MALLAM SAKA AGBODEMU & ORS v. MR AZEEZ AGBOOLA & ORS
(2014)LCN/7406(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of July, 2014
CA/IL/69/2013
RATIO
STATUTORY INTERPRETATION; SECTION 3(3) OF THE CHIEFS LAW OF KWARA STATE; THE LITERAL INTERPRETATION OF SECTION 3(3) OF THE CHIEFS LAW OF KWARA STATE
Section 3(3) of the Chiefs Law of Kwara State provides as follows:-
3(3) “In the case of any dispute, the Governor, after due inquiry and consultation with persons concerned in the selection, shall have the final say as to whether the appointment of any Chief has been made in accordance with customary law and practice.”
While Section 15(1) and (2) of the same law provides as follows:-
15(1) “Where the Governor or appointing authority has approved the appointment of a person as a Chief, any person who intends to challenge the validity of such appointment shall first deposit with the State Accountant General a non-refundable sum of one hundred thousand Naira.
(2) Where the Governor or the appointing authority has not approved any appointment to a vacant chieftaincy stool, any aggrieved person who institutes any court action in connection with the vacant chieftaincy stool and joins the state Government or any of its agencies as a party to any such court action shall first deposit with the state Accountant General a non-refundable fee of One hundred thousand Naira.”
With the decisions relied upon by the learned trial Judge, AWOYEMI VS. FASUAN (2006) Supra and AMAKA VS. A.G. ONDO STATE (Supra), the learned Counsel to the appellants had argued that it was wrong for the Court to have relied on these decisions. In the above two cases, this Court basically decided that an aggrieved party in a selection or appointment under the Chiefs Law must first exhaust all the local administrative remedies provided in the relevant Chiefs Law before commencement of any action in Court. I have reproduced the requirements above as also agreed by both parties except that while the respondents argued that the two Sections above must be met, first Section 3(3) before Section 15(1) and (2), the appellants argued that the former applies to only the selection process while the latter applies to the appointment stage which learned Counsel made out is applicable to the appellants’ case here.
In my humble view, a literal interpretation of Section 3(3) means that in any dispute, whether at the stage of nomination, selection or appointment, the Governor would inquire and consult with persons concerned in the selection, and would have the final say as to whether the appointment of any Chief was in compliance with the customary law and practice of the people. per. CHIDI NWAOMA UWA, J.C.A.
ACTION: CHIEFTAINCY DISPUTE; WHAT AN AGGRIEVED PARTY WHO BRINGS A SUIT MUST SHOW IN A CHIEFTAINCY DISPUTE
For the Lower Court to be able to do what was sought in the reliefs, the appellants who were aggrieved by the selection and recognition ought to have complied with the applicable law, the Chiefs Law of Kwara State which has clearly stated that which ought to be done before any action could be instituted in Court.
The Appellants ought to have made a representation to the Governor that the selection and recognition of the 1st defendant by the 2nd defendant as the Oba of Agbeku was irregular and a violation of the customs, tradition and history of Agbeku people, what the appellants perceive to be the mode of selection, who the candidate should be or where from, a nullification of the selection and recognition already carried out and any other area of grievance. If after presenting their grievances, the Governor in consultation with persons concerned in the selection process would first be given an opportunity to act or take a decision in respect of the representation and if and where unsatisfactory with the decision, or worse still where given time no action is taken within reasonable time, then the aggrieved appellants would resort to litigation in court. See, decisions of this court in AYENI VS. OBASA (2012) ALL FWLR (PT.611) 1509 AT 1533 PARAS G. A, AMAKA VS. A.G. ONDO STATE (2012) 12 NWLR (PT.1313) 44 AT 67 – 68, H – A, BAMISILE VS. FRANCIS OJO OSASUYI & 5 ORS (2007) 10 NWLR (PT.1042) 225 AT 270, E – F AND EGUAMWENSE VS. AMAGHIZENWEN (Supra) at 25.
The Supreme Court has made the position of the law clear in several judicial authorities as has arisen in this case and decided by this Court in the above cases amongst a host of others, see, ATOLAGBE VS. AWUNI (SUPRA), EGUAMWENSE VS. AMAGHIZENWEN (SUPRA), AWOYINIYI vs. FASUAN (2006) (supra) relied upon by the learned trial Judge in this case, ADESOLA VS. ABIDOYE (1999) 14 NWLR (PT.637) 28 AT 59, PARAS A – H and ARIBISALA VS. OGUNYEMI (2005) 6 NWLR (PT.921) 212 AT 232 PARA B. All these authorities are to the effect that in a chieftaincy dispute as the present one, an aggrieved person who brings a suit must show that he took out his action after he had exhausted the remedies provided or followed the procedure prescribed under the applicable law. per. CHIDI NWAOMA UWA, J.C.A.
