OMIRIN OKUNADE ADERIBIGBE v. JOHNSON OLADOKUN AKINYEMI & ORS
(2019)LCN/13131(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 17th day of April, 2019
CA/AK/106/2015
RATIO
PRELIMINARY OBJECTION: DEFINITION AND NATURE
A preliminary objection is a process meant to challenge the competence of an action against which it is filed. The purpose of a preliminary objection is to contend that a suit is defective or incompetent, if sustained, the suit would no longer be heard, it terminates the hearing of a suit. In the instant case, the preliminary objection filed by the appellant as 3rd defendant at the lower Court was a direct challenge to the jurisdiction of the lower Court to entertain the matter. Where as in the instant case, a preliminary objection was filed asking for an order to strike out a suit for being incompetent on the ground of absence of jurisdiction, the objection does not amount to a demurer and therefore can be filed even before the defendants file his defence. See ELABANJO V. DAWODU (2006) 15 NWLR (PT. 1001); AJAYI V. PRINCESS OLAJUMOKE ADEBIYI & 3 ORS. (2013) 3 WRN 1; A.G FEDERATION V. A.G ANAMBRA (2018) 6 NWLR (PT. 1615) 314.PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
DOCTRINE OF EXHAUSTION OF INTERNAL REMEDIES: SCOPE AND MEANING
On the issue of exhaustion of internal remedy provide by Section 22 of the Chiefs Law of Osun State 2002. Let me start by saying that the doctrine of exhaustion of internal remedies does not affect right of access to Court as spelt out in Section 36(1) of the Constitution. The position of the law is that Laws which prescribe that some procedural steps be taken before embarking on litigation can not be regarded as ousting the jurisdiction of the Court. Section 22 of the Chiefs Law of Osun State creates the doctrine of exhaustion of domestic remedies which until the remedies are exhausted the Court lacks the jurisdiction to entertain any question arising therefrom. See KAYILI V. YILBUK (2015) 7 NWLR (PT. 1457) 26; BUKOYE V. ADEYEMO (2017) 1 NWLR (PT. 1546) 173; A.G. KWARA STATE V. ADEYEMO (2017) 1 NWLR (PT. 1456) 210.PERRIDWAN MAIWADA ABDULLAHI, J.C.A.
DOCTRINE OF EXHAUSTION OF INTERNAL REMEDIES: WHEN A PARTY FAILS TO EXPLOIT ALL POSSIBLE REMEDIES
Where as in the instant case, a party ignore to exhaust the remedy, his action will be declared premature and cannot activate the jurisdiction of the Court to hear it. SeeALADEJOBI V. NBA (2013) 15 NWLR (PT. 1376) 66; AWOYEMI V. FASUAN (2006) 13 NWLR (PT. 996) 86.
The laws which prescribe that some procedural steps be taken to resolve a dispute before embarking on litigation cannot be treated as ousting the jurisdiction of the Court.PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
JUSTICES:
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
OMIRIN OKUNADE ADERIBIGBE – Appellant(s)
AND
1. JOHNSON OLADOKUN AKINYEMI
(for himself and on behalf of Waye family of Kajola Ijesa, Atakunmosa West Local Government Area of Osun State)
2. COMMISSIONER FOR LOCAL GOVERNMENT AND CHIEFTAINCY AFFAIRS, OSUN STATE
3. ATAKUNMOSA WEST LGA, OSUN STATE
4. IJESA SOUTH TRADITIONAL COUNCIL
5. ATAKUNMOSA WEST LOCAL GOVERNMENT CHIEFTAINCY COMMITTEE – Respondent(s)
RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision (Ruling) of Hon. Justice F. E. Awolalu of the Osun State High Court of Justice sitting at Osogbo Judicial Division in Suit No. HOS/103/2013 delivered on 17th day of December, 2014.
This appeal is at the instance of the 3rd defendant in the suit instituted by the 1st respondent as plaintiff against the 2nd to the 5th defendants and the appellant as the 3rd defendant at the Osogbo Judicial Division of the Osun State High Court of Justice. The 1st respondent as plaintiff by an originating summons dated 25/6/2013 claimed against the defendants as follows:
1. A declaration that the Waye family of Kajola Ijesa town is the only family entitled under the native law and custom of Kajola Ijesa to the exclusion of any other family in Kajola Ijesa town Atakunmosa West Local Government, Osun State.
