VENERABLE RICHARD O. TOYINBO & ORS v. H.R.H. OBA TIMOTHY OLUWAGBOHUN IBIYINKA & ORS
(2018)LCN/11863(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of July, 2018
CA/EK/111/2013
RATIO
COURT AND PROCEDURE: POWER OF THE ORIGINATING SUMMONS
“The law is trite that in the quest to determine whether a Court had jurisdiction to adjudicate on any matter, it is the originating process filed by the Claimant that will be singularly cognized. Where, as in this case, before the lower Court, the originating process is the writ of summons, it is the writ of summons and the statement of claim that the Court will countenance. See IZAMOJE & ORS VS. HESNEN TRUST LTD. (2012) 14 NWLR (Pt. 1321) 614 @ 618.” PER PAUL OBI ELECHI, J.C.A.
COURT AND PROCEDURE: PRELIMINARY OBJECTION
“By the clear provisions of the Rule of this Court a preliminary objection may be raised to the hearing of an appeal as in this case. Thus, the object and purpose of preliminary objection is to terminate the Appeal in limine and probably render the consideration of the Appeal itself unnecessary. See ADELEKAN V. ECU-LINE NV (2006) 12 NWLR (pt. 993) 33, NEPA V. ANGO (2001) 15 NWLR (pt. 737) 627. A preliminary objection is thus not about the competency of one of the grounds of appeal or one of the issues raised therein. In ODUNUKWE V. OFOMATA (2011) ALL FWLR (PT. 568) 827 AT 841-842” PER PAUL OBI ELECHI, J.C.A.
JUSTICES
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
1. VENERABLE RICHARD O. TOYINBO
2. CHIEF FESTUS TOYINBO
3. SAMUEL OLATUNJI TOYINBO (For themselves and on
behalf of Oke-Ila family of Ilafe Quarters, Ikun Oba-Ekiti) Appellant(s)
AND
1. H.R.H. OBA TIMOTHY OLUWAGBOHUN IBIYINKA
2. DARE ADESUYI
3. EKITI EAST LOCAL GOVERNMENT COUNCIL
4. COMMISSIONER FOR LOCAL GOVERNMENT &
CHIEFTAINCY AFFAIRS, EKITI
5. EKITI STATE GOVERNMENT Respondent(s)
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the ruling of Honourable Justice O.I.O Ogunyemi of the Ekiti State High Court of Justice sitting at Omuo-Ekiti, delivered on the 28th day of June, 2012. In the said ruling the learned trial Judge upheld the preliminary objection raised to the suit of the Appellant by the 3rd Respondent and thereby struck out the case of the Appellants. Aggrieved by that decision, the Appellant appealed to this Honourable Court.
The Appellant initiated this action through a writ of summons with its statement of claim and sought for the following reliefs against the Respondents jointly and severally;
a. Declaration that the 1st, 3rd, 4th and 5th Defendant have no basis either in fact or under customary law to propound three (3) ruling houses for the Alafe chieftaincy in Ilafe quarters of Ikun-Oba Ekiti in place of the hitherto existing two ruling houses.
b. Declaration that the Alafe chieftaincy have always been rotated between Oba-Ilea family and Odo Udalu/OduUparu family axis
c. Declaration that in as much as the last Alafe chieftain, Chief Timothy Omolewa Awoyemi is from Odo Udalu/Odu Uparu family axis, the next Alafe should be appointed from Oke-Ilea family.
d. Declaration that the purported appointment of the 2nd Defendant to the Alafe Chieftaincy by the 1st defendant on the promptings/orders of the 3rd defendant is null, void, ultra vires and of no legal effect.
e. Declaration that all actions taken by the 1st, 2nd, 3rd, 4th and 5th Defendants by virtue of the purported appointment of the 2nd Defendant to the Alafe chieftaincy are null, void, ultra vires and of no legal effect.
f. An order of Court against the 1st and 2nd Defendants to give an account of all the monies collected on account of the Alafe chieftaincy from 1998 till now.
g. An order of Court compelling the 1st and 2nd Defendants to refund all the monies collected on account of the Alafe chieftaincy to the Ilafe quarters of Iku-Oba, who, under customary law is entitled to the Alafe chieftaincy monies.
h. A perpetual injunction restraining the 2nd defendant from parading himself as the Alafe of Ilafe in Ikun-Oba Ekiti Community.
i. A perpetual injunction restraining the 1st Defendant from installing any person, other than the person presented by Oke-Ilea ruling house as the Alafe of Ilafe in Ikun-Oba Ekiti Community.
j. An order of perpetual injunction restraining the 3rd, 4th and 5th Defendant from according recognition to any person other than the person selected by the Oke-Ilea family to the Alafe chieftaincy as a successor to late Chief Timothy Omolewa Awoyemi.
