GOV OF OYO STATE & ORS v. AJUWON & ORS (2020)

GOV OF OYO STATE & ORS v. AJUWON & ORS

(2020)LCN/14462(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Wednesday, July 15, 2020

CA/IB/300/2019

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

GOVERNOR OF OYO STATE 2. ATTORNEY-GENERAL OF OYO STATE 3. COMMISSIONER FOR LOCAL GOVERNMENT AND CHIEFTAINCY AFFAIRS, OYO STATE 4. ACCOUNTANT GENERAL OF OYO STATE 5. SPEAKER OF OYO STATE HOUSE OF ASSEMBLY 6. OYO STATE HOUSE OF ASSEMBLY 7. OYO STATE INDEPENDENT ELECTORAL COMMISSION (OYSIEC) APPELANT(S)

And

BASHORUN MAJEED BOSUN AJUWON 2. EVANGELIST WILLIAMS GBENJO OGUNRINDE 3. HONOURABLE OLUYINKA JESUTOYE 4. HONOURABLE HABIB ADEGOKE IBRAHIM 5. PRINCE SAMUEL MODEPOOLA EGUNJOBI 6. HONOURABLE AYOBAMI JOSEPH AKINPADE 7. HONOURABLE YOMI ADE ADEFUSI 8. HONOURABLE TAJUDEEN ADEBISI OLADEJI (For Themselves And On Behalf Of All Elected Chairmen Of The Local Government Areas And Local Council Development Area In Oyo State) 9. IDRIS OLUSESI 10. IDOWU ITUNU ADEWOYE 11. JUMOKE TAWAKAT FAKAYODE (For Themselves And On Behalf Of All Elected Councilors Of All The Wards Of All The Local Government Areas And Local Council Development Areas In Oyo State) RESPONDENT(S)

RATIO

WHETHER OR NOT THE ISSUE OF JURISDICTION CAN BE RAISED WITHOUT THE LEAVE OF COURT

Jurisdiction being an issue that affects the competence of the action, it can be so raised without the leave of Court. It is obvious that, only fresh issues that have nothing with the jurisdiction of the Court, that would require the leave of Court to raise and argue same. See Galadanchi v. Abdumalik & Anor (2015) 1 NWLR (pt.1440) 376; Agbule v. Warri Refinery & Petrochemical Co. Ltd (2013) 6 NWLR (pt.1350) 318; Shell Petroleum Development Company & Anor v. Daniel Pessu (2014) LPELR – 23325 (CA) and Opobiyi & Anor v. Muniru (2011) LPELR – 8232 (SC). Thus, in the case ofNNPC & Anor v. Orhiowasele & Ors (2013) 13 NWLR (pt.1371) 211, My Lord, Rhodes – Vivour, JSC held that:
“An appellant seeking to raise the issue of jurisdiction before this Court for the first time does not need to ask for leave. All that he needs to do is to raise the issue of jurisdiction in his brief, thereby giving the respondent enough time to respond. The issue of jurisdiction raised by the Appellant for the first time before this Court is very much in order.” PER TSAMMANI, J.C.A.

WHETHER OR NOT THE MATERIAL TO BE CONSIDERED IN AN ACTION COMMENCED BY ORIGINATING SUMMONS IS THE AFFIDAVIT IN SUPPORT OF THE ORIGINATING SUMMONS

That in an action commenced by Originating Summons, the material to be considered is the Affidavit in Support of the Originating Summons. The cases ofIsah v. INEC (2016) 18 NWLR (pt.1544) 175 at 223 and N.N.P.C. v. Famfa Oil Ltd (2012) 17 NWLR (pt.1328) 148 at 189 were cited in support. The cases of Egbue v. Araka (1988) NWLR (pt.184) 23 and Rinco Const. Co. v. Veepee Ind. Ltd (2005) 9 NWLR (pt.929) 85 at 96 were referred to, to define a cause of action. PER TSAMMANI, J.C.A.

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

Jurisdiction is the power and legal capacity of a Court to hear and determine an action placed before it for determination. It is the authority a Court has to decide matters before it or to take cognisance of matters presented before it in a formal way for determination. SeeDariye v. FRN (2015) 10 NWLR (pt.1467) 325; A.G.; Fed. v. Guardian Newspaper Ltd & Ors (1999) 9 NWLR (pt.618) 187 and Ndaeyo v. Ogunaya (1977) 1 S.C. (Reprint) 7. The Constituents or elements of jurisdiction area that:
(a) The Suit or action must be properly constituted as regards numbers and qualifications of members of the Bench.
(b) The subject matter of the case must be within the jurisdiction of the Court and there must be no feature that would deprive the Court from exercising its jurisdiction; and
(c) The action must be initiated by compliance with due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
All the above stated elements must co-exist before a Court can be said to have jurisdiction to hear and determine any cause or action. In the absence of any one of those elements, the jurisdiction of the Court cannot be validly exercised, as in law, any defect in jurisdiction is fatal to the entire proceedings and judgment of the Court. Such proceeding and judgment given therein will be a nullity however well conducted and decided. See Madukolu v. Nkemdilim (1962) 2 SCNLR 43; Western Steel Works Ltd v. Iron and Steel Workers Union of Nigeria (1986) 3 NWLR (pt.30) 617; Chevron (Nig.) Ltd v. Warri North L.G.C. (2003) 5 NWLR (pt.812) 28 at 44 paragraphs B– E; Inakoju v. Adeleke (2007) 4 NWLR (pt.1025) 427 and Drexel Energy and Natural Resources Ltd & 2 Ors v. Trans International Bank Ltd & 2 Ors (2008) 18 NWLR (pt.1119) 39. PER TSAMMANI, J.C.A.

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the Oyo State High Court of Justice sitting in Ibadan, delivered by A. A. Aderemi, J on the 6th day of May, 2019 in Suit No: I/347/2019.

By an Amended Originating Summons dated and filed on the 08/4/2019, the Respondents who were the Plaintiffs posed the following questions for the determination of the Court below:
1. Whether the provision of Section 11 of the Local Government Law of Oyo State, 2001 (as amended) which empowers the Executive Governor of Oyo State to nominate Transitional Committee to run the affairs of the 33 Local Government Councils and 35 Local Council Development Areas in Oyo State of which the Claimants are democratically elected chairmen, Councilors and members otherwise than in accordance with relevant Constitutional and Statutory provisions and which empowers the Oyo State House of Assembly to determine the term of the transitional committee is a breach of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (As amended) and is thus unconstitutional, ultra vires, null and void and of no effect

whatsoever?
2. Whether the provision of Section 21 of the Local Government Law of Oyo State, 2001 (as amended) which empowers the Oyo State House of Assembly to recommend the suspension or removal of Chairman or Vice-Chairman of a Local Government or Local Council Development Area in Oyo State is in breach of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (As amended) and is thus unconstitutional, ultra-vires, null and void and of no effect whatsoever?
3. Whether in view of the combined effect of Sections 7 and 1(3) of the Constitution of the Federal Republic of Nigeria, 1999 (As amended) and the provisions of Section 10 of the Local Government Law of Oyo State, 2001 (as amended) the 1st, 5th and 6th defendants have the power to appoint Transition Committee for a term determinable by the 6th defendant contrary to the democratic Local Government system guaranteed by the Constitution?

The Plaintiffs/Respondents then prayed that, if the above stated questions are answered in their favour, the Court should grant them the following reliefs:
1. A DECLARATION that Section 11 of the Local Government Law of Oyo State, 2001 (as amended)

are in conflict with Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (As amended) and thus unconstitutional, ultra vires, null and void and of no effect to the extent that it empowers the Executive Governor of Oyo State to nominate a Transitional Committee to run the affairs of the Local Government Council and which empowers the Oyo State House of Assembly to determine the term of the transitional committee contrary to the democratic system of Local Government guaranteed by the constitution.
2. A DECLARATION that the provision of Section 21 of the Local Government Law of Oyo State, 2001 (as amended) which empowers the Oyo State House of Assembly to recommend the suspension or removal of a chairman or vice chairman of a Local Government or Local Council Development Area in Oyo State is in breach of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (As amended) and is thus unconstitutional, ultra vires, null and void and of no effect whatsoever.
3. A DECLARATION that any law, order or directive empowering the Governor of Oyo State, the Oyo State House of assembly or any person

whosoever to suspend or remove a chairman, vice chairman or any person democratically elected into Local Government Council or Local Council Development Area in Oyo State or to appoint a transition committee or any committee to run the affairs of Local Government in Oyo State before the expiration of the tenure of democratically elected members of the council or for an indefinite period is in conflict with Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (As amended) and thus unconstitutional, ultra vires, null and void.
4. A DECLARATION that by virtue of the combined effect of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (As amended) and the provisions of Section 10 of the Local Government Law of Oyo State, 2001, the 1st and 6th defendants have no power to suspend or remove a chairman, vice chairman or any other person democratically elected into the 33 Local Government Councils and 35 Local Council Development Areas in Oyo State before the expiration of their tenure.
5. A DECLARATION that by virtue of the combined effect of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (As amended)

and the provisions of Section 10 of the Local Government Law of Oyo State, 2001 (as amended) the 1st and 6th defendants have no power to nominate or appoint a transitional committee to run the affairs of any local government for any desired term in breach of the aforesaid constitutional provisions which guarantees a democratic system of local government.
6. A DECLARATION that the tenure of the claimants is statutorily set at 3 years with effect from the date they took their respective oath of office.
7. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st defendant, his servants, agents, privies or any person whosoever from dissolving the 33 Local Government Councils and 35 Local Council Development Areas in Oyo State or removing, suspending, terminating and or doing anything whatsoever to truncate the tenure of the claimants except in accordance with the provisions of Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 (As amended).
8. AN ORDER OF PERPETUAL INJUNCTION restraining the defendants, their servants, agents, privies or any person whosoever from freezing the accounts of the 33 Local Government

