LOJA JETHRO ADEJOLA & ANOR V. SUNDAY BOLARINWA & ORS
(2011)LCN/4315(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 23rd day of February, 2011
CA/I/260/2006
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 22(3), (4) AND (5) OF CHIEFS LAW OF OYO STATE 1978 CHAPTER 21 VOLUME 1 AS IT RELATES TO THE CONDITIONS THAT MUST BE COMPLIED WITH IN SETTLING ANY DISPUTE ARISING FROM THE APPOINTMENT OF A PERSON IN ACCORDANCE WITH CUSTOMARY LAW TO A MINOR CHIEFTAINCY
Section 22(3), (4) and (5) of Chiefs Law of Oyo State 1978 Chapter 21 volume 1 applicable to Osun State provides: (3)Where there is a dispute as to whether a person has been appointed in accordance with customary law to a minor chieftaincy, the prescribed authority may determine the dispute. (a)The decision of the prescribed authority – (a) To approve or not to approve an appointment to a minor chieftaincy; or (b) Determining a dispute in accordance with subsection (3) of this section, shall be final and shall not be questioned in any court. (5) Any person aggrieved by the decision of the prescribed authority in exercise of the powers conferred on the prescribed authority by subsections (2), (3) and (4) of this section Day, within twenty-one days from the date of the decision of the prescribed authority, make presentations to the Commissioner to whom responsibility for chieftaincy affairs is assigned that the decision be set aside and the Commissioner may, after considering the representations, confirm or set aside the decision. The provisions of Chiefs law as set out above are quite clear. They have received judicial interpretations in many cases as already pointed out by both learned counsel. The prevailing view is that when there is a dispute as to the validity of appointment and installation of any person into any minor chieftaincy, the aggrieved party must as a condition precedent to the institution of any action make representations to the prescribed Authority and the commissioner in charge of chieftaincy affairs where he is not satisfied with the decision of the prescribed Authority. In the case of Aribisala v. Ogunyemi (2005) 6 NWLR (pt 921) 212 the Supreme Court considered section 22 (2) – (7) of the chiefs Law Cap 20 Laws of Ondo State 1978 which is in pari materia with the Oyo State Law applicable in Osun State. The court reiterated their decision in Eguamwense v. Amashisenwen (1993) 9 NWLR (pt 315) 1 @ 25 where Belgore JSC observed: “Where a Statute prescribed a legal line of action for determination of an issue be that issue an administrative matter, chieftaincy matter or matter of taxation, the aggrieved party must exhaust all the remedies in the law before going to court. The provisions of section 21 and section 22 (1) – (6) of the Traditional Rulers and Chief Edict (No 16) 1979 (Bendel State) are clear as to steps to take. The plaintiff seemed to have jumped the stile as he avoided all avenues that availed him and went to the High Court. I am of the view that he did a wrong thing indeed… the provisions of section 236 of the 1979 constitution is not an open gate for at High Courts to assume jurisdiction on all subjects. All the local remedies in the statute on every subject must be exhausted before embarking on actual litigation in court.” In Owoseni v. Faloye (2005) 14 NWLR (pt 946) 719 @ 757 the Supreme Court again held that: “laws which prescribe that some procedural steps be taken to resolve dispute before embarking on actual litigation cannot be treated or categorized as ousting the jurisdiction of the court. Such laws only afford the body to which such disputes must be referred in the first instance an opportunity to resolve the dispute if it can before recourse is had to the court ……In relation to chieftaincy matters where such laws are not in existence the courts would be inundated with suits in chieftaincy matters, given the bitterness with which chieftaincy disputes are pursued and the regularity with which such disputes occur.” See also Kasunmu v. Shitta-Bay (2006) 17 NWLR (pt 1008) 372; Adesola v. Abidoye (1999) 14 NWLR (pt 637) 28. The matter of compliance with the provisions of the Chiefs Law is a precondition to the institution of the action, in the absence of which, the court would be deprived of the jurisdiction or competence to hear the case. Being an issue of jurisdiction it can be raised at any point. The case of Adesola v. Abidoye (1999) 14 NWLR (pt 637) 28 is on all fours with the instant case. A Chieftaincy matter was filed in the High Court without complying with the pre-conditions for access to the court under the Chiefs Law of Oyo State. The trial judge granted