GBADEBO & ANOR v. OYENITUN & ORS (2021)

GBADEBO & ANOR v. OYENITUN & ORS

(2021)LCN/15011(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, February 12, 2021

CA/IB/401/2013

RATIO

ACTION: MODES OF COMMENCING ACTIONS IN HIGH COURTS

Now, it is settled law that one of the modes of commencing actions in High Courts in Nigeria is the Writ of Summons. It is usually resorted to in view of the difficulties encountered in hearing matters by way of Writ of Summons. In other words, it is geared towards expeditious hearing and determination of causes of the parties which are not encumbered by facts which are likely to be in dispute. Originating Summons are generally resorted to where the sole or principal questions to be answered at the trial, will largely depend on the interpretation of written documents, Statutes or Constitution, or other question of law. Thus, where the action is contentious in the sense that there are disputed or controversial facts to be determined at the trial, Originating Summons will not be suitable. See Dapianlong v. Dariye (2007) 8 NWLR (pt. 1036) 332; Keyamo v. House of Assembly, Lagos State (2002) 18 NWLR (pt. 799) 605; Director, SSS v. Agbakoba (1999) 3 NWLR (pt. 595) 314; Famfa Oil Ltd v. A. G. Federation & Anor (2003) 18 NWLR (pt. 852) 453 and Inakoju v. Adeleke & Ors (2007) 2 FWLR (pt. 366) 2403. Thus in Famfa Oil Limited v. A. G, Federation (supra), Belgore, JSC (as he then was) said:
“The very nature of an Originating Summons is to make things simpler for hearing. It is available to any person claiming interest under a Deed, Will or other Written Instrument whereby he will apply by Originating Summons for the determination of any question of construction arising under the instrument for a declaration of his interest … It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the pleadings of the parties to the Suit. In such a situation, there is no serious dispute as to facts but what the Plaintiff is claiming is the declaration of his rights.”
It therefore means that, in an action initiated by Originating Summons, facts do not have a pride of place in the proceedings. The duty of the Court is merely to interpret or construe the document or documents exhibited by the Affidavit in Support of the Originating Summons. Accordingly, where upon construction of those documents, the question posed by the Plaintiff and there are no disputed facts which will militate against the findings of the Court on those documents, the Originating Summons will avail the Plaintiff. See Nigeria Breweries Plc v. Lagos State Internal Revenue Board (2002) 18 NWLE (pt. 799) 605. PER HARUNA SIMON TSAMMANI, J.C.A.

EVIDENCE: DUTY OF A PARTY WHO INTENDS TO DISPUTE FACTS DEPOSED IN AN AFFIDAVIT

Indeed, it is trite law that a party who intends to dispute facts deposed in an Affidavit has a duty in law to swear to a Counter Affidavit deposing to facts which challenge and/or controvert those facts deposed to by the other side. Where a party fails to do so, he is deemed to have admitted those facts and the depositions made in the Affidavit are also deemed to be correct and true save where such facts, are shown to be incredible. Thus, where facts deposed to in an Affidavit are not controverted or contradicted, they remain uncontroverted and the trial Court would be right in accepting and acting on them in the determination of the dispute. See Ajewole v. Adetimo (1996) 2 NWLR (pt. 431) 391; N. A. B. Ltd v. Abdullahi (2000) 6 NWLR (pt. 662) 549; The Honda Place Ltd v. Globe Motor Holdings (Nig) Ltd (2005) 14 NWLR (pt. 945) 273 and Mabamije v. Otto (2016) 13 NWLR (pt. 1529) 171. PER HARUNA SIMON TSAMMANI, J.C.A.
PRELIMINARY OBJECTION: PROCEDURE FOLLOWED BY COURT WHEN A PRELIMINARY OBJECTION TO THE JURISDICTION HAS BEEN FILED

While it is true that when a Preliminary Objection to the jurisdiction of a Court has been filed, the Court is enjoined to first hear and determine the Preliminary Objection, for the sake of saving precious judicial time and reducing the cost of litigation, together with the Substantive Suit. When that is done, the Court will first rule on the Preliminary objection and if it succeeds, the Suit will be determined and the Court need not pronounce on the Substantive Suit. Where the objection is over-ruled, the Court will proceed to consider and pronounce on the Substantive Matter. This procedure has been commended by the Supreme Court and followed by this Court in cases such as Amadi v. N.N.P.C (2000) NWLR (pt. 674) 76 at 100, Senate President v. Nzeribe (2004) 8 NWLR (pt. 878) 251 at 274; Olorunkunle v. Adigun (2013) 6 NWLR (pt. 1297) 407 at 426; Central Bank of Nigeria v. Dr. B. O. Akingbola & Anor (2019) LPELR-48807 (SC) and Ossai v. Wakwah (2006) 4 NWLR (pt. 969) 208. In any case, the decision on whether or not to hear parties on an objection to its jurisdiction separate from hearing of the Suit on the merits, lies in the discretion of the Court. Thus, in Central Bank of Nigeria v. Dr. Erastus B. O Akingbola & Anor (supra), Rhodes-Vivour, JSC observed thus:

“To my mind, where the Defendant questions the jurisdiction of the Court by filing a Preliminary Objection, the Preliminary objection may be taken with the Substantive Suit but where the Substantive Suit (Originating Motion) entails the likelihood of taking oral evidence, the Preliminary Objection ought to be taken first. Based on the processes before the Court and bearing in mind that the Appellant did not file a Counter Affidavit, the Courts were correct to conclude that there was no conflict to be resolved, moreso as there was documentary evidence to resolve the 1st Respondent’s Originating Motion. I am in agreement with both Courts below that hearing the Preliminary Objection and the Originating Motion together was the correct decision to make.” PER HARUNA SIMON TSAMMANI, J.C.A.