2. A declaration that the purported candidature of the 3rd Defendant as Loja of Kajola Ijesa is irregular, wrong, unconstitutional, null and void and contrary to the traditional, native law and custom usages of the Kajola Ijesa town.
3.
1
A declaration that the Waye ruling house of Kajola Ijesa town which has presented the plaintiff is entitled to provide a candidate for the stool of Baale of Kajola Ijesa town and 1st and 2nd defendants should be compelled to act on the recommendation of the 4th defendant.
4. An order of perpetual injunction restraining the 1st, 2nd and 4th defendants by themselves, their servants, agents or privies or whosoever otherwise from taking any steps towards the installation of the 3rd defendant as Loja of Kajola Ijesa town.
5. An order of perpetual injunction restraining the 3rd defendant from parading himself as Loja of Kajola Ijesa town in Atakunmosa West Local Government, Osun State.
The appellant as 3rd defendant upon being served with the processes filed a notice of preliminary objection dated and filed on 28th day of November, 2013. The preliminary objection was predicated on the following grounds;
1. That at the time this instant suit was filed at the registry of this Honourable Court, a similar Suit HOS/78/2012: Johnson Oladokun Akinyemi & Ors v. Comm. For LG & Chieftaincy Affairs & 4 Ors. filed by the same plaintiff/respondent
2
in respect of the same subject matter was still pending before this Honourable Court.
2. The pending of Suit No. HOS/78/2012: Johnson Oladokun Akinyemi & Ors v. Comm. For LG & Chieftaincy Affairs & 4 Ors at the time of filing the instant suit in respect of the same parties and same subject matter constitutes gross abuse of the process of Court.
3. There is a subsisting notice of appeal filed by the 3rd and 4th defendents against the Ruling of this Honourable Court allowing the plaintiffs to discontinue their case in HOS/78/12 Johnson Oladokun Akinyemi & Anor. v. Comm. For LG & Chieftaincy Affairs to the Court of Appeal.
4. The plaintiff before instituting the instant suit did not exhaust the mandatory domestic remedies as prescribed by Section 22 of the Chiefs Law Cap. 25, Laws of Osun State in respect of minor chieftaincies.
5. The exhaustion of the aforesaid domestic remedies is a condition precedent for instituting this case.
6. The non-exhaustion of the aforesaid mandatory domestic remedies rob this Honourable Court of the jurisdiction to hear and determine this case.
In a considered Ruling delivered on
3
17/12/2014, the learned trial judge struck out the preliminary objection.
Dissatisfied with the decision (Ruling), the appellant filed a notice of appeal containing five(5) grounds of appeal before this Court dated the 29th day of December, 2014 seen at pages 174-178 of the record and prayed this Court for:
1. An order allowing the Appeal.
2. An order setting aside the decision of the Court contained in the Ruling appealed against.
3. An order striking out the respondents suit before the lower Court.
Therefore, the parties filed and exchanged their briefs of argument in line with the rules governing the hearing of civil appeals in this Court. The appeal was heard on 23/1/2019.
The relevant briefs of argument in this appeal are as follows:
1. Appellants brief of argument dated 17/11/2015 and filed on the 18/11/2015.
2. 1st respondents brief of argument dated and filed 29/12/2015 but deemed properly filed on 23/1/2019.
3. 3rd-5th respondents brief of argument incorporating preliminary objection dated the 8/2/2016 and filed on 10/2/2016 but deemed filed on 23/1/2019.
4.
4
Appellants reply to the 1st respondent brief of argument dated 3/6/2016 and filed on 7/6/2016 but deemed properly filed on 23/1/2019.
5. Appellants reply to the 3rd-5th respondents preliminary objection of the 3rd-5th respondents dated and filed on 19/10/2017 but deemed filed on 23/1/2019.
The 2nd respondent did not file any brief of argument in this appeal.