COURT: JURISDICTION; THE IMPORTANCE OF JURISDICTION IN ADJUDICATION AND WHEN CAN IT BE SAID THAT A COURT IS COMPETENT
The issue of jurisdiction is very important in adjudication and it is the basis or foundation of any adjudication, where it is lacking, the Court has no power or jurisdiction to entertain it. As in this case where the case was initiated without fulfillment of the required condition in a Chieftaincy matter in Kwara State. The failure is fatal and the proceedings if the Court had held otherwise would have been a nullity no matter how well the case was conducted. See, the old and popular case of MADUKOLU vs. NKEMDILIM (1962) 2 SCNLR 341; 1 ALL N.L.R. (PT 4) 587; LADO VS. C.P.C. (2011) 18 NWLR (PT.1279) 689 at 716 – 717 PARAS G – F, D.E.N.R. LTD. VS. TRANS INT’L BANK LTD. (2008) 18 NWLR (PT.1119) 339 AT 417 PARA F; 436 – 437 PARAS H – A and OPOBIYI VS. MUNIRU (Supra).
In the case of LADO VS. C.P.C. (2011) Supra at P.716 – 717, PARAS G – G. his Lordship of the Apex Court, Onoghen, JSC in this respect emphasized the position of the law thus:-
“By the locus classicus case of MADUKOLU VS. NKEMDILIM (1962) 1 ALL NWLR (PT.4) 587; (1962) 2 SC NLR 341′ this Court laid down the proper guidelines in determining the issue of jurisdiction of a Court of law. This Court stated that a Court is competent when:
(a) It is properly constituted as regards members of the Bench, and no member is disqualified for one reason or another.
(b) The subject matter of the case is within its jurisdiction and no feature in the case which prevents the Court from exercising its jurisdiction, and
(c) The case comes before the Court initiated with due process of law and upon fulfillment of a condition precedent to the exercise of jurisdiction. It is settled law that any defect in the competence of a Court is fatal because,, the proceedings will be a nullity however well conducted.” (Underlined mine for emphasis). per. CHIDI NWAOMA UWA, J.C.A.
JUSTICES:
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
Between
1. MALLAM SAKA AGBODEMU
2. ALHAJI KADIR AGBOOLA
3. MALLAM AMUSA AREMU
(For themselves and on behalf of Agbodemu- Alaka Ruling House, Agbeku) – Appellant(s)
AND
1. MR AZEEZ AGBOOLA
2. MOSES OGUNTOLA
3. SALAWU OGUNTOLA
(For themselves and on behalf of the Ile Alapo Idera Ruling House, Agboku)
4. IFELODUN LOCAL GOVERNMENT TRADITIONAL COUNCIL
5. ATTORNEY GENERAL KWARA STATE – Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering The Leading Judgment): The appeal is against the judgment of the High Court of Kwara State presided over by M. A. Abdulgafar, J. delivered on the 14th day of November, 2012 wherein the action was struck out. The appellants who were the plaintiffs in the Lower Court were dissatisfied with the said judgment, consequent upon which they filed a notice of appeal containing six (6) grounds of appeal, pages 500 – 507 of the printed records of appeal.
The Appellants who sued in a representative capacity took out their writ of summons on the 30th day of January, 2006 against Mr. Azeez Agboola, Ifelodun Local Government, Moses Oguntola and Salawu Agbede Oguntola claiming among other things a declaration that the appointment and recognition of the 1st Defendant/Respondent as Oba of Agbeku by the Governor and Traditional Council was a violation of tradition and custom of Agbeku which recognized rotation among the ruling houses in Agbeku and a nullification of such appointment.
The 1st Respondent filed a motion on notice challenging the jurisdiction of the Court to hear and determine the suit on 3/5/06. The appellants as respondents opposed the application and the Lower Court ruled in favour of the appellants, consequent upon which the 1st respondent appealed to this Court on 21/5/07. By its judgment delivered on 10/12/08, this Court dismissed the appeal.
The matter went to trial, during which by their motion for amendment of their claim joined Ifetodun Local Government Traditional council and Attorney General of the state as co-defendants.
At the trial, the Appellants’ witnesses gave evidence, the 1st Respondent gave evidence and called a witness and closed his case while the 2nd Respondent gave evidence for himself and 3rd Respondent while the 4th and 5th Respondents called a witness and closed their case, pages 429 – 452 of the records.