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

H. R. M. OBA ADEDOTUN AREMU GBADEBO (Alake Of Egbaland). 2. CHIEF PETER ADIO ADELANI OYERO (Baale Of Oyero Town In Ifo Local Government Area) APPELANT(S)

And

HAKEEM AKINWANDE OYENITUN 2. H. R. M. OBA ABDUL FATAI ALANI MATANMI (Onijoko Of Ijoko Ado/Odo-Ota Local Government Area) 3. ATTORNEY GENERAL OF OGUN STATE RESPONDENT(S)

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Ogun State High Court of Justice, delivered by A. A. Akinyemi, J on the 25th day of June, 2012 in Suit No: HCT/297/2011.

By an Originating Summons filed on the 24/08/2011, the 1st and 2nd Respondents herein, as Claimants sought the Court below, to determine the following questions:
1. Whether it is lawful and proper for the 1st Defendant to exercise powers of a Prescribed Authority with respect to the Baaleship stool of Oyero Village in Ijoko-Ota, Ogun State after the Prescribed Authorities (Delegation of Powers) Notice, 1980 (OGSLN 37) of 1980 had been issued, having regard to the provisions of the Chiefs Law, Cap. 20, Laws of Ogun State, 1978 and Prescribed Authorities (Appointment and Delegation of Powers Revocation Notice, 1980 (OGSLN 27) of 1980).
2. Whether having regard to the provisions of (1) the Prescribed Authorities (Delegation of Powers) Notice, 1980 (OGSLN 37) of 1980, (2) The Prescribed Authorities (Appointment and Delegation of Powers (Revocation) Notice, 1980 (OGSLN 27 of 1980) and (3) Chiefs Law, Cap. 20, Laws of Ogun

State, 1978, the 1st Defendant is competent and has the power to grant approval to the purported appointment of the 2nd Defendant as Baale of Oyero Village, in Ijoko-Ota, Ogun State in 2011.
3. Whether having regard to the provisions of (1) the Prescribed Authorities (Appointment and Delegation of Powers) Revocation Notice, 1980 (OGSLN 27 of 1980), (2) Prescribed Authorities (Delegation of Powers) Notice, 1980 (OGSLN 37 of 2005) and (3) Chiefs Law, Cap. 20, Laws of Ogun State, 1978, it is lawful and proper for the 1st Defendant to install the 2nd Defendant as Baale of Oyero in Ijoko-Ota, Ogun State.
4. Whether having regard to the findings and holdings of the High Court of Ogun State in Suit No: HCL/36/1979; SUNDAY OGUNSINA & 2 ORS V. SUNMONU MATANMI & 3 ORS; Appeal No: CA/I/235/90: SUNDAY OGUNSINA & ORS V. SUNMONU MATANMI &ORS; HCT/20/90 & HCT/75/89: CHIEF LASISI K. OGUNSEYE & ORS V. OBA T. T. DADA (OLOTA OF OTA) & ORS and HCT/88/2006: ALHAJI FATAI ALANI MATANMI V. LASISI KOLAPO OGUNSEYE & 4 ORS; the 2nd Defendant can be properly made Baale of Oyero Villagein Ijoko-Ota, Ogun State by the 1st Defendant without the

consent and approval of Matanmi Family of Ijemo Compound, Ijoko-Ota, Ogun State.
5. Whether after the 2nd Claimant had consented to the appointment and installation of the 1st Claimant as the Baale of Oyero Village in Ijoko-Ota and had so installed the said 1st Claimant as Baale of Oyero, the 1st Defendant can still install the 2nd Defendant as the Baale of the same Oyero Village in without the consent and approval of the 2nd Defendant (sic: 2nd Claimant).
6. Whether the 3rd Defendant can recognise the 2nd Defendant as Baale of Oyero Village in Ijoko-Ota when the 2nd Defendant’s appointment and installation were not with the approval of the 2nd Claimant.

It was thereafter prayed that; if the Court answers those questions in favour of the Claimants/Respondents, the following reliefs be granted:
(a) Declaration that it is unlawful and improper for 1st Defendant to exercise powers of a Prescribed Authority with respect to the Baaleship Stool of Oyero Village in Ijoko-Ota, Ogun State after the making of the Prescribed Authorities (Delegation of Powers) Notice of 1980 (OGSN 37 of 1980).
(b) Declaration that the 1st Defendant neither

has the power nor competence to grant approval to the appointment of the 2nd Defendant as the Baale of Oyero Village in Ijoko-Ota, Ogun State.
(c) Declaration that it is unlawful and improper for the 1st Defendant to install the 2nd Defendant as Baale of Oyero Village in Ijoko-Ota, Ogun State.
(d) Declaration that the 1st Claimant having received the consent of the 2nd Claimant acting for and on behalf of the Matanmi Family and been installed, is the lawful Baale of Oyero Village in Ijoko-Ota.
(e) An Order setting aside the approval granted by the 1st Defendant in 2011 to the appointment of the 2nd Defendant as the Baale of Oyero Village in Ijoko-Ota, Ogun State.
(f) An Order setting aside the installation of the 2nd Defendant by the 1st Defendant as the Baale of Oyero Village in Ijoko-Ota, Ogun State.
(g) Perpetual Injunction restraining the 1st Defendant from further exercising any power of a Prescribed Authority with respect to the Baaleship Stool of Oyero Village in Ijoko-Ota, Ogun State.
(h) Perpetual Injunction restraining the 2nd Defendant from parading himself or in any way holding out or permitting himself to be held out

as the Baaleof Oyero Village in Ijoko-Ota, Ogun State.
(i) Perpetual Injunction restraining the 3rd Defendant from giving or further giving effect to and/or recognizing the installation of the 2nd Defendant as Baale of Oyero Village in Ijoko-Ota, Ogun State, by the 1st Defendant.