all the claims of the plaintiff. At the Court of appeal the 1st defendant raised for the first time the issue of jurisdiction of the trial court to entertain the suit. The argument was that the plaintiff/Respondent had not exhausted his remedy under the law before filing the action. The Court of Appeal allowed the appeal and struck out the case. The court held that the word “may” in the context of section 22 of the Chiefs Law of Oyo State, 1978 with regard to ‘steps’ to be taken by a person aggrieved by the decision of the prescribed authority was mandatory. The Supreme Court upheld the judgment of the Appeal Court holding inter alia that: “Where the court lacks jurisdiction, the parties cannot confer and vest jurisdiction on it. Accordingly, the fact that the parties fought a case erroneously on the basis that the court has jurisdiction when there was one cannot estop a party from subsequently taking the contrary position. In the instant case, where the determination of disputed minor chieftaincy is a jurisdiction by statute vested in the prescribed authority, the Court of Appeal was right when it held that the trial court lacked jurisdiction to entertain the appellant’s claims” The position, it appears, is that an aggrieved party who has complied with the pre conditions set out in the Chiefs law in filing his suit must plead or aver facts to show that the conditions were complied with. What the court said in Owoseni v. Faloye (supra) is that before a defendant can raise the matter of lack of jurisdiction before evidence is led, the material giving rise to the complaint of absence of jurisdiction must be apparent on the face of the statement of claim. In other words, from the pleadings in the statement of claim, it must be obvious that the plaintiff did not comply with the pre conditions. Otherwise, the defendant would have to plead the issue himself. PER CHINWE E. IYIZOBA, J.C.A.
INTERFERENCE WITH THE FINDINGS OF THE COURT: CIRCUMSTANCES WHERE THE APPELLATE COURT WILL NOT DISTURB THE FINDINGS OF FACTS OF THE TRIAL JUDGE
I do not see any basis whatever to disturb the findings of facts of the trial judge. He saw the witnesses and is in a better position to watch their demeanour and determine who to believe and who not to believe. In Woluchem v. Gudi (2004) 3 WRN 20 @ 52 – 53 Nnamani JSC observed “These principles are based on sound common sense. The learned trial judge has the singular advantage of seeing and observing the witnesses. He watches their demeanour, candor or partisanship, their integrity, manner etc. He can therefore decide on their credibility and this affects a substantial part of his findings of fact. These advantages are not normally enjoyed by the appellate court. All it has is the printed record; it does not have the other evidence – evidence of the demeanour of the witnesses and other incidental elements that go to make up the atmosphere at a trial. It cannot fully appreciate the background against which the evidence was received. It therefore is in no position to contest the findings of fact which learned trial judge has made based on such evidence that is available before him.” PER CHINWE E. IYIZOBA, J.C.A.
JUSTICES:
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
CHINWE E. IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. LOJA JETHRO ADEJOLA
2. ISOLA ADENIPEKUN – Appellant(s)
AND
1. SUNDAY BOLARINWA
2. EMMANUEL BANJI SASEYI
3. BABATUNDE AJEWOLE
4. SIMEON FAMUREWA
5. OLAYEMI OBALEKE
6. EMMANUEL OLUSEYI O. OGUNBUSUYI – Respondent(s)
CHINWE E. IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Folade J sitting in the High Court of Justice Ilesa, Osun State delivered on the 30th day of July, 1997. The plaintiffs in their further amended statement of claim, claimed as follows:
i. Declaration that in lieu of any registered Chieftaincy declaration, the first defendant ought to have received cogent evidence from the Arapate Chieftaincy Committee (of the six families) before installing the second Defendant as the Arapate of Ikobi, Osu
ii. Declaration that nomination of the Second Defendant by the Otemuyiwa family and his subsequent installation as the Arapate is against the custom and tradition of the Ikobi community Osu, and therefore, irregular, null and void.
iii. Declaration that the Nomination/Appointment of Emmanuel Oluseyi Obajuwon Ogunbusuyi from the Ogunlusi chieftaincy Ruling House is valid and is still subsisting
iv. Declaration that the six (6) Arapate chieftaincy Ruling Houses of Ikobi Quarters, Osu are:
(a) Otemuyiwa (b) Ogunlusi (c) Jidahun/Famurewa (d) Lofintekun
(e) Lobele; and (f) Saseyi families in that order.