The 1st Respondent made out that the Appellants’ case was premature thus depriving the trial court of jurisdiction, making out that by virtue of Section 3(3) of the Chiefs Law of Kwara State, there must be evidence by the Appellants that the Governor of Kwara State had interuened before the matter came to court. The 1st Respondent had argued that failure to adduce this evidence robbed the court of jurisdiction which made the case of the Appellants liable to be dismissed. The Appellants responded on points of law. In its considered judgment, the trial Court struck out the Appellants’ claims on 4/11/12.
From their six (6) grounds of appeal, the appellants distilled two (2) issues for the determination of the appeal. They are:-
(1) “Whether the ratio in the cases of AWOYEMI VS. FASUAN (2006) 13 NWLR (PT.996) 86 and AMAKA VS. A. G. ONDO (2012) NWLR (PT.1313) 44 applies to this case having regards to Appellants’ amended statement of claim, evidence led and exhibit D3 tendered as well as Section 15(1) of Chiefs (Appointment and Deposition) Law of Kwara State (Grounds 1, 3, 4 and 5).
(2) Whether the learned trial Judge was right to have drawn conclusions as he did in this case when he said that he was not impressed by the distinctions made by the claimants’ Counsel in respect of the words “selection” and “appointment” without proffering reason(s) and whether such conclusion had not led to a miscarriage of justice (Ground 2).”
No issue was raised from ground six (6) of the notice of appeal, the appellants discarded same, which is hereby struck out.
The 1st respondent on his part also formulated two issues as follows:
1. “Whether the ratio in the case of AWOYEMI vs. FASUAN (2006) 13 NWLR (PT.1996) 86 and AMAKA VS. A. G. ONDO (2012) 12 NWLR (PT.1313) 44 apply to this case having regards to appellants’ amended statement of claim evidence led and EXHIBIT D3 tendered as well as section 15(1) of Chiefs (Appointment and Deposition) Law of Kwara State.
2. Whether the learned trial Judge was right to have drawn conclusions as he did in this case when he said that he was not impressed by the distinctions made by the claimants’ Counsel in respect of the words ‘selection’ and ‘appointment’ without proffering any reason(s) and whether such conclusion had not led to a miscarriage of justice.”
While the 4th and 5th Respondents on their part also formulated their two issues as follows:
1. “Whether the ratio in the case of AWOYEMI VS. FASUAN (2006) NWLR (PT.1996) 86 and AMAKA V. A.G. ONDO (2012) 12 NWLR (PT.1313) 44 apply to this case having regards to the appellants’ amended statement of claim, evidence led and Exhibit D3 tendered as well as section 15(1) of Chiefs (Appointment and Deposition) Laws of Kwara State.
2. Whether the learned trial Judge was right to have drawn conclusions as he did in this case when he said that he was not impressed by the distinction made by the claimants counsel in respect of the words “selection” and “appointment” without preferring any reason(s) whether such conclusions had not led to a miscarriage of justice”‘
The 2nd and 3rd respondents did not file any brief of argument and had nothing to urge the Court.
When the appeal was argued, J. O. Ashaolu Esq. appearing with F. O. Adeleru (Mrs.) for the Appellants drew our attention to the fact that vide an application filed on 14/10/13, the name of the 4th appellant (Prince Olawole I. O. Olanipekun) was struck out for the reason of his demise. Mr. Ashaolu thereafter adopted and relied on his brief of argument dated 20/11/13 filed on 22/11/13 as his argument in this appeal.
In arguing the appellants’ issue one, the learned counsel contended that the Lower Court misapplied the cases of AWOYEMI VS. FASUAN (2006) 13 NWLR (PT.996) 86 and AMAKA VS. A.G. ONDO (2012) NWLR (PT.1313) 44 to the present case which led to the dismissal of the appellants’ case. He also faulted the Lower Court’s interpretation of Section 3(3) of the Chiefs (Appointment and Deposition) Law of Kwara State which he argued should have been read with Section 15(1) of the same law. See, N.P.A.S.F. VS. FASEL SERVICES LTD (2002) FWLR (PT.93) 719 at 736: OKEOWO VS. ATT. GEN. OGUN STATE (2002) FWLR (PT.93) 1878 AT 1890, KABO AIR LTD VS. OLADIPO (1999) 10 NWLR (PT.623) 517 and BUHARI VS. OBASANJO (2005) ALL FWLR (PT.273) 1 at 144 amongst others. The law it was submitted, should be interpreted as a whole and not in isolation, See, A. G. LAGOS VS. A. G. FEDERATION (2003) FWLR (PT.168) 909; (2003) 12 NWLR (PT.833) 1; UGWU VS. ARARUME (2007) ALL FWLR (PT.377) 807; (2007) 12 NWLR (PT.1048) 367. DIMEGWU VS. OGUNEWE (2008) 17 NWLR (PT.1116) 358 and OYENIRAN VS. EGBETOLA (1997) 5 NWLR (PT.504) 122, It was argued that the word “approved” expressly included in Section 15(1) of the Chiefs (Appointment and Deposition) Law of Kwara State and its exclusion in Section 3(3) of the same law means that any suit relating to any chieftaincy appointment that has been “approved” by either the Governor or the appointing authority is competent in court without the aggrieved party first making any representation or recourse to the Governor or the appointing authority as long as the non-refundable deposit has been duly paid to the State Accountant General.