At the commencement of the case, the 3rd Respondent filed a Notice of Preliminary Objection challenging the jurisdiction of the lower Court to entertain the matter on the premise that the Appellants did not exhaust local remedies available to them as provided in the Section 12 of the Chief’s Edict, 1984, Laws of Ondo State as applicable to Ekiti State.
The Notice of Preliminary Objection and the argument and submissions of both the 3rd Respondent and Appellants was taken by the learned trial Judge. By a ruling delivered on 28th June, 2012, the Judge upheld the preliminary objection of the 3rd Defendant and struck out the suit. Dissatisfied, the Claimants filed an appeal to this Honourable Court.
To argue the Appeal, the Appellant formulated the following issues for determination viz.
ISSUES FOR DETERMINATION:
i. Whether the Court can shut its eyes to the obvious averments in the statement of claim and depositions contained in written statements on oath of Claimants/Applicants and make a finding of fact for a Defendant who did not filed statement of Defence.
ii. Whether a Defendant who did not file a statement of Defence can dispute a statement of fact made in a statement of claim.
iii. Whether a trial Judge can proceed to evaluate evidence on a disputed fact and make a finding thereof without a proper trial.
ARGUMENT:
The (3) three issues will be taken together according to learned counsel. The 3rd Defendant?s Counsel, who obviously is not the Counsel representing 1st and 2nd Defendants filed a Notice of Preliminary Objection where he made the outrageous claim that the Claimants did not report to the prescribed authority (the 1st Defendant) their dispute over the choice of the 2nd Defendant to the Alafe chieftaincy. The brazen manner in which the 3rd Defendant made this assertion is scandalous and by the belief by the trial Judge shocking.
The main platform of the 3rd Defendant/Applicant Preliminary Objection is as follows:
Going through the pleading of the Claimant, there is nowhere they officially reported to the prescribed authority who is the 1st Defendant herein for determination. They did not show in their pleadings that they reported the matter to the member of Executive Council who is in charge of the chieftaincy affairs? The law is very clear that an aggrieved party should complain to the prescribed authority for a decision after which a complaint should go to the member of the Executive Council in charge of chieftaincy. All these, the Claimants did not do before rushing to Court. Having failed to show the above facts in their pleadings, their action is pre-mature, incompetent and the Court will have no jurisdiction to entertain same.”
It is contended that 2nd Defendant’s Counsel assertion cannot be time in view of the claimant’s statement of claim paragraph 38 and paragraph 21 page 21 of the records and also paragraph 32 at page 22 of the record of the records. He then referred the Court to several judicial authorities to the effect that the defendant ought to have filed a defence. See Ege Shipping and Trading Industry Inco & 3 Ors V. Tigris International Corporation (1999) 14 NWLR (pt. 637) 70 at 75, Omnia Nig. Ltd V. Dyktrade Ltd (2007) 15 NWLR (pt. 1058) 576 at 587, Adebayo V. Oja-Iya Community Bank Nig. Ltd (2004) 11 NWLR (pt. 885) 573 at 575.
He then submitted that in view of the above authorities, the three issues formulated above ought to be resolved in favour of the Appellant.
PRELIMINARY OBJECTION
The 1st and 2nd Respondents filed a Motion on Notice dated 19th September, 2017 challenging the competency of the three issue raised or formulated from the lone ground of appeal by the Appellants in this appeal. The preliminary objection is premised on the following grounds:
1. Incompetence of the issues formulated for determination in the appellants’ Brief of Argument for being more than the lone ground of appeal in the appellants Amended Notice of Appeal.
2. Particulars of Error of a Ground of Appeal cannot be argued as a separated ground of appeal as an Appellant is not allowed to formulate an issue from the particulars of error of a ground of appeal.
3. There was no pronouncement by the lower Court on issues Nos. (i), (ii) and (iii) of the Appellants? Brief of Argument. The said issues cannot be the subject of an issue for determination or a ground of appeal.
