CHIEF T. O. ADEPITI & ORS. v. GOVERNOR OF ONDO STATE & ORS.
(2012)LCN/5699(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 4th day of December, 2012
CA/B/256/2006
RATIO
JURISDICTION: FUNDAMENTAL NATURE OF THE ISSUE OF JURISDICTION
The issue of jurisdiction is no doubt fundamental to any suit. It has been described as its heart and soul.
Where the court lacks jurisdiction to entertain a suit, no matter how well conducted the proceedings might be or how erudite the final decision, all would have been in vain for the proceedings would amount to a nullity. See: Bronik Motors Ltd. & Ors. v. Wema Bank Ltd. (1983) 1 SCNLR 293; Okoya v. Sanitili (1990) 2 NWLR (131) 172: A.G. Federation v. Sode (1990) 1 NWLR (128) 500; Emeka v. Lady Okadigbo & Ors. (2012) LPELR-9338 SC; Dingyadi v. INEC (2011) 10 NWLR (1255) 347 @ 390 G – H. In the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 it was held that a court is competent when:
- it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or the other;
- the subject matter of the case is within jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
- the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. (Emphasis mine) PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
ACTION: PRINCIPLES GUIDING THE JOINDER OF PARTIES
The principles guiding the joinder of parties are as follows:
- “Is the cause or matter liable to be defeated by the non-joinder?
- Is it possible for the court to adjudicate on the cause of action set up by the plaintiff unless the third party is added as a defendant?
- Is the third party a person who ought to have been joined as a defendant?
- Is the third party a person whose presence before the court as defendant will be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter?”
See: Green v. Green (1987) 3 NWLR (Pt.61) 480, (1987) 2 N.S.C.C. Vol. 18 (Part II) 1115 at 1127; Uku v. Okumagba (1974) 1 ALL NLR (Part 1) 475; Peenok Investments Ltd. v. Hotel Presidential Ltd. (supra); Ugorji v. Onwu (1991) 3 NWLR (Pt.178) 177; Adefarasin v. Dayekh & Anor. (2011) 11 NWLR (1044) 89 @ 36-37, Paras. E-C. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
JURISDICTION: CONDITION PRECEDENT TO THE EXERCISE OF JURISDICTION
It is trite that for a court to be competent and to have jurisdiction to try a case, the case must inter alia come before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341. PER CHINWE EUGENIA IYIZOBA, J.C.A.
JUSTICES:
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
1. CHIEF T. O. ADEPITI
2. CHIEF EBUN AWOLALU
3. CHIEF OYEPITAN AKINGBULU
4. CHIEF DAMILOLA AYELA
5. CHIEF EPHRIAM IWALA – Appellant(s)
AND
1. GOVERNOR OF ONDO STATE
2. THE ATTORNEY-GENERAL OF ONDO STATE
3. ILAJE LOCAL GOVERNMENT (SECRETARY)
4. H.R.M. OBA P. O. KALEJAIYE – Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment): By a writ of summons dated 19th October 2000 filed on 23rd October, 2000 before the Ondo State High Court sitting at Okitipupa the appellants as plaintiffs sought the following reliefs against the 1st, 2nd and 3rd defendants:
(1) DECLARATION that the 1984 ODEDE of Igboegunrin Chieftaincy declaration does not reflect the true and authentic custom, norms and tradition relating to the “Head Chief” Chieftaincy of Igboegunrin and is therefore illegal, irregular, invalid, null and void and of no effect.
(2) DECLARATION that ODEDE is a family title exclusively belongs to the children of descendants of Yasere in Mahin Kingdom.
(3) DECLARATION that any action or steps taken by the Government of Ondo State based on or pursuant to the proceedings findings and recommendations of Ilaje/Ese-Odo Local Government Chieftaincy committee held on Wednesday 2nd March, 1983 in the Secretary’s office at Igbokoda concerning Odede Chieftaincy are irregular, illegal, invalid, null and void and of no effect.
(4) An order setting aside the 1984 Odede of Igboegunrin Chieftaincy declaration.”