v. An order of perpetual injunction restraining the Second Defendant from continuing to parade himself as the Arapate of Ikobi Quarters, Osu and from performing any function(s) relating to or in connection with the said Arapate Chieftaincy Title
vi. An order of perpetual injunction on the first Defendant, his servants, agents and privies from dealing or continue to deal or treat the second Defendant as the Arapate of Ikobi Quarters, Osu
The facts which led to the institution of this case are as follows: The 1st defendant/Appellant is the Loja or head Chief of Osu Community and the prescribed Authority in respect of the Arapate Chieftaincy of Ikobi Quarters, Osu town. There are fourteen quarters which constitute Osu town and each quarter is a combination of distinct families. Each quarter has its own Chief who is nominated by the relevant family. The Arapate Chieftaincy is peculiar to Ikobi quarters and there had been two such Arapates in Ikobi, both from Otemuyiwa family. When the second Arapate from Otemuyiwa family was installed, it caused serious protest which nearly rose to a crisis. The elders and the then Loja (head Chief) convened a Peace Committee which settled the crisis under certain agreement as regards future appointments when the next vacancy arose. The Ogunlusi family pursuant to the agreement presented the father of the 6th Respondent for appointment as the Arapate but he died before installation, hence the choice of the 6th Respondent.
Instead of installing the 6th Respondent, the 1st Appellant installed the 2nd Appellant as the Arapate without notice to the larger Ikobi Community. This resulted in protest which eventually led to the institution of this suit.
Pleadings were filed and exchanged. At the trial the 1st and 6th Plaintiffs now Respondents testified and called four other witnesses. The two Defendants/Appellants also testified and called one other witness. At the conclusion of the hearing, the learned trial Judge granted all the Plaintiffs/Respondents claims except relief I which was adjudged incompetent and was dismissed. Dissatisfied with the Judgment, the Defendants/Appellants have now appealed to this court.
The Appellants in their notice of Appeal filed two grounds of appeal and with the leave of the court, later filed an additional ground of appeal.
Out of the grounds of appeal, the Appellants formulated two issues:
i. Whether the lower Court properly assumed jurisdiction to hear and determine the matter despite the failure of the Respondents to exhaust the available remedies provided by the Chiefs Law of Osun State before instituting the action
ii. Whether the Lower Court despite the absence of evidence of tradition and custom, was right in holding that there was a previous agreement and arrangement in the nomination and installation of candidate to the vacant stool of Arapate by rotation among the families at Ikobi Quarters Osu.
The Respondents also formulated two issues for determination:
1. Whether Section 22 of the Chiefs Law of Oyo State 1978 (as applicable to Osun State provides for condition precedent which must be complied with before the High Court can assume jurisdiction to entertain Chieftaincy questions and whether non – exhaustion of local or available remedies can be raised as a jurisdictional issue or condition precedent at the appellate court level without leave and/or evidence on the issue.
2. Whether the learned trial Judge was right based on the evidence before him that there was a previous agreement and arrangement in the nomination and installation of candidate to the vacant stool of Arapate by rotation among the six families at Ikobi Quarters Osu and whether such finding can be said to be perverse having regard to the circumstances of this case.
The two issue identified by both sides are basically the same with slight additions and modifications. I shall take them serially.