Councils and 35 Local Council Development Areas in Oyo State or doing anything to truncate the effective administration of the 33 Local Government Councils and 35 Local Council Development Areas in Oyo State.
9. AN ORDER OF PERPETUAL INJUNCTION restraining the defendants, their servants, agents, privies or any person whosoever from withholding or diverting the allocations, funds and resources of the 33 Local Government Councils and 35 Local Council Development Areas in Oyo State or doing anything to truncate the effective administration of the 33 Local Government Councils and 35 Local Council Development Areas in Oyo State.
10. AN ORDER OF PERPETUAL INJUNCTION restraining the defendants, their servants, agents, privies or any person whosoever from appointing a transitional committee to run the affairs of the 33 Local Government Councils and 35 Local Council Development Areas in Oyo State.
11. AN ORDER OF PERPETUAL INJUNCTION restraining the 6th defendant, its servants, agents, privies or any person whosoever from conducting election into the office of Chairmen and Councilors of all or any of the 33 Local Government Councils and 35 Local Council

Development Areas in Oyo State before the expiration of the 3 year term on the claimants due to lapse 3 years after taking their respective oath of office.

In support of the Originating Summons was an Affidavit of a 23 paragraphs to which were annexed some exhibits marked as Exhibits “A”, “B”, “B1”, “B2”, “B3”, “B4”, “B5”, “B6”, “B7”, “B8”, “B9” and “B10” respectively. Accompanying the Originating Summons was a Written Address. In opposition to the Originating Summons, the Defendants/Appellants filed a Counter-Affidavit of seven (7) paragraphs deposed to by one Mercy Tolulope Abudu, a Legal Practitioner in the Law Firm of Demola Salami & Co of counsel for the Defendants. Filed along with the Counter-Affidavit was a Written Address. Issues were duly joined and on the 12/4/2019 the Originating Summons was argued when the parties adopted their Written Addresses before the trial Court. Thus in a judgment delivered on the 06/5/2009, the learned trial Judge answered the questions in favour of the

Plaintiffs/Respondents and proceeded to grant all the reliefs sought by them. Being displeased with the judgment, the Defendants have now filed this appeal.

The Notice of Appeal dated the 07/6/19 was filed the same day. It consists of eight 8 Grounds of Appeal. The parties then filed and served Briefs of Arguments as required by the Rules of this Court. The Appellants’ Brief of Arguments settled by Oluwasesan Dada; Esq was filed on the 13th day of September, 2019. Therein, four issues were raised for determination as follows:
(i) Whether or not the trial Court had the jurisdiction to have entertained the suit which failed to disclose any reasonable cause of action? [Grounds 1 & 2].
(ii) Whether or not the Respondents’ suit which was based on mere rumour and nothing else was premature, which robs the trial Court of the jurisdiction to have entertained same? [Ground 3].
(iii) Whether or not the learned trial Judge rightly applied the decision of the apex Court in Gov. Ekiti State & Ors v. Olubunmo (2017) 3 NWLR (pt.1551) 1 when the facts of both cases are distinguishable? [Grounds 4 & 7].
(iv) Whether considering

the state of the Affidavit evidence of both parties which were conflicting; the learned trial Judge adopted the correct and proper approach when he failed to resolve the conflict before applying the decision of the apex Court in Gov. Ekiti State & Ors v. Olubunmo (2017) 3 NWLR (pt.1551) 1? [Grounds 5, 6 & 8].

The Respondents’ Brief of Arguments was filed on the 16/10/2019 but deemed properly filed and served on the 24/2/2020. Like the Appellants, the Respondents formulated four (4) issues for determination as follows:
1. Whether the suit was properly commenced by Originating Summons and whether same discloses reasonable cause of action.
2. Whether the Claimants/Respondents have the necessary locus standi to initiate the suit.
3. Whether the determination by the lower Court of the constitutionality and validity of the provisions of Sections 11 and 21 of the Local Government Law of Oyo State, 2001 (as amended) viz-a-viz (sic) the provisions of Section 1(3) & 7 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is speculative and incompetent to the extent that the trial Court could be said to lack

jurisdiction to entertain same.
4. Whether the principle of law established by the Supreme Court in Governor of Ekiti State v. Olubunmo (2017) 3 NWLR (pt.1551) 1, is applicable to the instant suit and whether by virtue of Section 287 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the lower Court and indeed all Courts are not duty bound to enforce and protect the sanctity of the judgment of Superior Courts of record especially the Supreme Court.

Before I proceed however, I note that the Respondents have raised and argued a Preliminary Objection at pages 6 – 12 of the Respondents’ Brief of Arguments. The objection challenged the competence of this appeal on the following Grounds:
(i) Grounds 1, 2, 3 & 6 of the Notice of Appeal did not arise from the judgment of the trial Court.
(ii) The Originating Summons filed before the lower Court challenged the propriety of Sections 11 & 21 of the Local Government Laws of Oyo State, 2001 (as amended) viz-a-viz (sic) the provision of Section 1(3) vis-a-vis Section 7 of the 1999 Constitution (as amended) and that was the kernel of the decision of the lower

Court.
(iii) Grounds 1, 2, 3, 6 & 7 of the Notice of Appeal related not to the decision of the lower Court.
(iv) All issues raised by the Appellants in Grounds 1, 2, 3, 6 & 7 of the Notice of Appeal set up a new case for the parties in this appeal without seeking and obtaining the leave of this Honourable Court to so do.
(v) Grounds 1, 2, 3, 6 & 7 of the aforesaid Notice of Appeal as shown on pages 292 – 300 of the record of appeal offend the provision of Order 7 Rules 2 and 3 of the Court of Appeal Rules, 2016.
(vi) All the issues formulated from the offending grounds of appeal in the Appellants’ brief of argument are with respect incompetent and liable to be struck out.

In arguing the objection, Yusuf Alli, SAN of learned counsel for the Respondents submitted that, an appeal is a re-hearing of the case canvassed at the lower Court. That, an appeal is a challenge to the judgment of the trial Court and should not be predicated on what the trial Court did not decide in its judgment. The case of Oloruntoba-Oju v. Abdulraheem (2009) All FWLR (pt.497) 1 at 28 was cited in support; and to further submit that, a Ground

of Appeal must therefore arise from the life issues canvassed and decided upon at the trial Court. That, a ground of appeal must relate to the decision and ratio of that decision. Referring to the judgment of the Court below; at pages 264 – 288 of the record thereof, and particularly the issue formulated by the learned trial Judge, it was submitted that, the Appellants never raised the issue of the Respondents’ locus standi to institute the action. In other words, that the legal right of the Respondents to institute the action was not pronounced upon by the trial Court, and therefore ground 1 of the Notice of Appeal is incompetent.

Learned Counsel (silk) for the Respondents went on to submit that, the issue of reasonable cause of action was never taken in the Court below, and therefore, Ground 2 is incompetent and liable to be struck out. Similarly, that the suit was not properly commenced vide Originating Summons nor was it contended by the Appellant at the trial Court, that the action was commenced by a wrong procedure. That Grounds 3 and 6 are therefore incompetent and liable to be struck out. Furthermore, that none of the parties canvassed

any argument on a distinction between the instant case and that of the Gov. Ekiti State v. Olubunmo & Ors (supra); and that no pronouncement was made on it by the trial Court. The cases of Shitta-Bey v. FPSC (1981) 1 SC.40; Ebba v. Ogodo (2000) FWLR (pt.27) 2094; Omokhodion v. FRN (2006) All FWLR (pt.292) 18; Olufeagba v. Abdulraheem (2010) All FWLR (pt.512) 1062; Saude v. Abdullahi (1989) 3 NWLR (pt.116) 387 at 431 and Igwe v. AICE (1994) 2 NWLR (pt.363) 476 were cited in support.