The Preliminary objection is further supported by a thirteen (13) paragraph affidavit deposed to by Clement Oluwaseun Falana Esq., a Legal Practitioner in the Law Firm of the 1st and 2nd Respondents’ Counsel.
ARGUMENT OF THE PRELIMINARY OBJECTION
The Appellants herein vide a Notice and Grounds of Appeal dated and filed on 10th July, 2016 predicated their appeal on a lone ground appeal. Subsequently, on 24th February, 2016, the Appellants filed an Amended Notice and Grounds of Appeal dated the same date pursuant to the order of this Honourable Court.
The said Amended Notice and Grounds of Appeal raised a lone ground of appeal with six (6) paragraphs of particulars of error.
On 16th February, 2017, the Appellants filed an Amended Appellants? Brief dated 21st April, 2016 wherein three (3) issues for determination on the lone ground of appeal were formulated as follows:-
”i. Whether the Court can shut its eyes to the obvious averments in the statement of claim and depositions contained in written statements on oath of Claimants/Applicants and make a finding of fact for a Defendant who did not file a Statement of Defence.
ii. Whether a defendant who did not file a Statement of Defence can dispute a statement of fact made in a statement of claim.
iii. Whether a trial Judge can proceed to evaluate evidence on a disputed fact and make a finding thereof without a proper trial.”
It is submitted that an issue for determination must arise from one or a combination of Grounds of Appeal. See Nwidenyi & Ors vs. Aleke (1996) 4 NWLR (Pt. 442) 340. However, on no account should more than one issue be framed from one Ground of Appeal and not the other way round. See: Yisi Nig. Ltd vs. Trade Bank Plc (2013) Vol. 219 (Pt. 2) 157 @ 169 PU; Garba vs The State (2000) 4 SCNJ 315.
It is also submitted by restating that the Rules governing formulation of issues for determination in an appeal are that an issue may arise from one or more grounds of Appeal but not a multiplicity of issues or more than one issue is formulated from the same Grounds of Appeal but not a multiplicity of issues or more than one issue is formulated from the same Ground of Appeal. Where there is such multiplicity of issues, both the issues so formulated and the Ground from which they were formulated shall be struck out. See: Yisi Nig. Ltd vs. Trade Bank Plc. (2013) Vol. 219 (Pt. 2) 157 @ 175 FK; Agbetola vs. Lagos State Executive Council & Ors. (1990) 6 SCNJ (Pt. 1) 12; Tanerew Nig. Ltd vs. Plastifarm Ltd (2003) 14 NWLR (Pt. 840) 369.
In the instant appeal, the Appellants distilled three issues for determination from a lone ground of appeal. It is submitted on the strength of judicial decisions that this splitting of issues rendered issues i, ii and iii distilled from the lone ground of the amended notice and grounds of appeal incompetent. The legal effect, in the instant case, is that both the issues so formulated and the Ground of Appeal from which they were formulated shall be struck out.
Also, it is submitted that the triple issues formulated by the Appellants herein in the Appellants? Amended Brief at paragraph are liable to be struck out. See: Abass v. People of Lagos (2016) All FWLR (pt. 834) 114 at 132.
In the instant case, a dispassionate look at issues (i), (ii) and (iii) formulated by the Appellants shows that all the issues are tied to a lone ground of appeal in the Amended Notice and Grounds of Appeal of the Appellants. It is submitted that the Appellants erred in distilling three issue from a solitary or single ground of appeal which renders issues Nos. (i), (ii) and (iii) thereof incompetent. The Honourable Court is therefore urged to strike out all the issues and the lone ground of appeal from which they were formulated. Moreover, it is submitted that since there is no competent issue to sustain the instant appeal filed by the Appellants, the Appeal, should be struck out. The basis for this submission is that all the three issues formulated by the Appellants from the lone ground of appeal were argued together in the Appellants’ Amended Brief of Argument.
The position taken by the Appellants in formulating an issue for determination from the particulars of error rather than from the lone ground of appeal is an unknown and a novel approach to law. In the instant case, issues Nos. (i) and (ii) for determination formulated by the Appellants herein are premised on paragraph (ii) of the Particulars of Error subjoined to the lone ground of appeal while issue (iii) of the Appellants’ Amended Brief is formulated from paragraphs (v) and (vi) of the Particulars of Error of the Appellants’ Ground of Appeal. See paragraphs 3.14 supra and paragraphs (ii), (v) and (vi) of the Particulars of Error of the Amended Grounds of Appeal in the Amended Notice of Appeal of the Appellants.