   Ilaje Local Government (3rd respondent herein) and Oba P. O. Kalejaiye (4th respondent herein) were later joined as 4th and 5th Defendants respectively by an order of the lower Court. Pleadings were filed and exchanged. The 5th Defendant filed a notice of preliminary objection dated 29th day of April 2005 premised on the following grounds:
(a) “That the condition precedent for the filing of this Suit pursuant to S.1, 2(1)(a), (b) and (2) of the Approval of Appointment of an Oba and Presentation of Instrument of Appointment and Staff of Office Edict No 2 of 1992 has not been met.
(b) That this action is incompetent against the 5th defendant for failure of the plaintiff to exhaust the available remedies in law before joining the 5th defendant in this suit pursuant to S. 2 (1) (a), (b) and (2) of the Edict No. 2 of 1992.”
   The objection was also raised in paragraph 25 of the 5th defendant’s Amended Statement of Defence. In a considered ruling delivered on 3rd day of July 2005 the Learned Trial Judge upheld the objection and struck out the entire suit. It is against this ruling that the Appellants have appealed to this court. The Appellants and 4th respondents herein filed and exchanged briefs of argument. Although duly served with the processes in the appeal and hearing notices against the hearing, the 1st, 2nd and 3rd respondents did not participate in the appeal and did not file any process therein.
   From the four grounds of appeal contained in the notice of appeal dated 3/8/05 the appellants distilled a single issue for determination thus:
Whether or not this action is vitiated by the Approval of Appointment of an Oba and Presentation of Instrument of Appointment and Staff of Office Edict, 1991 or not.
The 4th respondent also formulated a single issue for determination thus:
Whether the trial Court was not right in striking out Appellant’s suit against the 4th Respondent having regard to the protection offered him under sections 1 and 2 of the Approval of Appointment of an Oba and Presentation of Instrument of Appointment and Staff of Office Edict, 1991 which his joinder violated.
   Although their issues are worded differently the parties are clearly ad idem on the sole issue for determination in this appeal. The appeal shall therefore be considered on the issue formulated by the appellants.
   At the hearing of the appeal on 30/10/2012, OLOJA O. J. SEMUDARA adopted and relied on the appellants’ brief dated 4/2/2012 and filed on 7/2/2012. It was filed pursuant to an order of court made on 2/2/2012. He urged the court to allow the appeal. CHIEF A.O. AJANA, learned counsel for the 4th respondent adopted and relied on the 4th respondent’s brief dated and filed on 30/4/2012. It was filed pursuant to an order of court made on 25/4/2012. He urged the court to dismiss the appeal.
   Arguing the appeal, learned counsel for the appellants submitted that the Approval of Appointment of an Oba and Presentation of Instrument of Appointment and Staff of Office Edict No 2 of 1992 (hereinafter referred to as the Edict) is not applicable in this matter and can therefore not vitiate the suit. He noted that the plaintiffs commenced this action vide the writ of summons dated 19th October, 2000 against 1st – 3rd Defendants and by the order of court after the expiration of one month pre-action notice joined Ilaje Local Government of Ondo State as the 4th Defendant. He referred to the reliefs sought against the 1st – 4th respondents reproduced earlier in this judgment and submitted that as at the time this action was instituted, the 1st, 2nd and 4th Defendants had not approved the appointment of the 5th Defendant as the Odede of Igboegunrin. He submitted that the appointment was made on 27th May, 2003, almost 3 years after the institution of the Plaintiffs’ action. He contended that no cause of action arose against the 5th Defendant until after 27th of May 2003.
   He referred to Section 1 of the Edict, which provides that any person who is aggrieved by the appointment of another as Oba shall, within 7 days of the date of such appointment institute an action in the High Court challenging the appointment. He submitted that from the clear and unambiguous wording of the statute, it is clear that the provision applies to anaggrieved person who seeks to challenge an appointment after it has been made. He submitted that where the aggrieved party fails to institute an action within the prescribed time the action against such appointment becomes statute bared. He submitted further that the litigant must also comply with section 2(a) & (b) of the Edict. He submitted that time begins to run against the aggrieved party with effect from the date the appointment was made. He reiterated the fact that the suit that gave rise to this appeal had been instituted more than 3 years before the appointment of the 5th Defendant. He maintained that non-compliance with section 2(1) (a) & (b) of the Edict would only affect a person who commences an action against the person appointed.