Issue 1
Learned Counsel for the Appellants Femi Sarumi Esq submitted that the claims of the Respondents bother on the validity of the nomination, appointment and subsequent installation of the 2nd Appellant by the 1st Appellant as the Arapate of Ikobi Quarters Osu; a minor Chieftaincy, governed by the provisions of Chiefs Law of Osun State Cap 25, volume 1. Learned Counsel submitted that the combined effect of section 22 (3), (4) and (5) of the law is that whenever there is a dispute as to the validity, appointment and installation of any person into any minor chieftaincy, the aggrieved party must as a condition precedent to the institution of any action, make representations to the prescribed Authority and the Commissioner in charge of Chieftaincy Affairs where he is not satisfied with the decision of the Prescribed Authority. Learned Counsel referred to the following cases: Chief Isreal Arbisala v. Talabi Ogunyemi and Ors (2005) 1 WRN 1 @ 48 per Oguntade JSC; L.O. Owoseni v. Joshua Ibiwotisi Faloye (2006) 36 WRN 1 2 30-31 Musdaper JSC; Eguamwense v. Amaghizemwen (1993) 9 NWLR (Pt 3151 @ 25: Mrs. Oufunmitayo 1. Kasunmu v Alhaji Sikiru A. Shitta-Bey (2007). Au FWLR (P 356) 741 @ 750; Abu v. Odigbo (2001) 41 WRN 1
Learned Counsel further submitted that in determining due compliance with the provisions of Section 22 of the Chiefs Law of Osun State, the state of pleadings and evidence before the lower court is paramount. Counsel then submitted that there is nothing in the further amended statement of claim and the oral evidence of the 1st and 6th Respondents and their witnesses showing compliance with the provisions of the Chiefs Law and that in the absence of such concrete evidence of due compliance with the Chiefs Law, the Respondents did not satisfy the conditions precedent to the institution of the action and consequently, the trial court was incompetent to hear and determine the matter. Counsel referred to Madukolu v. Nkedilim (1962) 2 SCNLR 341; Attorney General, Lagos State v. Dosunmu (1989) 3 (NWLR) Pt III) 452 Kasunmu v. Shitta-Bay (2007) All FWLR (Pt 365) 741 @ 774-775.
Learned Counsel on this issue finally submitted that Section 272 (1) of the 1999 Constitution of the Federal Republic of Nigeria is not an open gate for all High Courts to assume jurisdiction in all matters. He argued that all local remedies in the statute on every subject must be duly exhausted before embarking on actual litigation in Court. The Respondents having failed to exhaust the remedies provided by the Chiefs Law failed to comply with the conditions precedent to the institution of this action and thus deprived the lower Court of the jurisdiction to hear and determine the matter. In reply to the above Olusina Osunlakin Esq. of Counsel for the Respondents submitted that judgment in this case was delivered on 30/7/97 and that the applicable laws are the Chiefs Law of Oyo State 1978 Chapter 21 Volume 1 as applicable to Osun State and the constitution of the Federal Republic of Nigeria 1979 and not the Laws referred to in the Appellants brief even though the provisions are similar. The latter laws, he submitted had not come into operation as at the time the lower Court delivered its judgment. Learned Counsel conceded that Section 22 of the Chiefs Law of Oyo State 1978 as applicable to Osun State provides for local or internal remedies in respect of minor Chieftaincy. He however argued that the issue of whether the Respondents complied with or exhausted the local or internal remedies was neither canvassed nor pronounced upon by the trial court, it cannot therefore be raised for the first time on appeal. Counsel relied on the following cases: Anthony Iyamu Edebiri v. Osawe Edebiri and 2 Ors (1997) 4 S C N J, 177 @ 187: Oredoyin and 2 Ors v. Arowolo and 2 Ors (1989) 4 NWLR (Part 114) 172 @ 192.
Learned Counsel further submitted that assuming without conceding that the Respondents failed to comply with the provisions of Section 22 of the Chiefs Law, the non-compliance would not oust the jurisdiction of the High Court in view of the provisions of section 6 (b) and 236 (i) of the 1979 constitution. Counsel submitted that the Supreme Court made pronouncements on the validity or otherwise of Section 22 of the Chief Law with respect to the constitutional provisions in the cases of Osagie II & anor v. Offor & anor (1998) 3 NWLR (Pt 541) 205 @ 212 per Kutiji JSC Chief Aliu Abu and 4 Ors. v Chief Abubakar Odusbo (2001) FWLR (Pt 69) 1260 @ 1293 per Ejuwunmi JSC and P 1308 per Ogundare JSC. Learned Counsel submitted that in the above two cases the Supreme Court while interpreting Section 22 of the Bendel State Chiefs Law No 16 of 1979 which is in pari materia with Section 22 of the Chiefs Law of Oyo State 1978 as applicable to Osun State held that the Section cannot derogate from the provisions of Sec. 236 (1) of the 1979 constitution as any attempt to do so would render it inconsistent with the constitution and thereby void. However learned counsel conceded that the Supreme Court took a contrary view in the cases of Eguamense v. Amaghizemwen (supra) and Chief Israel Arbisala and anor v. Talabi Osunyemi and 2 Ors. (supra). He contended that where a lower court is faced with conflicting decisions of a higher court, the lower court is free to choose which of the conflicting decisions to follow based on the peculiar facts and circumstances of the case before it. Counsel further referred to the case of Owoseni v. Faloye (2000) 36 WRN I and order 25 rule 6 (2) High court (civil procedure) Rules of Oyo State applicable to Osun State in 1994 – 1997 (when this case was before the lower court), and submitted that the plaintiff did not have to plead the fulfillment of the condition precedent which is by the provision impliedly incorporated in his pleadings. Counsel argued that it is for the defence to raise the non-fulfillment in his pleadings if the desired to use it as a defence. Counsel relied on the cases of Yassin v. Bardays v. Bank D CO (1968) NWLR 380 and Owoseni v. Faloye (supra), and urged us to resolve this issue against the appellant.
