MR IDOWU AYENI & ORS. v. ELDER SUNDAY ISAAC OBASA & ANOR.
(2010)LCN/3998(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of July, 2010
CA/IL/50/2008
RATIO
JURISDICTION: EFFECT OF THE PROCEEDINGS OF A COURT CONDUCTED IN THE ABSENCE OF JURISDICTION TO ENTERTAIN SAME
Where a court does not have jurisdiction to entertain a suit before it, the proceedings however well conducted would be a nullity. This is so because courts are creatures of statutes. As such, jurisdiction of a court is limited and circumscribed by the statute creating it. Consequently, a court cannot give itself jurisdiction by misconstruing a statute. He listed the age-long prerequisites for the exercise of jurisdiction as settled in Madukolu v Nkemdilim (1962) 2 SCNLR 341. PER CHIMA CENTUS NWEZE, J.C.A.
JURISDICTION: WHETHER THE ISSUE OF JURISDICTION CAN BE RAISED AT ANYTIME
…the issue of jurisdiction goes to the root of an action: it either sustains or nullifies it. As such, it can be raised at any stage of the proceedings even on appeal, Cotecna International Ltd v. Ivory Merchant Bank Ltd (2006) 9 NWLR (pt 985) 275; Western Steel Works Ltd v Iron and Steel Workers union (1986) 3 NWLR PT 30) 617, Ndaeyo v. Ogunnaya (1997) 1 SC 11; Bakare v. AG FEB (2001) 23 WRN 1; (1990) 9 SCNJ 43; (1990) 5 NWLR (pt 152) 516. PER CHIMA CENTUS NWEZE, J.C.A.
JURISDICTION: WHAT WILL BE CONSIDERED IN DETERMINING WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN AN ACTION BEFORE IT
True, indeed, in considering whether the court has jurisdiction to entertain an action, it is the plaintiff’s claim that the court has to consider. The explanation for this is simple: it is the plaintiff’s cause of action that determines his legal right to judicial relief. Thus, the all-embracing subject matter, that is, all the features entitling the court to its exercise of jurisdiction must be intact for the court to assume adjudication thereon, Ogunmokun v Mil AD Osun (1999) 3 NWLR (pt 594) 261; Ajibola Sogeke (2003) 9 NWLR (pt 826) 494; B. B. Apugo and Sons Ltd v Orthopaedic Hospital Management Board (2005) 17 NWLR (pt 954) 305; Okumodi v Sowunmi (2004) 2 NWLR (pt 856) 1; Plateau State v AG Fed (2006) 3 NWLR (pt 967) 346. Simply put, therefore, it is plaintiff’s processes that are relevant. Hence, the statement of defence is irrelevant, Nwaigwe v Okere (2008) 13 NWLR (pt 1105) 445; Osun State Govt. v Danlami Nig Ltd (2007) 9 NWLR (pt 1038) 66. The grouse of the appellants is that the court’s jurisdiction was challenged yet instead of making its views on the objection known, the court side-stepped the challenge to its jurisdiction and proceeded to the determination of the merits of the case. PER CHIMA CENTUS NWEZE, J.C.A.
CHIEFTAINCY MATTER: BURDEN PLACED ON AN AGGRIEVED PARTY IN A MINOR CHIEFTAINCY DISPUTE
An aggrieved party in a minor chieftaincy dispute must explore all domestic remedy before going to court is a mandatory rather than a discretionary stipulation.PER CHIMA CENTUS NWEZE, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 13(2)-(5) OF THE CHIEFS EDICT OF 1984 (AS AMENDED) OF ONDO STATE AS IT RELATES HOW DISPUTES ARISING OUT OF THE APPOINTMENT OF A MINOR CHIEF MAY BE RESOLVED
…section 13(2)-(5) of the Chiefs Edict of 1984 (as amended) of Ondo State as applicable to Ekiti which provide as follows: 13(2) Where a person is appointed, whether before or after the commencement of this Edict, to fill a vacancy in the office of a minor chief by those entitled by customary law so to appoint and in accordance with customary law, the prescribed authority may approve the appointment (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 and the person concerned shall be notified of the decision (4) Any person who is not satisfied with decision of the prescribed authority may within twenty one days from the receipt of the notification make representation to such member of the Executive Council to whom responsibility for Chieftaincy Affairs assigned that the decision be set aside and he may after consideration of the representation confirm or set aside the decision. (5) Before exercising the powers conferred by subsection (5) of this section the member of the Executive Council responsible for chieftaincy affairs may make inquires to be held as appear to him to be necessary or desirable. PER CHIMA CENTUS NWEZE, J.C.A.
JUSTICES
DALHATU ADAMU OFR Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
Between
MR IDOWU AYENI & 2 ORS. Appellant(s)
AND
ELDER SUNDAY ISAAC OBASA & ANOR. Respondent(s)
CHIMA CENTUS NWEZE, J.C.A. (Delivering the leading Judgment): The respondents in this appeal [as plaintiffs] took out a writ of summons in which they claimed the following reliefs against the appellants herein [defendants as they then were]:
(a) A declaration that by the native Law and custom of Iniyein, Ire Ekiti, the Oniyein chieftaincy title is the exclusive preserve of Igemo and Ilisin Ruling Houses.
(b) A declaration that by the native Law and custom of Iniyein of Ire Ekiti, it is the turn of Ilisin Ruling house to present a candidate for the vacant stool of Oniyein of Iniyein, Ire Ekiti.
(c) A declaration that the nomination of the 1st defendant by the 2nd defendant as the Oniyein of Iniyein, Ire Ekiti awaiting the approval of the 3rd defendant who is the consenting authority over Oniyein of Iniyein, Ire Ekiti is null and void and of no effect whatsoever.
(d) A declaration the approval (sic) of Chieftaincy Declaration relating to Oniyein of Iniyein, Ire Ekiti made in 1957 and approved on 26th December, 1960 and published on page 59 of the Western State Chieftaincy Declaration, Ekiti North Division is null and void and of no effect whatsoever.
(e) A perpetual injunction against the 1st defendant from parading himself as the Oniyein of Iniyein, Ire Ekiti.
Pleadings were duly settled and exchanged. At the conclusion of the trial, the High Court [hereinafter referred to as the lower court] favoured the plaintiffs with all the reliefs they claimed. Dissatisfied with the judgment, the defendants [now appellants] appealed to this court entreating it to determine the following issues:
(1) Whether it was proper for the learned trial judge to have willfully closed his eyes to the vital issue of jurisdiction raised by the appellant’s counsel in the course of his address.
(2) Whether the respondents complied with the procedural steps stipulated in the Chiefs Edict 1984 now amended by the 1991 Edict of Ondo State as applicable to Ekiti State before instituting action at the trial court.
