HRH OBA E.A. SAIKI (JP) v. HON. G.O. OJO & ORS
(2019)LCN/12666(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of February, 2019
CA/B/194/2011
RATIO
APPEAL: FAILURE TO OBTAIN LEAVE OF COURT
“Where leave is required for filing an appeal, failure to obtain leave renders the appeal incompetent and invalid. Such an appeal is liable to be struck out. See Bennett Ifediorah & Ors. v. Ben Ume & Ors. (1988) 2 NWLR (Pt. 74) 5 and Hon. Zakawanu I. Garuba & 8 Ors. v. Hon. Ehi Bright Omokhodion & 13 Ors (2011) 15 NWLR (Pt. 1269) 145.
Being an interlocutory appeal, by Section 24(1) (a) of the Court of Appeal Act, 2004 (as amended) the appellant ought to have filed his notice of appeal within fourteen (14) days from the date of the decision appealed against.
In this case, the ruling of the trial Court, which the appellant has appealed against, was rendered on the 2nd day of November, 2010 and the notice of appeal filed on the 30th day of December, 2010 was filed out of time.” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
INTERPRETATION: INTERPRETATION OF STATUTE BY THE COURT
“The above provisions are clear, simple and unambiguous and they should be given their plain and ordinary grammatical meaning. The law is settled that statutory provisions which are clear, plain and unambiguous should be interpreted by courts by attaching to the words used therein their ordinary grammatical meanings. See Josiah Ayodele Adetayo & 2 Ors. v. Kunle Ademola & 2 Ors. (2010) 15 NWLR (Pt. 1215) 169 at 205, per Adekeye, JSC; Wahab A. S. Olanrewaju v. The Governor of Oyo State (1992) 9 NWLR (Pt. 265) 335 at 362; Fred Egbe v. M.D. Yusuf (1992) 6 NWLR (Pt. 245) 1 and The Attorney General of the Federation v. The Attorney General of Lagos State (2013) 16 NWLR (Pt. 1380) 249 at 379, per Alagoa, JSC.” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
JUSTICES
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
HRH OBA E.A. SAIKI (JP)
(The Otaru of Igarra) Appellant(s)
AND
1. HON. G.O. OJO
2. ALHAJI S.A. UKANA
3. HON. ILEYA AFEKHAI
4. ALHAJI IBRAHIM ISAH
(For themselves and members of Anoyete 1ST SET OF RESPONDENTS Family of Igarra)
5. CHIEF S.A. AIYEDE
6. CHIEF J.M. AKPEJI
AND
1. THE GOVERNOR OF EDO STATE
2. THE ATTORNEY-GENERAL OF EDO STATE
3. THE COMMISSIONER FOR LOCAL GOVERNMENT AND CHIEFTAINCY AFFAIRS, EDO STATE
4. CHAIRMAN, AKOKO EDO LGA. Respondent(s)
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.(Delivering the Leading Judgment):
The appellant is the 4th defendant in suit No. B/553/2008 instituted by the 1st – 6th respondents (1st set of respondents) in the High Court of Edo State, Igarra Judicial Division, holden at Igarra. The 2nd set of respondents, in this Court, are the 2nd, 3rd and 5th defendants in the said suit. The claim of the plaintiffs (the 1st set of respondents) as endorsed in paragraph 42 of their joint statement of claim is as follows:
WHEREOF the plaintiffs claim against the defendants jointly and severally are as follows:
i. A declaration that under the Igarra native law and customs the title of Oshemdase, Oshidu and Otu are the exclusive titles for the members of the families they belongs to and appointed by the family members themselves upon the person who have performed the necessary age group ceremony without the interference of any other person or family and the 4th defendant.
ii. A declaration that the inclusion of Oshemdase, Oshidu and Otaru chieftaincy titles at page B7 of the gazette No. 6 of February 6th 2003 by the 1st, 2nd, 3rd and 5th defendants at the instance of the 4th defendant as a chieftaincy title to be conferred by the 4th defendant is illegal, unlawful, null and void as it is contrary to the Igarra native laws and custom as has been declared by various security reports established by government over the years.
iii. An order setting aside gazette No. 6 dated 6th February 2003 as it relates to the plaintiff families titles as contain at page B7 i.e Oshemdase, Oshidu and Otaru.
iv. An order of perpetual injunction restraining the defendants, their agents, servants and privies from carrying out an action on the basis of the said gazette on the grounds that it is contrary to the custom and tradition of Igarra.
v. N20,000,000.00 (Twenty Million Naira) damages jointly and severally against the defendants arising from the harassing and intimidation of the plaintiffs by the 4th defendant basing its action on the said gazette.