The judgment in this case before us was delivered on the 30th day of July 1997. It is obviously an oversight on the part of learned counsel for the Appellant to have referred to Chiefs Law of Osun State and the 1999 Constitution. I agree with learned counsel for the Respondent that those laws had not come into force as at the time judgment was delivered in this case. The relevant laws therefore are the Chiefs Law of Oyo State 1978 Chapter 21 volume 1 as applicable to Osun State and the Constitution of the Federal Republic of Nigeria 1979.
Section 22(3), (4) and (5) of Chiefs Law of Oyo State 1978 Chapter 21 volume 1 applicable to Osun State provides:
(3)Where there is a dispute as to whether a person has been appointed in accordance with customary law to a minor chieftaincy, the prescribed authority may determine the dispute.
(a)The decision of the prescribed authority –
(a) To approve or not to approve an appointment to a minor chieftaincy; or
(b) Determining a dispute in accordance with subsection (3) of this section, shall be final and shall not be questioned in any court.
(5) Any person aggrieved by the decision of the prescribed authority in exercise of the powers conferred on the prescribed authority by subsections (2), (3) and (4) of this section Day, within twenty-one days from the date of the decision of the prescribed authority, make presentations to the Commissioner to whom responsibility for chieftaincy affairs is assigned that the decision be set aside and the Commissioner may, after considering the representations, confirm or set aside the decision.
The provisions of Chiefs law as set out above are quite clear. They have received judicial interpretations in many cases as already pointed out by both learned counsel. The prevailing view is that when there is a dispute as to the validity of appointment and installation of any person into any minor chieftaincy, the aggrieved party must as a condition precedent to the institution of any action make representations to the prescribed Authority and the commissioner in charge of chieftaincy affairs where he is not satisfied with the decision of the prescribed Authority. In the case of Aribisala v. Ogunyemi (2005) 6 NWLR (pt 921) 212 the Supreme Court considered section 22 (2) – (7) of the chiefs Law Cap 20 Laws of Ondo State 1978 which is in pari materia with the Oyo State Law applicable in Osun State. The court reiterated their decision in Eguamwense v. Amashisenwen (1993) 9 NWLR (pt 315) 1 @ 25 where Belgore JSC observed:
“Where a Statute prescribed a legal line of action for determination of an issue be that issue an administrative matter, chieftaincy matter or matter of taxation, the aggrieved party must exhaust all the remedies in the law before going to court. The provisions of section 21 and section 22 (1) – (6) of the Traditional Rulers and Chief Edict (No 16) 1979 (Bendel State) are clear as to steps to take. The plaintiff seemed to have jumped the stile as he avoided all avenues that availed him and went to the High Court. I am of the view that he did a wrong thing indeed… the provisions of section 236 of the 1979 constitution is not an open gate for at High Courts to assume jurisdiction on all subjects. All the local remedies in the statute on every subject must be exhausted before embarking on actual litigation in court.”
In Owoseni v. Faloye (2005) 14 NWLR (pt 946) 719 @ 757 the Supreme Court again held that: “laws which prescribe that some procedural steps be taken to resolve dispute before embarking on actual litigation cannot be treated or categorized as ousting the jurisdiction of the court. Such laws only afford the body to which such disputes must be referred in the first instance an opportunity to resolve the dispute if it can before recourse is had to the court ……In relation to chieftaincy matters where such laws are not in existence the courts would be inundated with suits in chieftaincy matters, given the bitterness with which chieftaincy disputes are pursued and the regularity with which such disputes occur.”