The 3rd-5th respondents greeted the appeal with a notice of preliminary objection filed on 10th February, 2016. The preliminary objection was predicated on the ground that all the grounds of appeal filed by the appellant are grounds of mixed law and facts which requires the leave of the lower Court before filing the Notice of Appeal. That the appeal is incompetent for being in breach of Section 242(1) of the Constitution of the Federal Republic of Nigeria 1999 as Amended.
In arguing the preliminary objection, learned counsel for the 3rd-5th respondents (the objectors) N. O. Folorunso Esq. submitted that all the five grounds of Appeal filed by the Appellant though tagged grounds of Law are in fact grounds of mixed law and facts which require
5
the leave of the lower Court for their validity. He argued that considering the grounds together with their particulars, the appellant is invoking the jurisdiction of this Court to investigate the examination and evaluation of the facts by the trial judge placed before him by the parties. That in as much as the two competing sets of facts of the parties is to be examined and weighed before determination of all the five grounds, the grounds are grounds of mixed Law and Facts which require the leave of Court. He cited AQUA LTD V. ONDO STATE SPORT COUNCIL (1988) 4 NWLR (PT. 11) 62.
Learned counsel for the Appellant submitted that the grounds of appeal are grounds of law and not grounds of mixed law and facts and as such do not require the leave of Court before same can be filed.
RESOLUTION OF THE PRELIMINARY OBJECTION
Learned counsel for the 3rd, 4th and 5th respondents lumped up all the appellants grounds of appeal and labeled mixed law and facts which require leave of Court without specifying and or analyzing the alleged incompetency of each grounds.
A preliminary objection is a specie of objection which if sustained by a Court,
6
will render further proceedings unnecessary. See JIM-JAJA V. C.P. RIVERS STATE (2013) 6 NWLR (PT. 1350) 225; ABE V. UNILORIN (2013) 16 NWLR (PT. 1379).
A preliminary objection when raised in proceeding, the Court has to first deal with it. See SAEED V. YAKOWA (2013) 7 NWLR (PT. 13352) 133; SPDC V. AGBARA (2016) 2 NWLR (PT. 1496) 353.
The 3rd-5th respondents preliminary objection is that all the appellants grounds of appeal are grounds of mixed law and facts which requires the leave of Court and failure of the appellant to seek and obtained leave, renders the said grounds incompetent. In determining whether a ground of appeal is one of law, mixed law and facts, the Court should further than the ground of appeal as couched to substance of the complain to resolve the issue. A ground of appeal is the totality of the reasons why the party appealing considers the decision of the trial Court to be wrong. A ground of appeal is not a ground of law merely because it is so couched. It is from its contents that its nature can be determined. To determine whether the ground is of law or of mixed law and facts, it must be taken
7
together with its particulars, where the particulars are based on facts or the ground questioned the evaluation of evidence before application of the law, it is ground of mixed law and facts. A ground of appeal alleging misunderstanding or misconception of the lower Court of the law or misapplication or misdirection of the law to the facts already proved, admitted or undisputed is a ground of law. See AJUWA VS. S.P.D.C LTD (2011) 18 NWLR (PT. 1279) 797; JIM-JAJA V. C.O.P. RIVERS STATE (SUPRA); NZEI V. UNN (2017) 6 NWLR (PT. 1561) 300.
In the instant case, I have situated this position of the law with the grounds of appeal together with its particulars wrapped at pages 74-78 of the record. I am of the view that the grounds are grounds of law. The preliminary objection erected by the 3rd to 5th respondents is hereby overruled.
CONSIDERATION OF THE APPEAL
During the hearing of the appeal on 23rd January, 2019, learned counsel for the Appellant, Dosu Babatunde Esq. adopted the appellants brief of argument, filed on 18 November, 2015 and the appellants reply brief filed on 7/6/2016 but deemed filed on 23/1/2019 and the
8
appellants reply to the 3rd-5th respondents brief of argument and reply to their notice of preliminary objection dated and filed on 19/10/2017 but deemed filed on 23/1/2019 as representing his arguments for the appeal. He urged the Court to allow the appeal and strike out the respondents case at the lower Court.
The 1st respondents brief of argument dated and filed on the 29th December, 2015 but deemed filed on 23/1/2019 was deemed adopted as the counsel did not appear to adopt same.