Upon being served with the originating processes and the plaintiffs’/1st set of respondents’ statement of claim, the appellant filed a notice of preliminary objection stating that the suit is incompetent and that this honourable Court lacks jurisdiction to entertain same? on the following grounds:
1. The writ of summons and the Statement of claim filed by the plaintiff in this suit do not disclose any reasonable cause of action.
2. ESLN 3 of 2003 ie Traditional Rulers and Chiefs Edict (Amendment) Order 2002 being a subsidiary legislation made by the Edo State Executive Council in exercise of its power under the Traditional Rulers and Chiefs Law (Edict) 1979, this Honourable Court has no jurisdiction to annul, suspend, amend or otherwise interfere therewith it not having been alleged in the plaintiffs? writ of summons and/or Statement of Claim that the said order was made ultra vires or in excess of the powers vested in the said State Executive Council in the Principal Law (i.e The Traditional Rulers and Chiefs Law 1979) or that it was not made in accordance with the procedures provided in the said Law or in a specified provisions of the Constitution of the Federal Republic of Nigeria 1999 or any other Act of the National Assembly.
3. That the Traditional Rulers and Chiefs Law 1979 being an ‘existing law’ (as defined in Section 315(1)(b) and (4) (b) of the Constitution under which the subsidiary legislation (i.e the Order aforesaid) was made, this Honourable Court has no jurisdiction to entertain this suit it not having been alleged to be in conflict or inconsistent with any provision of the said constitution as set out in S. 315(3) thereof.
4. That under the provision of the 1999 Constitution this Honourable Court has no jurisdiction to nullify, suspend, amend, or otherwise interfere with any enactment (which under Section 318 (1) of the Constitution means ‘any law or a subsidiary instrument’, as in this case) on the ground only that that enactment is in conflict or inconsistent with an alleged native law and custom of the people of Edo State or any part thereof, in this case of Igarra.
5. That this Honourable Court has no jurisdiction to declare that ?the title of Oshedase, Oshidu and Otu are exclusive to the families they belongs (sic) when no dispute has been disclosed in respect thereof and the remedies provided for in S. 22 of the Traditional Rulers and Chiefs Law have not been explored and/or exhausted before the plaintiffs? approach to this Honourable Court in this suit.
After hearing the parties on the said preliminary objection, the trial Court delivered a reserved ruling on 02/11/2010 whereby the preliminary objection was overruled and dismissed, accordingly. This appeal is against the said decision.
The appellant’s notice of appeal covers pages 90 – 98 of the record of appeal and it contains 10 grounds.
In the appellant’s brief, two issues were distilled for determination as follows:
(i) Whether the learned trial Judge was right in holding that the writ of Summons and/or the Joint Statement of Claim of the 1st set of respondents disclosed any reasonable cause of action against the Appellant and/or 2nd set of respondents to invoke adjudication by the Court.
(ii) Whether on the extant law and on plaintiffs’ pleadings before the Court, the learned trial Judge was right in holding that he had jurisdiction to entertain this action.
In their brief, the 1st set of respondents raised and argued a preliminary objection but also formulated two issues for determination as follows:
1.Whether the trial Judge was not right when he dismissed the Preliminary objection of the 4th Defendant/Appellant challenging the jurisdiction of the Court to entertain the plaintiffs suit on a matter touching their customary right to their family title based on the custom and tradition of the people which the gazette No. 6, dated 6th February 2003 of Edo State amending the Chieftaincy Edit of 1979 sought to remove from them and given to the 4th defendant without the consent and authority of the 1st set of respondents.
2. Whether from the statement of claim, if the 1st set of respondent cause of action have not been disclosed to make the attention of the Court to intervene.
PRELIMINARY OBJECTION
Learned counsel for the 1st – 6th respondents urged the Court to strike out the appeal because it is incompetent on the ground that, being an interlocutory appeal, it ought to have been filed within 14 days. He said that the appeal was filed on the 30th day of December, 2010 – more than 14 days allowed for filing an interlocutory appeal.
It is on record that the appellant filed two notices of appeal – one was filed on 19/11/2010 and the other was filed on 30/12/2010. On 13/11/2018, when the appeal came up for hearing, learned counsel for the appellant withdrew the notice of appeal filed on 19/11/2010, which is on pages 87 to 89 of the record of appeal, and it was accordingly struck out.