(3) If issue two is answered in the affirmative, whether the learned trial judge can suo motu declare that the Chieftaincy Declaration of 1960 Western Region on Oniyein of Ire chieftaincy is of no relevance to Ekiti State when the respondent did not seek for same.
The respondents, also, formulated issues for the determination of this appeal. They were couched thus:
(1) Whether the trial court has jurisdiction to entertain the suit as there was nothing on the pleadings filed to show that the action is incompetent.
(2) Whether the appellants can now on appeal, raise the issue of a procedural pre-condition as set out by Chiefs Edict 1984 as amended when it was never pleaded in their pleadings before the Lower Court.
(3) Whether the Chieftaincy declaration of 1960 still apply to Ekiti state Chieftaincies in view of the review of all the Chieftaincies under that declaration that has been carried out and published in the Government white papers of Morgan Chieftaincy Review commission 1982 and Oluwole Chieftaincy Review commission 1982.
(4) Whether the Respondents have proved their case based on evidence to warrant the court granting the reliefs sought.
Against the background of the main grouse of the appellants against the judgment of the lower court as evident from the Notice and Grounds of Appeal, I take the view that the issues formulated by the appellants would suffice in the determination of this appeal. We shall therefore adopt them as the issues for determination herein.
ISSUE ONE
Whether it was proper for the learned trial judge to have willfully closed his eyes to the vital issue of jurisdiction raised by the appellant’s counsel in the course of his address.
Arguing Issue 1, Bamidele Omotoso, counsel for the appellants, contended that a question relating to the absence of jurisdiction of a court to adjudicate in a matter can be raised at any stage of proceedings even for the first time on appeal, Owoseni v Faloye (2005) 14 NWLR (Pt.946) 719. He noted the issue of jurisdiction is a fundamental prerequisite in the adjudication of any matter. It is the life wire of all suits.
Where a court does not have jurisdiction to entertain a suit before it, the proceedings however well conducted would be a nullity. This is so because courts are creatures of statutes. As such, jurisdiction of a court is limited and circumscribed by the statute creating it. Consequently, a court cannot give itself jurisdiction by misconstruing a statute. He listed the age-long prerequisites for the exercise of jurisdiction as settled in Madukolu v Nkemdilim (1962) 2 SCNLR 341.
He contended that the question of jurisdiction is the cornerstone of all litigations. Consequently, once the jurisdiction of a court is challenged the court is duty bound to determine the question whether or not it has jurisdiction first before proceeding to entertain the case. This is so because any order made in a suit by a court without jurisdiction is a nullity and remains so for all purposes, Fayemi v LGSC (2005) 6 NWLR (pt 921) 280, 305; Chukwuogor v Chukwuogor (NIG) Ltd (2007) 17 NWLR (pt 1064) 589, 602; 603-604.
He explained that the appellants’ counsel challenged the jurisdiction of the lower court to entertain the respondents’ suit in the course of his address, citing pages 72 – 76 of the record.
The respondents’ counsel reacted to the submission of the appellants’ counsel on the issue of jurisdiction, page 68 of the record. Surprisingly, the learned trial judge deliberately failed to determine this vital issue canvassed by the parties, pages 80 – 84 of the record. Rather His Lordship went ahead to determine the case on its merits. He submitted that the issue of jurisdiction is fundamental in nature. Where and when raised, the court is duty bound to resolve it one way or the other before any further steps are taken in the proceeding as any judicial exercise without jurisdiction constitutes an exercise in futility, Bamisile v Osasuyi (2007) 9 NWLR (pt 1042) 225, 262.
He submitted that the failure of the learned trial court to determine the issue of jurisdiction raised before it occasioned a miscarriage of justice. According to him, if the learned trial judge had determined this issue in the course of the judgment, the respondents’ suit would have been truck out on the ground of lack of jurisdiction.
For the respondents, it was contended that the matter before the Lower court was a Chieftaincy dispute of Oniyein of Iniyein Ire-Ekiti and by virtue of section 272 of the Constitution of the Federal Republic of Nigeria 1999, the High Court of Ekiti State has jurisdiction to entertain any Chieftaincy dispute.
Counsel noted that in determining whether the court has jurisdiction or not, what the court will look at is the Writ of Summons and Statement of Claim. He took the view that from the record of the court, it was clear that the court had the jurisdiction, Western steel works Ltd v Iron and steel workers union (1986) 3 NWLR (pt.30) 6-7 at 625. He submitted that parties are bound by their pleadings and any facts or Law a party intends to rely upon in his case must be specifically pleaded and failure to plead such facts or Law is fatal and such party cannot be allowed to raise it on appeal, citing Order 25 Rule 6 (2) of the Ondo State rules of the High Court as applicable to Ekiti State; Mobil prod. Nig v. LASEPA (2002) 18 NWLR (pt 798) 1 at 46.
He maintained that the address of counsel was not a substitute for evidence and issue raised in an address that were not pleaded and which were unsupported by evidence may be ignored by the court. In the pleading and evidence of the appellant there was no where they pleaded the issue of the court’s jurisdiction; neither did they give any evidence challenging the jurisdiction of the court.
He conceded that the issue of jurisdiction could be raised at any stage of the proceeding but it must be apparently shown by the pleadings of the parties that the trial court had no jurisdiction to hear the suit. In his view, from the pleadings of both parties, there was nothing to show that the trial court had no jurisdiction to entertain the suit. Above all, from the pleadings of the appellants and or their evidence, there was no where the issue of competency of the respondent action was raised.
He dismissed the submission of the appellants’ counsel on the issue of jurisdiction as lacking in merit. He, therefore, urged the court to hold that the trial court rightly assumed jurisdiction in this case.
In reply to the learned respondents’ counsel’s argument that the appellants did not plead the issue of court’s jurisdiction, Omotoso, for the appellants submitted that the issue of jurisdiction can be raised at any stage of proceedings even at the Supreme Court for the first time, Eze v AG Rivers State (2001)18 NWLR (pt 746) 524, 544.
On the respondents’ contention to the effect that the appellants’ pleadings did not raise the issue of jurisdiction of the lower court to entertain the matter, Omotoso submitted that it was not mandatory for a party to raise the issue of jurisdiction in his pleadings before canvassing same. He took the view that a Court could suo motu raise the issue of its jurisdiction and order parties to address it on same, Kano Plc v G&H (NIG.) LTD (2002) 2 NWLR (pt 751) 420, 448.