Learned Senior Advocate concluded argument on the objection by submitting that, a ground of appeal must be borne out of the records which must show what and where the Appellant’s complaint is, in relation to the decision of the trial Court as revealed by the record of appeal. The cases of Ogolo v. Fubara (2003) FWLR (pt.169) 1285 at 1309 and Isher v. Ansa (2001) FWLR (pt.80) 150 were cited in support, and to also submit that, in that respect, any new issue raised on appeal must be by leave of Court. That, any such issue raised without the leave of Court having been sought and obtained, will be incompetent. That in such a circumstance, the Court will lack the

jurisdiction to consider and determine the appeal on such ground of appeal that does not attack the ratio of the decision appealed against. The cases of Akinwale v. BON (2001) FWLR (pt.40) 1683 at 1690 – 1691; Adegoroye v. Ajayi (2003) FWLR (pt.171) 1591 at 1600; John Holt Venture v. Oputa (2006) All FWLR (pt.336) 266; Egbe v. Adefarasin (1987) 1 SCNJ 1; Owie v. Ighiwi (2005) 13 NWLR (pt.1104) 307 and First Zenith Holdings Ltd v. HFP ENG. LTD (2017) All FWLR (pt.881) 1158 at 1176 were cited in support.

Learned Senior Counsel for the Respondent then submitted that, where a ground of appeal is incompetent, any issue for determination distilled therefrom will be incompetent and go to no issue. The cases of Bereyin v. Gbobo (1989) 1 NWLR (pt.97) 372 at 380; Akuchie v. Nwamadi (1992) 8 NWLR (pt.258) 214 at 224 and Geosource Nig. Ltd v. Biragbara (1997) 5 NWLR (pt.506) 607 at 616 – 617 were cited in support, and to urge us to strike out the incompetent grounds of appeal and the issues distilled therefrom and to dismiss the appeal.

The response of the Appellant is in paragraphs 1.01 – 2.10 of the Appellants’ Reply on point of law.

Therein, Otunba Kunle Kalejaiye, SAN of learned counsel for the Appellants contended that, the Objection of the Respondents is misconceived. That contrary to the contention of the Respondents, Grounds 1 and 2 of the Notice of Appeal raise the issues of jurisdiction centered on whether or not the trial Court had the jurisdiction to have entertained the suit which cause of action has not arisen. That Ground 3 cannot be a new or fresh issue as canvassed by the Respondent because, the issue as formulated by the Appellant before the trial Court was “whether in view of the recent decision of the Supreme Court in the case of Gov; Ekiti State v. Olubunmo (2017) All FWLR (pt.873), there is necessity for this action when the acts complained of has not been carried out.” Furthermore, that the Appellants had deposed in their Counter Affidavit that the action is speculative and futuristic.

On Ground 6, Learned Senior Counsel for the Appellant contended that, the issue arose from the conflict in the affidavit evidence of the parties which was acknowledged by the learned trial Judge at page 15 of the judgment. That Grounds 6 and 7 arose not only from the

affidavit of the parties and issues joined by the parties, but also from part of the decision of the trial Court. Furthermore, that the issue of cause of action is a fresh issue and that it cannot be denied that it is an issue of jurisdiction. That, though the trial Court did not make any pronouncement on the issue, being an issue of jurisdiction, it can be raised at any time and in any manner, even for the first time in the Supreme Court. The cases of C.G.G. (Nig.) Ltd v. Aminu (2015) 7 NWLR (pt.1459) 577 at 592 paragraphs A – C and Wema Securities & Finance Plc v. NAIC (2015) 16 NWLR (pt.1484) 13 were cited in support. That, the issue of the case being speculative and futuristic was raised in the pleadings, although the learned trial Judge did not pronounce on it. It was thus submitted that the issues in Grounds 1, 2 and 3 being issues of jurisdiction, can be raised and argued for the first time on appeal without the leave of Court. Accordingly, we were urged to discountenance the arguments of the Respondents and to dismiss the Preliminary Objection.

I have carefully perused the Notice and Grounds of Appeal filed on the 07/6/19, particularly

Grounds 1, 2, 3, 6 and 7 thereof. Learned Counsel for the Appellants have argued that the issues raised in Grounds 1, 2 and 3 are issues of jurisdiction which can be raised and argued at any time and in any manner, even for the first time in the Supreme. The issues arising from those grounds affect the legal rights of the Appellants to institute the action as in Ground 1. Ground 2 alleges that the action was instituted when there was no reasonable cause of action, while Ground 3 alleges that the trial Court erred in entertaining the action when same was speculative and premature. Learned Senior Counsel for the Appellants has argued that these are issues that affect the jurisdiction of the Court. The Respondents have not denied that those issues are issues that touch on the jurisdiction of the Court.

Now, it is settled law that jurisdiction is a threshold issue and therefore inherent in the proceedings itself. It has been described as the life wire and the blood that gives life to the sustenance of any action. Without jurisdiction, the suit or action will be like an animal drained of its blood. Such animal will surely be deprived of life and the only

remember is to confine it to the grave forever. See Utih v. Onoyivwe (1991) 1 SCNJ 25 at 49; Egharevba v. Eribo & Ors (2010) 9 NWLR (pt.1199) 411; Adeleke v. OSHA (2006) 16 NWLR (pt.1006) 608 and Saleh v. Monguno (2003) 1 NWLR (pt.801) 221. Jurisdiction is therefore a radical and fundamental issue that affects the competence of the suit, for if the Court has no jurisdiction to hear and/or determine the action, the proceedings, no matter how well and brilliantly they have been conducted, will be a nullity. SeeAttorney-General of Anambra State v. Attorney General of the Federation (1993) 6 NWLR (pt,302) 692 and Ezomo v. Oyakhire (1985) 1 NWLR (pt.2) 105.

Jurisdiction being a radical and pivotal issue to the survival or sustenance of any action, it can be raised at any stage of the proceedings in this Court, or even for the first time in the Supreme Court. It can be raised in any manner, and even by the Court suo motu, so long as the parties are accorded the opportunity to address on it. See FBN Plc & Anor v. FCMB Plc. & Anor (2014) All FWLR (pt.751) 1451; Mrs Hannatu Ibrahim & Ors v. Suleiman Bala & Anor (2015) LPELR – 25636 (CA);

Nicotes Services Limited v. Oji Lekwuwa (2009) LPELR – 4595 (CA) and All Progressives Grand Alliance v. Dr. Victor Ike Oye & Ors (2018) LPELR – 45196 (SC).

jurisdiction raised by the Appellant for the first time before this Court is very much in order.”

In the instant case, it has not been contended by the Respondents that the issues raised in Grounds 1, 2 and 3, are not issues of jurisdiction. That being so, it is my view that the issues raised in Grounds 1, 2 and 3 of the Notice of Appeal, have been properly raised. I therefore hold that Grounds 1, 2 and 3 are competent Grounds of Appeal, touching on the jurisdiction of the Court below. The objection of the Respondents here is hereby discountenanced.

I have also perused Grounds 6 and 7 in view of the proceedings as contained in the record of appeal. Issue 6 has to do with conflict in the affidavit of the parties. The issue of conflict in the affidavit of the parties, though it did arise in the contending affidavits, is an issue of law. Certainly, the learned trial Judge recognized such conflict in page 278 of the record of appeal but same was never raised as an issue to be resolved in the determination of the action. The issue is certainly one of law but does not touch on the jurisdiction of the Court. For that reason, it is my view that the

leave of this Court ought to have been first sought and obtained before raising same. However, such leave was never sought and obtained before the issue was raised. In other words, the issue raised by Grounds 6 involves a fresh issue of law as same was never raised at the trial. See Agedah v. Nkwocha (2002) 9 NWLR (pt.771) 113; JOV v. Dom (1999) LPELR – 1635 (SC) and Onyemaizu v. Ojiako (2010) 4 NWLR (p.1185). In that respect, Ground 6 of the Notice of Appeal is incompetent and is hereby struck out. Since issue (iv) is said to be distilled from Grounds 5, 6 and 8 it is rendered incompetent.

This is because it is the law that, where an issue is distilled from both competent and incompetent grounds, such issue will also be incompetent and invalid. See Christaben Group Ltd v. Oni (2008) 11 NWLR (pt.1697) 84 at 108; Famurewa v. Onigbogi & Ors (2010) 4 FWLR (pt.550) 9079 and Mato v. Hember & Ors (2018) 5 NWLR (pt.1612) 258. Issue (iv) being incompetent is hereby struck out.

Ground 7 of the Notice of Appeal is a complaint against the findings of the trial Court at pages 283 – 284 of the record of appeal. It is a substantive finding of the

trial Court on the questions posed before the trial Court in the Originating Summons. It is therefore not a fresh or new issue. That finding form part of the reason or ratio for the decision of the trial Court. For that reason it can validly give a right of appeal thereon. For that reason, I am of the view, which I do hold that Ground 7 is competent. Consequently, Issue (iii) which is culled also from Ground 7 is competent.

Having held as above, it is clear that the Preliminary Objection has succeeded only in respect of Ground 6. However, the objection on Grounds 1, 2, 3 and 7 have no merit. It is accordingly discountenanced. Having thus, held, I shall proceed to determine this appeal on the merit on issues (i), (ii) and (iii); Ground 6 and issue (iv) having been struck out for being incompetent.