The notice of appeal, relied upon by the appellant, covering pages 90 to 98 of the record of appeal, was filed on 30/12/2010. Learned counsel for the appellant did not file any reply brief to respond to the 1st set of respondents? preliminary objection. The implication of the failure by the appellant to react or respond to the preliminary objection is that he has accepted the arguments therein put forward by the learned counsel for the 1st set of respondents.
In any case, an examination of the appellant’s notice and grounds of appeal reveals clearly, the admission of the learned counsel for the appellant that his appeal is an interlocutory appeal. For example in ground 7, the appellant clearly stated that the issues before the trial Court arising from his preliminary objection were ‘interlocutory issues’ and that the trial Court erred in its ruling by ‘delving into the substantive matters arising in this suit’.
A perusal of the appellant’s ten grounds of appeal reveals that the appellant’s grounds of appeal are not grounds of law simpliciter but are grounds of mixed law and facts.
Section 14(1) of the Court of Appeal Act, 2004 (as amended) and Section 242 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) respectively provide as follows:
14(1) Where, in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction an interlocutory, order or decision is made in the course of any suit or matter; an appeal shall, by leave of that Court or of the Court of Appeal, lie to the Court of Appeal; but no appeal shall lie from any order made ex parte, or by consent of the parties, or relating only to costs.
242(1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.
The above provisions are clear, simple and unambiguous and they should be given their plain and ordinary grammatical meaning. The law is settled that statutory provisions which are clear, plain and unambiguous should be interpreted by courts by attaching to the words used therein their ordinary grammatical meanings. See Josiah Ayodele Adetayo & 2 Ors. v. Kunle Ademola & 2 Ors. (2010) 15 NWLR (Pt. 1215) 169 at 205, per Adekeye, JSC; Wahab A. S. Olanrewaju v. The Governor of Oyo State (1992) 9 NWLR (Pt. 265) 335 at 362; Fred Egbe v. M.D. Yusuf (1992) 6 NWLR (Pt. 245) 1 and The Attorney General of the Federation v. The Attorney General of Lagos State (2013) 16 NWLR (Pt. 1380) 249 at 379, per Alagoa, JSC.
By the clear provisions of Section 14(1) of the Court of Appeal Act, 2004 (as amended) and Section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) an interlocutory appeal, other than one which grounds are of law only, requires leave of either the trial Court or this Court to be first sought and obtained. In this case, the appellant did not seek nor obtain leave of Court before filing his appeal.
Where leave is required for filing an appeal, failure to obtain leave renders the appeal incompetent and invalid. Such an appeal is liable to be struck out. See Bennett Ifediorah & Ors. v. Ben Ume & Ors. (1988) 2 NWLR (Pt. 74) 5 and Hon. Zakawanu I. Garuba & 8 Ors. v. Hon. Ehi Bright Omokhodion & 13 Ors (2011) 15 NWLR (Pt. 1269) 145.
Being an interlocutory appeal, by Section 24(1) (a) of the Court of Appeal Act, 2004 (as amended) the appellant ought to have filed his notice of appeal within fourteen (14) days from the date of the decision appealed against.
In this case, the ruling of the trial Court, which the appellant has appealed against, was rendered on the 2nd day of November, 2010 and the notice of appeal filed on the 30th day of December, 2010 was filed out of time.
For the reasons that the appellant’s interlocutory appeal was filed out of time and without leave of Court, the appeal is incompetent and this Court has no jurisdiction to entertain.
It is settled law that a Court is competent when:-
1. It is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or another; and
2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to exercise of jurisdiction. Gabriel Madukolu & Ors. v. Johnson Nkemdilim (1962) NSCC (Vol. 2) 374 at 379. See also Alhaji Umaru Abba Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517.
The notice of appeal in this matter was filed out of time and without leave of Court. The appellant did not fulfill two important conditions precedent before filling his appeal. This appeal is incompetent and it is liable to be struck out. Accordingly, this appeal is hereby struck out.
The sum of N200,000.00 (two hundred thousand naira only) is hereby awarded as costs in favour of the 1st ? 6th respondents (1st set of respondents) against the appellant.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the advantage of reading in draft the judgment delivered by my learned brother, MOORE A.A. ADUMEIN J.C.A. I agree with the reasoning and conclusion reached therein to the effect that the appeal is incompetent. Accordingly I also order that the appeal be struck out for being incompetent.
I abide by the consequential orders made in the lead judgment including the order as to cost.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I entirely agree.
Appearances:
J. O. Umakhihe, Esq. For Appellant(s)
G. E. Oaikhena, Esq.For Respondent(s)