   Learned counsel submitted that the Plaintiffs did not commence a fresh action against the 5th Defendant but only joined him as a party being one of the persons that might be affected by the outcome of the action. He submitted that trial court has a duty to ensure that all persons who might be entitled to or who claim some share or interest in the subject-matter of the suit or who might be affected by the outcome of the suit, are joined as parties if they had not already been made parties. He referred to the four reliefs as contained in the writ of summons, particularly the 3rd relief, and submitted that the 5th Defendant would be affected by the outcome. He submitted that it was on this basis that the lower court joined the 5th Defendant as a party in the suit. He referred to: Awoniyi v. AMORC (2000) 10 NWLR (676) 522; Green v. Green (1987) 3 NWLR (461) 480; Mobil Oil Plc. v. D.E.N.R. LTD (2004) 1 NWLR (853) 143.
   He submitted that assuming without conceding that the plaintiffs ought to have complied with Section 1 and 2(1)(a) & (b) of the Edict their non-compliance would only affect the 5th Defendant and not the entire Suit. He maintained that the suit is properly constituted against the 1st – 4th Defendants, as it is not the intendment of Section 1 of the Edict to provide a time limit for an action or actions against the Governor, Attorney General of Ondo State and Mr. Nicholas Ojubuyi. He argued further that it is also not the intendment of the lawmakers to provide for the payment of a monetary deposit before an action could be brought against them.
   Learned counsel maintained that there is a distinction between instituting an action against a person and joining a person as a party to an existing suit. He submitted that a person could only be joined as a party to a suit if the action is competent before the Court. He submitted that the action of the plaintiffs prior to the joinder of the 5th Defendant does not suffer any legal virus or disability, and therefore the joining of the 5th Defendant could not constitute a disability that could affect the whole suit. He submitted that even where the joinder of the 5th Defendant suffers some legal deficiency, which he did not concede, such deficiency would only affect him and not the entire Suit. He submitted that where the language of a statute in its ordinary and grammatical meaning is clear and unambiguous it requires no modification and must be given its natural effect, as the primary duty of the Court is to interpret and not to make Law.
   Learned counsel argued that Sections 1 & 2 of the Edict only stipulates the period within which an aggrieved person should commence an action and the conditions to be fulfilled as conditions precedent thereto and not the period within which a person who mayor is likely to be affected by the outcome of the suit shall be joined as a party. He referred to: Udoh v. O.H.M.B (1990) 4 NWLR (142) 52. He submitted that the Law is that when a person is joined by the order of Court as is in the instant case, the joinder dates back to the date of the commencement of the action and the action shall continue as if the new Defendant had originally been made a defendant. He submitted that the effect of the order of joinder in respect of the 5th defendant is that he had been in the case since 2000 when the action was instituted. He contended that as at that time the 5th Defendant had not been appointed, and he was therefore not in the category of the persons contemplated by section 2(1) (a) & (b) of the edict. He urged the Court to allow the appeal.
In reply to the above submissions, learned counsel for the 4th respondent submitted that the central issue in the appellants’ claim before the lower court is the validity of the Unregistered 1984 Odede of Igboegunrin Chieftaincy Declaration. He submitted that the action does not seek to foreclose the appointment or approval of the Odede of Igboegurin in accordance with native law and custom as provided for under Section 36 of the Chiefs Law of Ondo State, which provides:
“Where a vacancy occurs in a recognized Chieftaincy after the application of Part 2 of this Law, but before the making of a declaration:-
(a) the vacancy shall be filled in accordance with the customary law applying to that Chieftaincy.
(b) the Executive Council may approve the person so appointed or set aside the appointment.”
   He argued that it is common ground between the parties that the 1984 Odede of Igboegunrin Chieftaincy Declaration is not registered and therefore does not provide a legal platform for the appointment and approval of Odede of Igboegurin. He submitted that it is also not in dispute that Odede Chieftaincy is a recognized Chieftaincy under Part II of the Chiefs Law of Ondo State. He contended that being a recognized chieftaincy, a vacancy in the stool could be filled either through a Registered Declaration or under native law and custom. He submitted that in the instant case where no registered declaration exists, it is safe to conclude that the processes leading to the approval of the 4th Respondent as the Odede of Igboegunrin was done under the applicable native law and custom. He contended from the above that the appointment and installation of the 4th Respondent under native law and custom could only give rise to a cause of action different and distinct from the suit of the Appellants to which the 4th Respondent was not a party. He submitted that the law is settled that a Plaintiff cannot be allowed to introduce an entirely fresh cause of action, which arose after the institution of the action by way of an amendment to the claim. He referred to: Gowon v. Ike-Okongwu (2003) 1 FWLR (147) 1027 at 1035.