Now, in arguing on issue one (1), learned counsel for the Appellant began by submitting that jurisdiction is a threshold issue in any judicial proceeding and the blood that gives life to the survival of an action in a Court of law. That, without jurisdiction, the action will be like an animal that has been drained of its blood. That when an action is filed

in Court, it is presumed that the Court has jurisdiction but once the Defendant shows that the Court lacks jurisdiction, the foundation of the case is entirely broken. That the effect will be that there is no case before the Court for adjudication. The cases ofEvong v. Messrs Obono, Obono & Associates (2012) 6 NWLR (pt.1296) 388 at 404; Adetayo v. Ademola (2010) 15 NWLR (pt.1215) 169 at 189 and Obiuweubi v. C.B.N. (2011) 7 NWLR (pt.1247) 465 at 506 were cited in support. It was then submitted that, jurisdiction is so fundamental that, where a Court lacks jurisdiction, every step taken or decision made either before or thereafter will be a nullity and of no effect. The cases of Shelim v. Gobang (2009) 12 NWLR (pt.1156) 435 at 460 and Utih v. Onoyivwe (1991) NWLR (pt.166) were cited in support.

Learned Counsel for the Appellant went on to submit that, the jurisdiction of a Court is determined by the cause of action and that where the cause of action has not arisen, the Court will not be vested with jurisdiction to entertain the suit. That, to determine whether the Respondents have a cause of action, as in the instant case, the Court will consider only

the Originating Summons and the Affidavit filed in support. That in an action commenced by Originating Summons, the material to be considered is the Affidavit in Support of the Originating Summons. The cases ofIsah v. INEC (2016) 18 NWLR (pt.1544) 175 at 223 and N.N.P.C. v. Famfa Oil Ltd (2012) 17 NWLR (pt.1328) 148 at 189 were cited in support. The cases of Egbue v. Araka (1988) NWLR (pt.184) 23 and Rinco Const. Co. v. Veepee Ind. Ltd (2005) 9 NWLR (pt.929) 85 at 96 were referred to, to define a cause of action.

It was then submitted that, a cause of action is the combination of facts which give rise to a right to sue. That, it consists of the wrongful act of the Defendant which gives the Claimant the right to complain. That for a Statement of Claim, or an affidavit in the instant case, to disclose a reasonable cause of action, it must set out the facts constituting the infraction of the Plaintiff’s legal rights or the failure of the Defendant to fulfill his obligation in such a way that if there is no proper defence, the Plaintiff will succeed in the remedy he seeks. On that note, learned senior counsel for the Appellant submitted that, a cause

of action arises when all the facts which are material to be proved to enable the Plaintiff succeed, have happened. The case of Jallco Ltd v. Owoniboys Tech. Services Ltd (1995) 4 NWLR (pt.391) 534 was then cited to submit that, until those facts have occurred, a cause of action cannot be said to have risen.

Learned Counsel for the Appellant went on to submit that, the supporting affidavit to the Originating Summons filed by Respondents upon which the trial Court based its decision, is nothing but speculative facts hinged on rumour without any reasonable cause of action. In other words, the affidavit evidence in support of the Originating Summons is centred on rumour of the plan of the Appellants to dissolve all the democratically elected officials of the Local Government Councils and Local Council Development Areas of Oyo State. In other words, that the Respondents’ action is hinged on speculation and rumour, and therefore, does not disclose any reasonable cause of action. That, it does not disclose any dispute between the parties worthy of attention by the Court. That the facts which are relevant to the determination of the infractions of the

Respondents’ legal rights or failure of the Appellants to fulfill their obligation in such a way as to give rise to the cause of action, have been deposed to in paragraphs 14, 15, 16, 17, 18, 19 and 20 of the Affidavit in Support of the Originating Summons. That, the Affidavit evidence of the Respondents do not disclose that:
(a) There was no letter or other document written by the 1st Appellant or any of the other Appellants expressing any intention to dissolve the democratically elected Local Government Council Area and Local Council Development Areas of Oyo State tendered before the Court.
(b) No resolution or minutes of the 6th Appellant was tendered indicating or showing where the issue of dissolution of the elected officials aforementioned was discussed and passed by the 6th Appellant.
(c) No correspondence from the 7th Appellant; (the Oyo State Independent Electoral Commission) to the Respondents was tendered, indicating that the Local Government Council Area and Local Council Development Area of Oyo State have been dissolved, was tendered before the Court.
(d) There was no correspondence or resolution from the Appellants to

the Respondents dissolving the elected officials of the Respondents tendered before the Court.

Learned Senior Counsel therefore submitted that, it is clear from the facts deposed to in the Respondents’ affidavit that all the Respondents are relying on are inklings and suspicions not backed up by any evidence whatsoever, establishing any wrongful act done by the Appellants which will give rise to the Respondents’ rights to the reliefs sought. That all that have been presented before the Court are mere conjecture, imagination and speculation. Furthermore, that there was also no fact showing any damage suffered by the Respondents. Learned Counsel then cited the case of Ajigbotosho v. R.C.C. Ltd (2019) 3 NWLR (pt.1659) 287 at 304 to submit that, a claim founded on conjecture is clearly an invitation to the Court to descend to the realm of conjecture thereby producing an order that is uncertain in terms.

Learned Senior Counsel then submitted that, the lapses identified in the Respondents’ claims are clear evidence that the trial Court lacks the jurisdiction to entertain the suit as it discloses no cause of action. That the facts deposed

in the Respondents’ affidavit merely show that, what the Respondents relied upon in instituting this action is an apprehension, fear, suspicion and supposition that the Appellants will tamper with their rights to the offices sought to be protected. That, there was no concrete evidence of any threat or positive action whatsoever from the Appellants. In other words, that for the Court to assume jurisdiction, the cause of action must have arisen or crystalized. That, the Appellants had not done anything to threaten diminish, impugn or infringe upon the Respondents’ rights to the offices they seek the protection of the Court. Learned Counsel then submitted that the suit filed by the Respondents was propelled by fear that they would be removed from office by the Appellants. In other words, the suit instituted, was a pre-emptive one.

It was also submitted by learned counsel for the Appellants that, apart from acknowledging in their affidavit that their suit was based upon information that they got, that the Appellants were planning to dissolve their offices, the Respondents did not supply any shred of evidence that the Appellants would remove them

from office. The case ofIvienagbor v. Bazuaye (1999) 9 NWLR (pt.620) 552 at 561 was cited in support, and to further submit that Courts do not act on assumptions, speculations or guesses even where they are plausible or likely. That Courts of Law only act on claims that can be proved by and/or established on empirical facts and not on speculations, as it is not the business of the Court to speculate. It was then submitted that, the trial Court was wrong to have voyaged into the speculative expedition that the Appellants will or intend to dissolve and remove the Respondents from their offices at the time the suit was filed. The case of John Holt Plc v. Allen (2014) 17 NWLR (pt.1437) 443 at 466 was cited in support.

Learned Counsel for the Appellant went on to submit that, the deposition in paragraph 8 of the supporting affidavit to the Originating Summons, that the Appellants are planning to dissolve all the Local Government Areas in Oyo State and replace them with their appointed persons upon which the order of perpetual injunction restraining the Appellant from dissolving the Councils and Development Areas was hinged, is nothing but a speculative fact.

The case of Ibrahim v. Shagari & Ors (1983) N.S.C.C.431 at 443 was cited in support. It was submitted that, granting the reliefs sought by the Respondents is invidious having been based on conjecture, imagined or hypothetical facts without evidence being put before the Court. It was therefore submitted that, the decision of the trial Court in granting the reliefs sought by the Respondents is perverse and should be set aside.

The case of Madukolu v. Nkemdilim (1962) 1 All NLR (pt.4) 587 was then cited to submit that the decision of the trial Court was therefore arrived at without jurisdiction. That in the absence of jurisdiction the entire proceedings of the trial Court was a nullity. We were accordingly urged to strike out the Respondents’ suit for having been founded on the absence of jurisdiction as there are features in the case which deprived the Court of exercising its jurisdiction over same.

In response, learned counsel (silk) for the Respondents drew our attention to Order 3 Rules 5, 6 and 7 of the Oyo State High Court (Civil Procedure) Rules; 2010. It was then submitted that, the cause of action in this case is primarily the

application of Sections 11 and 21 of the Local Government Law of Oyo State and the decision of the 1st Appellant to dissolve the democratically elected Local Government Chairmen and Councilors. That, this fact is clear from the questions for determination, the accompanying affidavits and the reliefs sought. In other words, that the issue for determination in this case before the trial Court, boiled down to the validity of Sections 11 and 21 of the Local Government Law and nothing more. The cases of Famfa Oil Ltd v. A.G; Federation & Anor (2003) LPELR – 1239 (SC) and Ejura v. Idris & Ors (2006) LPELR – 5827 (CA) were cited in support.