The Originating Summons was supported by an Affidavit of 16 paragraphs deposed to by the 2nd Plaintiff/Respondent and a Written Address. Annexed to the Affidavit were documents marked as Exhibits A, B, C, D, E, F, G, H and I respectively.

In response to the Originating Summons, the 1st and 2nd Defendants/Appellants filed a Motion on Notice wherein they prayed the Court to strike out the Originating Summons:
“……. For lack of jurisdiction in view of Section 22 of the Chiefs Law of Ogun State, the appropriate procedure ….”

The Motion was supported by an Affidavit of 16 paragraphs deposed to by one Chief Taiwo Oyero, a former Councilor in the Ifo Local Government. It was also supported by a Written Address. In opposition to the Defendants’/Appellants’ Motion, the Claimants/Respondents filed a Written Address.

By consent of Counsel, the Motion (Objection) and the Originating Summons were heard together. Thus, in a Judgment delivered on the 25/06/2013, the learned trial Judge dismissed the Motion (Preliminary Objection) and resolved all the questions posed by the Originating Summons and accordingly granted all the reliefs sought by the Claimants/Respondents. Piqued by the Judgment of the trial Court, the Defendant/Appellants have initiated this appeal.

The Original Notice of Appeal consisting of five (5) Grounds of Appeal was filed on the 29/06/2012. Same was however amended by the Leave of this Court granted on the 20/6/2018. The Amended Notice of Appeal consisting of five (5) Grounds of Appeal was filed on the 25/4/2018 but deemed filed on the 20/6/2018. The parties then filed and exchanged Briefs of Arguments.

The Appellants’ Brief of Argument was dated and filed on the 25/4/2018 but deemed filed on the 20/6/2018. Three (3) issues were raised therein for determination as follows:
(1) Whether Section 22 of Chiefs Law of Ogun State is not applicable in this Suit as decided by the trial Judge and whether by the provisions of

Section 22 of Chiefs Law of Ogun State, the Court lacks jurisdiction in the Matter at this stage. [Ground 1].
(2) Whether the form of Suit by Originating Summons taken out by the 1st and 2nd Respondents is right in law and practice. [Ground 2].
(3) Whether the Preliminary Objection raised by the Appellants and the trial on the merit of the Suit ought to be decided summarily without adducing evidence and therefore deprived the Appellants of their right to fair hearing, a fundamental right provided for in the Constitution of the Federal Republic of Nigeria.[Grounds 3, 4 and 5].

The 1st and 2nd Respondents filed a joint Brief of Arguments. It was filed on the 30/10/2018. Therein, the three issues formulated by the Appellants were adopted but reformulated as follows:
1. Whether the learned trial Judge was in error to have held that the provisions of Section 22 of the Chiefs Law of Ogun State is not applicable to the Suit and does not rob the Court of jurisdiction to entertain the Suit. [Ground 1].
2. Whether the learned trial Judge was not right to have held that the form of Originating Summons adopted in instituting the Suit is right in Law and Practice. [Ground 2].

Whether the learned trial Judge by deciding the Preliminary Objection of the Appellants and the Substantive Suit of the 1st and 2nd Respondents on the merits without Parties calling oral evidence acted improperly and denied the Appellants their fundamental right to fair hearing as provided for in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). [Grounds 3, 4 and 5].It would be seen therefore that the issues formulated by the Parties are similar in scope and substance. In that respect, I shall decide this Appeal on the three issues as formulated by Appellants. Before I proceed, I wish to note that, the 3rd Respondent filed a Notice on the 28/8/2020 to the effect that, he does not intend to contest the appeal. The Appellant also filed a Reply Brief to the 1st and 2nd Respondents’ Brief of Arguments on the 29/6/2020. I shall refer to it in the course of this Judgment when necessary. I shall begin the determination of this appeal with issue 2.On this issue (issue 2), learned Counsel for the Appellants contended that, by the Originating Summons, the Respondents sought to nullify the installation by

the 1st Appellant of the 2nd Appellant as the Baale of Oyero Town in Ifo Local Government Area of Ogun State. That, an Originating Summons as a mode of instituting an action in the High Court, is not proper for use in actions where the facts are contentious or in dispute. The cases of Governor of Kogi State & Ors v. Oba S. A. Mohammed (2019) 13 NWLR (pt. 1159) 491 at 518; National Bank of Nigeria Ltd v. Alakija (1978) 2 L.R.N 78, Adeyelu IV v. Ajagungbade III (2007) 1 NWLR (pt. 1053) 13, etc were cited in support, and to further contend that, the case of the Respondents in the Court below, was that there is no Prescribed Authority. That looking at the decision of the trial Court at page 318 of the records, it will be apparent that, the cause before the Court below, is one that can only be treated by way of a Writ of Summons.

Learned Counsel for the Appellant went on to submit that, the trial Court clearly erred when it held that the action is for interpretation of documents and that the Respondents were right in instituting the action by an Originating Summons. We were accordingly urged to hold that the trial Court erred when it held that the

action was properly instituted by way of Originating Summons.

In response, learned Counsel for the 1st and 2nd Respondents cited the case of Etim v. Obot (2000) 12 NWLR (pt. 1207) 108, to submit that, an Originating Summons is best suited for cases where there are no substantial disputes on the facts, or there is no likelihood of such disputes. That, it is most suited for actions where the sole or principal question in issue, is one of construction of documents, statutes, Constitution or other instruments such as Wills, Contracts, etc. That such disputes are determined upon affidavit evidence alone. The case of Dagazau v. BokirInt’L Co. Ltd (2011) 14 NWLR (pt. 1267) 261 was cited in support.