   Learned counsel submitted that the appellants who were ostensibly aggrieved by the appointment or approval of the 4th Respondent as the Odede of Igboegurin joined him in the existing suit to achieve a result which might adversely affect his appointment and approval but failed to comply with the mandatory provisions of Sections 1 and 2 of the Approval of Appointment of an Oba, Presentation of Instrument of Appointment and Staff of Office. He submitted that the joinder of the 4th Respondent to the suit after his appointment was approved by the Executive Council was meant to challenge the said appointment without fulfilling the condition precedent prescribed by Sections 1 and 2 of the Edict. He noted that in the affidavit in support of Motion for Joinder the appellants made it abundantly clear that they were persons aggrieved by the appointment of another person as an Oba. He submitted that Section 1 of the Edict, which prescribes the period within which to commence an action and Section 2, which sets out the steps to be taken before bringing an action do not discriminate between a challenge through an existing action or through a fresh action. He submitted that any action designed to ventilate a grievance against the approval of appointment of a person as an Oba is caught by the provisions of the above Law, which is in the nature of immunity to protect the occupier of such office against frivolous suits. He maintained that the law does not provide any circumstance for divesting an Oba of his statutorily guaranteed or vested right without due compliance with the condition prescribed by law. He contended that the appellants sought to challenge the approval of the appointment of the 4th Respondent through an existing action erroneously assuming that the full effect of Sections 1 and 2 of the Edict could be circumvented. He submitted that a case is not what the parties call it but what the Court finds it to be upon a calm and careful analysis of the facts presented. He submitted that the lower court was therefore right in lifting the veil of subterfuge of joinder by holding that the suit after the joinder assumed a new character and is tantamount to a challenge to the approval of the appointment of an Oba. He maintained that the conditions precedent must be met and fulfilled before jurisdiction can vest. He submitted that the law is settled that when a statue prescribes the mode for the attainment of an end, only steps taken in line with the prescribed mode will be countenanced. He referred to: Cooperative and Commerce Bank Nig. Plc. v. A.G. Anambra State (1992) 8 NWLR (261) 528. He referred to page 10 of the appellants’ brief wherein it was contended thus:
“… the law is that when a person is joined by the order of Court as in the instant case, the joinder dates back to the date of commencement of the action and the action shall continue as if the new Defendant had originally been made a Defendant”
and submitted that the submission failed to take cognizance of the fact that:
(i) a fresh cause of action, such as the approval of the appointment of the 4th Respondent as Oba cannot be rightly incorporated into an existing suit under the guise of amendment or joinder. See
GOWON v. IKE-OKONGWU (supra); and that
(ii) the principle cannot apply where a person joined can only be made a party subject to the fulfillment of some conditions without those conditions being first met or fulfilled as in the present case.
   He distinguished the cases of AWONIYI v. AMORC (2000) 10 NWLR (Pt. 676) 522; GREEN v. GREEN (1987) 3 NWLR (Pt. 461) 480 and MOBIL OIL PLC v. D.E.N.R. LTD. (2004) 1 NWLR (Pt. 853) 143 cited by the Appellants from the facts and circumstances of this appeal on the ground that the issue involved in this appeal is not whether the 4th Respondent may be affected by the outcome of the suit but whether having acquired such status as makes Sections 1 and 2 of the Edict applicable to him, he could be validly sued without compliance with the stipulation in the sections. He conceded that the order striking out the case against all the Defendants went beyond the prayer in the preliminary objection, but maintained that the joinder of the 4th Respondent introduced a new character and colouration to the claim and thus infested it with a deadly virus of incompetence and lack of jurisdiction. He referred to: DINGYADI v. INEC (2011) 10 NWLR (Pt. 1255) 347 where the supreme court defined jurisdiction at page 390 G – H (supra) and argued that it is conceivable that a Court that had jurisdiction at the commencement of a suit might lose jurisdiction upon the occurrence of an event during the pendency of the case. He cited some instances including the introduction of a new character into the claim as in the instant case. He submitted that the joinder of the 4th Respondent having regard to his status at the time of the joinder renders the suit incompetent and not maintainable against him. He was of the view that the learned trial Judge took the right decision in striking the suit out as against the 4th Respondent. He urged the court to dismiss the appeal against him and uphold the decision of the trial court.