The learned Counsel conceded that at the selection and appointment stage of a chief by the kingmakers or selecting body, Section 3(3) must be complied with, that is the exhaustion of domestic or local remedies which is a condition precedent to the invocation of the jurisdiction of the court, see, EGUAMWENSE VS. AMAGHIZENWEN (1993) 7 NWLR (PT.315) 1; (1993) 11 SCNJ 27, ARIBISALA & ANOR VS. OGUNYEMI & ORS (2001) FWLR (PT.31) 2867; AYENI VS. OBASA (2012) ALL FWLR (PT.611) 1509; ADESOLA VS. ABIDOYE (1999) 12 SCNJ 61 and AKUNEZIRI VS. OKENWA (2001) FWLR (PT.35) 604.
It was the contention of the learned Counsel that where a chief’s appointment has been approved by the appointing authority or the Executive Governor of Kwara State, the only condition precedent for an aggrieved individual who wants to contest such approval is to pay the sum of N100,000.00 to the State Accountant General as prescribed by Section 15(1) and (2) of the Chiefs Law. See, ATOLAGBE VS. AWUNI (1997) 9 NWLR (PT.536) at P.572. It was argued that Awoyemi and Amaka cases relied on by the Lower Court are not applicable and are not binding precedents that a representation ought to be made to the Governor of Kwara State before an action could be instituted. The learned Counsel to the appellant defined the doctrine of stare decisis while relying on the cases of AJAO VS. OYEWUSI (2008) ALL FWLR (PT.432) 1119 at 1138 – 1139; ABU VS. ODUGBO (2001) FWLR (PT.69) 1260 at 1295 AND OMIDIORA VS. FEDERAL CIVIL SERVICE COMMISSION (2008) 44 WRN 53. The learned Counsel distinguished Amaka and Awoyemi’s cases from the present one. It was argued that the two cases above relied upon by the learned trial Judge were at the selection stages while the present case had gone beyond that to the “approval” stage by the Governor vide Exhibit D3, dated 25th November 2005. It was submitted that even though an objection to the jurisdiction of the Lower Court could be raised at any time, in the present case where pleadings had closed and evidence led the Lower Court failed to consider all the materials before it (oral and documentary) before determining whether it had jurisdiction or not. It was submitted that the Lower Court ought to have examined closely prayers (a) and (d) of paragraph 34 of the amended statement of claim which would have guided the Court to see that the real contest was the recognition (approval) of the 1st Respondent by the Governor of Kwara State vide Exhibit D3 which took the matter out of the purview of Section 3(3) of the Chiefs (Appointment and Deposition) Law of Kwara State to the arena of Section 15(1) of the same law, see, A.G. ANAMBRA STATE VS. OKAFOR (1992) 2 NWLR (PT.224) 396 at PAGES 418- 419 and AZEEZ AGBOLA VS. MALLAM SAKA KADRI AGBODEMU & ORS (2010) ALL FWLR (PT.529) 1111 at PP.1159 – 1169.
We were urged to hold that the two decisions relied upon by the learned trial Judge that this action was brought prematurely having not exhausted the remedies provided under section 3(3) of the Chiefs Law are neither appropriate nor binding precedents.
The appellants’ second issue is on the evaluation of evidence before the trial Court, learned Counsel faulted once again the Lower Court’s interpretation and application of Sections 3(3) and 15(1) above. It was further argued that the Lower Court failed to appreciate the distinction made by the learned Counsel to the appellants between “Selection” and “Appointment” and that no reason was given for rejecting the distinction drawn by learned Counsel. We were urged to set aside the judgment of the Lower Court and resolve the issue in favour of the appellants.
In response, the learned Counsel to the 1st Respondent, Dr. J. O. Olatoke Esq. appearing with O. W. Akanbi Esq. K. A. Aminu (Mrs.) and O. T. Mohammed Esq. adopted and relied on the 1st Respondent’s brief of argument dated and filed on 25th November, 2013 in urging us to dismiss the appeal which he said had become academic. The learned Counsel adopted the issues as formulated by the Appellants.