Similarly, learned counsel for the 3rd-5th respondents, Adewale Folorunso Esq. adopted the respondents brief of argument filed on 10/2/2016 but deemed filed on 23/1/2019 incorporating preliminary objection settled by N. O. Folorunso Esq. as forming his reactions against the appeal. He urged the Court to dismiss it. The 2nd respondent did not file any brief.
The appellant in his brief of argument, distilled four issues for determination to wit:
1. Whether the determination of the issue whether the institution of the instant suit No. HOS/103/2013 on 25/06/13 during the pendency of suit No. HOS/78/12 touching and concerning
9
the same parties and or privies, same subject matter and issues is not a gross abuse of the process of the Court (distilled as issue one (1) in the Notice of Preliminary objection of the 3rd Defendant/Appellant) would involve a review of the Ruling of Hon. Justice S. Oyejide Falola delivered on the 2nd July, 2013.
2. Whether the filing of Notice of Appeal by the 3rd Defendant/Appellant in HOS/78/2012 against the Ruling of Hon. Justice S. Oyejide Falola in respect of the Ruling dated 2nd July, 2013 allowing the Plaintiffs in the said case to discontinue their case, in the peculiar circumstances of the case, would not estopp the Plaintiff from filing another suit (HOS/103/2013) touching and concerning the same subject matter and between same parties.
3. Whether the failure of the Defendant/Appellant to file his statement of defence before challenging the jurisdiction of the Court to hear and or determine the case by his Notice of Preliminary objection dated 28th November, 2014 would make his said Notice of Preliminary objection incompetent as being a demurer and liable to be struck-out.
4. Whether the failure of the learned trial Court to consider
10
the 3rd Defendant/Appellants Replies to the Counter Affidavits of the Plaintiff and the 2nd-5th Defendants as well as the accompanying Reply addresses which were adopted as part of the arguments in support of the Notice of Preliminary objection either in the review of the facts of the case by the Court or in the determination of the Notice of Preliminary objection would not amount to shutting out the 3rd Defendant/Appellant and consequently a breach of the Rules of fair hearing.
The learned counsel for the 1st respondent, in his brief of argument adopted the appellant issues for determination.
In the 3rd-5th respondents brief of argument, they nominated three issues for determination viz:
(i) Whether the preliminary objection the subject-matter of the interlocutory appeal does not amount to a DEMURER (distilled from ground (E) of the grounds of Appeal).
(ii) Whether the trial Court has power to overrule or review the ruling of his learned brother Hon. Justice S. Oyejide Falola who struck out suit No. HOS/78/12 and whether the Notice of Appeal allegedly filed against the Ruling in HOS/78/12 can bar
11
plaintiff (1st respondent) from filing the Suit in No. HOS/13/13 (distilled from grounds A, b and C of Grounds of Appeal).
(iii) Whether Section 22(3)(4) and (5) of the chiefs Law Cap 25 Laws of Osun State is not subservient to the clear and unambiguous provisions of Section 6(6) and Section 272(1) of the 1999 Constitution (ground D).
This appeal shall be decided on the issues nominated by the Appellant. Meanwhile, the case of the appellant shall be considered on one side of the scale while the cases of the 1st respondent and the 3rd-5th respondents shall be considered together on the other side of the scale as that of the Respondents. This is for the reason of the common interest between the two sets of respondents and also for ease of convenience.
ISSUE ONE
In arguing issue one, learned counsel for the appellant submitted that the ruling delivered by Hon. Justice S. Oyejide Falola dated 21st July, 2013 was in respect of the discontinuance of Suit No. HOS/78/92 and has nothing to do with the issue questioning the propriety or other-wise of the two suits instituted by the
12
1st respondent on the same subject matter, same issues and parties.