It is further submitted that on a closer examination of the said issues, issues Nos. (i), (ii) and (iii) formulated by the Appellants in their Amended Brief of Argument are not tied to any separated ground of appeal. An Appellant is not allowed to tie an issue to a particular of error as it was done by the Appellants herein as the particulars of error cannot be elevated to the status of a ground of appeal. Both the grounds of appeal and its particulars are one and inseparable in law.
The particulars of error of a ground of appeal cannot stand alone or be argued as separate grounds of appeal as the particulars are merely supportive of the ground of appeal since the complaint in the ground is the foundation of the ground of appeal. See Ibrahim vs. Osunde (2003) FWLR (Pt. 142) 65 @ 79 D-E; Ojemen vs. Momodu 11 (1978) 6-7 SC 135.
In the instant case, it is submitted that issues (ii) and (iii) which were argued together with issue (i) in the Appellants’ Amended Brief were formulated from the particulars of errors, which in law, cannot be argued as a separated ground of appeal, the said issues are invalid, undesirable and incompetent and the Honourable Court is urged to so hold by striking out the entire issues formulated by the Appellants. Where an issue is incompetent and invalid, no competent argument can be made or canvassed there under. See: Oje vs. Babalola (1991) 4 NWLR (Pt. 185) 267; (1991) 5. SC. 128.
It is further submitted that an issue for determination must have boundaries in that it must be predicated upon the ratio decided of the judgment or ruling appealed against. See: Isaac v. Imasuen (2016) AFWLR (Pt. 823) SC. 1894 @ 1906 A; Yadis Nig. Ltd vs. Great Nigeria Insurance Co. Ltd (2007) AFWLR (Pt. 370) 1348.
An issue which is not raised, argued and pronounced upon by a trial Court, cannot be validly raised as an issue for determination before the appellant Court, as such issue or arguments made thereon are not competent and therefore goes to no issue. See the case of Idufueko vs. Pfizer Products Ltd (2014) AFWLR (Pt. 745) SC. 269 @ 2897 D.
In the instant appeal, it is submitted that a careful examination of the records reveals that there was no decision of the Court below on the issue of whether or not a defendant who did not file a statement of defence can dispute a statement of fact made in a statement of claim as formulated in issue (ii) of the Appellants’ Amended Brief. There was equally no pronouncement or decision by the trial Court in its ruling on the issue of evaluation of evidence on a diluted fact upon which the lower Court made a finding without proper trial as formulated in issue (iii) of the Appellants, Amended Brief.
It is submitted that even assuming without accepting, that issues (ii) and (iii) formulated by the Appellants were argued before the lower Court, which is not the case, the Court below did not make any pronouncement in respect thereof in its ruling delivered on 28th June, 2012. Consequently, issues (ii) and (iii) are incompetent and invalid. Since the said issue were not an issue before the trial Court and since they were not pronounced upon by the lower Court, the said issues (ii) and (iii) could not rightly be the subject of a ground of appeal or an issue for determination in any appeal.
The Court is urged to discountenance with all the issues urged together and strike out this Appeal accordingly with substantial cost on the main Appeal.
The 1st and 2nd Respondents most respectfully submit that the sole issue for determination in this appeal is as follows:-
”Whether in the entire circumstances of this case, the Honourable Court below was right when it held that the Appellants did not comply with the provisions of the Chiefs Edict by exhausting the remedy provided therein.”
ARGUMENT OF THE SOLE ISSUE
It is submitted that the position of the law is that where a statute provides a legal line of action for the determination of an issue, the aggrieved party must exhaust all the remedies in the law before going to Court. See Owoseni vs. Faloye (2005) 14 NWLR (Pt. 946) 719 @ 740.
See: Section 13 of the Chiefs Edict 1984, Laws of Ondo State as applicable to Ekiti State is relevant to the instant case.