See also Kasunmu v. Shitta-Bay (2006) 17 NWLR (pt 1008) 372; Adesola v. Abidoye (1999) 14 NWLR (pt 637) 28.
I have noted the Supreme Court decisions in Osagie v. Offor (supra) and Oduebo v. Abu (2001) 14 NWLR (part 732) 45 which construed section 22(2), 3 and 6 of the Bendel State Chieftaincy Law 1979 as inconsistent with the provisions of section 236(1) of the 1979 constitution and void to the extent of the inconsistency.
The conflict between the two sets of Supreme Court cases was noted in Ogugbo v. Abu (supra) by Ogundare JSC in the following words:
“It would appear therefore that the decision of this court in Chief Osagie v. Chief Offor is inconsistent with its earlier decision in Eguamwense and later decision in Adesola. I hope the court will have the opportunity some day to resolve the conflict. It would appear, however, that the weight of judicial opinion seems to incline toward Eguamwense.”
While I agree with Osunlakin Esq that I am free to choose which of the conflicting decisions to follow, I will naturally be inclined towards the weight of judicial opinion. The Chiefs Law does not foreclose access to the courts. It merely requires the aggrieved party to exhaust remedies provided by the statute and thereby satisfy the preconditions for access to court.
Mr. Osunlakan for the Respondents had contended that the issue of whether the Respondents complied with or exhausted the local or internal remedies provided by the Chiefs Law was not canvassed nor pronounced upon by the trial court and cannot therefore be raised for the first time on appeal.
Learned counsel called in aid the case of Oredoyin v. Arowolo (supra). This case in my humble view is not apposite. The plaintiffs/respondents sued the appellants/defendants claiming inter alia a declaration that the appointment of the 1st defendant as the Ramodu Imota was unlawful and ought to be set aside.
According to the pleadings and evidence adduced by the plaintiffs, the 1st defendant/Appellant according to native law and custom of Imota was not properly elected as Ramodu of Imota because he was not approved by the Ifa Oracle. The defendants/appellants averred that under the provisions of Obas and Chiefs Law 1981 and Chieftaincy Declarations Exhibit ‘J’ under which he was appointed, there was no place for consultation with Ifa Oracle. The trial Judge upheld this and dismissed the Plaintiffs case in its entirety. The Plaintiff appealed to the Court of Appeal. There, for the first time the Plaintiffs Counsel raised the point that the appointment of the 1st Appellant as Ramodu of Imota was not in consonance with the Chieftaincy Declaration Exhibit ‘J’ because the ruling house nominated three candidates for presentation to the Kingmakers instead of one as specified by Exhibit ‘J’, an issue neither pleaded nor canvassed at the trial. The defendants Counsel did not oppose the motion to raise the fresh point. The court of appeal upheld the contention and reversed the decision of the High Court holding that the nomination of the three candidates instead of one vitiated the appointment. The defendant’s appeal to the Supreme Court succeeded on the ground that the issue raised in the court of appeal was a new case different from the one in the trial court. This is not the case here. The matter of compliance with the provisions of the Chiefs Law is a precondition to the institution of the action, in the absence of which, the court would be deprived of the jurisdiction or competence to hear the case. Being an issue of jurisdiction it can be raised at any point.
The case of Adesola v. Abidoye (1999) 14 NWLR (pt 637) 28 is on all fours with the instant case. A Chieftaincy matter was filed in the High Court without complying with the pre-conditions for access to the court under the Chiefs Law of Oyo State. The trial judge granted all the claims of the plaintiff. At the Court of appeal the 1st defendant raised for the first time the issue of jurisdiction of the trial court to entertain the suit. The argument was that the plaintiff/Respondent had not exhausted his remedy under the law before filing the action. The Court of Appeal allowed the appeal and struck out the case. The court held that the word “may” in the context of section 22 of the Chiefs Law of Oyo State, 1978 with regard to ‘steps’ to be taken by a person aggrieved by the decision of the prescribed authority was mandatory. The Supreme Court upheld the judgment of the Appeal Court holding inter alia that:
“Where the court lacks jurisdiction, the parties cannot confer and vest jurisdiction on it. Accordingly, the fact that the parties fought a case erroneously on the basis that the court has jurisdiction when there was one cannot estop a party from subsequently taking the contrary position. In the instant case, where the determination of disputed minor chieftaincy is a jurisdiction by statute vested in the prescribed authority, the Court of Appeal was right when it held that the trial court lacked jurisdiction to entertain the appellant’s claims”
I consequently agree with Mr. Sarumi, of counsel for the Appellant that this matter is indeed a jurisdictional issue which can be raised at any point even on appeal for the first time. See Madukolu v. Nkemdilim (supra).