Learned Senior Counsel for the Respondents went on to submit that the germane issue in this suit is not whether the 1st Appellant wants to dissolve the Local Government Councils, but whether the provisions of Sections 11 and 21 of the Local Government Law of Oyo State are inconsistent with the provisions of Section 7 of the Constitution of the Federal Republic of Nigeria and whether the 1st Appellant or any of the Appellants has the power to dissolve the democratically elected Local Government Councils in

Oyo State in a manner inconsistent with the provision of the Constitution. It was accordingly submitted that the issues for determination in this suit are questions of construction of the extant Law of Oyo State and the grundnorm of the country which is the 1999 Constitution. Learned Senior Counsel then submitted that, the action was therefore rightly commenced by the Originating Summons.

Learned Counsel for the Respondent also contended that the argument of the Appellants that, the Respondents did not attach any letter or notice to show that the 1st Appellant intended to remove the Respondents from office, is an admission against interest by the Appellants. That, there was no legal basis for the Appellants’ submission that the Court failed to decide whether the 1st Appellant held a meeting or not the Respondents, where he told them that he would dissolve the Councils or that there ought to be a letter expressing intention to resolve or that there be a resolution to resolve. It was thus submitted that paragraphs 9, 16,17, 18, 19, 20, 21 and 22 of affidavit in support of the Originating Summons disclosed the fact that there is a threatened wrong to

the guaranteed rights of the Respondents. That, those facts were not denied by the Appellants in their Counter-Affidavit. It was then submitted that, it was those facts that the trial Court considered in coming to the conclusion that the 1st Appellant was resolved to dissolve the Local Government Councils.

Learned Counsel for the Respondents went on to submit that, the Appellants’ depositions in their Counter-Affidavit are not only contradictory but also constitute an admission against interest especially when the Local Government Law, 2001 had been amended thrice but the Appellants never deemed it fit to expunge the offending provisions. That the Appellants did state in their counter affidavit and Written Address that, the Local Government Law empowers the 1st Appellant to dissolve democratically elected Local Government Councils in Oyo State. We were therefore urged to hold that the trial Court was right in its conclusion.

It was further submitted that the Appellants have suggested that, a party must have been wronged, his right impugned and suffered damages before he can commence an action in Court. That, this argument is baseless in law as

the Supreme Court has restated in plethora of cases, that a person need not wait till his right is infringed before taking out an action. In other words, that the Respondents need not wait until they are removed from their offices before instituting action to redeem their rights; and that by so doing, the action is not speculative and discloses no reasonable cause of action. Our attention was drawn to the facts not in dispute as found by the trial Court as well as the counter affidavit of the Appellants which disclose that the Respondents were recognized by the Appellants as Chairmen and Councilors of the Local Government Councils in Oyo State, and also admitted that the Local Government Law violated the provision of the Constitution. It was then submitted that the Appellants cannot now turn around to argue that the Respondents did not disclose any reasonable cause of action.

On what a reasonable cause of action is, learned senior counsel for the Respondents cited the cases of A.G: Federation v. Abacha (2010) 17 NWLR (pt.1221) 1 and Adekoya v. Sadipe (2012) All FWLR (pt.638) 895 to submit that, once the entire facts or circumstances as disclosed in the

Originating Summons gives right to sue for a particular relief then a reasonable cause of action has been disclosed not withstanding that the case is apparently week or unlikely to succeed. That, as disclosed in paragraphs 9, 20(ii), (iii), (v), (vii) and 21 of the Affidavit in Support of the Originating Summons, it has been deposed that the Appellants enacted a Law which empowers the 1st Appellant to truncate the tenure of the Respondents in violation of the Constitution. That Sections 11 and 21 enacted in that Law, directly affects the tenure of office of the Respondents thereby creating a triable issue which require judicial intervention. That in the circumstances, there is nothing speculative or futuristic in the fact that Sections 11 and 21 of the Local Government Law, 2001 impacts negatively on the tenure of the Respondents. It was then submitted that, whether or not the 1st Appellant will carry out his threat to dissolve the Local Government Councils is another issue on its own.

Learned Counsel also drew our attention to the questions for determination as formulated in the Originating Summons to submit that, the primary issue in this suit is the

validity or otherwise of certain provisions of the Local Government Law. That by Exhibits “B” – “B11”, the Respondents as democratically elected members of the Local Government Councils, have sued to protect the democratic system of Local Governments from being truncated by the Appellants.

As their issue three (3), learned counsel for the Respondents went on to submit that, the determination by the lower Court of the Constitutionality and validity of the provisions of Sections 11 and 21 of the Local Government Law of Oyo State vis-à-vis the provisions of Section 1(3) and 7 of the 1999 Constitution (supra) is neither speculative nor incompetent. That the lower Court had the jurisdiction at all times to interpret the provisions of all Laws enacted by the House of Assembly as well as the Constitution of the Federal Republic of Nigeria. It was then submitted that, by virtue of Section 6(1) of the Constitution (supra), the judicial powers of the Federation is vested in the Courts. The cases of A.G, Bendel State v. A.G.F. (1981) LPELR – 605 (SC); Gov. of Ekiti State v. Olubunmo (supra); Udenwa v. Uzodinma (2013) 5 NWLR

(pt.1346) 94 and A.G.F. v. A.G; Lagos State (2013) 16 NWLR (pt.1380) 249 were cited in support. We were then urged to resolve these issues against the Appellants.

Now, it is not in doubt that the issues raised by the Appellants pertain to the issue of jurisdiction. I had in the course of resolving the Preliminary Injunction pointed out the importance of jurisdiction in our adjudicatory process. However, it should be noted that, the Respondents have not denied that the issues raised by the Appellants involve the jurisdiction of the Court below, to have heard and determined the action, subject of this appeal. I need therefore re-emphasise the importance and place of jurisdiction in the process of adjudication. Jurisdiction is the power and legal capacity of a Court to hear and determine an action placed before it for determination. It is the authority a Court has to decide matters before it or to take cognisance of matters presented before it in a formal way for determination. SeeDariye v. FRN (2015) 10 NWLR (pt.1467) 325; A.G.; Fed. v. Guardian Newspaper Ltd & Ors (1999) 9 NWLR (pt.618) 187 and Ndaeyo v. Ogunaya (1977) 1 S.C. (Reprint) 7. The

Constituents or elements of jurisdiction area that:
(a) The Suit or action must be properly constituted as regards numbers and qualifications of members of the Bench.
(b) The subject matter of the case must be within the jurisdiction of the Court and there must be no feature that would deprive the Court from exercising its jurisdiction; and
(c) The action must be initiated by compliance with due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
All the above stated elements must co-exist before a Court can be said to have jurisdiction to hear and determine any cause or action. In the absence of any one of those elements, the jurisdiction of the Court cannot be validly exercised, as in law, any defect in jurisdiction is fatal to the entire proceedings and judgment of the Court. Such proceeding and judgment given therein will be a nullity however well conducted and decided. See Madukolu v. Nkemdilim (1962) 2 SCNLR 43; Western Steel Works Ltd v. Iron and Steel Workers Union of Nigeria (1986) 3 NWLR (pt.30) 617; Chevron (Nig.) Ltd v. Warri North L.G.C. (2003) 5 NWLR (pt.812) 28 at 44 paragraphs B

– E; Inakoju v. Adeleke (2007) 4 NWLR (pt.1025) 427 and Drexel Energy and Natural Resources Ltd & 2 Ors v. Trans International Bank Ltd & 2 Ors (2008) 18 NWLR (pt.1119) 39. It therefore means that failure to fulfill any of the stated constituents of jurisdiction would be fatal to the jurisdiction of the Court to hear and determine the Suit.

Learned Senior Counsel for the Appellants contended that, the Appellants’ challenge to the jurisdiction of the trial Court to have heard and determined this suit is premised on the second elements, to wit: that though the subject matter of the Suit is within the jurisdiction of the trial Court, there were features in the institution of the action that deprived the Court of the jurisdiction to have heard and determined same. Primarily those features are that, there was no reasonable cause of action which gave rise to the institution of the suit, and that the facts which could give rise to the cause of action was premature, pre-emptive and speculative. To resolve the issue, we must first of all find out what a cause of action is. A cause of action is the entire set of circumstances which give rise to

an enforceable claim. It is every fact that the plaintiff must proof, if traversed, in order to support his right to the judgment of the Court. It should therefore be noted that, there is always a distinction between a right of action and a cause of action. While a right of action is the right to enforce the cause of action, a cause of action is the bundle or aggregate of facts which gave rise to the right of action. See Barbus & Co. (Nig.) Ltd & Anor v. Okafor-Udeji (2018) 11 NWLR (pt.1630) 298; Oshoboja v. Amuda (1992) NWLR (pt.250) 690 and Atiba Iyalamu Savings & Loans Ltd v. Suberu & Anor (2018) LPELR – 44069 (SC). See also the case of Akinsete & Ors v. Kiladejo (2013) All FWLR (pt.707) 726. Thus in the case of Egbe v. Adefarasin (1987) 1 NWLR (pt.47) 1 at 20, Oputa, JSC (of blessed memory) held as follows:
“Now let us look at the meaning of cause of action. It is admittedly an expression that defies precise definition. But it can safely be defined as the fact or facts which establish or give rise to a right of action – it is the factual situation that gives rise to judicial relief. A cause of action is