In arguing the first issue, it was submitted that the learned trial Judge was right to have relied on the two cases under the first issue in arriving at its decision. It was submitted that the Appellants not having fulfilled the condition precedent as required by law, they could not enjoy the benefits of such law which mandated same. It was argued that the fulfillment of a condition precedent before the institution of a suit determines and confers jurisdiction on a Court. See, MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341, ODOFIN VS. AGU (1992) 3 NWLR (PT.229) 350 AT 365 – 366 PARAS H – A, LADO VS. C.P.C. (2011) 18 NWLR (PT.1279) 689 at 716 – 717 PARAS G – F, OKARIKA VS. SAMUEL (2013) 7 NWLR (PT.1352) 19 at 46 PARAS D – F and PERETU VS. GARIGA (2013) 5 NWLR (P.1348) 415 at 433, PARAS B – E, D.E.N.R. LTD. VS. TRANS INT’L BANK LTD. (2008) 18 N.W.L.R. (PT.1119) 399 at 417 PARA F- ADELEKE VS. OYO STATE HOUSE OF ASSEMBLY (2006) 15 NWLR (PT.1006) 608 at 710 PARAS E – F, and OPOBIYI VS. MUNIRU (2011) 18 NWLR (PT.1278) 387 at 403 PARA D. It was the contention of the learned Counsel that there is nothing to show that the Appellants fulfilled the condition precedent before the institution of this action to confer jurisdiction on the Lower Court to have entertained this matter. It was argued that the trial Court was right to have struck out the matter for want of jurisdiction since the conditions precedent had not been fulfilled. Learned Counsel variously defined the term “condition precedent” through the above legal authorities, in summary it was defined as a thing which must happen or be performed before a party could be vested with a right of action, non-fulfillment of such condition would preclude such right of action from vesting, we were urged to hold so as the Lower Court did. It was argued that Section 3(3) of the Chiefs (Appointment and Deposition) Law Cap C.9 Laws of Kwara State (2004) (hereafter referred to as the Chiefs Law) was not complied with. It was submitted that the learned Counsel to the appellants erroneously tried to draw a distinction between the words ‘selection’ and ‘appointment’ in submitting that the above Section of the Chiefs Law applied to only at the selection stage. It was argued that by the use of the words “any dispute” in the above Section the stages of ‘selection’ and ‘appointment’ cannot be separated for different sections of the law to apply to either of the two stages, the words were said to encompass any stage of appointment of a chief, without any exception. It was the submission of the learned Counsel that the appellants ought to have complied with Section 3(3) of the Chiefs Law before taking out the present action.
Further, that the learned Counsel to the appellants was wrong to have argued that Section 15(1) and (2) of the Chiefs Law is in conflict with Section 3(3) of the same law in that Section 3(3) must be complied with before Section 15(1) and (2) can become operational, See, ATOLAGBE VS. AWUNI (1997) (Supra) at 562 Paras E – H.
It was also argued that by the provisions of Section 15(2) of the Chiefs Law, it only applies to situations where there is a vacant chieftaincy stool and that in this case the appointing body had appointed the 1st Respondent as the Oba of Agbeku. Further, that the appellants not having presented this suit to the Governor of Kwara State as mandated by Section 3(3) of the Chiefs Law robbed the Court of jurisdiction to entertain the matter, See, ARIBISALA VS. OGUNYEMI (2005) 6 NWLR (PT.921) 212 at 232 PARA B and AYENI VS. OBASA (2012) ALL FWLR (PT.611) 1509 at 1533 PARAS G – A. We were urged to affirm the Lower Court’s decision striking out the matter for lack of jurisdiction to entertain same.
In arguing issue two, the learned Counsel adopted his argument under issue one and contended that this issue is academic as it has been argued under the first issue. It was submitted that there is no distinction between the words ‘selection’ and ‘appointment’. Further, that the distinction sought by the learned Counsel to the appellants does not constitute evidence that must be evaluated by a judge. It was argued that the learned trial Judge cannot be faulted for finding no merit in the distinction drawn between the two words by the learned Counsel. It was argued that the Lower Court properly evaluated the issues raised in the Lower Court in his own way and rightly held that it had no jurisdiction to entertain the matter and struck out the suit, See, NDUKWE VS. STATE (2009) 2 – 3 S.C. (PT.11) 35 at 78 Lines 5 – 9, ODUWOLE & 3 ORS VS. PROFESSOR WEST (2010) 3 – 5 S.C. (PT.111) 183 at 201, GARUBA VS. YAHAYA (2007) 1 S.C. (PT.11) 262 at 289, Lines 32 – 35 and A.G. FEDERATION & 2 ORS VS. ABUBAKAR & 3 ORS (2007) 4 S.C. (PT.11) 62 at 93 to the effect that every judge has his own style of writing judgment after evaluation of evidence. We were urged to dismiss the appeal as it is lacking in merit.