In strict fidelity to the court’s order for further addresses on the applicability of the Morgan Chieftaincy Review Commission and the Oluwole Chieftaincy Review Commission, both parties filed further addresses. The appellants, therein, observed that on January 13, 2010, when this appeal came up for hearing, counsel for the respondents withdrew issue No 3 in paragraph 5 of the respondents’ Brief of Arguments and the arguments canvassed therein. Counsel noted that since the issue had been withdrawn and struck out, it ceased to form part and parcel of the respondents’ Brief of Arguments. In effect, both the Morgan and Oluwole Chieftaincy Commissions had no relevance to the Chieftaincy dispute giving rise to this appeal.
In their further address, the respondents, also, confirmed that though they had raised the issue of the two Commissions, they had withdrawn the issue relating thereto on page 5 of their original Brief, that is, issue 3. They, equally, confirmed that this court had struck out the issue.
RESOLUTION OF THE ISSUE
As shown above, learned counsel for the appellant, in the course of his address before the lower court, for the first time, challenged the jurisdiction of that court to hear and determine the matter because the plaintiffs/respondents did not comply with the essential precondition to the activation of the court’s jurisdiction. The court, it would seem, glossed over this radical challenge to its jurisdiction.
The reaction of the respondents, in the main, is that the appellants did not plead the question of the want of jurisdiction. With respect, this submission ignores the radical character of the objection to the court’s jurisdiction. Now, the issue of jurisdiction goes to the root of an action: it either sustains or nullifies it. As such, it can be raised at any stage of the proceedings even on appeal, Cotecna International Ltd v. Ivory Merchant Bank Ltd (2006) 9 NWLR (pt 985) 275; Western Steel Works Ltd v Iron and Steel Workers union (1986) 3 NWLR PT 30) 617, Ndaeyo v. Ogunnaya (1997) 1 SC 11; Bakare v. AG FEB (2001) 23 WRN 1; (1990) 9 SCNJ 43; (1990) 5 NWLR (pt 152) 516.
Above all that submission overlooks the settled jurisprudence that the issue of jurisdiction can be raised by whatever means, including by an oral objection Wilbros (Nig) Ltd v. AG OF Akwa Ibom (2008) 5 NWLR (pt 1081) 484. Indeed the issue of jurisdiction can be raised in any form by any of the parties or suo motu by the court, Sheim v Gobang (2009) All FWLR (pt 496) 1866, 18877; National Bank v Shoyoye 1977 5 SC 181. In effect, an objection to jurisdiction can be raised at the beginning or at the end of the proceedings even just, before judgment stage, Nasir v C.S. C. Kano State (2007) 5 NWLR (pt190) 253; Ezomo v Oyakhire (1985) 1 NWLR (pt 2) 195; Oloriode v Oyebi (1984) 1 SCNLR 390; Mobil Oil Nig Plc v Kena Energy Int’l Ltd (2001) 1 NWLR (PT 695) 555.
What crystallises from the contemporary judicial posture on this question is that it is in the interest of the best administration of justice that where the issue of jurisdiction is raised in any proceedings before any court of law, it should be dealt with at the earliest opportunity. In any event, it should be disposed of before the consideration of any other issues raised in the case. This must be so because anything done without jurisdiction or in excess or jurisdiction by any court established under the Constitution is a nullity, Odessa v FRN (No 2) (2005) 10 NWLR (pt 934) 528, 558-559, citing Onyema v Oputa (1987) 3 NWLR (pt 60) 259; AG Fed v Sode (1990) 1 NWLR PT 128 500; NALSA AND TEAM ASSOCIATES v NNPC 1996 3 NWLR PT 439 621.
The respondent’s counsel rightly submitted that to be able to determine that question, it is the plaintiffs’ processes that should be considered. True, indeed, in considering whether the court has jurisdiction to entertain an action, it is the plaintiff’s claim that the court has to consider. The explanation for this is simple: it is the plaintiff’s cause of action that determines his legal right to judicial relief. Thus, the all-embracing subject matter, that is, all the features entitling the court to its exercise of jurisdiction must be intact for the court to assume adjudication thereon, Ogunmokun v Mil AD Osun (1999) 3 NWLR (pt 594) 261; Ajibola Sogeke (2003) 9 NWLR (pt 826) 494; B. B. Apugo and Sons Ltd v Orthopaedic Hospital Management Board (2005) 17 NWLR (pt 954) 305; Okumodi v Sowunmi (2004) 2 NWLR (pt 856) 1; Plateau State v AG Fed (2006) 3 NWLR (pt 967) 346.
Simply put, therefore, it is plaintiff’s processes that are relevant. Hence, the statement of defence is irrelevant, Nwaigwe v Okere (2008) 13 NWLR (pt 1105) 445; Osun State Govt. v Danlami Nig Ltd (2007) 9 NWLR (pt 1038) 66.
The grouse of the appellants is that the court’s jurisdiction was challenged yet instead of making its views on the objection known, the court side-stepped the challenge to its jurisdiction and proceeded to the determination of the merits of the case.
There is considerable merit in the complaint of the appellant. The lower court was under obligation to make its view known to the parties before determining the merit of the case. This is more so when it was a direct challenge to its jurisdiction to even entertain the case before it. That was a great error on its part. Judicial prudence dictated that the said objection should have been disposed of before the consideration of any other issues raised in the case, Odessa v FRN (No 2) (2005) 10 NWLR (pt 934) 528, 558-559, citing Onyema v Oputa (1987) 3 NWLR (pt 60) 259; AG Fed v Sode (1990) 1 NWLR PT 128 500; NALSA AND TEAM ASSOCIATES v NNPC 1996 3 NWLR PT 439 621. This issue is, therefore, resolved in favour of the appellants.
ISSUE 2
Whether the respondents complied with the procedural steps stipulated in the Chief Edict 1984 now amended by the 1991 Edict of Ondo State as applicable to Ekiti State before instituting action at the trial court.
On this issue, counsel for the appellants prayed in aid the provisions of section 13 (2)-(5) of the Chiefs Edict of 1984 (as amended) of Ondo State as applicable to Ekiti. In his view, the provisions have set out the procedural steps to be taken to resolve a chieftaincy dispute before embarking on actual litigation.
He canvassed the view that it is the claim before the court that has to be examined to ascertain whether a case comes within the jurisdiction conferred on the court, BAMISILE V. OSASUYI (2007) 9 NWLR (PT. 1042) 225 at 266 D.
He set out the reliefs which the respondents claimed against the appellants at the lower court. they were couched thus:
(a) A declaration that by the native law and customs of Iniyein, Ire Ekiti, the Oniyen chieftaincy title is the executive preserve of Igemo and Ilisin Ruling Houses.
(b) A declaration that by the native law and customs of Iniyein, Ire Ekiti, it is the turn of Ilisin ruling house to present a candidate for the vacant stool of Oniyein of Iniyein, Ire Ekiti.
