim at the lower court is the selection process by the Oba-in-Council of a candidate for the stool of the Oba of Idofin-Igbana.” (See pp. Pg.64-65 64-65 of the record).

It was argued for the appellant that since this decision has not been appealed against till date, it remains valid and subsisting. By this judgment it goes, without further argument, that the respondents are challenging the selection process for the stool of Oba Idofin-Igbana by the Oba-in-Council.
It was submitted that, by the cause of action in this case, section 3(3) of the Chiefs (Appointment and Deposition) Law Cap C.6 Laws of Kwara State 2004 applies. It reads thus:
“3(1) ………
(2)……….
(3) In the case of any dispute the Governor, after due inquiry and consultation with persons concerned in the selection, shall have the final say as to whether the appointment of any Chief has been made in accordance with customary law and practice.”

It was submitted further that, in a matter of this nature, a literal interpretation of the law shows clearly that this provision of the law is applicable contrary to the holding of the learned trial judge.

It was further submitted for the appellants that a literal interpretation of section 3(3) of the Chiefs (Appointment and Deposition) Law of Kwara State clearly shows that, in case of any dispute, the Governor shall have the final say as to whether the appointment of any chief has been mode in accordance with customary law and practice. The provision is devoid of any ambiguity. It is therefore follows contrary to the holding of the learned trial judge that section 3(3) is not only applicable but is a condition precedent which must be fulfilled before a right of action becomes exercisable.

There is, therefore, the need for fulfillment of the condition precedent before instituting an action on chieftaincy appointment. It therefore follows that the cases cited, of the lower court, are relevant contrary to the ruling of the trial judge that the cases cited were not appropriate to this case.

The court was urged to resolve the singular issue in favour of the appellants allow the appeal and struck out the suit before the lower court for incompetence.

The court was urged to allow the appeal and set aside the decision of the lower court, the subject of this appeal.
The learned counsel for the respondent, however, after adopting the singular issue for determination from the lone ground of appeal made a turn around to proliferate the issue by raising the following questions:
(i) Whether or not, the Chiefs (Appointments and Deposition) Law of Kwara State deals only with appointments of Chiefs already made by the Governor.
(ii) Whether or not, judging from the respondents’ summons and statement of claim and the reliefs sought by them, there was anything left to be done which could disqualify the High Court from entertaining their suit.
(iii) Whether or not, the Supreme Court case of Sunday Eguamwerse v. James L. Amaghzemwen (1993) 11 SCNJ 27 – 67 which the appellants are accusing the trial Judge of not applying, is applicable and relevant to section 3 (3) of the Chiefs (Appointment and Deposition) Law of Kwara State.
(iv) Finally, whether or not, the trial court had jurisdiction to entertain the respondents’ suit instituted before it on 14/3/2006 under the Constitution of the Federal Republic of Nigeria, 1999 (as amended) or under any other law.

Fragmentation of grounds of appeal leading to proliferation of issues for determination is not allowed in brief writing. See: Obot v. Akpan (1998) 4 NWLR (Pt.546) 409; Isichei v. Allaoga (1998) 12 NWLR (pt.577) 196; Chiekweilo v. Nwali (1998) 8 NWLR (Pt. 560) 114; and Akpabuyo Local Government v. Duke (2001) 20 WRN 80; (2001) 7 NWLR (Pt.713) 557, 569. The respondents’ second, third and fourth issues for determination raised from a lone ground of appeal leading to proliferation is not permissible in brief writing. It is not only undesirable but also seriously distasteful to split a ground of appeal into more than one issue. In the circumstance, the four issues raised by the respondent are liable to be struck out for incompetence. The fall back position for the respondents is to consider only the arguments on the lone issue raised by the appellants.

The learned counsel for the respondents referred to the provision of section 3 of the Chiefs (Appointment and Deposition) Law of Kwara State and argued that the appellants have not shown any issue that may be resolved by the governor under the law. It was argued for the respondents that the dispute under on the issue of chieftaincy is within the same Odolowu Ruling House, between Ile-Olowu family (respondents) and Alomilogba family (appellants). The Idofin Igbana Oba-in-Council is the body charged with the selection in accordance with customary law and practice of Idofin-Igbana in Oke-Ero Local Government Area of Kwara State.