The learned Counsel to the 2nd and 3rd Respondents, I. B. Malik Esq. when the appeal was argued informed the Court that he did not filed any brief of argument and was not objecting to the appeal.
Mr. Kamaldeen Ajibade, the Honourable Attorney-General, Kwara State appearing with S. O. Ishola, Chief State Counsei and O. S. Balogun, Senior State Counsel for the 4th – 5th Respondents in response adopted and retied on his brief of argument dated 29th January, 2014, filed on 31st January, 2014 as his argument in this appeal. He adopted the two issues formulated by the appellants.
It was submitted that the learned trial Judge was right to have applied the cases of AWOYEMI VS. FASUAN (2006) Supra and AMAKA VS. A.G. ONDO (Supra) because where a statute prescribes steps to be taken preceding an action, the aggrieved party must exhaust all the remedies in that law before going to Court. Further that Section 3(3) of the chiefs Law of Kwara state mandates the submission of grievances to the Governor for his intervention before initiating any matter in Court, See, ARIBISALA VS. OGUNYEMI (Supra).
The learned Attorney-General argued along the same line as Dr. Olatoke to the effect that fulfillment of conditions precedent confers jurisdiction on the Court to determine a suit, See, EGUAMWENSE VS. AMAGHIZENWEN (SUPRA), ABIDOYE VS. BABALOLA (1999) 14 NWLR (PT.637) 28 also the interpretation of Section 3(3) of the Chiefs Law and the effect of non-fulfillment of the conditions as stipulated in the above Section, See, OHAKIM VS. AGBASO (2010) 19 NWLR (PT.1226) at 183 – 184 to the effect that it is the fulfillment of conditions that confer jurisdiction on a court. The learned Attorney-General adopted the arguments of Dr. Olatoke concerning the distinction Mr. Ashaolu made between the words ..selection” and “appointment” as well as the purport and application of Sections 3(3) and 15(1) and (2) of the Chiefs Law’ as contained in the brief of argument of the 1st Respondent, paragraphs 4.09 – 4.30, I need not review same again. He emphasized that section 15(2) relied upon by the learned counsel to the Appellants is inapplicable in that the section applies to litigations concerning a vacant chieftaincy stool and where the appointing body has not approved any appointment’ whereas in the present case the 1st Respondent has been appointed as the Oba of Agbeku.
It was argued that, there cannot be approval without the selection process of an Oba and that the failure of the appellants to have presented this matter to the Governor of Kwara State as provided in Section 3(3) of the Chiefs Law robbed the Court of the jurisdiction to entertain the matter as held by the trial Court. We were urged to dismiss this appeal on this issue.
On the second issue, the first issue was re-argued as well as similar submissions as the learned Counsel to the 1st Respondent, I need not repeat same. The learned Attorney-General adopted the arguments of the learned Counsel to the 1st Respondent in paragraphs 5.06 – 5.09 of the 1st Respondent’s brief in urging us to dismiss the appeal.
In determining the appeal I would utilize the issues as raised by the appellants which were also adopted by the respective parties. It is apt from the onset to start with the provisions of the Chiefs Law of Kwara State which has stated the guideline or that which ought to-be done where one is aggrieved with the appointment or selection (whatever the case may be) before going to Court to seek redress.
Section 3(3) of the Chiefs Law of Kwara State provides as follows:-
3(3) “In the case of any dispute, the Governor, after due inquiry and consultation with persons concerned in the selection, shall have the final say as to whether the appointment of any Chief has been made in accordance with customary law and practice.”
While Section 15(1) and (2) of the same law provides as follows:-
15(1) “Where the Governor or appointing authority has approved the appointment of a person as a Chief, any person who intends to challenge the validity of such appointment shall first deposit with the State Accountant General a non-refundable sum of one hundred thousand Naira.
(2) Where the Governor or the appointing authority has not approved any appointment to a vacant chieftaincy stool, any aggrieved person who institutes any court action in connection with the vacant chieftaincy stool and joins the state Government or any of its agencies as a party to any such court action shall first deposit with the state Accountant General a non-refundable fee of One hundred thousand Naira.”
With the decisions relied upon by the learned trial Judge, AWOYEMI VS. FASUAN (2006) Supra and AMAKA VS. A.G. ONDO STATE (Supra), the learned Counsel to the appellants had argued that it was wrong for the Court to have relied on these decisions. In the above two cases, this Court basically decided that an aggrieved party in a selection or appointment under the Chiefs Law must first exhaust all the local administrative remedies provided in the relevant Chiefs Law before commencement of any action in Court. I have reproduced the requirements above as also agreed by both parties except that while the respondents argued that the two Sections above must be met, first Section 3(3) before Section 15(1) and (2), the appellants argued that the former applies to only the selection process while the latter applies to the appointment stage which learned Counsel made out is applicable to the appellants’ case here.