(c) A declaration that the nomination of the 1st defendant by the 2nd defendant as the Oniyein of Iniyein Ire Ekiti awaiting the approval of the 3rd defendant who is the consenting authority over Oniyein of Iniyein, Ire Ekiti is null and void and of no effect whatsoever. (italics supplied)
(d) A declaration (sic) the approval of chieftaincy declaration relating to Oniyein of Iniyein, Ire Ekiti made in 1957 and approved on 28th December, 1960 and published on page 59 of the Western State Chieftaincy Declaration, Ekiti North Division is null and void and of no effect whatsoever.
(e) A perpetual injunction against the 1st defendant from parading himself as the Oniyein of Iniyein Ire Ekiti [See pages 32 – 33 of the record].
In the view of learned counsel for the appellant it is not in dispute that this is a chieftaincy dispute over the eligibility, nomination, installation and appointment of the first appellant as the Oniyein of Iniyein, Ire Ekiti.
He pointed out that in determining this issue, the following averments in the respondents’ statement of claim and reply to statement of defence would be of great assistance. In the first place, reference was made to the under-listed averments in the STATEMENT OF CLAIM: claimed against the appellants
15. The plaintiffs aver that the Ejisum family without due consultation and in flagrant abuse of Iniyein custom, history and tradition illegally selected the 1st defendant to occupy the stool of Oniyein on 31st October, 2004 and presented same to the regent of Ire Ekiti.
16. The 2nd defendant purportedly installed the 1st defendant as Oniyein of Iniyein, Ire Ekiti on 31st October, 2004 and thereafter informs (sic) the Regent of Ire Ekiti for approval.
17. The regent then wrote a letter dated 8th November, 2004 to the Chairman, Oye Local Government, Oye Ekiti to recognize the 1st defendant as Oniyein from Aofin ruling house. The letter is hereby pleaded.
18. The chairman, Oye Local Government sent a reply dated 15th November, 2004 to the regent of Ire Ekiti that it is not within the power of the regent to fill the vacant stool of Oniyein. The reply is hereby pleaded and 3rd defendant to produce the letter at the hearing of this suit.
19. The plaintiffs will contend at the trial of this suit that there is no ruling house called Aofin ruling house to the stool of Oniyein, Ire Ekiti.
21. Plaintiffs aver that the Oniyein known in the recent past and their order of installation are
a. Odunlebiojo Owuro from Ilisin Ruling House;
b. Alade Kotila from Igemo Ruling house;
c. Amure from Igemo Ruling House
d. Omowaye Ayo from Ilisin Ruling House;
e. Eyebiokin Solomon Falayi from Ilisin Ruling House and
f. Emmanuel Ayeni Kotila from Igemo Ruling House
28. By 15th December, 2005, the 3rd defendant was installed as Onire of Ire Ekiti who is the prescribe (sic) authority over all the Chieftaincies in Ire Ekiti.
30. The Plaintiffs also aver that the purported installation of the 1st defendant as Oniyein by the Regent of Ire Ekiti run counter to the History,Custom and tradition of Onieyin of Ire Ekiti and as such it is null and void.”
[pages 12 – 15 of the record].
Counsel, also, set out the averment in paragraph 13 of the REPLY TO STATEMENT OF DEFENCE:
13. With regard to paragraph 20 of the Statement of Defence the plaintiffs aver that there was no time the 1st defendant was selected and or presented to the Oniyein Kingmakers for declaration and installation.Even the 1st defendant has no right to the stool of Oniyein as he is not from Ilisin or Igemo ruling house.
[See page 25 of the record].
He explained that a Chieftaincy dispute or question means any question as to the validity of selection, appointment, approval of appointment, recognition, installation, grading, deposition or abdication of a chief. He drew attention to Aribisala v Ogunyemi (2005) 6 NWLR (pt 921) 212, 233. In that case, the Supreme Court had held that under section 22 (3) of the Chiefs’ Law of Ondo State, any dispute, even if it touched only on the question of eligibility, must be submitted first to the prescribed authority for settlement and later to the Commissioner for Chieftaincy matters. He noted that section 22(3) of the Chiefs’ Law of Ondo State is in pari materia with section 13(4) of the Chiefs Edict (as amended) of 1984 of Ondo State as applicable to Ekiti State.
He observed that in the instant case, the respondents were aggrieved by the nomination, appointment and installation of the first appellant as the Oniyein of Eniyein on grounds of his ineligibility for not belonging to any of the ruling houses and propriety of his installation by the Regent of Ire Ekiti. He took the view that the issues averred in the statement of claim showed that there was a controversy between the parties as to who was eligible for nomination and appointment to the Iniyein of Iniyein stool. It was thus a chieftaincy dispute within the meaning and redressible under the Chiefs’ Law of Ondo State as applicable to Ekiti State, Bamisile v Osasuyi (supra) at 266 wherein Ogunwumiju JCA had this to say:
The relevant portion of the appellant’s Statement of Claim at the lower court has been set out earlier in this judgment. It is the claim before the court that has to be examined to ascertain whether the case comes within the jurisdiction conferred on the court. The amended Statement of Claim of the appellant is that there is a vacancy in the Onire of Ire stool which is to be filled That the Aledi Ruling House is to produce a new Onire The appellant, and the 1st respondent nominated candidates to fill the vacancy because of their competing claims to the headship of the Ruling House and membership of the said Aledi Ruling House. Each disputed the other’s lineage to the Onire stool and their candidates’ lineage. The crux of the appellants claim is a declaration that the 1st & 2nd respondents are not eligible to the membership of the Aledi Ruling House and in particular that the 2nd respondent is not eligible to be considered for or contest the Onire of Ire stool. The issues declared in the statement of claim therefore show that there is controversy between the parties as to who is eligible for nomination and appointment to the Onire of Ire stool. It is thus a Chieftaincy dispute within the meaning and repressible under the Chiefs Law of Ondo State applicable to Ekiti State.
Counsel, then, drew attention to the evidence adduced before the lower court. He argued that from the said pieces of evidence, It could be gleaned that the respondents were challenging the validity of selection and installation of the first appellant. The PW1 in his evidence, in his evidence in chief; [page 44 of the record] testified thus:
Now it is the turn of Ilisin ruling house to present a candidate. But unknown to me this kangaroo nomination was made by Ijisun family. They nominated Idowu Ayeni. We then challenge their nomination after they have installed him within themselves not by the kingmakers. If Oniyein is to be installed it is Ejio that will install him. In November 2004 Idowu Ayeni was installed the Oniyein. Idowu Ayeni is not entitled to the stool. By the time of this installation of Idowu Ayeni there was no Oba in Ire Ekiti. What we have was regent.”
Under cross examination [page 46], the said PW1 testified thus:
… I do not know the number of kingmakers that approved the nomination and installation of 3rd defendant Idowu Ayeni. Idowu Ayeni did not contest for the stool of Oniyein. The man that produced him was Chief Olorinkiran.”