   This appeal raises the fundamental issue of jurisdiction i.e. the jurisdiction of the lower court to entertain the suit against the 4th respondent where the provisions of the Approval of Appointment of an Oba and Presentation of Instrument of Appointment and Staff of Office Edict No. 2 of 1992 of Ondo State have not been complied with. The issue of jurisdiction is no doubt fundamental to any suit. It has been described as its heart and soul.
Where the court lacks jurisdiction to entertain a suit, no matter how well conducted the proceedings might be or how erudite the final decision, all would have been in vain for the proceedings would amount to a nullity. See: Bronik Motors Ltd. & Ors. v. Wema Bank Ltd. (1983) 1 SCNLR 293; Okoya v. Sanitili (1990) 2 NWLR (131) 172: A.G. Federation v. Sode (1990) 1 NWLR (128) 500; Emeka v. Lady Okadigbo & Ors. (2012) LPELR-9338 SC; Dingyadi v. INEC (2011) 10 NWLR (1255) 347 @ 390 G – H. In the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 it was held that a court is competent when:
a. it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or the other;
b. the subject matter of the case is within jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
c. the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. (Emphasis mine)
   As noted above, the contention at the court below is that a condition precedent to the exercise of the court’s jurisdiction was not fulfilled. The relevant provisions are Sections 1 and 2 (1) (a) & (b) and (2) of the Approval of Appointment of an Oba and Presentation of Instrument of Appointment and Staff of Office Edict No 2 of 1992 of Ondo State, which provides as follows:
1.”Any person who is aggrieved by the appointment of another person as an Oba shall within seven days of the date of such appointment institute action in the High Court challenging the appointment.
2(1) “Any person who intends to institute an action against or challenge such appointment shall give security for-
(a) A sum of Twenty-five thousand Naira in respect of such action instituted against the appointment in any Local Government Headquarters; or
(b) A sum of Ten Thousand Naira in respect of such action instituted against the appointment in towns other than Local Headquarters.
(2) Any security given in pursuance of subsection (1) of this section shall be paid into the High Court at the same time the necessary Court processes are filed.”
   The purport of Section 1 and 2 (1) (a) & (b) and (2) of the Edict is that a person aggrieved by the appointment of another person as an Oba shall institute an action in the High court challenging the appointment within seven days of the date of the appointment and make the stipulated security deposit at the relevant High Court. Sub-section (3) of section 2 provides:
“The appointment of a person as an Oba is deemed to have been completed on the date of approval of the appointment by the Executive Council in accordance with the provisions of the Chiefs Edict.”
Where the aggrieved person fails to institute his action within the stipulated time the court would be robbed of jurisdiction to entertain the matter. See: Madukolu v. Nkemdilim (supra); Okangi & Anor. v. Bayo Fatoba & Ors. (2011) LPELR-CA/AE/46/2010. I have carefully examined the statement of claim against the 1st – 4th defendants at pages 33 – 37 of the record and the amended statement of claim filed after the joinder of the 5th defendant at pages 127 – 131 of the records. The grouse of the plaintiffs before the trial court, as contained in their pleadings, is that as a result of certain happenings within Igboegunrin, one of the towns that constitute Mahin kingdom in Ilaje Local Government Area of Ondo State regarding the Baaleship of that town, the people of the town applied to the Ondo State Government for recognition. The incumbent Baale at the time, one Oba M. J. Osomo submitted a memorandum to the defunct Ilaje/EseOdo Local Government Chieftaincy Committee. Based on the memorandum a proposed declaration for the purposes of registration was made. However the people of the town objected to the memorandum on the ground that it was a distortion of the law and custom relating to the Baaleship. They quarreled with many aspects of the memorandum and the proposed unregistered declaration, including the title of the Head Chief (Odede), the titles given to the kingmakers, a the number and identity of the ruling houses, the order of rotation and the qualifications for filling a vacancy. As a result the declaration could not be registered but the position of Head Chief was elevated from Baale to Oba. As a result of their dissatisfaction with the proposed declaration they instituted the suit seeking the reliefs already set out earlier in the judgment.