Learned Counsel for the 1st and 2nd Respondents then went on to contend that, apart from the fact that the 1st and 2nd Respondents’ Suit at the lower Court sought the interpretation of judgments (Exhibits A-G), which specify the area of prescribed authority ship of the 1st Appellant, there is nothing on the other side which the Appellants produced at the trial Court would infer hostility or that the facts are disputed. That, it is the nature of the

claims and the facts deposed to in the Affidavit in Support of the reliefs sought in the Originating Summons that can disclose the hostile nature of the proceedings. Furthermore, that unless the conflicts in the Affidavit are not material, or the areas of conflict are narrow and insignificant, the need to call oral evidence will not arise. That in the instant case, the facts deposed in Support of the Originating Summons are backed by documents which form the pivot of the 1st and 2nd Respondents’ claims; and which the learned trial Judge evaluated to find in favour of the Respondents as can be seen from pages 314-317 of the Record of Appeal. We were accordingly urged not to disturb the findings of the learned trial Judge.

In reply on points of law, learned Counsel for the Appellants contended that the trial Court ought to have examined all the Exhibits filed by the Appellants and the Respondents, which would have shown that Oyero Village is not affixed and/or covered by Exhibits A, B, C and F exhibited by the Respondents. That these Exhibits also confirm that the matter was contentious. That history of the dispute between the 2nd Appellant and the

2nd Respondent had existed over time. The cases of Afolabi v. WSW LTD (2012) 17 NWLR (pt. 1329) 286; Olanrenwaju v. Governor of Oyo State (1993) 9 NWLR (pt. 265); Odinaka v. Moghalu (1992) 4 NWLR (pt. 233); P. D. P. v. Abubakar (2007) 3 NWLR (pt. 1022) 515 at 545 paras. E-G and Ogunsola v. A. P. P. (2003) 9 NWLR (pt. 826) 462 were cited in support. The case of Doctor Akinola E. Omojola v. Dada Oyateru (2007) LPELR-8359 (CA) was then cited to urge us to hold that the conflict in the Exhibits are material which deal with history, geography, law and genealogy and require that pleadings be ordered for the Court to reasonably arrive at a just decision. The case of Akande v. Adisa (2012) 15 NWLR (pt. 538) 15 was also cited in support.

resorted to where the sole or principal questions to be answered at the trial, will largely depend on the interpretation of written documents, Statutes or Constitution, or other question of law. Thus, where the action is contentious in the sense that there are disputed or controversial facts to be determined at the trial, Originating Summons will not be suitable. See Dapianlong v. Dariye (2007) 8 NWLR (pt. 1036) 332; Keyamo v. House of Assembly, Lagos State (2002) 18 NWLR (pt. 799) 605; Director, SSS v. Agbakoba (1999) 3 NWLR (pt. 595) 314; Famfa Oil Ltd v. A. G. Federation & Anor (2003) 18 NWLR (pt. 852) 453 and Inakoju v. Adeleke & Ors (2007) 2 FWLR (pt. 366) 2403. Thus in Famfa Oil Limited v. A. G, Federation (supra), Belgore, JSC (as he then was) said:
“The very nature of an Originating Summons is to make things simpler for hearing. It is available to any person claiming interest under a Deed, Will or other Written Instrument whereby he will apply by Originating Summons for the determination of any question of construction arising under the instrument for a declaration of his interest … It is a procedure where the evidence in the

main is by way of documents and there is no serious dispute as to their existence in the pleadings of the parties to the Suit. In such a situation, there is no serious dispute as to facts but what the Plaintiff is claiming is the declaration of his rights.”
It therefore means that, in an action initiated by Originating Summons, facts do not have a pride of place in the proceedings. The duty of the Court is merely to interpret or construe the document or documents exhibited by the Affidavit in Support of the Originating Summons. Accordingly, where upon construction of those documents, the question posed by the Plaintiff and there are no disputed facts which will militate against the findings of the Court on those documents, the Originating Summons will avail the Plaintiff. See Nigeria Breweries Plc v. Lagos State Internal Revenue Board (2002) 18 NWLE (pt. 799) 605.

For the determination of the action, the learned trial Judge held at page 310 Line 19-113, Line 8 of the Record of Appeal as follows:
“From the contents of the Affidavit in Support of the Originating Summons, which represents the pleading, in this case, and perhaps more

particularly the reliefs sought therein, which I have already set out above, it is quite clear that the main thrust of this case is the challenge to the power, competence, jurisdiction and authority of the 1st Defendant to act as the Prescribed Authority for the Baale of Oyero Chieftaincy title. The gravamen of the case of the Claimants particularly from the reliefs sought is that, going by the contents of the relevant Statutory Instruments, his jurisdiction, power or authority to so act, does not extend to Oyero Town and by implication, to the Baale of Oyero Chieftaincy.”

The learned trial Judge also made findings at page 313 Line 18-314, Line 7 of the Record of Appeal as follows:
“I must start by observing that the Defendants did not file any Counter-Affidavit to the Originating Summons. As I noted at the onset of this Judgment, it was by agreement of both learned Counsel that both applications be argued together. The implication is that, the Defendants chose to put all their fate in their objection and relied on it as a full answer to the Originating Summons. By established legal principles, they are deemed to have admitted all the

facts deposed to in the Claimant’s Affidavit in Support as true and correct and the Court is also bound by law to so treat them, being uncontradicted and unchallenged.”

Indeed, it is trite law that a party who intends to dispute facts deposed in an Affidavit has a duty in law to swear to a Counter Affidavit deposing to facts which challenge and/or controvert those facts deposed to by the other side. Where a party fails to do so, he is deemed to have admitted those facts and the depositions made in the Affidavit are also deemed to be correct and true save where such facts, are shown to be incredible. Thus, where facts deposed to in an Affidavit are not controverted or contradicted, they remain uncontroverted and the trial Court would be right in accepting and acting on them in the determination of the dispute. See Ajewole v. Adetimo (1996) 2 NWLR (pt. 431) 391; N. A. B. Ltd v. Abdullahi (2000) 6 NWLR (pt. 662) 549; The Honda Place Ltd v. Globe Motor Holdings (Nig) Ltd (2005) 14 NWLR (pt. 945) 273 and Mabamije v. Otto (2016) 13 NWLR (pt. 1529) 171.