PWII testified on page 47 of the record thus:
It is because of the chieftaincy (sic) Idowu Ayeni that we sued them to court. They are not entitled to that chieftaincy. The chieftaincy does not belong to that family. Oniyein doesn’t belong to that family. It is our own. It is only for Igemo and Ilisin family.
On page 48, PWII testified thus
It is the turn of my family the Ilisin family to produce the Oniyein. Then we said that Idowu Ayeni had been made Oniyein from their side and that was why we are in court. It is not their chieftaincy nobody has ever been made Oniyein from that side.
PWIII testified thus at page 49 of the record.
Oniyein of Iniyein was (sic) never come from Ijisin. It is not in line with our custom that Idowu Ayeni be made Oniyein
PWIII at page 50 of the record testified thus
“…These (sic) procedure was not followed in the case of Idowu Ayeni. Chief Ejisun made Idowu Ayeni, Oniyein. Ejisun had no power to made (sic) Idowu Ayeni an Oniyein. Ejisun is 4th in harrachy (sic) Ejio is 2nd in rank to Oniyein. The present Ejio is Chief Akinola. He played his role in the installation of Idowu Ayeni. The installation of Idowu Ayeni of Oniyein is contrary to custom.
PWIV testified on page 52 of the record thus:
There is no Aofin Iniye in Iniyein or there is no family in Iniyein known as Aofin Iniye Ejisun has no right to install Idowu Ayeni 2nd defendant as Oniyein. This is because his own function is that after Oniyein had been installed it is his house that Erepupu takes place.
PWV on page 53 testified thus
Idowu Ayeni was installed by Ejisun who has no power to do so. At the times of installation of Idowu Ayeni it was Chief Salami that was Ejio then. The Ejio then was from Ebi Ilisin. Then Ejio is deceased in 2005. That was after the installation of Idowu Ayeni in 2004 the then Chief Ejio played no role (sic) in the installation of Idowu Ayeni because the installation was clone secretly.
Counsel observed that, going through the entire pleadings and evidence on record, it was apparent that the respondents hastily rushed to court and filed the instant sun without exhausting the local remedies available to them, lie noted that the respondents did not protest to the prescribed authority as required by section 13 of the Chiefs Edict (amended) 1991 of Ondo State as applicable to Ekiti State.
According to the respondents the first appellant was installed as the Oniyein of Iniyein, Ire Ekiti on 31st October, 2004. The Regent of Ire Ekiti wrote a letter to the Oye Local Government on 8th November. 2004 that recognition be accorded the first appellant as the Oniyein. The chairman wrote back to the Regent querying her authority to install the first appellant.
He observed that the issue of the eligibility of the first defendant was never raised before the prescribed authority, that is, the third appellant. Above all, there was no evidence before the trial court that the third appellant decided the dispute on the eligibility, nomination and installation of the first appellant. He drew attention to the third limb of the respondents’ claim:
A declaration that he (sic) nomination of the 1st defendant by the 2nd defendant as the Oniyein of Iniyein Ire Ekiti awaiting the approval of the 3rd defendant who is the consenting authority over Oniyein of Iniyein. Ire Ekiti is null and void and of no effect whatsoever.
(italics supplied).
Counsel noted that it was obvious from the respondents’ claims and pleadings before the lower court that the prescribed authority and the Executive Council if Ekiti State represented by the Commissioner for Chieftaincy Affairs, did not take decision on the eligibility, nomination, selection, installation and appointment of the first appellant before the respondents instituted the action. He pointed out the above third limb of the respondents claim averred that the installation of the first appellant was awaiting the approval of the prescribed authority. In his view, the question was whether the approval granted or refused.
He observed it was clear from the evidence before the trial court and the pleadings of the parties that the first appellant had been appointed and. indeed, functioned as the Oniyein of Iniyein Ire Ekiti, before the institution of this action.
He drew attention to the decision in Aribisala v Ogunyemi (2005) 6 NWLR (pt.921) 212 at 230; 232. In that case, the Supreme Court held that the law does not stipulate that it was the prescribed authority that should make the appointment of a minor chief. In interpreting the provision of section 22 (2) of the Chiefs Law Cap 20 Laws of Ondo State 1978, which is in pari materiel with section 13 (2) of the Chiefs (Amended) Edict of Ondo State, as applicable to Ekiti State, Oguntade JSC at page 232 paras F – G had this to say:
The trial court upon the evidence before it held that the first defendant had been appointed before 1984. Section 22(2) of Ondo State Chiefs Law. 1978 does not prescribe that it is the prescribed authority that should make the appointment of a minor chief. The prescribed authority only approves the appointment of a minor chief made by those entitled by customary law so to appoint. The plaintiff’s argument that they had not taken their case to the prescribed authority because such prescribed authority had not approved the appointment is therefore untenable. The representations, which plaintiffs claimed they made in their letter in 1979 to the Ondo State government, ought to haw been made to the prescribed authority: and later to the Commissioner for Chieftaincy Matters.
At page 233 paras D-F, His Lordship explained that:
Under Section 22 (3) of Ondo State Chiefs Law, any dispute, even if it touches only the question of eligibility as the plaintiffs appellants contented must be submitted first to the prescribed authority for settlement and later to the commissioner for chieftaincy matters. The attempt made by the plaintiffs/appellant’s counsel to convince me that a dispute about eligibility of the 1st defendant to the Oniyemo chieftaincy which was the subject matter of plaintiffs/appellants’ suit was not a chieftaincy dispute within Section 22(3) of the Ondo State Chiefs Law is misconceived and must be rejected.
Counsel submitted that it was obvious from the Amended Writ of Summons and Statement of Claim that the respondents did not exhaust all domestic remedies provided by the Chiefs Law before going to court. In effect, the respondents’ action was premature and incompetent. Ogunwumiju JCA in Bamisile v Osasuyi (2007) 10 NWLR (pt. 1042) 225. 267 held thus:
The question at stake here is whether or not the stipulation as regards exhaustion of administrative remedies before taking legal action applies both to minor chiefs and recognized chiefs alike. An aggrieved party in a minor chieftaincy dispute must explore all domestic remedy before going to court is a mandatory rather than a discretionary stipulation.