Learned counsel submitted that the issue for determination distilled as issue one in the notice of preliminary objection does not in any way call for a review of the ruling of Hon. Justice S. O. Falola dated 3rd July, 2013. Therefore, said counsel, the holding of the learned trial judge that the issue was an invitation to review the ruling of his learned brother was wrong and a misplace application of the law. That there is nothing in the affidavits and counter affidavit of the parties suggesting that the 3rd respondent was asking the trial Court to review the said ruling. He contended that the learned trial judge was wrong to have abandoned the real issue for determination after he identified same to formulate issue that does not arise for determination. He opined that Courts are not allowed to go on a wild goose chase but are to confine to issues before them. Cited ORIZU V. ONYAEGBUNAM (1978) 5 SCZ 1; UNICAL V. ESSIEN (1996) 12 SCNJ 4 AT 326; OTARU & SONS V. IDRIS (1999) 4 SCNJ 156; PASCUTTO V. ADECENTRO (1997) SCNJ 1, 16. For the view. He argued that had the learned trial judge
13
considered the real issue, it would have discovered that the institution of HOS/103/13 during the pending of HOS/73/12 constitutes an abuse of the processes of the Court. He cited OKAFOR V. A. G. ANAMBRA (1991) 6 NWLR (PT. 200) 659; OGOEJEOFO V. OGOEJEFO (2006) 3 NWLR (PT. 966) 205 for the point.
Learned counsel for the respondents submitted that Suit No. HOS/78/12 and the instant suit are not the same. In that the parties are not the same likewise the claim are different. He reproduced the claims therein to distinguish the two suit.
He contended that assuming without conceding that the two suits are the same. The suit No. HOS/78/12 has been terminated by the filing of the notice of discontinuance filed on 14/6/2013. That Order 23 of Osun State High Court Amended (Civil Procedure) Rule 2008 has provide for discontinue or withdrawal of Suit.
Learned counsel for the appellant in his reply brief submitted that Suit HOS/78/12 was filed by the 1st respondent alongside colonel Kalajo Ojo (Rtd) for themselves and on behalf of Waye family of Kokola-Ijesa. Also the instant suit i.e HOS/103/13 cullimating to the Appeal was equally filed by the 1st
14
respondent alone in a representative capacity for himself and on behalf of Waye family of Kajola-Ijesa. That all the parties in the two suits are the same seeking the same reliefs. He argued that the suit does not become terminated merely upon the filing of the notice of discontinues. That the institution of HOS/103/13 before the final order terminating the suit is an abuse of the Court processes.
RESOLUTION OF THE ISSUE
The appellants chief grievances under this issue is that the institution of Suit No. HOS/103/2013 during the pendency of Suit HOS/78/12 in respect of the same parties, the same subject matter and the same reliefs, constitutes an abuse of Court process. Secondly, that suit HOS/78/2012 does not become terminated merely upon the filing of notice of discontinuance. The position of the law is that where two actions of the same nature on the same subject matter and same parties are being prosecuted at a time or concurrently before a Court, the latter action is an abuse of Court process. In other words, multiplicity of action on the same subject matter are instituted against the same opponents on the same issues, it is an abuse of
15
Court process. See SARAKI V. KOTOYE (1992) 7 NWLR (PT. 264) 156; ACB PLC. V. NWAIGWE (2011) 7 NWLR (PT. 1246) 380; OYEYEMI & ORS. V. OWOEYE & ANOR (2017) LPELR 41903 (SC). In the case of ALLANAH & ORS.V. KPOLOKWU & ORS (2016) LPELR 40724 (SC), the Supreme Court per Sanusi, JSC had this to say:
To my mind, some of the features of abuse of Court process include the under mentioned features, even though they are by no means exhaustive, the features are (i) Filing of multiplicity of actions on the same subject matter against the same opponents on the same issues or numerous actions on the same matter between the same parties even where there is in existence, a right to commence the action (ii) Instituting different actions between the same parties simultaneously in different Court even though on different ground (iii) where two or more similar processes are used in respect of the exercise of the same right.”
See also LOKPOBIRI V. OGOLA & ORS (2015) LPELR 40838 (SC); NWOSU V. PDP & ORS (2018) LPELR 44386 (SC).
I have painstakingly considered the briefs of argument filed by the parties. I also perused the record
16
of appeal in the instant appeal, particularly at the resident of the two suits with the view to gauge the presence or absent of abuse of process. It is discernible from the record that Suit No. HOS/78/2012 was filed on 13th day of July, 2012 as can be seen at pages 68-70 of the record. The notice of discontinuance of same was filed on 14th June, 2013 and the Ruling in respect of same was delivered on 2nd July, 2013 seen at pages 71 and 72 while, the appeal against the said was lodged on 16th July, 2013 as rapped at pages 73-76 of the record. Suit No. HOS/103/2013 with the same reliefs, the same parties over the same subject matter was filed on 25/6/13 as can be seen at pages 1-3 of the record.