In the instant case, the Originating Summons, which was duly supported by an Affidavit, was

duly served on the Appellants. The reaction of the Appellants was to file a Preliminary Objection challenging the jurisdictions of the Court to entertain the Suit on the Grounds that Section 22 of the Chiefs Law of Ogun State (supra) was not followed before the Suit was instituted. No Counter Affidavit was filed in opposition to the facts deposed in support of the Originating Summons. Indeed, non of the facts deposed to in support of the Preliminary Objection directly controverted or answered to the fundamental issue or questions posed by the Originating Summons. The effect is that there were no facts which could be considered as creating any controversy on the facts deposed in support of the Writ of Summons. The documents attached to the Affidavit in Support of the Preliminary Objection does not create such conflict either. In that respect, I am of the considered view that the Suit was rightly initiated by Originating Summons. This issue (issue 2) is therefore resolved against the Appellant.

On issue three (3), learned Counsel for the Appellant contended that, the issue of appointment and installation of the Baale of a town is determined based on

historical facts and genealogy, which pose issue of mixed law and facts to be determined by oral evidence. That the Appellant raised the issue of jurisdiction of the trial Court as a threshold issue while reserving their right to defend the matter on the merit after the Preliminary Objection might have been decided against them. Furthermore, that the Appellants had exhibited vital documents on which their defence on the merit may be based. That they (Appellants) were not given the opportunity to present their case on the merit. That by the documents attached by both parties, it is clear that there are issues to be resolved only by calling witnesses and not by the mere interpretation of these documents. Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) was then cited to submit that, the Appellants were not given the opportunity to present their defence on the merit.

Learned Counsel for the Appellants went on to submit that, the right to fair hearing is a Constitutional right guaranteed by the Constitution of the Federal Republic of Nigeria, and that a breach thereof will vitiate the proceedings. The cases of

Samba Petroleum Ltd & Anor v. United Bank for Africa & Ors (2010) 43 NSCQR 119 at 137; Military Governor of Imo State v. Nwanwa (1997) 2 NWLR (pt. 490) 675; Saleh v. Monguno (2003) 1 NWLR (pt. 801) 221; Olugbenga v. Abdul Raheem (2009) 40 NSCQR 724, etc. were cited in support. It was then submitted that, the learned trial Judge placed unreasonable impediment before the Appellants by not separating the issue of Preliminary Objection raised and the Substantive Suit thereby breaching the Appellants’ right to fair hearing. The cases of African Newspapers of Nig Ltd v. F. R. N. (1985) 2 NWLR (pt. 6) 137; Attorney General of the Federation & 2 Ors v. C. O. Sode & Ors (1990) 1 NWLR (pt. 128) 541 and Edewor v. Uwegba & Ors (1987) 1 NWLR (pt. 30) 313 were then cited in support and to urge us to resolve this issue in favour of the Appellants.

In response, learned Counsel for the 1st and 2nd Respondents contended that the Appellants had all the opportunity to defend the Suit on the merits by furnishing the Court with all the evidence they considered germane to their defence but failed to do so. That the documents the Appellants harp on were only

attached to the Affidavit in Support of their Preliminary Objection. That the only Ground of the objection was that, the Suit was brought by Section 22 of the Chiefs Law of Ogun State. It was then submitted that, with the dismissal of the Objection, the Affidavit went with it. That, if the Appellants wanted to defend the Suit on the merit, they should have filed a Counter-Affidavit.

Learned Counsel contended that, the learned trial Judge had suggested to Counsel that the Preliminary Objection and the Originating Summons be taken together, and Counsel agreed with the suggestion. That nowhere on the record is it indicated that the Appellants objected to the procedure suggested by the trial Court nor did they indicate that they wanted to file a Counter Affidavit to the Originating Summons. The case of Malgit v. Dachen (1998) 5 NWLR (pt. 550) 385 at 392 paras. B-C was cited in support. The case of Inakoju v. Adeleke (supra) was then cited to submit that, since the Appellants were offered the right to be heard but failed to make use of that opportunity, they cannot now complain of denial of their rights to fair hearing. That in any case, the Supreme Court in

Inakoju v. Adeleke (supra) approved of the procedure adopted by the trial Court. On that note, we were urged to resolve this issue against the Appellant.

Now, it is not in dispute that the Preliminary Objection filed by the Appellants was considered together with the Substantive Matter. This can be seen from the observation of the learned trial Judge in pages 313-314 of the Record of Appeal. The Appellants now are complaining about the procedure adopted by the learned trial Judge. Indeed, when the Matter came up for hearing before the trial Court, the learned trial Judge suggested to Counsel that both the Objection and Originating Summons be taken together. Chief Kunle Oyero of learned Counsel for the 1st and 2nd Respondents agreed that the procedure be adopted. Accordingly, the learned trial Judge heard the Preliminary Objection and the Originating Summons together and delivered a Ruling dismissing the Preliminary Objection and proceeding to deliver Judgment granting all the reliefs sought by the Claimants/Respondents.