Counsel drew attention to Adesola v Abidoye (1999) 14 NWLR (pt 637) 28 at page 56 where Karibi- Whyte JSC interpreted the word ‘may’ in section 13(5) of the Chiefs’ Law to mean “shall”. According to the eminent jurist:
Although the etymological meaning of ‘may’ is permissive and facultative and seldom can mean ‘must’ and imperative, it assumes this last mentioned character, when there is anything in the provision that makes it the duty on the person on whom the power is conferred to exercise that power. When the exercise of the power is coupled with a duty on the person to whom it is given to exercise it, then it is imperative. In the instant case, there is a duty on the aggrieved who desires to set aside the decision of the prescribed authority to make his representation to the Commissioner for Chieftaincy Affairs within twenty one days of the decision. The use of the expression “may” in this situation is not merely facultative, but mandatory. I here is no alternative. The aggrieved has no choice of action in the remedy provided for him Accordingly, the word “may” in Section 22(5) of the Chiefs law of Oyo State, 1978 should be construed as imperative the exercise of the right not being optional.”
Counsel submitted that, in effect, an aggrieved person or a ruling house that alleges irregularity in the appointment of a recognized chief must per force or mandatory make representation to the State Executive Council that the appointment be set aside, Eguamwense v Amaghizemwen (1993) 9 NWLR (pt 315) 1. 25; Owoeni v Faloye (supra) at 748.
He urged the court to resolve this issue in favour of the appellants and hold that the lower court was incompetent at that time to assume jurisdiction over the matter, the respondents having failed to exhaust all the local remedies available to them before instituting action.
For the respondents, it was contended that all the necessary conditions precedent to the institution of the suit were complied with by the respondents and this was admitted by the appellants by paragraph 25 of their Statement of Defence.
It was explained that the Oye Local Government Chairman wrote exhibits A – A1 and exhibit B on the basis of the complaint of the Respondents. Copies of these exhibits were given to the first appellant. It was, further, explained that the first appellant failed to comply with the instructions in the exhibits mentioned above, and started parading himself as Oniyein of Iniyein. Ire-Ekiti, hence the Respondents filed the action against the appellants.
Counsel noted that, throughout the hearing of the case at the trial court, the third defendant/appellant did not file any defence to the action of the plaintiffs neither did he give evidence. He submitted that his failure to file any defence or give evidence is a total admission of the Respondents” ease. Ajomale v Yaduat (1991-1992) All NLR 197 at 201.
He observed that, by paragraphs 18. 25, 26 and 29 of the Statement of Claim and exhibits A-A1 and B, it was clear that based on the complaint of the respondents, the Government took steps and gave some order which the first appellant did not comply with after which the Respondents tiled the action against the appellants.
He submitted that all the necessary conditions precedent to the tiling of the suit were met and as such the action was competent. Counsel, in the alternative, submitted that the appellants were stopped from raising the issue of condition precedent as set out in the Chiefs Edict 1984 as amended. Counsel observed that the appellant did not plead the fact that he would be relying on the provisions of the Law in his pleading neither did he offer evidence relating to the Law. He, therefore, submitted that for the appellants to be allowed to raise this issue he must have pleaded it specifically and having failed to do so they cannot be heard, citing Order 25 Rule 6(2) of the Ondo State Rules of the High Court as applicable to Ekiti State; Mobi Prod. Nig. v. LASEPA (supra); Owoseni v Faloye (2005) All FWLR (pt.284) 220 at 249.
It was, further, submitted that, throughout the submissions of the appellants, there was no where they pointed out that the facts relating to the condition precedent they were canvassing was pleaded in their statement of defence. Counsel pointed out that during the hearing of this case lie fore the trial court, the counsel to the appellant placed reliance on cap 20. Laws of Ondo State 1978 which has been repealed by Section 28 of the Chiefs Edict 1984. He argued that since the Law cited is no longer applicable the court was right in Ignoring the counsel’ submissions. He urged the court to resolve this issue in favour of the Respondents.
Counsel further contended that the respondents proved their ease by the evidence adduced. He explained that it was the contention of the respondents that there are five families at Iniyein – (1) Ukusubm (2) Ilado (3) Igemo (4) Ijisun and (5) Apatamose. This was pleaded in paragraph 8 of Statement of claim which was admitted by the appellants in paragraph 7 of their statement of defence.
He submitted that facts admitted need no further prove, since the assertion of the live families have been admitted by the appellant, he urged the court to hold the facts as proved.
It was further observed that the parties also agreed that On
iyein is the traditional head of Iniyein, Ire-Ekiti and that there arc two ruling houses to the stool of Oniyein of Iniyein, Ire-Ekiti. The point of disagreement is that the respondents contended that the two ruling houses are Igemo and Ilisin but the appellant contended that the two Ruling houses are Igemo and Ijisun now Aofin Ruling house.
Counsel submitted that he who asserts must prove. The respondents called evidence to show how Ilisin and Igemo Ruling houses had been rotating the Oniyein Chieftaincy title from time immemorial and set out the names of the past Oniyein in the recent times in paragraph 21 of the Statement of Claim. Oral evidence was called in proof thereof.
It was pointed out that all the plaintiffs/respondent’s witnesses stated that it was Igemo and Ilisin that could aspire to the stool of Oniyein of Iniyein and that Ijisun family had no right to the stool. Even PW3 and 4, who are from Igemo ruling house, testified in support of the respondents that the Oniyein Chieftaincy title rotated between the Igemo and Ilisin ruling houses.
It was explained that Pw 1 tendered exhibit C, the Western State Chieftaincy Declaration 1960, and contended that the registered declaration (at page 59) does not represent the custom and tradition of Iniyein as related to the stool of Oniyein of Iniyein. It was further pointed out that it was the PW1’s contention that there are only five families in Iniyein and ii is out of the families that we have Ilisin and Igemo as the ruling house and that there is no place called Aofin Iniye Ruling house in Iniyein. This assertion was confirmed by all the witnesses to the plaintiff.
Counsel noted that the appellant, however, claimed that Ijisun is also referred to as Aofin Iniye Ruling house. He submitted that Oral evidence cannot be used to change or vary the content of a document, lie urged the court to disregard the evidence in this regard, section 132 of the Evidence Act: Olarewaju v Govt. of Oyo State (1992) 9 NWLR (pt.265) 335 at 366.
Counsel noted that throughout the evidence of the defendants they did not call any witness from Igemo ruling house to support their contention. In his view, this goes to show that they have no claim to the stool of Oniyein of Iniyein. He further maintained that they did not give any evidence to show that the 1960 Chieftaincy declaration was in line with the custom and tradition of Iniyein, Ire-Ekiti. The court evaluated the evidence of the parties and came to the conclusion that the plaintiffs/respondent proved their case and hence grained them the reliefs sought.
He urged the court to hold that the respondents proved their case.
In reply to the issues raised by the respondents with regard to issue two, the appellants’ counsel maintained that the Chieftaincy Declaration of 1960 on Oniyein of Iniyein chieftaincy title remains valid until it is amended, Ogitndure v Ogunlowo (1997) 6 NLWR (pt. 509) 360 at page 369.