It was argued for the respondents that they have left nothing undone which could render the suit before the High Court incompetent. It was further argued that the appellants could not have challenged the respondents for filing the suit directly to the High Court as they were exercising their right to fair hearing under the Constitution of Federal Republic of Nigeria, 1999. The only condition precedent before instituting a legal action is the payment of filing fees, which has been complied with. This has been previously challenged by the appellants and resolved by the Court of Appeal (Ilorin Judicial Division) in the Judgment in Appeal No CA/IL/15/2007 between the same parties. (See pages 57 – 82 of record).

It was submitted for the respondents that section 3(3), does not require the respondents’ complaint to be first taken to the Governor for resolution before exercising their right of redress before the High court. It was further argued that the word “appointment” in section 3(3) of the Chiefs (Appointment and Deposition) Law of Kwara State suggests that a dispute which arises after the Governor has been misled into approving the appointment.

The learned counsel for the respondent also contended that the Idofin Igbana Oba-in-Council merely picked a candidate without nomination and purported to have him appointed, which was followed by various customary activities in commemoration thereof. This led to the institution of an action by the respondent. Reference was further made to the earlier pronouncement of this court on the interpretation of section 3(1) (2) (3) of the Chiefs (Appointment and Deposition) Law of Kwara State where the court made some clarifications in the judgment. (See pages 57 – 82 of record). In the earlier appeal between the same parties the Idofin Igbana Oba-in-Council raised an objection to the effect that the High Court had no jurisdiction to entertain Ile – Olowu’s suit because they failed to fulfill a pre – condition of payment of N10,000 before instituting the action. (See page 64 of record) My learned brother Sankey JCA observed, in the lead judgment, that before the Governor or the Appointing Authority appointed a Chief under the law, he must have previously been selected by those entitled by customary law and practice to so select him. It is only after a candidate has emerged via such a process of selection that he is then presented to the Governor or Appointing Authority for appointment into the said office. (See page 65 of record). The learned jurist specifically observed thus:
“It is quite obvious that what is being challenged in the claim at the lower court is the selection process by the Oba-in-Council of a candidate for the stool of the Oba of Idofin Igbana. It is this process of the emergence of the candidate that is under challenge in the suit of the lower Court and not the validity of the candidate’s appointment as Oba by the Governor or the appointing authority. Visibly, from the statement of claim, that bridge was yet to be crossed at the time suit was filed. Since that is so, the application of section 15(1) of the Chiefs (Appointment and Deposition) Law to the case was, in my opinion, hasty, untimely and premature. The suit of the appellants was indeed competent and properly before the trial court, and I do so find.”

The learned counsel for the respondent submitted that the import of the foregoing pronouncement is that compliance with the pre-condition is not mandatory at the selection process stage. In the present appeal, the appellants are equally agitating that the respondents should fulfill a pre-condition of first meeting the Governor for resolution before taking legal action. It was submitted that the appellants’ contention was a very serious misconception of the law. It was further submitted that the appellants wrongly challenged the competence of the action instituted by the respondents, which seeks for selection and approval of the nominated candidate from Ile – Olowu family (respondents’ family) and not the 3rd appellant who was picked from Alomilogba family (the appellants’ family). This, it was contended, tantamount to infringement of the respondents’ rights. It was submitted that the foregoing events are ripe for a Court action. The respondents’ counsel further distinguished the facts and circumstances of the instant case from those cited by the appellants. In the case of Sunday Eguamwerse v. James L. Amaghzeniwen (1993) 11 SCNJ 27 – 67, the Supreme Court dealt with the requirements under the Traditional Rulers and Chiefs Law (Edict) of Bendel State, 1979. The plaintiff, in that case, went direct to the High Court for a redress. The Supreme Court held that there was need to comply with the pre – condition or requirements under the Chiefs Law of Bendel State before seeking a redress of the High Court.