distinguished from a right of action. A right of action is the right to enforce presently a cause of action. In other words, a cause of action is the operative fact or facts (the factual situation), which give rise to a right of action, which in itself is a remedial right.”
Thus, a party may have an actionable cause of action, but may not have the right to enforce that cause of action. My Lord, Peter-Odili, JSC put the issue in clear perspective in the case of A.G; Adamawa State & Ors v. A.G; Federation (2014) LPELR 23221 (SC) as follows:
“The definition that has been followed on cause of action is that, cause of action is the fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person a right to judicial relief. Thus, when an action is said to be statute-barred, what it connotes is that the plaintiffs may have an actionable cause of action, but their recourse to judicial remedy is voided. No proceedings could be brought to prosecute the action…”
That will now lead us to a determination of what a reasonable cause of action is. A reasonable cause of action has been

defined in a plethora of authorities, both of the Supreme Court and of this Court as, a cause of action with some reasonable chance of success when only the allegations in the pleadings are considered. Thus, when the allegations in the pleadings are examined, the action is certain to fail, the statement of Claims, and invariable, the action, will be struck out. The question whether or not a reasonable cause of action has been disclosed or exists in the statement of claim (or facts deposed to in the affidavit when the action is instituted by Originating Summons as in this case), is a question of fact to be determined from the circumstances of the transaction between the plaintiff and the defendant. A reasonable cause of action is therefore one which, when only the allegations in the statement of claim are considered, there is a chance that the action will succeed. See Dantata v. Mohammed (2000) 7 NWLR (pt.664) 176 at 203; Elabanjo v. Dawodu (2006) 15 NWLR (pt.1001); Oshoboja v. Amuda & Ors (1992) 6 NWLR (pt.250) 690; S.P.D.C. (Nig.) Ltd & Anor v. X.M. Federal Limited & Anor (2006) 16 NWLR (pt.1004) 189 and Yusuf & Ors v. Akindipe & Ors (2000)

LPELR – 3532 (SC). The Supreme Court in Yusuf & Ors v. Akindipe & Ors (supra), held per Ogwuegbu, JSC as follows:
“A reasonable case of action means a cause of action with some reasonable chance of success when only the allegations in the pleading statement of Claim are considered. So long as the statement of claim discloses some cause of action, or …some question fit to be decided by judge as in this case; the mere fact the case is weak, and not likely to succeed, is no ground for striking it out or dismissing it.”

The next question to be determined, in my view, is a consideration of when a cause of action can be said to have arisen. Generally, a cause of action will be said to have accrued, when all the facts that will give rise to the cause of action have taken place and there remains nothing more to be done to give a right of action to the party to seek a remedy in a Court of law. Thus, in Federal University of Technology, Minna & Ors v. Dr. (Mrs) Adaeze G.N.C. Okoli (2011) LPELR – 9053 (CA), My learned brother, Garba, JCA observed as follows:
“…a cause of action is said to arise and/or accrue

when the fact or combination of facts had happened or come into being and would enable a party to make an enforceable claim in law based on such facts. A cause of action accrues when the facts or combination thereof are complete for the party to be able to commence or initiate his action against another predicated on the facts…”
In the case of A.G; Adamawa State & Ors v. A.G, Federation (2015) All FWLR (pt.797) 597, My Lord, Ariwoola, JSC said:
“When then does a cause of action arise? There is no doubt that a cause of action arises on a date or from the time when a breach of any duty or an act occurs which warrants the person who is injured or the victim who is adversely affected by such breach to take a Court action to assert or protect his legal right that has been breached or violated…”
In my understanding therefore, a cause of action or a reasonable cause of action can be said to have arisen or accrued when all the facts that need to be proved so as to entitle the plaintiff to succeed in his claim have crystalized. Accordingly, when all those facts have occurred or crystalized, then it is said that a

reasonable cause of action has occurred. In other words, the cause of action is said to have accrued when the cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action. See L.S.B.P.C. v. Purification Tech. (Nig.) Ltd (2013) 7 NWLR (pt.1352) 82; A.G; Lagos State v. Eko Hotels Ltd & Anor (2006) LPELR – 3161 (SC); Alh. Hanafi Zubair v. Alh. Abdullahi Atanda Kolawole (2019) LPELR – 46928(SC) and Julius Berger (Nig.) Plc v. Omogui (2001) 15 NWLR (pt.736) 401.

Now, let me pause here to consider whether a cause of action is the same thing as a right of action. It is settled law that, there is a distinction between a right of action and a cause of action. Generally therefore, a right of action precedes the cause of action. What a cause of action is, has been considered earlier on in the course of this judgment. What remains to be considered is the right of action. The Black’s Law Dictionary (9th Ed.) at page 1438 defines a right of action as:
“1.The right to bring a specific case to Court… 2. A right that can be enforced by legal action, a chose in action.”

A right of action therefore, can be said to exist where the plaintiff or claimant has the right to bring or institute a specific action in Court. In other words, it is a right which enables a person to bring a complaint before a Court of law. The relationship between cause of action and right of action is that, it is the accrual of the cause of action that confers on a plaintiff the right to institute an action to enforce the cause of action or judicial remedy. Thus, in Egbe v. Adefarasin (supra), the Supreme Court per Oputa, JSC (of blessed memory) held that:
“A cause of action is to be distinguished from a right of action. A right of action is the right to enforce presently a cause of action. In other words, a cause of action is the operative fact or facts (the factual situation) which give rise to a right of action which itself is a remedial right.”
The same position was echoed by Tabai, JSC in Adekoya v. Federal Housing Authority (2008) 11 NWLR (pt.1099) 539. See also Hassan v. Aliyu & Ors (2010) 17 NWLR (pt.1223) 547; Osigwe v. PSPLS Mgt. Consortium Limited (2009) 3 NWLR (pt.1120) 378; Guinness Nigeria Plc v. S.K.A. (Nig.) Ltd (2012) 18

NWLR (pt.1331) 179 and Oshoboja v. Amuda (supra). As my learned brother, Oseji, JCA put it in the case of Denca Services Limited v. Ifeanyi Chukum (Osundu) company Ltd & Ors (2013) LPELR – 22005 (CA):
“From the above cited authorities the summary of it all is that, a cause of action is the trigger that propels a party into enforcing his right of action in pursuit of a judicial remedy – basically because, a right of action is the right to enforce presently a cause of action.”
The right to enforce a cause of action is therefore not dependent on the happening of some future event. It therefore means that without a reasonable cause of action, there cannot be a right of action. A cause of action must be disclosed before the right of action can be legitimately exercised.

The law is that, to determine whether or not a cause of action exists or has accrued which will give the plaintiff or claimant to sue, it is the Writ of Summons or Statement of Claim that the Court will consider. In other words, to determine whether or not a cause of action has been disclosed, the answer will be found only in the statement of claim where

the action is instituted by way of a Writ of Summons. Where the action has been instituted by an Originating Summons it is the facts deposed to in the affidavit filed in support that will be looked into. See S.P.D.C. v. Nwawka (2003) FWLR (pt.144) 506; Olawore v. Ojo (2006) All FWLR (pt.341) 1382 at 1392; Mr. Henry Korede Anjorin v. Mr. Adebayo Ajibola & Anor (2019) LPELR – 48753 (CA) and Pastor Alex Onuche v. Hon. Cletus Onyebuchi & Ors (2016) LPELR – 42114 (CA).

Now, having carefully perused the affidavit in support of the Respondents’ Originating Summons, I am of the view that, paragraphs 10, 11, 12, 13, 14, 15, 16, 17 and 18 are germane to the determination of this issue. For ease of reference, I endeavor to reproduce same below:
10. That sometime in the year 2018, the Oyo State Independent Electoral Commission (OYSIEC) conducted Election into the Local Government Councils of the 33 Local Government Councils and 35 Local Council Development Areas in Oyo State.
11. That I and other Claimants participated in the said election by contesting for the position of Chairman and councilors in our respective local government areas.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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That I and the other Claimants were elected as Chairmen and Executive Officers of Local Government Councils and Local Council Development Areas during the said election conducted by the Oyo State Independent Electoral Commission (OYSIEC) on 12th May, 2018.
13. That I and the other Claimants having been declared winner of our respective Local Government Areas and Local Council Development Areas were issued Certificate of returns by the Oyo State Independent Electoral Commission (OYSIEC). Attached herewith as Exhibits “B”, “B1”, “B2”, “B3”, “B4”, “B5”, “B6”, “B7”, “B8”, “B9” and “B10” are the Certificates of returns issued to some of the Claimants.
14. That pursuant to our election and issuance of certificate of returns, myself and other Claimants were subsequently sworn in as Chairmen and Councilors of our respective Local Government Councils and Local Council Development Areas.
15. That upon assumption of office, we began to discharge our duties and functions in accordance with the relevant laws.