While it is true that when a Preliminary Objection to the jurisdiction of a Court has been filed, the Court is enjoined to first

hear and determine the Preliminary Objection, for the sake of saving precious judicial time and reducing the cost of litigation, together with the Substantive Suit. When that is done, the Court will first rule on the Preliminary objection and if it succeeds, the Suit will be determined and the Court need not pronounce on the Substantive Suit. Where the objection is over-ruled, the Court will proceed to consider and pronounce on the Substantive Matter. This procedure has been commended by the Supreme Court and followed by this Court in cases such as Amadi v. N.N.P.C (2000) NWLR (pt. 674) 76 at 100, Senate President v. Nzeribe (2004) 8 NWLR (pt. 878) 251 at 274; Olorunkunle v. Adigun (2013) 6 NWLR (pt. 1297) 407 at 426; Central Bank of Nigeria v. Dr. B. O. Akingbola & Anor (2019) LPELR-48807 (SC) and Ossai v. Wakwah (2006) 4 NWLR (pt. 969) 208. In any case, the decision on whether or not to hear parties on an objection to its jurisdiction separate from hearing of the Suit on the merits, lies in the discretion of the Court. Thus, in Central Bank of Nigeria v. Dr. Erastus B. O Akingbola & Anor (supra), Rhodes-Vivour, JSC observed thus:

In the instant case too, the Appellants did not join issues with the Respondents on the Originating Summons by filing a Counter-Affidavit. Accordingly there was nothing before the Court on which to determine whether the taking of oral evidence was desirable in the circumstances. In other words there was nothing from the Appellants which conflicted with the facts deposed in the Affidavit in Support of the

Originating Summons. In that respect, the issue of denial of the right of fair hearing does not arise in the circumstances. The Appellants were duly served the Originating Summons which was duly supported by affidavit to which were annexed the documents relied upon. The Appellants did not file any Counter-Affidavit but chose to adopt the strategy of filing a Preliminary Objection. Learned Counsel also conceded to the suggestion of the learned trial Judge that the Objection be heard together with the Substantive Suit. A party who concedes to a particular procedure (which in any case is not unlawful), he cannot be allowed at a later stage to resile from what had been mutually agreed upon by the parties. He is bound by the procedure he has on his own volition agreed to adopt. See Ibori v. Agbi (2004) 6 NWLR (pt. 868) 78 at 122, Ilodibia v. Nigerian Cement Company Ltd (1997) 7 NWLR (pt. 512) 174 at 190. Thus in Ibator & Ors v. Barakuro & Ors (2007) LPELR – 1384(SC), Mohammed, JSC said:
“The law is trite that, where a Party has adopted a procedure by consent, he will not be heard on appeal that the procedure he adopted is prejudicial to him

or had occasioned a miscarriage of justice …”
That being so, the Appellants having voluntarily consented to the procedure adopted by the trial Court, cannot now be heard to complain that injustice was occasioned them, or that they were denied a fair hearing. On that note, I resolve this issue also against the Appellants.

On issue One (1), learned Counsel for the Appellants contended that all the questions raised by the Originating Summons deal extensively with the propriety of the 1st Appellant to install the 2nd Appellant as the Baale of Oyeroin Ifo Local Government Area of Ogun State, a minor Chieftaincy. That the issue raised therefore, bother on Section 22 of the Chiefs Law of Ogun State and the procedure laid down therein. The cases of Owoseni v. Faloye (2005) 7 SCNJ 357; Amaka v. A. G. Ondo State &Ors (2012) 12 NWLR (pt.1313) 44; Adejola v. Bolarinwa & Ors (2011) 12 NWLR (pt. 1261) 830, etc. were then cited to submit that in an action for determination of a Prescribed Authority with respect to a Baaleship Stool, Section 22 of the Chiefs Law of Ogun State is applicable.

Learned Counsel for the Appellants went on to

submit that, the condition precedent to the institution of an action by an aggrieved person, like the Respondents, as prescribed by the Chiefs Law of Ogun State (supra) have not been fulfilled by the Respondents before they instituted the Originating Summons. That, there is no evidence of a formal complaint to the Prescribed Authority (the 1st Appellant) before the institution of the Substantive Suit in the Court below nor was there any evidence of a formal complaint to the Commissioner of Local Governments and Chieftaincy Matters, prior to the institution of the Substantive Suit. The cases of Owoseni v. Faloye (supra), Chief Israel Aribisala & Anor v. Talabi Ogunyemi & Ors (2005) 21 NSCQR 113; Madayedupin & Ors v. Oninoram & Ors (2013) 1 NWLR (pt. 1334) 175 and Amaka v. A. G. Ondo State &Ors (supra); were cited to also submit that, failure to comply with the Chiefs Law of Ogun State (supra) will deprive the Court of jurisdiction to hear the case.

It was also submitted by the learned Counsel for the Appellants that, the Suit instituted by the Respondents was premature, incompetent and invalid, and should be dismissed. In other words, that failure

of the Respondents to comply with the provisions of Section 22 of the Chiefs Law of Ogun State (supra), which are conditions precedent to the institution of the Suit, robs the Court of the jurisdiction to adjudicate on the action. We were accordingly urged to resolve this issue in favour of the Appellants.

In response, learned Counsel for the 1st and 2nd Respondents contended further that, the Appellants had challenged the competence of the Suit on the ground that the 1st and 2nd Respondents had not fulfilled a condition precedent before instituting the action as required by Section 22 of the Chiefs Law of Ogun State (supra). That on their part, the 1st and 2nd Respondents argued that the conditions laid down in Section 22 of the Chiefs Law of Ogun State (supra) did not apply to the circumstances of this Suit. That, the learned trial Judge agreed with the Respondents that Section 22 of the Chiefs Law of Ogun State (supra) did not apply to the claim of the 1st and 2nd Respondents.

