Prince Duro Aderemi Ladejobi & Ors. V. Otunba Ainofi Afolorunsho Oguntayo & Ors (2004)
LAWGLOBAL HUB Lead Judgment Report
UWAIFO, J.S.C.
The appellants are principal members of the Afurukeregboye Ruling House of Ijebu-Ife. It has become necessary to fill the vacant stool of the Ajalorun Chieftaincy title of Ijebu-Ife. The appellants are aggrieved that in the process of presenting candidates from whom to fill the vacant stool, at a meeting of the Ruling House held on 20th March, 1995, the 1st respondent was nominated along with the 1st appellant and three others. They say that the 1st respondent who is the Oraderemo and a kingmaker, is not, for various reasons given, qualified to become the Ajalorun:
(1) he is not a bona fide member of the Ruling House;
(2) he is not a descendant of any previous occupier of the Ajalorun Stool;
(3) he is not a Prince (Omo-Oba);
(4) being a kingmaker he is disqualified from becoming an Ajalorun.
The appellants (as plaintiffs) brought this suit in a representative capacity In the High Court, Ijebu-Ode, for themselves and on behalf of the Afurukeregboye Ruling House, seeking the following reliefs against the respondents (as defendants), of whom the 1st – 7th are now the real respondents:
“(a) A DECLARATION that the 1st defendant is not a bona fide member of the Afurukeregboye Ruling House of ljebu-Ife.
(b) A DECLARATION that the 1st defendant is not qualified or competent to be nominated to or occupy the stool of the Ajalorun of Ijebu-Ife by virtue of the Ajalorun of Ijebu-Ife Chieftaincy declaration.
(c) AN ORDER setting aside the purported nomination and selection of the 1st defendant to occupy the stool of the Ajalorun of Ijebu-Ife.
(d) AN ORDER of perpetual injunction restraining the defendants jointly and severally from recognising, presenting, installing or in any manner whatsoever or howsoever treating the 1st defendant as the Ajalorun of Ijebu-Ife.
(e) AN ORDER of perpetual injunction restraining the 1st defendant from holding himself out as or performing the functions of the office of the Ajalorun of Ijebu-Ife.”
The 1st defendant filed a motion in the High Court raising as a preliminary issue the locus standi of the 2nd, 3rd and 4th plaintiffs to institute the suit. It was sought to strike out their names from the suit. The learned trial Judge (Osidipe, J.) in a considered ruling given on 14th July, 1995, allowed the motion, holding that the “2nd – 4th plaintiffs have not shown enough locus standi to institute and prosecute this case. They are therefore struck off this case leaving only the 1st plaintiff to continue the action.” The appeal against that ruling was dismissed on December 1, 1999 by the Court of Appeal, Ibadan Division.
The appellants have asked that this appeal against the judgment of the court below be resolved upon the sole issue whether or not they have the locus standi to institute this suit. The 1st respondent who is the only respondent now challenging this appeal virtually agrees with the sole issue. It seems to me the learned trial Judge relied essentially on Momoh v. Olotu (1970) ANLR 121 (Second Edition) when he said that the Supreme Court in that case held:
“That membership of a family is not enough to confer status on anyone to bring an action in a Chieftaincy matter since not every member of the family would be interested in the Chieftaincy matter. A plaintiff must show that he has an interest in the chieftaincy title and furthermore state in the statement of claim how this interest arose. After perusing the statement of claim properly I cannot see where 2nd – 4th plaintiffs pleaded their interest in the Chieftaincy title and the pleading did not state how such an interest arose. Only the 1st plaintiff pleaded sufficient interest in the chieftaincy title and how his interest arose.”
The 1st respondent pressed the authority of Momoh v. Olotu (supra) and similar decisions on the court below as he has done in this court. The court below in the leading judgment of Onalaja, JCA observed thus:
“To discover the real issue in controversy between the appellants and 1st respondent in particular and to discover whether there is dispute between them and appellants locus standi is to look in the instant case critically and analytically at the statement of claim using as guide beacon lights the principles of law set out in the cases of Dr. Irene Thomas v. Rt. Rev. Archbishop TO. Olufosoye (supra). Amusa Momoh v. Jimoh Olotu (supra); Oduneye v. Efunuga (1990) 7 NWLR (Pt. 164) page 618 SC; Adefulu v. Oyesile (1989) 5 NWLR (Pt. 122) page 377 SC; Oredoyin v. Arowolo (1989) 4 NWLR (Pt.1l4) page 172 SC; Seidu v. A.-G., Lagos State (supra) whether in the statement of claim appellants apart from pleading membership of Afurukeregboye Ruling House showed that their personal interests had been adversely affected in this action or the civil injury suffered by them or disclosed any reasonable cause of action against 1st respondent, or showed their interests in the chieftaincy tussle, to enable appellants have locus standi to wit that in the averments of the statement of claim there is dispute between appellants and 1st respondent as held above in M. A. Eleso v. Government of Ogun State (supra).”