The precondition for access to the Court in respect of the dispute over a minor chieftaincy by the prescribed authority in Ondo State as applicable to Ekiti State are:-
(a) The prescribed authority must have determined the dispute;
(b) The aggrieved party makes a representation to the Commissioner for chieftaincy matters within 21 days of the giving of the decision; and
(c) The Commissioner for Chieftaincy Affairs chould determine the dispute after the inquiry. These steps are deemed in law to the exhausted the remedy available to persons aggrieved under the exercise of the powers vested in the prescribed authority. See Aribisala vs. Ogunyemi (2005) AFWLR (Pt. 252) 451; Adesola vs. Abidoye (2001) WRN 39.
It is submitted that the Appellants’ contention that they complied with the conditions precedent by protesting the fraudulent dealings of the 1st defendant with regard to the purported selection, appointment and installation of the 2nd defendant as Alafe by writing series of petitions to the 1st, 3rd and 4th Defendants’ as contained in their statement of claim, is a bare assertion which is not sufficient to enable the Appellants exercise their right of action when the challenge thereto is that this suit was filed against the mandatory stipulation of the law.
It is therefore submitted that the Appellants failure to comply with the conditions precedent before initiating the case as provided under the relevant Chief Edict 1984 is fatal and the Court is urged to so hold.
Finally, the Court is urged to hold that the Appellant’s suit is incompetent and accordingly to dismiss same with substantial cost.
The 4th and 5th Respondents formulated the following issues for the determination of this appeal, viz:
(1) Whether or not the lower Court was not right when it held that the failure of the Appellants to comply with the provisions of the chiefs edict by exhausting the remedies provided therein is fatal to their case.
(2) Whether the 3rd respondent was not right by filing notice of preliminary objection at the Court below instead of filing statement of defence.
To argue this issue, the learned counsel for the 4th & 5th Respondents submitted that the learned trial judge was not wrong in holding that the Appellants did not exhaust the local remedies available to them before initiating the action in view of the averments contained in paragraph 38 of their statement of Claim (page 7 of record) paragraphs 21 and 31 of the 2nd Appellant written statement on oath (pages 21 and 22 and 22 of the record) and the last paragraph of Appellants’ response to the Notice of preliminary objection at page 213 of the record which is on all four with paragraph 7.0 of the Appellants’ brief.
In view of the above, it is apposite to have recourse to the provisions of Section 13 of the Chiefs Edict, 1984 to know whether the contention of the Appellants is tenable.
In order to attain the merit of this matter, the learned 4th and 5th respondent counsel posed the following questions.
(i) Is Alafe a minor Chieftaincy title?
(ii) Who is the prescribed authority over the appointment of Alafe Chieftaincy title?
(iii) Did the Appellants exhaust the local remedies provided by the above law before rushing to court?
There is no gainsaying the fact that the Alafe chieftaincy title is a minor chieftaincy and the prescribed Authority over it is the 1st Respondent, that whilst Section 13 (1) quoted above in no unmistakable terms gives the prescribed Authority (the 1st Respondent) the power to appoint and install Minor Chiefs within his domain, Subsection (4) states clearly that where is a dispute on the appointment of any person to a minor chieftaincy, the prescribed Authority shall determine the dispute. Also, Subsection (5) is to the effect that whoever that is not satisfied with the decision of the prescribed authority may make a representation to the commissioner for Chieftaincy Affair within twenty one (21) days.
Section 13 (4) & (5) of the Chiefs Edict provides for mandatory obligations on the part of the dissatisfied person to exhaust the remedies available before ventilating his grievance(s) in the Court of law. This, the appellants failed to observe. What is more, the prescribed Authority, the 1st respondent herein was not brought in the picture to determine the dispute if any on the appointment of the 2nd Respondent. All the petitions the Appellants claimed to have written were channelled to 3rd Respondent, the Ekiti State Commissioner of police, the state security service, the council of Traditional Rulers of Ekiti State, None was directed to the 1st Respondent.
No representative was made to the commissioner for local government and chieftaincy Affairs against the appointments as the Alafe of Ikun Oba Ekiti or let alone abide by the 21 days provided by law.