That after the 9th March, 2019 election into State Houses of Assembly and Governorship election, the 1st defendant and top officers of his political party had a meeting on the political developments in Oyo State.
17. That at the meeting, the 1st defendant informed all the members at the meeting of his plan to dissolve all the 33 Local Government Councils and 35 Local Council Development Areas in Oyo State and appoint Caretaker Committee comprising loyal members of the party so as to restructure the political landscape of his party in the State.
18. That the defendants are planning to dissolve all the Local Government Councils and Local Council Development Areas in Oyo State and replace them with appointed persons known as Caretaker Committee.

In opposition to the Originating Summons, the Appellants had filed in a seven (7) paragraphs Counter-Affidavit. Thus, in paragraphs 4, 5 and 6 of the Counter-Affidavit, the Appellants deposed as follows:
“4. That I was informed by the 2nd defendant in his office on the 2nd of April, 2019 as follows:
(i). That the 1st Defendant did not hold any meeting with officers of his political party to

deliberate on an alleged proposed dissolution of Claimants’ leadership of the Local Government Councils/Local Council Development Areas in Oyo State.
(ii). That I know as a fact that paragraphs 17 and 18 of the Claimants’ affidavit in support of the Originating Summons are speculative and futuristic.
5. That in response to paragraph 20 (i, ii, iii, iv & v) of the Claimants’ affidavit in support of the Originating Summons, I know as a fact that the Local Government Law of Oyo State empowers the 1st Defendant to dissolve the executive of the Local Government Councils.
6. That I was further informed by the 2nd defendant at the same time and place:
(i). That of recent, the defendants have become aware of the decision of the Supreme Court in respect of a similar provision empowering the defendants especially the 1st defendant to dissolve Local Government Councils in the state.
(ii). That the defendants are aware that the Supreme Court has in its recent decision against the Government of Ekiti State struck down a similar provision as the ones being challenged in this suit as unconstitutional.

(iii). That the defendants are law abiding institutions of government and will always abide by the Rule of Law and lawful judgments of superior Courts of record especially the Supreme Court of Nigeria.
(iv). That the defendants acknowledge the Claimants were elected into office on 12th May, 2018 in a validly conducted election and recognize that the Claimants have a 3 year tenure under their enabling Local Government laws of Oyo State.
(v). That other than as provided by the Constitution, and by Constitutionally recognized means, the defendants do not intend to summarily dissolve the executive councils of Local Government Councils, Local Council Development Areas, nor suspend the Claimants from office as suggested by the Claimants.”

From the facts deposed to into the affidavit in support of the Amended Originating Summons, it is not in dispute that the Respondents were elected as Chairmen and Council members of Local Governments and Local Council Development Areas of Oyo State in an election conducted by the Oyo State Independent Electoral Commission (OYSIEC) (7th Appellant) in the year, 2018. The Respondents then stated that, after their election, they

were sworn-in and subsequently assumed office, but that after losing power in the 2019 election, in the Governorship Election, the 1st Appellant (who was then the Respondents’ party member) summoned a meeting of top members of the party and informed them of his plan to remove the Appellants from office and appoint transition committees in their place, so as to restructure the political landscape of the (1st Respondent’s) party in the State.

The Appellants in their Counter-Affidavit, vigorously denied that they had any plan to dissolve the Respondents’ Local Councils or Council Areas. Specifically, the Appellants deposed in paragraph 6(v) of their Counter-Affidavit as follows:
“That other than as provided by the Constitution, and by constitutionally recognized means, the defendants do not intend to summarily dissolve the executive councils of Local Government Councils, Local Council Development Areas, nor suspend the Claimants from office as suggested by the Claimants.”

It would be seen therefore that, the response of the Appellants was a complete denial of the Respondents’ claim that the Appellants

(particularly the 1st Appellant) had any plan to dissolve the Local Government Area Councils or the Local Council Development Area. By so denying, issues were therefore joined between the parties on the claims of the Claimants/Respondents. To succeed, the Respondents had the burden to supply facts and nothing but facts which were concrete, cogent and plausible, that indeed, the 1st Respondent had hatched a plan to dissolve the councils. This, they could do by filing a further affidavit to supply those facts but they failed to do that.
It should be noted that Courts of law do not decide cases on mere conjecture or speculation. Courts of law decide issues on facts presented and duly proved before them. Speculation and conjecture is therefore not within the realm of Courts of law. In other words, Courts receive and act on evidence presented by the parties in accordance with the law. Therefore when the facts presented by the parties are premised on speculation, conjecture, suspicion or guess work, the Court will decline jurisdiction to act or adjudicate on it. See Archibong v. Ita (2004) 2 NWLR (pt.858) 590 at 610 – 620 paragraphs H – A;

N.B.C. v. Ubani (2009) 3 NWLR (pt.1129) 512 at 544 paragraphs A – C; Ikenta Best (Nig.) Ltd v. A.G; Rivers State (2008) 8 NWLR (pt.1084) 612; Engr. Frank Okon Daniel v. INEC & Ors (2015) LPELR – 24566 (SC) and Ezerebo v. Ehinero (2009) 10 NWLR (pt.1148) 166. In the case of Stag Engineering Company Limited v. Sabalco Nigeria Limited &Anor (2008) LPELR – 8485 (CA) Abba Aji, JCA (as he then was) said:
“A Court of Law cannot decide issues on speculation no matter how close what it relies on may seem to be to the facts. Speculation is not an aspect of inference that may be drawn from facts that are laid before the Court. Inference is a reasonable deduction from facts whereas speculation is a mere variant of imaginative guess which even when it appears plausible, should never be allowed by a Court of law to fill any hiatus in the evidence before it…”
In the same vein, Oredola, JCA in the case of Lawson Nnamdi Chukwu & Anor v. Hon. Lolo Stella C. Chukwu & Ors (2018) LPELR – 45482 (CA) made the point clearer in these words:
“The principle is trite, that a trial Court is precluded and should not decide

a case on mere assumption, conjecture or speculation. Indeed, Courts of law are Courts of both facts and laws. Hence, they, decide issues placed before them on facts pleaded and established by evidence adduced before them, predicated on applicable laws. They are enjoined to avoid speculation of whatever colouration…”
In the instant case, the Respondents have insisted that, their case presented before the trial Court was simply for the interpretation or construction of Sections 11 and 21 of the Local Government Laws of Oyo State, 2001 (as amended). In other words, that they had approached the trial Court for the determination of the Constitutionality and validity of Sections 11 and 21 of the Local Government Laws of Oyo State (supra). That may well be so, but the question here is, what prompted the Respondents to try to activate the jurisdiction of the trial Court to venture or engage in such determination. Surely, before the Court could proceed on a determination of the question(s) presented before it by the Respondents, there must be facts which will act as a trigger for the Respondents to exercise their right of action. In other words,

without facts which can constitute the cause of action that will trigger the Respondent’s right of action, the Court cannot venture into a construction of the provisions of the Law sought to be interpreted. This is because Courts of law do not act in vacuum, for without a reasonable cause of action there will be no jurisdiction on the Court to entertain the plaintiff’s claim. A plaintiff must therefore, present set of facts against the defendant before he can invoke the jurisdiction of the Court to make a declaration or order in his favour based on those set of facts. The rationale for this is that, a plaintiff must have a cause of action against the defendant before he can seek reliefs against him.
In the instant case, the Respondents have apart from seeking the declaratory reliefs, sought for several injunctive orders against the Appellant. It is not in doubt that injunctive reliefs and even declaratory reliefs are based on facts which must be present and not futuristic. The Respondents asserted that the Appellants, particularly the 1st Appellant has decided on a plan to dissolve Local Government Councils and Development Area Councils. Aside

from that bare assertion, they have not provided any concrete and verifiable fact to that effect. No document was presented nor the source of their information that the 1st Respondent had resolved or planned to dissolve those Councils disclosed. The end result is that the claim of the Respondents was built on mere speculation, suspicion and conjecture. It is trite that speculation, suspicion and conjecture cannot give rise to a cause of action. If those assertions were founded on verifiable facts, the fact that the councils had not been dissolved, would not have availed the Appellants but in the instant case, there were no verifiable facts deposed to by the Respondents.

Learned Senior Counsel had argued that, a party need not wait till his right is violated before he can approach the Court. To that end, he cited a number of authorities. I have endeavoured to read the authorities so cited. The first case he cited is the case of the Registered Trustees of the Apostolic Church v. Olowolemi (1990) 9 – 10 S.C. 150. I did not find the facts of that case and the rationes decidendi of that case apposite to the determination of the issue under consideration.

In the case of Gov. Ekiti State v. Olubunmo, the Claimants/Respondents in that case had taken out an Originating Summons seeking some declaratory and injunctive reliefs based on the Construction of the Ekiti State Local Government Administration (Amendment) Law. However, before the Court could determine the Originating Summons, the Governor of Ekiti State made a radio announcement dissolving the local government councils and removed the Respondents, who were elected Local Government Chairmen, from office. The respondents in that case consequently amended the reliefs in the Originating Summons. The difference between the case of Gov; Ekiti State v. Olubunmo (supra) is that, the Governor of the State actually dissolved the local government councils and removed the chairmen from office, there is no such claim in this case. The claim here is that the 1st Appellant planned to dissolve the councils and remove the Respondents from office. There is no fact pleaded in the affidavit in support of the Originating Summons to show that the 1st Appellant planned to dissolve the Councils.