Learned Counsel for the 1st and 2nd Respondents then reproduced the provisions of Section 22 of the Chiefs Law of Ogun State (supra) to submit that, to determine whether or not

a Court has jurisdiction, it is only the claim of the Plaintiff that the Court will consider. That in the instant case which was commenced by Originating Summons, the process to consider is the Claim and the Affidavit in Support of the Originating Summons; and that the Counter-Affidavit is not relevant. The case of Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) 427 at 588-589 paras. H-C was then cited in support. That in the instant case, the statute that the trial Court was invited to interpret so as to determine whether the action as instituted by the 1st and 2nd Respondents was competent, was Section 22 of the Chiefs Law of Ogun State, 2006. We were urged to be guided in the construction of that provision by the decision of the Supreme Court inMobil Oil (Nig.) Plc v. IAL 36 Inc. (2006) 6 NWLR (pt. 659) 146. That the case of the 1st and 2nd Respondents in the Court below was that:
(i) That 1st Appellant was not appointed by the Consenting Authority over Oyero in Ijoko-Ota and therefore did not have the authority to appoint or consent to the appointment of the 2nd Appellant or any other person as the Baale of Oyero.
(ii) Exhibit 1 attached to the

Originating Summons delimits the jurisdiction of the 1st Appellant as Prescribed Authority to the native Communities in the area traditionally associated with the Egba Alake Section in Abeokuta Local Government;
(iii) By Exhibits A-E attached to the Originating Summons, the Courts have confirmed the ancestor of the 2nd Respondent’s Matanmi Family of Ijoko-Ota Ogun State as the founder Ijoko-Ota and the adjoining Settlements in Exhibit “F”;
(iv) The traditional rulers of any of those communities can only be members of Matanmi Family or any other person whose appointment the Matanmi Family consents; and
(v) The 2nd Appellant is not a member of the Matanmi Family nor has his alleged appointment as Baale of Oyero Village been consented to by the Matanmi Family, and therefore not eligible to be appointed the Baale of Oyero Village.

Learned Counsel for the 1st and 2nd Respondents then contended that, the Appellants have argued that, the 1st and 2nd Respondents have failed to fulfill a condition precedent before instituting the action as they failed to comply with the provisions of Section 22 of the Chiefs Law of Ogun State.

That the Respondents avoided the administrative remedy provided by the Chiefs Law, they not having complained to the prescribed Authority, or the Commissioner for Local Governments and Chieftaincy Matters.

Learned Counsel then submitted that, the arguments of the Appellants is misconceived because, it overlooks the fact that the invocation of the administrative remedies as required under the Chiefs Law is not absolute. That for that requirement to apply, the following conditions must have been met:
(a) A person must have been appointed by the Executive Council as the Prescribed Authority:
(b) The Prescribed Authority must have exercised the power of approval of the appointment of the person whose appointment is being challenged;
(c) A dispute on such appointment must have been referred to the Prescribed Authority for determination;
(d) The Prescribed Authority must make a decision, and
(e) Any complaint against the decision of the Prescribed Authority may be challenged within 21 days from the date of the decision by representation to the Commissioner for Chieftaincy Affairs.

Learned Counsel then contended that,

Section 22 of the Chiefs Law of Ogun State (supra) apply only to an area for which there is a Prescribed Authority appointed by the Executive Council. That by Exhibit “G” attached to the Affidavit in Support of the Originating Summons, it is clear that Oyero does not have an established custom for the appointment of its traditional head. That, the Appellants did not name the Prescribed Authority for Oyero, nor did they say that the 1st Appellant is. That the Appellants did not also contend that the area of authority of the 1st Appellant over minor Chiefs extended beyond that named in Exhibit “J’ attached to the Affidavit in Support of the Originating Summons or to Oyero Village. It was therefore submitted that, without authority of the 1st Appellant as the Prescribed Authority over that area in dispute, Section 22 of the Chiefs Law (supra) cannot apply. That, in that respect, the Appellants’ Preliminary Objection was clearly misconceived.

Learned Counsel for the 1st and 2nd Respondents went on to submitted that, had the makers intended that Section 22 of the Chiefs Law should apply in all circumstances, they would have said so in clear terms.

We were accordingly urged to hold that, there is no evidence establishing, or even suggesting, that the area of authority of the 1st Appellant as Prescribed Authority extends to Oyero Village; and that the learned trial Judge was right to have held that Section 22 of the Chiefs Law of Ogun State (supra) does not apply.

In reply on point of law, learned Counsel for the Appellants contended that, the jurisdiction of a Court to determine any issue arising from a chieftaincy appointment, including dispute as to who was the proper and rightful Prescribed Authority cannot be determined until the Court is, first of all vested the jurisdiction to adjudicate on the issue. That until there is strict compliance with the provisions of Section 22 of the Chiefs Law of Ogun State, the Court will not have jurisdiction to inquire on the propriety or otherwise of the power purportedly exercised regarding any Chieftaincy appointment. That, it is in compliance with the procedure that confers the requisite jurisdiction on the Court to probe further to find out, whether there was a consenting authority or not, who was the consenting authority and whether the appointment was valid or not.

Now, in determination of this issue, the learned trial Judge observed at page 307 Lines 1-8 of the Record of Appeal as follows:
“The case of the 1st and 2nd Respondents, therefore is that the Claimants needed first to have submitted the dispute to Prescribed Authority (who, according to them, is the 1st Defendant), waited for his determination of same and if not satisfied with it, make representations to the Commissioner for Chieftaincy Affairs, before filing an action in Court. It is their contention that having not followed these steps, the action is premature, consequently this Court lacks jurisdiction to hear it ….”

The learned trial Judge went on to observe at page 308 Lines 4-10 of the Record of Appeal as follows:
“The Claimants on the other hand argue that this case does not fall within Section 22 of the Chiefs Law in that for that Section to apply, there must first of all be in existence a Prescribed Authority appointed for the Minor Chieftaincy by the State Executive Council, that their case is that no such appointed Authority exist, that the 1st Defendant is not such a Prescribed Authority; and that

the existing Legal Instrument appointing the 1st Defendant as a Prescribed Authority does not extend to Oyero and by implication, the Chieftaincy title in issue …..”