It is submitted that the Appellants are under a duty to channel their grievances (if any) firstly to the prescribed Authority and secondly, in form of presentations to a member of the Executive Council of Ekiti State to whom responsibility of Chieftaincy Affairs is assigned i.e the Commissioner for local Government and chieftaincy affairs as provided by the Chiefs Edict. Instead of doing the required, they rushed to the Court to have the appointment of the 2nd Respondent by the 1st Respondent nullified. This is nothing but a clear negation of the provisions of the Chiefs. See BAMISILE V. OSASUYI & ORS (2007) 1 LPELR 8221, ADEOLA V. AYEOBA (2009) ALL FWLR (PT. 458) 381 AT 382, ARIBISALA V. OGUNYEMI (2005) 21 NSCQR 113 AT 123, OJOGBEDE V. OGUNDIPE (2008) 12 NWLR (PT. 1101) 585.
Finally, it is submitted that being a Chieftaincy dispute is not justiciable unless and until the statutory conditions precedent as laid down by the chiefs Edict is strictly complied with. See OGOLOGO & ORS V. UCHE & ORS (2005) 7 SC 165 AT 179 ARIBISALA V. OGUNYEMI (Supra), SAMUEL V. ALABI & ORS V. BILAWU OYEWUMI & ORS (2015) LPELR-24271 (CA) AKINBONI V. AKINTOPE (2016) LPELR-40184 (CA).
The Court is urged to resolve this issue in favour of the 4th and 5th Respondents.
From the record, it is bound to be seen that there is nothing suggesting to the lower Court that it cannot successfully limit itself to the determination of the preliminary objection raised by the 3rd respondents. The lower Court, thus, limited itself to the preliminary objection alone did not at any time venture into the merit of the substantive matter, thus the need to file the statement of defence by the 3rd Respondent did not arise at all. In the case of ELABANJO VS. DAWODU (2006) 15 NWLR (PT. 1001) 76 AT 115, PARAS C-G MOHAMMED JSC (As he then was).
The law is trite that in the quest to determine whether a Court had jurisdiction to adjudicate on any matter, it is the originating process filed by the Claimant that will be singularly cognized.
Where, as in this case, before the lower Court, the originating process is the writ of summons, it is the writ of summons and the statement of claim that the Court will countenance. See IZAMOJE & ORS VS. HESNEN TRUST LTD. (2012) 14 NWLR (Pt. 1321) 614 @ 618.
Against the above backdrop, neither the 3rd respondent had not done anything unimaginable by filing Notice of preliminary objection which touched on the jurisdiction of the lower Court nor the lower Court had run against the grain of jurisprudence by entertaining the objection and striking out the suit of the Appellants in limine. The only option left for the lower Court was to decline jurisdiction since the competence of the Court had been called into question and the Court had realized that he had no power to adjudicate on the matter.
On the basis of the above submissions the Court is urged to discountenance the submissions in the Appellant briefs, dismiss the appeal for backing in merit, affirm and uphold the ruling of the lower Court.
RESOLUTION OF ISSUES
In this Appeal, the 1st & 2nd Respondents and 4th & 5th respondents have filed preliminary objection respectively challenging the competence of the Appeal.
Having raised same, the Court is duty bound to resolve and determine it one way or the other. This is apparently so because it is now settled position of the law that where a preliminary objection is raised and argued in an appeal, the objection must be settled before considering any other matter in the Appeal. See RABIU V. ADEBAJO (2012) ALL FWLR (PT. 643) 1863, OKAFOR V. NWUDE (1999) 7 SC (PT. 1) 106, SANI V. OKENE L.G. TRADITIONAL COUNCIL (2008) ALL FWLR (PT. 429) 464.
By the clear provisions of the Rule of this Court a preliminary objection may be raised to the hearing of an appeal as in this case. Thus, the object and purpose of preliminary objection is to terminate the Appeal in limine and probably render the consideration of the Appeal itself unnecessary. See ADELEKAN V. ECU-LINE NV (2006) 12 NWLR (pt. 993) 33, NEPA V. ANGO (2001) 15 NWLR (pt. 737) 627. A preliminary objection is thus not about the competency of one of the grounds of appeal or one of the issues raised therein. In ODUNUKWE V. OFOMATA (2011) ALL FWLR (PT. 568) 827 AT 841-842, the Supreme Court put the position thus;
”A preliminary Objection is filed only when the Respondent is satisfied that there is some fundamental defect in the Appellant process. The sole purpose being to terminate the Appeal usually on grounds of incompetence .. Nowadays, Preliminary Objections are filed once a respondent notices any error in the Appellant’s processes”
In the instant case, the Appellant initiated this action though a writ of summons with its statement of claim, and claimed several reliefs therein. The Learned trial Judge upheld the Preliminary Objection raised to the suit of the Appellant by the 3rd Respondent and thereby struck out the case of the Appellant on the ground that the Appellant did not exhaust the local remedies available to them as provided in Section 13 of the Chiefs Edict 1984, Laws of Ondo State as applicable to Ekiti State.