I have also availed myself of the case of Ojukwu v. Governor, Lagos State (1986) 3

NWLR (pt.26) 29. The facts of that case are also not apposite here. The case (Ojukwu case) had to do with the grant of an interlocutory injunction. In that case, the 1st Appellant who was the plaintiff had sued for a declaration that the decision of the Respondents to eject him from 29, Queens Drive, Ikoyi Lagos was unlawful, illegal and ultra vires the Constitution of the Federal Republic of Nigeria, 1979; and an injunction. When the action was filed, the Appellant asked for an interlocutory injunction restraining the Respondents from evicting him from the property in dispute pending the determination of the suit. In that suit, no issue was raised as to whether the substantive suit filed did not disclose a reasonable cause of action. Furthermore, the issues involved were, inter alia, whether an order of injunction pending the final determination of the suit can be made exparte. In any case the substantive suit was based on verifiable facts pleaded in the Statement of Claim, as the Respondents had taken steps to evict the Appellant. In the instant case the Respondents did not disclose the facts pointing at the fact that the 1st Appellant had a plan to dissolve

the Councils. No positive act on the part of the Appellants was disclosed.

In Fawehinmi v. Akilu (1987) 4 NWLR (pt.67) 77, the Appellant had submitted an application requesting the Director of Public Prosecution, Lagos State to exercise his discretion whether or not he would prosecute Col. Akilu and Lt. Co. A. K. Togun for the murder of Dele Giwa; and that if he would not prosecute, to endorse a certificate to that effect so as to enable him (Appellant) to prosecute. The questions that arose was whether the Appellant possessed the locus standi to institute the proceedings; or to apply for an order of mandamus. It would be seen therefore, that the issues to be determined in that case, did not have to do with whether or not a cause of action had been disclosed. The case of Akapo v. Hakeem – Habeeb (1992) 6 NWLR (pt.247) 226 is not apposite to the facts of this case as it had to do with the decision of the trial Court refusing to grant an interlocutory injunction.

It would be seen therefore, that all the additional authorities cited are not helpful to the case of the Respondents. On that note, I have come to the conclusion that the

Respondents’ claim in the Originating Summons was premised on mere speculation, conjecture and suspicion thereby not disclosing any reasonable cause of action. In a situation where the action as constituted does not disclose any reasonable cause of action, the action would be incompetent and liable to be struck out. In the instant case, the affidavit in support of the Originating Summons does not disclose the existence of any legal controversy between the Respondents and the Appellants. It is settled law that, though jurisdiction and reasonable cause of action are distinct but they are interwoven, for without a reasonable cause of action, the Court cannot exercise jurisdiction over the matter. See Amaechi v. Governor of Rivers State & Ors (2017) LPELR – 43065 (CA); Alhaji Sayinna Adam v. Hussaini Zannah Shaibu & Ors (2016) LPELR – 40179 (CA). The suit not having disclosed a reasonable cause of action is incompetent and liable to be struck out.

Having resolved that the Respondents’ Claim did not disclose any reasonable cause of action, I am of the view that, it is of no use delving into issue three (3) distilled for

determination by the Appellants. In any case, I had in the course of resolving issues 1 and 2, considered the case of theGovernor of Ekiti State v. Olubunmo (supra) upon which the learned trial Judge determined the case before him. I had pointed out the distinction between that case and the case under consideration. I therefore do not see the need in repeating myself here. In any case, having resolved that, the case did not disclose any reasonable cause of action, the Court below had lost the jurisdiction to hear and determine same. It would therefore be a matter of academic exercise to proceed further on the point.

Having thus considered, it is my view that this appeal has merit. It is accordingly allowed. I therefore set aside the judgment of the Oyo State High Court of Justice, sitting in Ibadan, delivered on the 6th day of May, 2019 in Suit No: I/347/2019. Consequently, the Amended Originating Summons filed on the 8th day of April, 2019 is hereby struck out.
I make no order as to costs.

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

My Lord has dealt with the issues in this appeal in a lucid manner and I agree with the reasons given as well as the conclusion that the appeal is meritorious.
Having also read the record of appeal and briefs filed by the parties, I am of the view that there is merit in the appeal and it is allowed by me.
I abide by the consequential orders made in the said lead Judgment.

FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege of reading in advance the draft of the lead judgment just delivered by my learned brother HARUNA SIMON TSAMMANI, JCA. I completely agree with his reasoning and the conclusion reached therein.

The Respondents who were elected as Chairmen and Councilors of the 33 Local Government Councils and 35 Local Council Development Areas in Oyo State invoked the judicial powers of the lower Court on an allegation that the 1st Appellant was planning to dissolve the Local Government Councils and Local Council Development Areas in Oyo State and appoint Caretaker Committees in their stead. The Appellants swore to an affidavit denying such plan.

I wish to emphasise the settled position of the law on what a cause of action is. It is the entire set of

circumstances giving rise to an enforceable claim. It consists of two elements which are the wrongful act of the Defendant which gives a Claimant the cause to complain and the consequent damage. The right of a Claimant to institute an action in Court to ventilate a grievance therefore presupposes the existence of a wrongful act on the part of the Defendant as well as the damage occasioned to the Claimant by reason of the wrongful act. In other words, there must be in existence a dispute on which a Court of law has jurisdiction. See NWORA V. NWABUEZE (2019) 7 NWLR (PT. 1670)1: ATIBA IYALAMU SAVINGS & LOANS V. SUBERU (2018)13 NWLR (PT. 1637) 387; NWORIKA V. ONONEZE-MADU (2019) 7 NWLR (PT. 1672) 422; BELLO V. YUSUF (2019) 15 NWLR (PT. 1695) 250. In ATTORNEY-GENERAL, FEDERATION VS. ABUBAKAR (2007) 10 NWLR (PT .1041) 1 AT 75, PARAS. E-H, the Supreme Court, per Akintan, JSC held as follows:
“It is settled law that a lis or cause of action is constituted by a bundle of facts which the law will recognize as giving the plaintiff a right of action. It is a situation or state of facts which would entitle a party, to sustain action and give him right to seek

judicial remedy or redress. Such facts or combination of facts which give rise to a right to sue may consist of two elements – viz: the wrongful act of the defendant which gives the plaintiff his cause of action; and the consequential damage. Lis therefore means suit, action, controversy or dispute: See AKIBU V. ODUNTAN (2000) 13 NWLR (PT. 685) 44: FADARE V. ATTORNEY- GENERAL OF OYO STATE (1982) 4 S.C. 1: KUSADA V. SOKOTO N.A. (1968) 1 ALL NLR 377; BELLO V. ATTORNEY- GENERAL OF OYO STATE (1986) 5 NWLR (PT.45) 828; GOVERNMENT OF LAGOS STATE V. OJUKWU (1986) 1 NWLR (PT. 18) 621: AND NV SCHEEP V. MV. S. ARAZ (2000) 15 NWLR (PT 691) 622; It follows, therefore, that to entitle a person to invoke judicial power, he must show that either his personal interest will immediately be affected by the action or that he had sustained injury to himself and which interest is over and above the interest of the general public. See THOMAS V. OLUFOSOYE (1986) 1 NWLR (PT. 18) 669; and AYOOLA V. BARUWA (1999) 11 NWLR (PT. 628) 595.”

In the instant appeal, there is no evidence on record that the Appellants had dissolved or taken steps to dissolve the 33 Local Government

Councils and 35 Local Council Development Areas in Oyo State as at the time the Respondents instituted the action at the lower Court and up until the time of Judgment. They failed to demonstrate by affidavit evidence any wrongful act on the part of the Appellants. They failed to show they suffered any damage flowing from the alleged wrong. I am at one with my learned brother that the action instituted by the Respondents at the lower Court is speculative. It is trite that the duty of a Court does not include speculation. See ORHUE V. NATIONAL ELECTRIC POWER AUTHORITY (1988) 7 NWLR (PT. 557) 187; IVIENAGBOR V. BAZUAYE (1999) 9 NWLR (PT. 620) 552; OLALOMI INDUSTRIES V. NIGERIAN INDUSTRIAL DEVELOPMENT BANK LTD (2009)16 NWLR (PT. 1167) 266.

It is for the above and the more detailed and comprehensive reasons given by my learned brother in the lead Judgment that I too allow the appeal. I abide by the consequential Orders made therein.

Appearances:

Kunle Kalejaiye, SAN with him, S.S. Akinyele, Esq., Oluwasesan Dada, Esq., Adetunji Muraina, Esq., and Akintoba Kalejaiye, Esq. For Appellant(s)

Yusuf Ali (SAN), Chief Niyi Akintola, SAN with them, Adekunle Sobaloju, Esq., Abiodun Amole, Esq., and Yakuba Dauda, Esq. For Respondent(s)