The learned trial Judge then resolved at page 311 Line 16-313, Line 12 of the Record of Appeal as follows:
“In my humbly view, Section 22 will only apply where the issue of who is, or the power of the Prescribed Authority is not in issue, but is already clearly settled, someone having been so appointed by the Executive Council of the Government of Ogun State. The Section will therefore apply, in my view, where the question is simply whether a particular person has been properly appointed by those who ought to do so by Customary Law. In this instance, the case involves much more than just that. The major question here, as encapsulated in the case put forward by the Claimants is whether there is in existence at all a Prescribed Authority for the Oyero Chieftaincy to which a dispute involving the Chieftaincy may be referred and who can exercise the powers conferred by the Section. Put more directly, the Claimant’s case is that the 1st Defendant is NOT and HAS NOT

been appointed the Prescribed Authority or the person ought to give consent or approval to the appointment of anyone as Baale of Oyero. They assert further that the responsibility or right to give such consent or approval belongs to the Family of the 2nd Claimant by virtue of judicial pronouncement, which right has already been exercised in favour of the 1st Claimant. They therefore contended that any purported exercise of same power or authority by the 1st Defendant is unlawful. Indeed, the main contest in this Suit appears to be between the 2nd Claimant and the 1st Defendant, as to who between them is the consenting authority for the Baale (sic) of Oyero Chieftaincy. In my humble view, going by the Chiefs Law, there is no requirement for compliance with Section 22 to resolve the question that arises between the 2nd Claimant and the 1st Defendant as to who is the appropriate approving authority. That question has to be resolved OUTSIDE Section 22 of the Chiefs Law and it can only be resolved by having consideration to the statutory and judicial enablement in that regard. I entirely agree with learned Counsel for the Claimants therefore that the provisions of

Section 22 of the Chiefs Law are inapplicable, or at least, have not yet become applicable, in this case. Accordingly, the authorities vested upon by the Defendants in this regard are distinguishable or inapplicable to this case in my humble view. I therefore find and hold that there was no need for the Claimants to first comply with or satisfy the Court that they have complied with Section 22 of the Chiefs Law, before filing this Suit.”

I have carefully read and reflected on the provisions of Section 22 of the Chiefs Law (supra). Section 22 of the said Chiefs Law, provide for the appointment by State Executive Council or Prescribed Authority in each Local Government or group of Local Government Areas of the State, whose function is to serve as consenting authority in respect of Minor Chiefs associated with a native Community in that area. Of particular relevance in the determination of this issue are Sub-sections (3), (4) and 5 of the said Section 22. Therein, it is stipulated as follows:
”Section 22(3):-
Where there is a dispute whether a person has been appointed in accordance with customary law to minor Chieftaincy, the

Prescribed Authority may determine the dispute.
(4) The decision of the Prescribed Authority:
(a) to approve or not approve an appointment to a MINOR Chieftaincy; or
(b) determining a dispute in accordance with Sub-Section (3) of this Section, shall be final and shall not be questioned in any Court.
(5) Any person aggrieved by the decision of the Prescribed Authority in exercise of the powers conferred on the Prescribed Authority by Subsection (2), (3) and (4) of this Section may, within twenty-one (21) days from the date of the decision of the Prescribed Authority, make representation to the Commissioner to which responsibility for Chieftaincy Affair is assigned, that the decision be set aside and the Commissioner may, after considering the representations confirm or set aside the decision.”
It appears to me that Section 22(1) provides for the appointment of a Prescribed Authority while Section 22(3) gives power to a Prescribed Authority so appointed, to approve the appointment of a minor chief. Section 22(3), (4) and (5) stipulate the steps to be taken by a complainant in the event of a dispute on the appointment of a minor

chief. Accordingly, where there is a dispute in respect of the appointment of a minor chief, Section 22(3), (4) and (5) of the Chiefs Law must be complied with. In the instant case, and in view of reliefs (a), (b), (c) and (d) (which are the principal reliefs claimed) and (g) of the Originating Summons, it is clear to me that, the main issue in the Suit is a complaint on the action of the 1st Defendant/Appellant who purported to act as Prescribed Authority in respect of Oyero Chieftaincy (a minor chieftaincy). It is therefore a complaint by the 1st and 2nd Respondents that, the said Defendant had no power to act as Prescribed Authority. Thus the issue of the appointment of the 2nd Appellant as the Baale of Oyero, is only incidental to the main issue of Prescribed Authority. On that note, I am again in agreement with the learned trial Judge, that Section 22 of the Chiefs Law of Ogun State, 2006 will not and does not apply in the circumstance of this case. This issue (issue one) is also resolved against the Appellant.

It would be seen that all the issues in this appeal have been resolved against the Appellant. This appeal, therefore lacks merit. It is accordingly dismissed.

JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead judgment of my Lord, HARUNA SIMON TSAMMANI, JCA just delivered.

My Lord has dealt with the issues in this appeal in a lucid manner. I have nothing to add. I agree with the reasons given as well as the conclusion that the appeal is unmeritorious.
The appeal is also dismissed by me.

FOLASADE AYODEJI OJO, J.C.A.: I have had the advantage of reading in advance the lead judgment just delivered by my learned brother, HARUNA SIMON TSAMMANI, JCA. I am in complete agreement with the reasoning articulated in the said judgment and the conclusion contained therein. His Lordship has meticulously treated the issues for determination in the appeal.

For the reasons ably stated in the judgment, I too hereby dismiss the appeal.

Appearances:

O. Sobowale (Mrs.) with him, David Oyero,Esq. For Appellant(s)

Adewale Adegoke; Esq. with him, Tunmike Adeyemo (Miss) – for 1st and 2nd Respondents.
O. Ogunsanwo; Esq. (Assistant Director Civil Litigation, Ogun State Ministry of Justice) – for 3rd Respondent. For Respondent(s)

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