The only view one can garner from the above passage is that it tends to be in the direction of what Momoh v. Olotu (supra) decided. Even though the observation cites some decisions where Momoh v. Olotu was explained, that is not reflected in it, nor indeed anywhere else in the judgment of the court below. It would appear to me that the court below significantly failed to realise that locus standi can be available to a family or Ruling House in chieftaincy matters in a corporate sense. The appellants and the 1st respondent have recognised this in their submissions.
The appellants argue that in chieftaincy matters, a right to sue is available either to a candidate for a disputed stool or a family (or ruling house) whose turn it is to produce a candidate for a vacant stool and which has reason to believe that such a right to produce a candidate is being threatened. On the other hand, the 1st respondent, while conceding the right of a family (or ruling house) to sue in chieftaincy matters through a representative action in an appropriate case, contends that the appellants did not plead sufficient facts in their statement of claim to give them locus standi. I should perhaps cite the 1st respondent’s argument from the brief filed by him in this regard. It reads:
“It is conceded that the right to sue in a chieftaincy matter may arise by the assertion of a personal right and by the assertion of a corporate right. The corporate right in essence is the right of the family which is usually asserted in a representative capacity. See Eleso v. Government of Ogun State (1990) 2 NWLR (Pt.l33) 420 at 444; Odeneye v. Efunuga (1990) 7 NWLR (Pt. 164) 618 at 641 C-H and Ajagungbade III v. Laniyi (1999) 13 NWLR (Pt. 633) 92 at 110 (G), 111 Ajagungbade v. Laniyi (1999) 13 NWLR (Pt. 633) 92 (A). However, the bone of contention in this appeal is whether the appellants pleaded sufficient facts in their statement of claim as to clothe them with the locus standi to sue in a representative capacity, asserting corporate right of the family.”
It is, therefore, necessary to consider the facts pleaded by the appellants along with the reliefs sought by them. A summary of the facts pleaded has already been given in this judgment. The reliefs have also already been set out. Although the statement of claim is reasonably short, I do not see any reason to reproduce it here. It is necessary to remark that this appeal turns, in the circumstances, on a narrow basis as to the nature of the pleading by the appellants. All I need to do is to analyse the averments. Paragraphs 1, 2, 3 and 8 state that the 1st appellant and three other appellants are principal members of Afurukeregboye Ruling House of Ijebu-Ode, one of the three Ruling Houses recognised by virtue of the Registered Declaration of the Customary Law regulating the selection to the Ajalorun Chieftaincy stool of Ijebu-Ife. The said chieftaincy stool is now vacant and it is the turn of the Afurukeregboye Ruling House to present a candidate to occupy the stool. The 1st appellant has been presented for the stool by the said Ruling House, he being a direct descendant of a past Ajalorun of Ijebu-Ife, namely Oba Ladejobi.
In paragraphs 7, 9,10,11 and 12, it is averred that by the Ijebu Ife Customary Law as contained in the Registered Declaration, an aspirant to the stool must –
(a) be a member of the Ruling House whose turn it is to present a candidate; and
(b) be a direct descendant of a previous holder of the title.
The 1st respondent does not qualify under either of the conditions: i.e. he is a stranger and also not a descendant of a previous holder of the stool. But he called a meeting of Afurukeregboye Ruling House wherein he and the 1st appellant were nominated along with three others as candidates for the vacant stool. Instead of the head of the family being privy to the nomination and giving the names of nominees to the Oraderemo (1st respondent) who would present them to the kingmakers, the 1st respondent conveyed the names unilaterally to the kingmakers in violation of the custom.
From the averments, it would appear in essence, that the appellants as representatives of the Afurukeregboye Ruling House have not brought this action simply to ensure that only the 1st appellant or any other qualified candidate of Afurukeregboye Ruling House is presented for the stool. It is more fundamental than that. They want the recognised custom to be observed. They want the right of Afurukeregboye Ruling House to have their turn to present a candidate respected. They want to ensure that a person who is not a direct descendant of a past Ajalorun of Ijebu-Ife is not presented for the stool. Indeed, they say also that a kingmaker like the 1st respondent who in addition is the Oraderemo of Ijebu-Ife cannot become an Ajalorun. It is clear to me that the appellants have pleaded facts to raise issues tending to threaten the position of the Ruling House they represent which consequence they regard as a violation of the rights of that Ruling House. It can also be seen that they contend that the substantive tenets of the Registered Declaration of the Customary Law regulating the selection to the Ajalorun Chieftaincy cannot be permitted to be violated.
I think the appellants in their representative capacity for themselves and on behalf of the Afurukeregboye Ruling House of Ijebu-Ife are eminently qualified to institute this action. They have shown by the averments in their statement of claim that they have the standing to sue. The situation here is completely different from what gave rise to the decision and the principle therein laid down by this court in Momoh v. Olotu (supra) in regard to locus standi. At page 127 of the Report, Ademola, CJN observed:
“Plaintiff has not claimed that he has a standing in this matter which entitles him to bring an action; or that he is representing a certain ruling family in this matter whose interests are affected and who are to be benefited by the declaration sought in the writ or that his existing right or his family’s existing right has been infringed … Mr. Ayoola for the plaintiff agreed before us that since the action was not instituted as a representative action, the court cannot take notice of paragraph 2 of the statement of claim and that this is purely a personal action. On that score, we fail to see the position of the plaintiff, who cannot say, and has not alleged, that his personal rights have been infringed.”