In my humble view, a literal interpretation of Section 3(3) means that in any dispute, whether at the stage of nomination, selection or appointment, the Governor would inquire and consult with persons concerned in the selection, and would have the final say as to whether the appointment of any Chief was in compliance with the customary law and practice of the people.
From the writ of summons taken out by the appellants at page 2 of the printed records, the reliefs sought amongst other things challenged the selection and recognition of the 1st defendant as the Oba of Agbeku in Ifelodun Local Government Area of Kwara State as being irregular and a nullification of same was sought from the Lower Court, See, paragraphs (i) and (iv) of the Claim. In other words, the appellants sought before the Lower Court to determine whether the exercise of selection or recognition of Oba Agbeku was proper and to nullify same, with the allegation that it was not properly done in the first place.
For the Lower Court to be able to do what was sought in the reliefs, the appellants who were aggrieved by the selection and recognition ought to have complied with the applicable law, the Chiefs Law of Kwara State which has clearly stated that which ought to be done before any action could be instituted in Court.
The Appellants ought to have made a representation to the Governor that the selection and recognition of the 1st defendant by the 2nd defendant as the Oba of Agbeku was irregular and a violation of the customs, tradition and history of Agbeku people, what the appellants perceive to be the mode of selection, who the candidate should be or where from, a nullification of the selection and recognition already carried out and any other area of grievance. If after presenting their grievances, the Governor in consultation with persons concerned in the selection process would first be given an opportunity to act or take a decision in respect of the representation and if and where unsatisfactory with the decision, or worse still where given time no action is taken within reasonable time, then the aggrieved appellants would resort to litigation in court. See, decisions of this court in AYENI VS. OBASA (2012) ALL FWLR (PT.611) 1509 AT 1533 PARAS G. A, AMAKA VS. A.G. ONDO STATE (2012) 12 NWLR (PT.1313) 44 AT 67 – 68, H – A, BAMISILE VS. FRANCIS OJO OSASUYI & 5 ORS (2007) 10 NWLR (PT.1042) 225 AT 270, E – F AND EGUAMWENSE VS. AMAGHIZENWEN (Supra) at 25.
The Supreme Court has made the position of the law clear in several judicial authorities as has arisen in this case and decided by this Court in the above cases amongst a host of others, see, ATOLAGBE VS. AWUNI (SUPRA), EGUAMWENSE VS. AMAGHIZENWEN (SUPRA), AWOYINIYI vs. FASUAN (2006) (supra) relied upon by the learned trial Judge in this case, ADESOLA VS. ABIDOYE (1999) 14 NWLR (PT.637) 28 AT 59, PARAS A – H and ARIBISALA VS. OGUNYEMI (2005) 6 NWLR (PT.921) 212 AT 232 PARA B. All these authorities are to the effect that in a chieftaincy dispute as the present one, an aggrieved person who brings a suit must show that he took out his action after he had exhausted the remedies provided or followed the procedure prescribed under the applicable law.
The learned Counsel to the appellants had argued that the appellants had complied with Sections 15(1) and (2) of the Chiefs Law and that the action was properly taken out from a careful reading of Section 3(3) of the Chiefs Law with a literal interpretation (as opposed to implied meaning as suggested by learned Counsel to the appellants) shows that a representation ought to have been made to the Governor and the persons concerned with the selection and appointment first before resorting to court. It is after this stage that the aggrieved party would be eligible to move on to fulfill subsequently the conditions in Section 15(1) and (2), this latter Section cannot be read to be the only requirement in the present case as argued by Mr. Ashaolu. It is clear that the Appellants did not in any way comply with Section 3(3) of the Chiefs Law and have not made out that they did. The above section made it clear that it applies to “any dispute” therefore the distinction sought to be made by Mr. Ashaolu does not hold water, I say so because whether the grievance is over selection or appointment, Section 3(3) applies and provides the condition that must be met before a party can resort to the courts. I agree with the submissions of the learned Counsel to the Respondents that the conditions laid down in Section 3(3) must first be met before getting to the stage of fulfilling that in Section 15(1).
The learned Counsel to the Appellant erroneously relied on and emphasized that the applicable law in this case is Section 15(2) of the Chiefs Law only, without Section 3(3). The section when read clearly shows that it is applicable where the Governor or the appointing authority has not approved any appointment to a vacant chieftaincy stool, which is not the case in the present case, because there is no vacant stool, the selection and recognition of the 1st defendant in the Lower Court (1st respondent) having been made before this action was instituted. Therefore, reliance on Section 15(2) as compliance, is not tenable in law.