It was observed that the respondents’ learned counsel did not prove before the lower court the exact section of the law that repealed the Chieftaincy Declaration of 1960 on Oniyein of Iniyein chieftaincy title.
More importantly, a party cannot blow hot and cold at the same time. He must be consistent with his case. Adone v Ikebudu (2001) 14 NWLR (pt.733) 385 at page 408 wherein Ayoola JSC had this to say:
A party should not be allowed to set up different cases at different stages of the proceedings, from the trial court, through the intermediate appellate court, to the final appellate court.
Counsel pointed out that respondents, by the fourth limb of their claim before the lower court, prayed the lower court to declare Chieftaincy Declaration of 1960 null and void and of no effect whatsoever, (page 31 of the record].
Furthermore, in paragraph 17 of the respondents’ reply to Statement of Defence the respondents averred that the said Chieftaincy Declaration was contrary to the custom, history and tradition of Iniyein and same should be declared void, (page 26 of the record].
It was pointed out that the learned respondents’ counsel pages 65 – 66 of the record, in his address, contended that the said Chieftaincy Declaration was contrary to the native law and custom of Iniyein. Counsel observed that it was surprising that the learned respondents” counsel has, before this court, turned around to argue that the said Chieftaincy Declaration had been repealed by the Government White paper. He urged the court to discountenance the learned respondents’ counsel submission.
Appellants’ counsel, further, turned to the respondent’s submission [page 11 of his Brief of Argument] to the effect that paragraph 8 of the Statement of Claim was admitted by the appellant in paragraph 7 of the Statement of Defence. He submitted that admission must be unequivocal in all its facets. Reynolds Const. Co. Ltd. v Okwejiminor (2001) 15 NWLR (pt.735) 87. 100. He submitted that paragraph 7 of the Statement of Defence was not an admission of paragraph 8 of the Statement of Claim. He further submitted that a declaration of right would not be conferred simply upon the state of pleadings or by admission therein, Eke v Okwaranyia (2001) 12 NWLR (pt.726) 181. 206 – 207.
On the contention of the learned counsel for the respondents (page 12 paragraph (j) of his Brief of Argument) to the effect that the appellants did not call any witness from the Igemo ruling house to support their contention and they did not give any evidence to show that the 1960 Chieftaincy Declaration was in line with the custom and tradition of Iniyein, Ire Eikiti, it was argued for the appellants that a party seeking declaratory reliefs must succeed on the strength of his case and not on the weakness of the defence.
More importantly, a Chieftaincy Declaration was presumed to be the comprehensive embodiment of the whole customary law relating to the chieftaincy in question, Adelaja v Oguntayo (2001) 6 NWLR (pt.710) 593. 624. Counsel observed that it was the duty of the respondents to rebut the presumption by adducing credible evidence.
It is a well established principle of law that Chieftaincy Declaration was the result of investigation as to the native law and custom of the localities as unanimously agreed by them, Ogundare v Ogunluwo (supra) 369.
RESOLUTION OF THE ISSUE
This issue raises the perennial question of the rule of exhaustion of domestic or local remedies in Chieftaincy litigations. The ambit of this rule now firmly entrenched in the Chiefs’ Law of Undo Slate (as applicable in Ekiti State), a law which traces its roots to the prototypical enactment: Western Region Appointment and Recognition of Chiefs Law of No. 1 of 1955, has been admirably delimited in a host of decisions.
The rule which has crystallised from decided cases on this point is that the exhaustion of domestic or local remedies is a condition precedent to the invocation of the jurisdiction of the court, Eguamwense v Amaghizemwen (1993) 9 NWLR (pt. 315) 1, 25; (1993) 11 SCNJ 27; Aribisala and Anor v Ogunyemi and Ors (2001) FWLR 2867, 2879; Adesola v Abidoye (1999) 12 SCNJ 61, 85: Akuneziri v Okenwa (2001) FWLR (pt. 35) 604.
The applicable rule finds statutory expression in section 13(2)-(5) of the Chiefs Edict of 1984 (as amended) of Ondo State as applicable to Ekiti which provide as follows:
13(2) Where a person is appointed, whether before or after the commencement of this Edict, to fill a vacancy in the office of a minor chief by those entitled by customary law so to appoint and in accordance with customary law, the prescribed authority may approve the appointment
(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 and the person concerned shall be notified of the decision
(4) Any person who is not satisfied with decision of the prescribed authority may within twenty one days from the receipt of the notification make representation to such member of the Executive Council to whom responsibility for Chieftaincy Affairs assigned that the decision be set aside and he may after consideration of the representation confirm or set aside the decision.
(5) Before exercising the powers conferred by subsection (5) of this section the member of the Executive Council responsible for chieftaincy affairs may make inquires to be held as appear to him to be necessary or desirable.
The above provisions are in pari materia with section 22 (3) of the Chiefs’ Law of Ondo State. The judicial attitude to these provisions is that any dispute, even if it touches only on the question of eligibility of a candidate, must first be submitted to the relevant domestic executive or administrative for a for settlement before resort to the forensic forum. Aribisalav Ogunyemi (supra); Bamisile v Osasuyi (supra) etc. I am, therefore, in agreement with the appellants” counsel that from an intimate perusal of the claim before the lower court, including the Statement of Claim etc that the respondents did not exhaust the domestic remedies before deciding to ventilate their grievances in court. The suit before the lower court was, indeed, not only premature, it was pre-emptive. It was, therefore, incompetent as the statutory remedies were yet to be fully explored. One further point the contention of the counsel for the respondents glossed over the distinction between substantive and the procedural jurisdiction. While a party can waive issues bordering on the procedural jurisdiction of the court, no such indulgence is allowed with regard to matter verging on the substantive jurisdiction of the court. Adams v Umar (2010) All FWLR (pt. 513) 1289, 13 74-1375, citing Kossen Mo Ltd v Savannah Bank Mg Ltd (1995) 9 NWLR (pt 420) 439; (1995) 12 SCNJ 29. I also, resolve this issue in favour of the appellants.
ISSUE THREE
If issue two is answered in the affirmative whether the learned trial judge can suo motu declare that the Chieftaincy Declaration of 1950 Western Region on Oniyein of Ire Chieftaincy is of no relevance to Ekiti State when the respondents did not seek for same.
Counsel for the appellants pointed out that both parties at the lower court agreed that there was in existence a valid Chieftaincy Declaration regulating the selection of the Oniyein of Ire Chieftaincy, citing paragraphs 19 and 37 of the Statement of Defence on pages 16-22 of the record.
He drew attention to paragraphs 12 and 17 of that Reply to Statement of Defence (pages 23-26 of the record) where the respondents averred
12. The plaintiffs will contend at the trial of this suit that the Western State Chieftaincy Declaration. Ekiti North division on page 59 which was purportedly approved in December 1960 relating to the stool of Oniyein of Iniyein is null and void and of no legal effect as it runs counter to the Customary Law, history and tradition of Iniyein. Ire Ekiti. The Western State Chieftaincy. Declarations Ekiti North division is hereby pleaded.”