The learned counsel for the respondent painstakingly reproduced relevant portions of the Bendel Law and distinguished it from that of Kwara State. The provisions of the Traditional Rulers and Chiefs Law of Bendel State applied in the case are sections 21 & 22, which provide as follows:
22(1) The conferment of a traditional Chieftaincy title shall be in accordance with customary law and shall be subject to the approval of the prescribed authority or where the provisions of section 23 have been applied, to the approval of the Executive Council.
(2) Where a traditional Chieftaincy title is conferred on a person by those entitled by customary law so to do and in accordance with customary law the prescribed authority or the Executive Council as the case may be, may approve the appointment.
(3) Where there is a dispute as to whether a traditional chieftaincy title has been conferred on a person in accordance with customary law or as to whether a traditional chieftaincy title has been conferred on the right person, the prescribed authority, or the Executive Council as the case may be, may determine the dispute.
(4) The decision of the prescribed authority or the Executive Council as the case may be-
(a) To approve or not to approve the conferment of a traditional chieftaincy title on a person; or
(b) Determining a dispute in accordance with subsection (3) of this section, shall not be questioned in any court.
(5) The prescribed authority shall not withhold approval of the conferment of a traditional chieftaincy title on a person if such conferment is made in accordance with the customary law regulating the conferment of the chieftaincy title.
(6) The Executive Council may, on the application of an aggrieved party:
(a) Review the decision of a prescribed authority under subsection (3) of this section and substitute its decision therefor; or
(b) Approve the conferment of a traditional chieftaincy title on a person if such approval was withheld by the prescribed authority contrary to subsection (5) of this section.
(7) Before exercising the power vested in it by subsection (6) of this section, the Executive Council may cause such enquiries as appear to it to be necessary or desirable to be held in accordance with section 27 of this Edict.”
The “Prescribed Authority is created by section 21 of the Traditional Rulers and Chiefs Law, which provides as follows:
“The Executive Council may appoint in respect of a Local Government area or part thereof an authority (in this Edict referred to as ‘the Prescribed Authority’) consisting of one person or a committee of two or more persons to exercise the powers conferred under this part in respect of the office of a traditional chief or an honorary chief whose chieftaincy title is associated with a community in that area.”
It was submitted, for the respondents, that the Chiefs (Appointment and Deposition) Law of Kwara State, is fundamentally different from that of Bendel State. In the Kwara Law, for example, there is no statutory body like the “Prescribed Authority” with the absolute powers to determine Chieftaincy matters. There is also no body like the Executive Council to which a claimant may appeal. The provisions of the Traditional Rulers and Chiefs Law of Bendel State cannot therefore be used to claim a right under the Chiefs (Appointment and Deposition) Law of Kwara State.

It therefore follows that the Supreme Court pronouncement in Sunday Eguamwense v. James L. Amaghizemwen (1993) 11 SCNJ 27 – 67 which is based on the said Bendel Law cannot be opposite to the case in hand.

The prescribed authority in the Bendel case is vested with jurisdiction to determine disputed chieftaincies as an independent body whose decision is subject to review by the State Executive council. The High court in that case may only exercise supervisory jurisdiction.

The Supreme Court, therefore, based its judgment on the provision of the Traditional Rulers and Chiefs law of Bendel State, the provisions of which are conspicuously absent from the Chiefs (Appointment and Deposition) Law of Kwara State. In fact, under section 15(1) of the Chiefs. (Appointment and Deposition) Law of Kwara State there is perceptible gate to the High Court upon payment of prescribed fees, which the respondents complied with.
The Idofin Igbana Oba – in – Council is not a statutory tribunal like the Prescribed Authority of Bendel State. Even the judgment of the Supreme Court per S.M.A. Belgore J.S.C (as he then was) is in tune with the provisions of the Traditional Rulers and Chiefs Law of Bendel State 1979. It was submitted that the Supreme Court decision in Sunday Eguamwerse v. James L. Amaghizenwen (supra), which is based on the said Bendel State statute. It is not applicable to the instant suit that was filed under the Kwara State Chiefs (Appointment and Deposition) Law.

The court was urged to resolve the issue against the appellants and dismiss the appeal.

The learned counsel for the appellants responded to the respondents’ brief of argument on new issues raised therein by filing a reply brief.

The learned counsel for the appellants urged the court to take note of the wordings of section 3(3) of the chiefs (Appointment and Deposition) Law of Kwara State. The law says “In the case of any dispute”. These wordings, it was submitted require that once there is a dispute as to selection such dispute must first be referred to the Governor for resolution before going to court. The sub section does not classify types of “dispute” that will be referred to the Governor and the one that may not be referred to the Governor. It was argued that the word “appointment” in section 3 (3) of the Chiefs (Appointment and Deposition) Law means “appointment” made by the appointing body such as kingmakers. It is submitted that this is in line with the literal interpretation of that subsection of the law. The court was urged to hold that the respondents, suit is incompetent and allow the appeal.