Applying the above features to the facts of the present case, it becomes clear that filing that transformed to this appeal on same facts before the filing of notice of discontinuance, in which the 1st respondent asks for the same reliefs as in Suit HOS/78/2012 amount to an abuse of process. I so hold.
On the other leg of the issue, a notice of discontinuance once validly field, the suit ceases to exist the moment it is effectively discontinued, See
17
THE VESSEL SAINT ROLAND & ANR. V. OSINLOYE (1997) LPELR 3234 (SC).
A plaintiff may discontinue his action against all or any of the defendants in an action before the date fixed for hearing of the case. The notice to discontinue the suit automatically brings the suit to an end from the moment it is filed only waiting for resurrection where there will be one. See EFET V. INEC (2011) LPELR 8109 (SC), it could have been a different game all together, if there is no appeal against the Ruling of 2/7/13 because a plaintiff who discontinued his action still has the remedy to institute a fresh or subsequent action to resurrect the earlier one whether of the same or substantially the same cause of action and the same reliefs. This issue is partly against the appellant.
ISSUE TWO
Learned counsel for the appellant submitted that the Notice of Appeal was filed against the Ruling in HOS/78/12 but not that the appellant was seeking a stay of proceedings of suit HOS/103/13. That the filing of the notice of appeal in HOS/78/12 estopped the plaintiff from initiating another suit i.e HOS/103/13 during the pendency of the suit against same parties and same subject
18
matter. Counsel argued that the learned trial judge was wrong to have assumed that the notice of appeal was filed in respect of HOS/103/13 and that the appellant was seeking for a stay of proceeding where he hold that the 3rd defendant was indirectly seeking for a stay of proceedings and that no such application is pending before this Court or even the Court of Appeal. He concluded that there has been no appeal against suit HOS/103/13 by any of the parties, therefore, according to counsel, no basis for the confusion of the learned trial judge.
Learned counsel for the respondents on the other side submitted that the alleged Notice of Appeal filed in HOS/78/12 does not have effect of stultifying the hearing of suit HOS/103/13. The suit was properly filed and it is therefore competent. He contended that Notice of Appeal per-se does not amount to a stay of proceedings that there existed no stay of proceeding before the Court. He reasoned that the alleged Notice of Appeal is just a mere medicine after death. That the learned counsel for the appellant has not quoted any law, statutory or case law to support his argument.
In his reply, counsel
19
argued that the Notice of Appeal filed by the Appellant in HOS/78/12 will bar the 1st respondent from instituting another action on the same subject matter, issues and parties during the pendency of the suit. That the issue raised was on the propriety of the 1st respondent filing another suit during the pendency of suit HOS/78/12 and nothing more.
RESOLUTION
Estoppel means a bar that prevents one from asserting a claim or right that contradicts what one has said or done before. It is equally a bar that prevents the re-litigation of issue. See TUKUR V. UBA & ORS (2012) LPELR 9337 (SC).
I have consulted the record, the spinal cord of the appeal and equally perused the appellants notice and grounds of appeal filed on 16/7/2013 in HOS/78/2012, I found that the appeal was filed against the Ruling of Hon, Justice S. Oyejide Falola dated 2/7/2013 in Suit No. HOS/78/2012 but not that the appellant was seeking for a stay of proceedings of Suit HOS/103/2013 as argued by the respondents. The trial judge was therefore, in my view wrong to have held that the appellant is asking for a stay of proceeding.
The filing of the said notice of
20
appeal estopped the 1st respondent from initiating suit HOS/103/13 during the pendency of suit HOS/78/2102 against the same parties and subject matter. I have alluded to this in my treatment of issue one above and I have nothing gainful to add thereto. Issue two is resolved in favour of the appellant.