From the records of Court, the appellants did not exhaust the domestic remedies as provided by the Chiefs Law before heading to Court to ventilate their grievances. This action was therefore, premature and incompetent, the Lower Court had no jurisdiction to entertain same, I cannot fault the Lower Court’s decision that it lacked jurisdiction to entertain the matter and striking same out.
The issue of jurisdiction is very important in adjudication and it is the basis or foundation of any adjudication, where it is lacking, the Court has no power or jurisdiction to entertain it. As in this case where the case was initiated without fulfillment of the required condition in a Chieftaincy matter in Kwara State. The failure is fatal and the proceedings if the Court had held otherwise would have been a nullity no matter how well the case was conducted. See, the old and popular case of MADUKOLU vs. NKEMDILIM (1962) 2 SCNLR 341; 1 ALL N.L.R. (PT 4) 587; LADO VS. C.P.C. (2011) 18 NWLR (PT.1279) 689 at 716 – 717 PARAS G – F, D.E.N.R. LTD. VS. TRANS INT’L BANK LTD. (2008) 18 NWLR (PT.1119) 339 AT 417 PARA F; 436 – 437 PARAS H – A and OPOBIYI VS. MUNIRU (Supra).
In the case of LADO VS. C.P.C. (2011) Supra at P.716 – 717, PARAS G – G. his Lordship of the Apex Court, Onoghen, JSC in this respect emphasized the position of the law thus:-
“By the locus classicus case of MADUKOLU VS. NKEMDILIM (1962) 1 ALL NWLR (PT.4) 587; (1962) 2 SC NLR 341′ this Court laid down the proper guidelines in determining the issue of jurisdiction of a Court of law. This Court stated that a Court is competent when:
(a) It is properly constituted as regards members of the Bench, and no member is disqualified for one reason or another.
(b) The subject matter of the case is within its jurisdiction and no feature in the case which prevents the Court from exercising its jurisdiction, and
(c) The case comes before the Court initiated with due process of law and upon fulfillment of a condition precedent to the exercise of jurisdiction. It is settled law that any defect in the competence of a Court is fatal because,, the proceedings will be a nullity however well conducted.” (Underlined mine for emphasis).
The present action fell short of the third condition above. I hold that the trial Court rightly struck out the case for want of jurisdiction; the failure of the appellants to exhaust all local remedies before going to the trial Court was fatal to their case. The first issue is resolved against the appellants.
In the second issue, Mr. Ashaolu had faulted the interpretation or evaluation by the Lower Court of the words “selection” and “appointment”. He had urged us to hold that there is a distinction between the two words in respect of the interpretation or applicability of Section 3(3) of the Chiefs Law being only applicable to cases where only selection is in dispute in chieftaincy matters and not in cases of appointment. This issue has been’ addressed in the resolution of the first issue. Also, t[e arguments proffered under this issue were covered when Mr. Ashaolu argued the first issue, therefore resolving same once again would be a waste of precious judicial time and repetitive. The Lower Court did not see any distinction in respect of the case at hand. The learned trial Judge in my respectful view rightly interpreted both terms. Learned Counsel is not in a position to dictate to the trial Court on how to interpret the words to suit his case. The second issue is resolved against the appellants.
In the final analysis, I hold that the appeal is without merit, I dismiss same. The judgment of the learned trial Judge, M. Abdulgafar, delivered on 14th day of November, 2012 in Suit No.KWS/OM/9/2006 is hereby affirmed. Parties to bear their respective costs.
MOHAMMED LADAN TSAMIYA, J.C.A.: I agree.
HUSSEIN MUKHTAR, J.C.A.: I was advantage of reading in draft the judgment just delivered by my learned brother, Chidi Nwaoma Uwa, J.C.A. I completely agree with him that, for the reasons set out in the said judgment, this appeal is bereft of merit and should be dismissed.
I therefore dismiss the appeal on the reasons ably advanced in the lead judgment.
Appearances
J. O. Ashaolu Esq. with F. O. Adeleru (Mrs.) For Appellant
AND
Dr. J. O. Olatoke Esq. with O. W. Akanbi Esq., K. A. Aminu (Mrs.) and O. T. Mohammed Esq. for the 1st Respondent.
I. B. Malik Esq. for the 2nd -3rd Respondents.
Kamaldeen Ajibade Esq., Attorney-General, Kwara State with S. O. Ishola, Chief State Counsel and O. S. Balogun, Senior State Counsel for the 4th – 5th Respondents. For Respondent