“17. As for paragraphs 35, 36 and 37 of the statement of defence, the plaintiffs aver that the Chieftaincy Declaration of 1959 approved in December 1960 relating to Oniyein of Iniyein runs counter to the customary law, history and tradition of Iniyein it cannot stand, and it should be declared null and void.”
It was pointed out that whilst the respondent argued that the said Chieftaincy Declaration did not represent the custom and tradition of Oniyein of Ire chieftaincy as to the method of selection, (pages 65 66 of the record), the appellants [pages 72 – 75 of the record] argued that the existing Chieftaincy Declaration was valid and represented the true and tradition of Oniyein Chieftaincy title.
Attention was drawn to the lower court’s resolution of the issue thus [page 83 of the record]:
Now the reliance of the defendant is on a 1958 legislation from the old Western Region. That region is defunct with the laws given place to old Western State again defunct given place to Oyo and Undo State again defunet given rise now to Oyo. Ogun, Ondo, Osun State and Ekiti State with each haven its own legislation of cause it is the law that “the law applicable to and which governs an action before the court is the law as at the time the cause of action arose” see Uwaifor vs. Attorney General Bendel State and ors (1982) 750 12A.”
The learned trial judge further held on page 84 of the record thus:-
“The chieftaincy of (sic) declaration of 1958 is of no relevance to Ekiti State”
Counsel explained that the Chieftaincy Declaration was tendered by PW1 and admitted in evidence as exhibit C by the trial court, citing page 45 of the record.
He submitted that Chieftaincy Declarations are the results of investigations as to the native law and customs of the localities as unanimously or overwhelmingly agreed by them. The declaration is the statements in permanent form as to the mode of succession of chieftaincy in each community in regard to the tradition, native law and custom, citing Ogundare v Ogunlowo (1997) 6 NWLR (pt 509) 360 at 369 paras A-C. The provisions of such a Chieftaincy Declaration should prevail until it is amended, Ogundare (supra) 370-1 paras H-B.
Counsel prayed in aid Fasade v Babalola (2003) F-WLR (pt 161) 170, 111 for the view that courts are not empowered to amend any Chieftaincy Declaration.
Counsel explained that in the instant case, there was no evidence before the lower court that the said Chieftaincy Declaration had been repealed or has ceased to have the force of law. The trial court just assumed (albeit erroneously ) that since Ekiti State was carved out of the Old Western State, the said Chieftaincy Declaration had no relevance to Ekiti State, (pages 83 84 of the record).
It was pointed out that the respondents only prayed the lower court to declare the said Chieftaincy Declaration null and void and of no effect whatsoever based on the fact that same did not represent the custom and tradition of Oniyein of Ire chieftaincy, (page 33 of the record). According to counsel, the learned trial Judge did not evaluate the evidence on record to determine whether the said Declaration represents the custom of Oniyein chieftaincy. The learned trial judge suo motu declared that the declaration had no relevance to Ekiti State. He submitted that this had occasioned a miscarriage of justice. This is so because a court of law can only grant a party what he/she asked for. Ndulue Ibezim (2002) 12 NWLR (pt.780) 139 at 166 – 167 paras F – A. Above all, counsel noted that a court of law should not descend to the arena of conflict. In this case, the learned trial judge assumed the position of the respondents” counsel and decided the case for the respondents. This has occasioned a miscarriage of justice to the appellants.
RESOLUTION OF THE ISSUE
Having resolved the above issue in favour of the appellants. I have no hesitation in resolving this issue in their favour too. It would only suffice to refer to the authority of the Supreme Court decision in Fosade v Babalola (supra) as justifying a finding in favour of the appellants on this issue. According to the Supreme Court in that case:
The amendment of Chieftaincy Declaration is not a judicial function. It is not within the jurisdiction of the court to make such a declaration or to in any way even to suggest amendment to it. It is the authorities given power under the law who can alter a declaration when a proper and convincing representation is made for suitable amendment.
In all, this appeal succeeds. It is, hereby allowed. In consequence, I hereby set aside the judgment of the lower court which purported to nullify the nomination, installation and appointment of the first appellant as the Oniyein of Iniyein, Ire Ekiti. The court had no jurisdiction to entertain the matter as it did. Hence, it had no jurisdiction to make such order or orders. Appeal allowed. That shall be the judgment of this court.
HON. JUSTICE DALHATU ADAMU OFR,J.C.A.: I agree.
HON. IGNATIUS IGWE AGUBE, J.C.A.: I have been privileged to read in advance the lead judgment of my Learned and Noble Lord C. C. Nweze J.C.A, and as usual he has succinctly dealt with all the teething issues raised by parties in the Appeal at hand before arriving at the conclusion that the Appeal is meritorious.
There ought to be nothing more to add as I am in complete agreement with his reasoning and conclusions on all the issue formulated. Suffice it however by way of addendum to state that it is trite that jurisdiction is a threshold issue which is so fundamental that a Court of law like the trial Court ought to stand and stare once a party to a suit before it challenges same.
The Court below as had been rightly decided by my learned brother on the authorities of Madukolu v. Nkemdilim (supra), Bamisile v. Osasuyi (2007) 9 NWLR (Pt. 1042) 225 262; Chukwuogor v. Chukmwuor (Nig) Ltd. (2007) 17 NWLR (Pt. 1064) and Onyema v. Oputu e.t.c, ought to have determined whether it possessed the requisite jurisdiction to determine the case before proceeding to delve into other issues raised in the suit.
Having ignored this fundamental question as to whether it had jurisdiction, the proceedings of the Lower Court and indeed the judgment of the learned trial judge were a nullity no matter how brilliantly conducted and rendered.
On issue Number two, it is now settled beyond any peradventure that where as in this ease the plaintiff failed and or neglected to exhaust all the remedies provided him at the domestic forum by refusing first of all to present his ease before the prescribed authority or the member of the State Executive Council in charge of chieftaincy affairs, the plaintiff Respondent jumped the gun as no cause of action had accrued to him until he had complied with the requirements of Section 13(2)-(5) of the Chiefs Edict of 1984 of Ondo State as amended and applicable to Ekiti State. See Adams v. Umar (2010) All FWLR (Pt. 513) 1289 at 1374 to 1375.
Accordingly, his suit ought to have been struck out. With the above and the fuller reasons advanced by my learned brother I too shall allow the appeal on all the grounds and set aside the judgment of the lower Court.
Appearances
Bamidele OmotosoFor Appellant
AND
S. A. LongeFor Respondent