ISSUE THREE AND FOUR WILL BE ARGUE TOGETHER
It was argued by the learned counsel for the appellant that the filing of the Notice of preliminary objection without filing a defence does not amount to demurer. The said notice of preliminary objection was a direct challenge to the jurisdiction of the Court which does not require the appellant/defendant to file pleading before same is brought. He cited ARJAY LTD. V. AIRLINE MANAGEMENT SUPPORT LTD. (2003) FWLR (PT. 156) 963; ELABANJO V. DAWODU (2006)50 WRN 79; DR. TOSIN AJAYI V. PRINCESS (MRS) OLAJUMOKE ADEBIYI & 3 ORS. (2013) 3 WRN 1 AT 40; NDIC V. CBN (2002) 18 WRN 1; AG KWARA STATE V. OLAWALE (1993) 1 NWLR (PT. 272) 645 for the view.
He urged the Court to hold that the filing of the preliminary objection which was a direct challenge to the jurisdiction of the Court does not requires the defendant to first file his
21
defence before filing same and does not amount to a demurer.
Learned counsel submitted that by virtue of Section 22 of the Chiefs Law of Osun State, Cap. 25, Laws of Osun State 2002, the plaintiff must of necessity exhaust all the internal remedies before going to Court. He argued that the failure of the plaintiff to exhaust the domestic remedies robs the lower Court of the jurisdiction to hear and determine this case. He cited L. O. OWOSENI V. JOSHUA FALOYE (2006) 36 WRN for the point.
In response to this, learned counsel for the respondents submitted that the appellant cannot be heard on his preliminary objection without filing a defence to the action. Counsel reasoned that taking a preliminary objection without a defence being filed would amount to demurer proceedings which has been abolished in Osun State by virtue of Order 22 Rules 1 and 2 of Osun State High Court Civil Procedure Rules, 2008.
It was submitted that there exists no clear and unambiguous clauses in the Osun State Chiefs Law Cap 25 thereof ousting the jurisdiction of the High Court to entertain chieftaincy matters. That the said provision is not mandatory otherwise, it would
22
amount to fettering the right of access to Court. It was submitted that Section 22 of the Chiefs Law of Osun State cannot be raised as a preliminary objection without pleadings and that the said law is not applicable here.
In his reply, learned counsel for the appellant submitted that the provision of Section 22 of the Chiefs Law is relevant and that the compliance with same is a condition precedent to the institution of this case. That Section 22 of the Chiefs Laws is designed to enable aggrieved party in chieftaincy matters to exhaust the domestic remedies before going to Court but not an ouster clause as contended by the respondents. He citied EGUAMWENSE V. AMAGHIZENWEN (1993) 9 NWLR (PT. 315) for the point. That the 1st respondent having failed to exhaust the domestic remedies, the action is without jurisdiction and urged the Court to so hold and allow the appeal.
RESOLUTION OF THE ISSUES
A preliminary objection is a process meant to challenge the competence of an action against which it is filed. The purpose of a preliminary objection is to contend that a suit is defective or incompetent, if sustained, the suit would no longer be heard, it
23
terminates the hearing of a suit. In the instant case, the preliminary objection filed by the appellant as 3rd defendant at the lower Court was a direct challenge to the jurisdiction of the lower Court to entertain the matter. Where as in the instant case, a preliminary objection was filed asking for an order to strike out a suit for being incompetent on the ground of absence of jurisdiction, the objection does not amount to a demurer and therefore can be filed even before the defendants file his defence. See ELABANJO V. DAWODU (2006) 15 NWLR (PT. 1001); AJAYI V. PRINCESS OLAJUMOKE ADEBIYI & 3 ORS. (2013) 3 WRN 1; A.G FEDERATION V. A.G ANAMBRA (2018) 6 NWLR (PT. 1615) 314.
On the issue of exhaustion of internal remedy provide by Section 22 of the Chiefs Law of Osun State 2002. Let me start by saying that the doctrine of exhaustion of internal remedies does not affect right of access to Court as spelt out in Section 36(1) of the Constitution. The position of the law is that Laws which prescribe that some procedural steps be taken before embarking on litigation can not be regarded as ousting the jurisdiction of the Court. Section 22 of the Chiefs Law of Osun State
24
creates the doctrine of exhaustion of domestic remedies which until the remedies are exhausted the Court lacks the jurisdiction to entertain any question arising therefrom. See KAYILI V. YILBUK (2015) 7 NWLR (PT. 1457) 26; BUKOYE V. ADEYEMO (2017) 1 NWLR (PT. 1546) 173; A.G. KWARA STATE V. ADEYEMO (2017) 1 NWLR (PT. 1456) 210.