   As observed by both learned counsel, at the time the suit was instituted before the lower court, the 5th defendant/respondent had not been appointed as the Odede of Igboegunrin. In the motion on notice dated 22/7/2003 seeking to join Oba P.O. Kalejaiye as the 5th defendant in the suit, the 1st plaintiff, Chief T.O. Adepiti (1st appellant herein) averred in paragraphs 7 and 8 of the affidavit in support as follows:
7. “That on the 27th of May 2003 it was announced over the radio that one Mr. Kalejaiye P.O. had been approved as the Odede of Igboegunrin.
8. That my counsel Apostle Juwon Semudara told me and I believe that unless the purportedly appointed Odede of Igboegunrin is joined this matter cannot be effectually and completely adjudicated upon and settle all questions involved in the cause or matter once and for all.”
The principles guiding the joinder of parties are as follows:
1. “Is the cause or matter liable to be defeated by the non-joinder?
2. Is it possible for the court to adjudicate on the cause of action set up by the plaintiff unless the third party is added as a defendant?
3. Is the third party a person who ought to have been joined as a defendant?
4. Is the third party a person whose presence before the court as defendant will be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter?”
See: Green v. Green (1987) 3 NWLR (Pt.61) 480, (1987) 2 N.S.C.C. Vol. 18 (Part II) 1115 at 1127; Uku v. Okumagba (1974) 1 ALL NLR (Part 1) 475; Peenok Investments Ltd. v. Hotel Presidential Ltd. (supra); Ugorji v. Onwu (1991) 3 NWLR (Pt.178) 177; Adefarasin v. Dayekh & Anor. (2011) 11 NWLR (1044) 89 @ 36-37, Paras. E-C. Having regard to the fact that the 5th defendant, at the time of the application, had been approved as the Odede of Igboegunrin and the plaintiffs were challenging the 1984 Odede Chieftaincy Declaration and the use of the title “Odede”, the lower court was satisfied that the 5th defendant was a necessary party for the proper resolution of the issues in controversy in the suit and granted the order accordingly.
   It must be noted here that by a motion on notice dated 29/5/03, the plaintiffs/appellants sought an order of interlocutory injunction restraining the 1st and 2nd defendants from presenting instrument of office or staff of office or certificate of appointment to the 3rd defendant, Chief Nicholas Ojubuyi, as the Oba Odede of Igboegunrin or any member of his family pending the determination of the substantive suit and an order restraining the 3rd defendant or any member of his family or privies from parading himself as the Oba Odede of Igboegunrin pending the determination of the suit. It was averred in paragraphs 10 and 16 of the supporting affidavit as follows:
“10. That on the 27th of May 2003 it was announced over the radio that one Mr. Phillips O. Kalejaiye a junior brother to the 3rd defendant had been approved as the Odede of Igboegunrin.
16. That our lawyer, Juwon Semudara told me and I believe that it is much unprecedented in the history of a civilized society for 1st and 2nd defendants to give such approval while to their knowledge a case is still pending in court concerning the subject matter.” (Emphasis supplied).
   It was averred in paragraph 3 (i) of the counter affidavit filed in opposition to the motion that the 5th respondent had completed all customary rites necessary for his selection and customary installation to the chieftaincy to the knowledge of the plaintiffs before the institution of the suit. In the further and better affidavit filed in further opposition to the application it was averred that the 5th defendant’s appointment as Odede of Igboegunrin had been approved and instrument of appointment dated 28/5/2003 issued to him. The approval was annexed thereto and marked Exhibit D while the instrument of appointment was marked Exhibit E (see pages 90-94 of the record). Incidentally, learned counsel for the plaintiffs in the course of arguing the motion realising that he could not proceed with the parties as then constituted, applied to withdraw the application to enable him join the 5th defendant who had been appointed as the Odede of Igboegunrin during the pendency of the suit as a party to the action. The application was thereupon dismissed with costs and an accelerated hearing of the substantive suit ordered (see enrolled order at pages t25 – 126 of the record).