At the trial Court, the main platform of the 3rd defendant/Applicant Preliminary Objection issues follows:
”…Going through the pleading of the Claimant, there is nowhere they officially reported to the prescribed authority who is the 1st Defendant herein for determination. They did not show in their pleadings that they reported the matter to the member of Executive Council who is in charge of the chieftaincy affairs. The law is very clear that an aggrieved party should complain to the prescribed authority for a decision after which a complaint should go to the member of the Executive Council in charge of chieftaincy. All these, the claimants did not do before rushing to Court. Having failed to show the above failed to show the above facts in their pleadings, their action is pre-mature, incompetent and the Court will have no jurisdiction to entertain same.”
It is against the ruling of the lower Court that the Appellant appealed to this Court.
Appellant’s counsel filed three issues for determination from a sole ground of appeal.
ISSUES FOR DETERMINATION:
i. Whether the Court can shut its eyes to the obvious averments in the statement of claim and depositions contained in written statements on oath of Claimants/Applicants and make a finding of fact for a Defendant who did not file statement of Defence.
ii. Whether a Defendant who did not file a statement of Defence can dispute a statement of fact made in a statement of claim.
iii. Whether a trial Judge can proceed to evaluate evidence on a disputed fact and make a finding thereof without a proper trial.
The Learned Appellant Counsel argued the three issues together and submitted that the 3rd defendant ought to have filed a statement of defence instead of filing a Preliminary Objection.
The Court is urged to resolve the three issues formulated in his favour. The 1st and 2nd Respondents filed a motion on notice dated 19th day of September, 2017 challenging the competence of the three issues formulated in the Appellant on the following grounds viz:
1. Incompetence of the issues formulated for determination in the Appellants’ Brief of Argument for being more than the lone ground of appeal in the Appellants Amended Notice of Appeal.
2. Particulars of Error of a Ground of Appeal cannot be argued as a separate ground of appeal as an Appellant is not allowed to formulate an issue from the particulars of error of a ground of appeal.
3. There was no pronouncement by the lower Court on issues Nos. (i), (ii) and (iii) of the Appellants’ Brief of Argument. The said issues cannot be the subject of an issue for determination or a ground of appeal.
I have considered the arguments and submissions by counsel and I agree therefrom that on no account should more than one issue be framed from one ground of Appeal as done in this case.
See YISI NIG. LTD VS.TRADE BANK PLC (2013) VOL. 219 (PT. 2) 157 @ 169 PU; GARBA V. THE STATE (2000) 4 SCNJ 315. The Appellant having formulated three issues from a sole ground of appeal, both the issues and the sole ground from which they were formulated are liable to be struck out. See also YISI NIG. LTD VS.TRADE BANK PLC (SUPRA) AGBETOLA V. LAGOS STATE EXECUTIVE COUNCIL & ORS (1990) 6 SCNJ (PT. 1) 12, TANEREW NIG LTD. V. PLASTIFARM LTD. (2003) 14 NWLR (PT. 840) 369, ABASS V. PEOPLE OF LAGOS (2016) ALL FWLR (PT. 834) 114 at 132.
Consequently, issues i, ii, and iii being issues formulated from the sole ground of appeal are hereby struck out for being incompetent and as a result, no competent argument can be made or canvassed there under. See OJE V. BABALOLA (1991) 4 NWLR (pt. 185) 267. (1991) 5 SC 128.
Worthy of note also is that in issue 2.
Whether the defendant who did not file a statement of defence can dispute a statement of fact made in a statement of claim? of the Appellant’s Amended brief. There was no decision of the lower Court in respect of that issue.
Also there was equally no pronouncement or decision on issue iii on the evaluation of evidence.
Since the Appellants issues for determination are incompetent they cannot rightly be the subject of a ground of appeal or an issue for determination in any appeal. Accordingly, I uphold the preliminary Objection on the main Appeal.
The sole issue distilled for determination is;
”Whether in the entire circumstance of this case, the Honourable Court below was right when it held that the Appellants did not comply with the provisions of the Chiefs Edict by exhausting the remedy provided.”