Mr. Osunlakin for the Respondent referred to Order 25 Rule 6 (2) of the High Court (Civil Procedure) Rules of Oyo State applicable to Osun State in 1994 -1997 which provides that “…..an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleadings;” and then argued that the plaintiff did not have to plead the fulfillment of the condition precedent which is impliedly incorporated in his pleadings. In other words counsel contended that it is the defence that ought to have raised the non fulfillment in their pleading, if that were the case. The Respondent called in aid the Supreme Court case of Owoseni v. Faloye (2005) 14 NWLR (pt 946) 719 @ 758 per Oguntade J.S.C.
I have read carefully the above case. It is my humble view that it does not support the contention of Mr. Osunlakin. The position, it appears, is that an aggrieved party who has complied with the pre conditions set out in the Chiefs law in filing his suit must plead or aver facts to show that the conditions were complied with. What the court said in Owoseni v. Faloye (supra) is that before a defendant can raise the matter of lack of jurisdiction before evidence is led, the material giving rise to the complaint of absence of jurisdiction must be apparent on the face of the statement of claim. In other words, from the pleadings in the statement of claim, it must be obvious that the plaintiff did not comply with the pre conditions. Otherwise, the defendant would have to plead the issue himself. I agree with Mr. Sarumi that in determining due compliance, the state of the pleadings become paramount. I agree with him also that there is nothing in the further amended statement of claim and the oral evidence of the Respondents to show compliance with the provisions of the Chiefs Law. Having failed to show that they exhausted the remedies provided by the provisions of the Chiefs Law, the lower court had no jurisdiction to hear and determine the matter. This issue is resolved in favour of the appellant. But, just in case I am wrong, I shall go ahead to consider the second issue.
Issue 2
Whether the lower court, despite the absence of evidence of tradition and custom, was right in holding that there was a previous agreement and arrangement in the nomination and installation of candidate to the vacant stool of Arapate by rotation among the families of Ikobi quarters, Osu.
On this issue, Mr. Sarumi for the Appellants referred to the pleading of the Respondents in paragraph 6 (b) of the Further Amended statement of claim and submitted that the pleading was not supported by any oral evidence during the hearing. Counsel argued that custom must be proved by evidence if it has not been so frequently applied and followed by the court that judicial notice is taken of it. Counsel further argued that there is nothing before the trial judge in support of the pleaded custom.
In reply Mr Osunlakin for the Respondents submitted that the Respondents pleaded in Paragraphs 6 (a) and (b) of the Further Amended statement of claim that six families in Ikobi Quarters are entitled to the stool of Arapate on rotational basis. Counsel submitted that the Respondent’s witnesses led copious evidence on the averment. Counsel further submitted that the trial judge evaluated the evidence and found for the Respondent on the issue of rotation. In paragraphs 6 (a) and (b) of the fuither Amended statement of claim, the Respondents pleaded thus:
“6 (a) that there are Six (6) indigenous families in Ikobi quarters viz;-
i. Otemuyiwa
ii. Ogunlusi
iii. Jidahnn/famurewa
iv. Lobele
v. Lofintekun
vi. Saseyi
6 (b) Plaintiffs aver and would contend at the trial of this suit that it is the tradition of Ikobi community like all others in Osu to rotate the Arapate Chieftaincy amongst the families listed inparagraph 6 above”.
In their joint statement of defence, the appellants in paragraph 3, 4 and 7 denied the averment above and claimed that families ii – vi as mentioned in paragraph 6 (a) of the plaintiffs claim were not original settlers at Ikobi but were guests of Otemuyiwa family, the original settlers and to whom the Arapate Chieftaincy of Ikobi belonged hereditarily.