   In his statement of defence, particularly paragraph 4 thereof the 5th defendant maintained that Igboegunrin was founded by the Odede family and that only the descendants of Odede are indigenous to Igboegunrin and entitled to the Odede Chieftaincy. It is further averred in paragraph 9 thereof that the Head Chief of Igboegunrin was never rotated. It is also averred that the Odede chieftaincy declaration had been resolved against the plaintiffs by the Ilaje District Council as far back as 1958.
   The essence of the above observations is to illustrate the real nature of the controversy between the parties. At the time the action was instituted the intention of the plaintiffs was to forestall any action being taken on the 1984 unregistered declaration of the Odede of Igboegunrin Chieftaincy, which would in effect lead to the appointment of an Odede based on the said declaration. By the application for interlocutory injunction dated 29/5/03 it was clear that having got wind of the approval of the 5th defendant by the 1st and 2nd defendants to fill the vacant stool, the real intention of the plaintiffs was to prevent his or any other person’s appointment as the Odede of Igboegunrin.
   Learned counsel for the appellants has argued that Section 1 and 2 (1)(a) & (b) and (2) of the Edict would only apply where a party is aggrieved by the appointment of a person as an Oba after the appointment has been made. In his view it is only after the appointment has been made that time would begin to run against the said party. He argued that in the instant case, since the 5th defendant was joined as a party long after the suit was instituted he cannot take refuge under Sections 1 and 2 (1) (a) & (b) and (2) of the Edict.
   A pertinent question to ask here is what is the effect of the joinder of the 5th defendant on the plaintiff’s claims? Did it have the effect of changing the character of the suit? I am of the respectful view that it did. The application to join the 5th defendant in the suit is dated 22/7/2003. There is no record of the date when the 5th defendant was joined. However the plaintiffs’ amended statement of claim, which includes the 5th defendant as a party, was filed on 30/9/03 (see pages 127 – 131 of the record). It is not in dispute that the 5th defendant’s appointment was approved on 27/5/03 and instrument of appointment issued to him on 28/5/03. Therefore by the time he became a party to the action his appointment as Odede of Igboegunrin was in issue.
   On this issue the learned trial Judge held as follows at page 182 lines 10-16 and 21 – 30 of the record:
” … From the supporting affidavit of the said motion on notice (for interlocutory injunction) paragraph 10 therefore is a direct challenge to the approval of the 5th defendant when (sic) the plaintiff referred to as Mr. Phillips O. Kaleiaiye and a junior brother of the 3rd defendant as Odede of Igboegunrin while paragraphs 13 and 14 of the same supporting affidavit are direct challenges against the 3rd defendant.
… I hold the view that from the references above the Plaintiffs are challenging the appointment and approval of the 5th defendant as the Odede of Igboegunrin. Notwithstanding the way and manner the reliefs of the plaintiffs are formulated, I am of the further view that at least the use of the title of “Odede” as the title of the 5th defendant is being challenged by the plaintiffs since the substantive trial cannot be heard without the 5th defendant who had taken the Odede title hence the application of 22/7/2003 to join the 5th defendant.” (Emphasis supplied).
   His Lordship continued at page 183 lines 3 – 7 and 31 – 35 and page 184 lines 1 – 31 of the record:
“From the view of the court so far, I hold that from the references, the application to join the 5th defendant and the joinder of the 5th defendant at the instance of the plaintiffs amounts to a direct challenge to the appointment and approval of the 5th defendant as the Odede of lgboegunrin… The cause of action against the 5th defendant at the instance of the plaintiffs came into existence as soon as he was joined as a party. … The cause of action is the appointment and approval of the 5th defendant as Odede of Igboegunrin by the 1st and 2nd defendants and in respect of which the plaintiffs are aggrieved.