Section 13 of the Chiefs Edict 1984, Laws of Ondo State as applicable to Ekiti State which is relevant to the instant case states
Section 13
(1) 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 shall determine the dispute and the person concerned shall be notified of the decision.
(2) Any person who is not satisfied with the decision of the prescribed authority may within twenty-one (21) days from the receipt of the notification, make representations to such member of the Executive Council to whom responsibility for Chieftaincy affairs is assigned that the decision be set aside and he may, after considering the representation confirm or set aside the decision.
The precondition for access to the Court in respect of the dispute over a minor Chieftaincy by the prescribed authority in Ondo State are:-
(a) The prescribed authority must have determined the dispute;
(b) The aggrieved party makes a representation to the Commissioner for Chieftaincy matters within 21 days of the giving of the decision; and
(c) The commissioner for Chieftaincy Affairs should determine the dispute after the inquiry. These steps are deemed in law to have exhausted the remedy available to persons aggrieved under the exercise of the powers vested in the prescribed authority. See ARIBISALA VS. OGUNYEMI (2005) FWLR (PT. 252) 451; ADESOLA VS.ABIDOYE (2001) WRN 39.
In an unsuccessful bid to meet up with the above precondition, the Appellant went about protesting the fraudulent dealings of the 1st defendant with regard to the purported selection appointment and installation of the 2nd defendant as Alafe by writing series of petitions to the 1st, 3rd and 4th Respondents. These series of petitions did not meet with the conditions precedent. The law is settled that where a statute provides a legal line of action for the determination of an issue, the aggrieved party must exhaust all the remedies in law before going to Court. The Appellant has not complied with the conditions precedent in the Chiefs Edict 1984 and it is fatal to his suit. See OWOSENI V. FALOYE (2005) 14 NWLR (PT. 946) 719.
The 4th and 5th Respondents raised two issues for determination
1. WHETHER OR NOT THE LOWER COURT WAS NOT RIGHT WHEN IT HELD THAT THE FAILURE OF THE APPELLANTS TO COMPLY WITH THE PROVISIONS OF THE CHIEFS EDICT BY EXHAUSTING THE REMEDIES PROVIDED THEREIN IS FATAL TO THEIR CASE.
2. WHETHER THE 3RD RESPONDENT WAS NOT RIGHT BY FILING NOTICE OF PRELIMINARY OBJECTION AT THE COURT BELOW INSTEAD OF FILING STATEMENT OF DEFENCE.
I agree with the submission of the 4th and 5th Respondent?s Counsel that inspite of the mandatory provisions offered under Section 13(4) & (5) of the Chiefs Edict on the part of aggrieved person(s) to exhaust the remedies available before ventilating his grievances in a court of law, the Appellant nonetheless by passed those preconditions and went straight to Court to ventilate his grievances. This is a clear negation of the provisions of the chiefs Edict 1984. See BAMISILE V. OSASUYI & ORS (2007) 1 LPELR-8221, ADEOLA V. AYEOBA (2009) ALL FWLR (PT. 458) 381, ARIBISALA V. OGUNYEMI (2005) 21 NSCQR 113 AT 123 OJOGBEDE V. OGUNDIPE (2008) 12 NWLR (PT. 11011) 585.
Being a chieftaincy dispute, it is not justiciable unless and until the statutory conditions precedent laid down in the Chief Edict is strictly complied with. See OGOLOGO & ORS V. UCHE & ORS (2005) 7 SC 165 ARIBISALA V. OGUNYEMI (Supra), this issue is resolved in favour of the Respondent.
In conclusion all the issues formulated in this appeal are hereby resolved in favour of the Respondents. The appeal is not meritorious.
The preliminary objection by the Respondent is hereby upheld.
Appeal dismissed.
AHMAD OLAREWAJU BELGORE, J.C.A.: I have had the advantage of reading in draft the Judgement just delivered by my learned brother P.O. Elechi, JCA.
I agree that the appeal is unmeritorious. I therefore dismiss the appeal.
FATIMA OMORO AKINBAMI, J.C.A.: I agree.
Appearances:
F. A Eruka Esq.For Appellant(s)
Julius Ajibare DDCL with him,
Olalekan Suleiman Esq. (SLO), K.O. Taiwo Legal Officer for 4th and 5th Respondents.For Respondent(s)