In proof of their case the Respondents called 6 witnesses while the Appellants called three. The three witnesses were the 1st and 2nd Appellants and the 2nd Appellant’s father. The learned trial judge evaluated the evidence led by these witnesses. He said at page 74 of the record of appeal that the defendants predicated their claims to Arapate Chieftaincy to their settlement as well as installation of the first two Arapates Fakinlade and Adekunmi who were both from Otemuyiwa. The learned Trial Judge found as a fact from the evidence adduced that it was only Fakinlade’s appointment and installation as Arapate that was peaceful. The nomination and installation of Adekunmi met with serious protest from the other families that nearly destroyed the peace of the community. Eventually a peace committee was set up by the then Loja. The Learned Trial Judge believed the evidence of PW2, an Octogenarian on the outcome of the peace meeting.
The trial judge did not believe the evidence of the three witnesses of the appellant. They did not impress him as witnesses of truth. He had no difficulty in coming to the conclusion that there was a previous agreement and arrangement in the nomination and installation of candidates to the stool of Arapate by rotation among the six families which constitute the Ikobi quarters of Osu.
I do not see any basis whatever to disturb the findings of facts of the trial judge. He saw the witnesses and is in a better position to watch their demeanour and determine who to believe and who not to believe.
In Woluchem v. Gudi (2004) 3 WRN 20 @ 52 – 53 Nnamani JSC observed
“These principles are based on sound common sense. The learned trial judge has the singular advantage of seeing and observing the witnesses. He watches their demeanour, candor or partisanship, their integrity, manner etc. He can therefore decide on their credibility and this affects a substantial part of his findings of fact. These advantages are not normally enjoyed by the appellate court. All it has is the printed record; it does not have the other evidence – evidence of the demeanour of the witnesses and other incidental elements that go to make up the atmosphere at a trial. It cannot fully appreciate the background against which the evidence was received. It therefore is in no position to contest the findings of fact which learned trial judge has made based on such evidence that is available before him.”
The appellants, in my view, failed to show that the learned trial Judge’s findings were perverse or not supported by evidence placed before him at the trial. It cannot be said that the pleading in paragraph 6(b) of the plaintiffs/respondents statement of claim was not established. The trial judge found that it was the flouting of that tradition by the appointment of two consecutive Arapates from the Otemuyiwa family that gave rise to the crisis which resulted in the setting up of the peace committee. The trial judge rejected the evidence of the appellants that the chieftaincy is hereditary. He accepted the evidence of the respondents that it is the tradition of Ikobi community like all others in Osu to rotate the Arapate Chieftaincy amongst the families. The finding of the trial judge is certainly not perverse. It is sound as it is supported by the evidence presented. This issue is resolved in favour of the Respondents.
In conclusion, in view of my finding that the court below had no jurisdiction to entertain this suit, the respondents having failed to show that they complied with the pre conditions in the Chiefs law before instituting the action, the appeal succeeds. It is allowed. The judgment of the trial court delivered on the 30th day of July 1997 is hereby set aside. In its place, the suit is struck out. I make no order as to cost.
NWALI SYLVESTER NGWUTA J.C.A.: I read in draft the lead Judgment of my learned brother, Iyizoba JCA and for the reasons therein. I also strike out the appeal as incompetent.
Though the point was not relevant in this appeal the validity of S.22 (5) of Chiefs Law of Oyo State Chapter 21 Vol.1 Laws of Oyo State applicable to Osun State may be in issue when it is relied on in any proceeding. It provides; “22 (5)(b) determining a dispute in accordance with subsection (3) of this Section, shall be final and shall not be questioned in any Court.
(Underlining mine). This would appear to be in conflict with S.36 the Constitution of the Federal Republic of Nigeria 1999.
The issue will be dealt with where and when it is raised.
I make no order for costs.
MOORE A. A. ADUMEIN, J.C.A.: I read in advance the lead judgment of my learned brother, IYIZOBA, JCA; delivered just now.
I agree with His Lordship’s reasoning and resolution of the issues in this appeal.
Consequently, I too hereby allow the appeal and abide by the consequential orders.
Appearances
FEMI SARUMI ESQ For Appellant
AND
OLUSINA OSUNLAKIN ESQ For Respondent