The Court is derobed of the jurisdiction to entertain the 3rd respondent suit because he did not exhaust the local remedy enshrined in the Chiefs Law of Osun State. The doctrine connotes that a party must accomplish all internal remedies given to him by a statute before approaching a Court for redress which the respondent ignores. Where as in the instant case, a party ignore to exhaust the remedy, his action will be declared premature and cannot activate the jurisdiction of the Court to hear it. SeeALADEJOBI V. NBA (2013) 15 NWLR (PT. 1376) 66; AWOYEMI V. FASUAN (2006) 13 NWLR (PT. 996) 86.
The laws which prescribe that some procedural steps be taken to resolve a dispute before embarking on litigation cannot be treated as ousting the jurisdiction of the Court.
Issues three and four are resolved in favour of the
25
appellant and against the respondents.
Having resolved issue one partly in favour of the appellant and issue two, three and four in favour of the appellant, the appeal is imbued with merit. Consequently, I allow the appeal. Accordingly, the Ruling of the lower Court delivered on 17/12/2014 is set aside. I uphold the appellant preliminary objection dated 28/11/2013 and strike out suit No. HOS/103/2013 for being incompetent.
The parties shall bear the respective costs they incurred in the prosecution and defence of this appeal.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read in draft the judgment just delivered by my learned brother, RIDWAN MAIWADA ABDULLAHI, JCA before now and agree that the Preliminary Objection fails and be dismissed. I also do and join my lord in the lead judgment in allowing the appeal and set aside the ruling of the trial Court. I also abide by the decision in the lead judgment relating to cost as made.
PATRICIA AJUMA MAHMOUD, J.C.A.: A chieftaincy matter or dispute is justiciable within the provisions of SECTIONS 6(6) and 272(1) OF THE 1999 CONSTITUTION. This is why the Supreme Court
26
in the cases of BALOGUN V ODE (2007) 4 NWLR PT 1023, 1 and KOTOYE V SARAKI (1994) 7 NWLR, PT 357, 414 held that: Any law of a State which purports to remove chieftaincy questions or matters from the jurisdiction of a State High Court is inconsistent with the provisions of SECTION 236(1) of the 1979 Constitution and therefore null and void.
The provisions of SECTION 22 OF THE CHIEFS LAW, CAP, LAWS OF OSUN STATE, 2001 cannot therefore be an ouster clause. If it is it will be declared null and void. The Section is therefore merely a domestic remedy to be explored before going to Court. In the case of ARIBISALA & ANOR V. OGUNYEMI & ORS (2005) 6 NWLR PT 921, 212 the supreme Court followed its earlier decision in EGUAMWENSE V AMAGHIZEMWEN (1993) 9 NWLR, PT 315 to hold that “where a statute prescribes a legal line of action for determination of an issue, be that issue an administrative matter, chieftaincy matter.the aggrieved party must exhaust all the remedies before going to Court ………”All the local remedies in the statute on every subject must be exhausted before embarking on actual litigation in Court.”
It is for this reason and
27
the more robust reasons given by my learned brother, RIDWAN MAIWADA ABDULLAHI, JCA in the lead judgment that I too allow this appeal and set aside the ruling of the lower Court delivered on the 17/12/2014. Consequently I also uphold the appellant’s preliminary objection and strike out Suit No. HOS/103/2013 for being incompetent.
28
Appearances:
Disu Babatunde with him, Victor Omolora, Esq. For Appellant(s)
Adewale Folorunso, Esq. for the 3rd, 4th and 5th Respondents.
1st and 2nd Respondents counsel served with hearing notice but no appearance.
For Respondent(s)
Appearances
Disu Babatunde with him, Victor Omolora, Esq. For Appellant
AND
Adewale Folorunso, Esq. for the 3rd, 4th and 5th Respondents.
1st and 2nd Respondents counsel served with hearing notice but no appearance. For Respondent