My learned brothers have already identified the very nature of the controversy between the parties herein in the previous appeal No. CA/IL/15/2007: Chief Ajijola Ogunode & Anor vs. Idofin Igbona Oba-in-Council when they observed as follows:
“it is quite obvious that what was been challenged in the claim of the lower court is the selection process by the Oba in Council of a candidate for the stool of Oba-of-Idofin-Igbana.” (See lines 5 -7 at Page 65 of the record).

In the previous appeal, the Court has made a clear pronouncement on the competence or otherwise of the same action. At the fortuity of being monotonously repetitive, I find it irresistibly necessary to reproduce the pronouncement of my learned brother Sankey, JCA thus:
”It is quite obvious that what is being challenged in the claim at the lower court is the selection process by the Oba-in-Council of a candidate for the stool of the Oba of Idofin-Igbana.
It is this process of the emergence of the candidate that is under challenge in the suit at the lower Court and not the validity of the candidate’s appointment as Oba by the Governor or the appointing authority.
Visibly, from the statement of claim, that bridge was yet to be crossed at the time suit was filed. Since that is so, the application of section 15(1) of the Chiefs (Appointment and Deposition) Law to the case was, in my opinion, hasty, untimely and premature. The suit of the appellants was indeed competent and properly before the trial court, and I do so find.”

It is pertinent to note the glaring distinction between the Chiefs (Appointment and Deposition) Law of Kwara State and the laws of other States notably that of the defunct Bendel State based on which the cases relied upon by the appellant were decided. The Chiefs Law of Kwara State Provides thus:
“3(3) In the case of any dispute the Governor, after due inquiry and consultation with persons concerned in the selection, shall have the final say as to whether the appointment of any Chief has been made in accordance with customary law and Practice.”
The foregoing provision does not contain such mandatory terms or ouster clauses like the Bendel Chiefs Law that may be construed as a mandatory precondition to institution of an action in court. Any aggrieved party may complain to the Governor about dispute arising from the selection of the Oba for Idofin-Igbana in Oke-Ero Local Government Area of Kwara State. Alternatively the Governor may, without anyone complaining to His Excellency step into any dispute arising from the process of selection or appointment of any chief in the State and his determination shall be final as to whether the appointment has been made in accordance with the applicable customary law. In the exercise of the Governor’s privilege, he is required to consult the persons constituting the selection committee, in this case the Oba-in-council, and take the final decision, which may be considered by the trial court if tendered in evidence. There nothing in the wordings of the Chiefs (Appointment and Deposition) Law of Kwara State that requires any party to complain to the Governor as a precondition for resorting to a legal redress in court. It does not render the respondent’s suit incompetent as misconceived by the appellants’ counsel. The mandatory aspect of the law in Kwara State is the finality and binding force of the Governor’s decision regarding any dispute in the appointment process of a chief.

It appears to me that the lower court not only gave ample consideration to the appellants’ case as constituted by their writ and statement of claim vis-a-vis the preliminary objection filed by the appellants, but also came to the correct conclusion thereon. It is my humble view that integral assessment of Chieftaincy, as a traditional institution, will be insecure if it is let loose for grabs by someone who only succeeds in overreaching his adversary through the back door by a discerning misconstruction of the law. The singular issue for determination cannot but be resolved against the appellant. The appeal is completely lacking in merit and stands to suffer no fate other than an outright dismissal. It is accordingly dismissed for want of substance. The ruling of the lower court delivered on 27th January 2014 by T. S. Umar, J is hereby affirmed. There shall be cost to the respondents against the appellants assessed at Thirty Thousand Naira (N30,000. 00).

UCHECHUKWU ONYEMENAM, J.C.A.: I had the opportunity of reading in advance the judgment delivered by my learned brother, DR. HUSSEIN MUKHTAR, JCA. I agree with my Lord’s conclusion that the appeal completely lacks in merit and stands to be dismissed. I accordingly dismiss the appeal for lacking in substance.
I abide by the order as to costs.

MUSA HASSAN ALKALI, J.C.A.: I had the opportunity of reading the lead judgment of my learned brother, Hussein Mukhtar, JCA.

I am in total agreement with the conclusion. The appeal is meritoriously based on the reasons clearly stated in the judgment.

The ruling of the lower court delivered on 27th January, 2014 by T.S. Umar J. is hereby affirmed.

Appearances

J. O. AshaoluFor Appellant

AND

Chief S. F. OdeyemiFor Respondent