   The plaintiffs had the opportunity of applying to join the 5th defendant before he was approved as the Odede of Igboegunrin by taking necessary step on the information given in paragraphs 16 of the 3rd defendant’s statement of defence of 4/3/2003 to the effect that the 5th defendant was the Odede elect of Igboegunrin. The 5th defendant had not been approved as Odede by then. If the joinder of the 5th defendant by order of court on the plaintiffs’ application of 22/7/2003 is to enable the plaintiffs challenge his appointment as Odede of Igboegunrin, it is view that the plaintiffs should comply with the provisions of the Edict of 1991 and file their application for joinder before the required limitation period. I am unable to agree with the plaintiffs’ counsel that the Edict will only operate in respect of actions that are yet to be filed and not already existing actions. It’s true that this action was filed in 2002 but the approval of the 5th defendant and the subsequent joinder took place in 2003. In other words, the acts that led to joining the 5th defendant as a party, which was his approval as Odede of Igboegunrin took place in 2003. It is therefore my view that if the 5th defendant was brought into the suit in 2003 for the first time by reason of the approval given to him as Odede of Igboegunrin and the plaintiffs decided to join issues with him on the approval, I hold that the plaintiffs must comply with the provisions of the Edict of 1991.” (Emphasis supplied).
   I agree with the views expressed above by the learned trial Judge. As observed earlier, the filing of the application for interlocutory injunction made it abundantly clear that the plaintiffs were aggrieved with the 5th defendant’s appointment as Odede. Learned counsel for the plaintiffs realized that he could not continue with the application without joining the 5th defendant as a party to the suit because it was their intention that he should be bound by the outcome of the application and indeed the substantive suit. Certainly in the event that the substantive suit succeeds it would have the effect of divesting the 5th defendant of his title because it would have been based on a wrong foundation. I agree with the learned trial Judge that having regard to the facts and circumstances of this case, the plaintiffs ought to have complied with the provisions of Sections 1 and 2 (1) (a) & (b) and (2) of the Edict.
   Having failed to fulfill the conditions precedent stipulated therein, the court lacked jurisdiction to entertain the suit against the 5th appellant. The issue that then arises is whether the suit can be maintained against the 1st – 4th defendants without the 5th defendant being a party? I am of the humble view that the issues in controversy between the parties cannot be effectually and finally settled without the presence of the 5th defendant. Having failed to take necessary steps at the appropriate time the omission has tainted the entire suit. I agree with the learned trial Judge that the entire suit is incompetent and was rightly struck out.
   The appeal therefore fails and is hereby dismissed. The ruling of the High Court of Ondo State sitting at Okitipupa in Suit No. HOK/53/2000 delivered on 3/7/2005 is hereby upheld. The parties shall bear their respective costs in the appeal.
CHIMA CENTUS NWEZE, J.C.A.: My noble Lord, Kekere-Ekun JCA, obliged me with the draft of the leading judgment just delivered now. I agree that this appeal is unmeritorious and should be dismissed.
The appellants did not comply with the mandatory provisions of Sections 1 and 2 (1) (a) and (b) and (2) of the Approval of Appointment of an Oba and Presentation of Instrument of Appointment and Staff of Office Edict No. 2 of 1992 of Ondo State. As such, the court, rightly, held that its jurisdiction had not been, properly, activated. There is, therefore, no justification for interfering with its sound conclusion. I, too, shall enter an order dismissing this appeal for lacking in merit. I abide by the consequential orders contained in the leading judgment.
CHINWE EUGENIA IYIZOBA, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, K.M.O. KEKERE-EKUN JCA. I agree with his reasoning and conclusion.
It is trite that for a court to be competent and to have jurisdiction to try a case, the case must inter alia come before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341. In their application to join the 5th respondent as a party to the case, the appellants failed to comply with Sections 1, 2(1) (a), (b) and (2) of the Approval of Appointment of an Oba and Presentation Of Instrument of Appointment and Staff of Office Edict No. 2 of 1992 of Ondo State. The law requires a person aggrieved by the appointment of another person as an Oba to institute an action against such a person within 7 days of the date of such appointment. The application for joinder was not made within the time stipulated by the law. The lower court was consequently right in striking out the suit as incompetent as the suit could not be effectually and completely settled without the presence of the 5th respondent. I agree entirely with the judgment. I find no merit in this appeal. I also dismiss it. I abide by the consequential orders in the lead judgment including the order as to costs.
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Appearances
OLOJA O. J. SEMUDARAFor Appellant
AND
CHIEF A. O. AJANA – for the 4th Respondent
1st, 2nd and 3rd respondents absent although duly served with hearing notices.For Respondent