That is not the position in the present case as has been shown by the nature of the averments in the statement of claim and of the claim itself. The grievance of the Ruling House in question showing how its rights have been infringed forms the foundation of the action. There is no basis on which the respondents can reasonably argue in this case that the facts averred by the appellants do not bear out their locus standi. Perhaps one can say that para.9 of the statement of claim seems to suggest that the meeting of the Ruling House where nominations were made was not properly convened and conducted, judging from the status of the 1st respondent whom they say is not a bona fide member thereof. The question may, however, be raised whether the representatives of the said Ruling House can in the circumstances go to court to contest the nominations. But it must be realised that the action so brought by them does not cease to be a representative action of the said Afurukeregboye Ruling House. The said Ruling House can contest what has been done by filing a representative action to protect its corporate interest. I imply nothing about the merit of such action. An action of that nature can only provoke the issue whether the appellants on record are actually acting on behalf of the Ruling House and with its authority as such. The way to resolve this is not to raise the issue of the locus standi of those appellants on record in court and to ask them to show how their personal interests have been violated, as has been done here by the two courts below. There is the averment in para.4 that “the plaintiffs have brought this suit with the consent and authority of the bona fide members of the Afurukeregboye Ruling House, on behalf of themselves and for and on behalf of the said Ruling House”.
But the way out may be to challenge the representative capacity claimed by the plaintiffs. The law is that a person has the right to protect his family interest in a property or title and can sue for himself and on behalf of the family in a representative capacity: see Sogunle v. Akerele (1967) NMLR 58; Nta v. Anigbo (1972) 5 SC 156; Melifonwu v. Egbuyi (1982) 9 SC 145; Atanda v. Olanrewaju (1988) 4 NWLR (Pt. 89) 394. In the present case the plaintiffs have exercised that right by bringing this action. There must be proof of substantial opposition in order to deprive them of their representative capacity. This is done by motion and not by way of defence: see Russian Commercial and Industrial Bank v. Comptoir (1925) AC 112 at 130.
The 1st respondent has argued that by para.9 of the statement of claim, the Afurukeregboye Ruling House did the nominations of the candidates; that if the 1st respondent is indeed neither a prince nor a member of the Ruling House, it is not open to that same Ruling House which nominated him to contend that the 1st respondent is neither a prince nor a member, of the said Ruling House. This argument overlooks the fact that having regard to the overall averments and the reliefs sought by the said Ruling House, this is not a matter of locus standi but purely whether the Ruling House has a reasonable cause of action. That is not what has been canvassed in the preliminary objection raised by the 1st respondent.
In Adefulu v. Oyesile (1989) 5 NWLR (Pt. 122) 377, this court made a distinction between Momoh v.Olotu (supra) and that case, going by the facts pleaded and the reliefs sought in each case. At page 413, Agbaje, JSC said:
“Unlike the position in Momoh v. Olotu (supra) the plaintiffs in this case have sued not only in their personal capacities but also in a representative capacity as representing the Ruling House, Agaidi Ruling House of llishan-Remo, whose turn admittedly it is to nominate the successor to the office of Olofin of Ilishan which is vacant. Paragraph 1 of the plaintiffs’ statement of claim also pleads the latter.
It cannot be gainsaid that the interests of Agaigi Ruling House will be affected by any appointment to the office of Olofin of llishan which purports to by-pass the nomination of a successor or successors to the office made by the Ruling House. The locus standi of Agaigi . Ruling House even on the authority of Momoh v. Olotu (supra), to challenge in a court action such a purported appointment cannot, in my judgment, he disputed.”
At page 419, Nnaemeka-Agu, JSC said inter alia:
“It is noteworthy that a careful reading of Momoh’s case shows that it recognises the fact that in a chieftaincy case, such as this, the right to sue can be vested in a Ruling House …
In the instant case the four plaintiffs/respondents brought the action ‘for themselves and the Agaigi Ruling House of Ilishan-Remo’. And the gist of the action is that the selection of the appellant as the Olofin of llishan-Remo was done in such a way as to constitute a violation of the rights of Agaigi Ruling House to nominate a person or persons of their choice as a candidate or candidates for the chieftaincy selection by the Kingmakers. It is therefore the corporate right of the family, not that of any particular individual member of the family, that is in issue.”
It is right to say that when an action has been instituted by representatives of a family or a Ruling House, either in land matters or chieftaincy matters as appropriate, and facts are pleaded and reliefs are claimed indicating, that it is in respect of the representative or corporate interest in the subject-matter, then the real plaintiff or plaintiffs should be seen as the family or Ruling House and not the individuals who have sued in a representative capacity. Such individuals appear on record as suing for the class or family or Ruling House (as in this case) of which they are members. There should, therefore, not be any confusion as to who is the entity suing: see Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587. The locus standi should be broadly determined with due regard to the corporate interest being sought to be protected, bearing in mind who the real plaintiff is, or plaintiffs are.
In the present case, the court below had available to it for citation various decisions on locus standi. It did well to cite them but, with due respect, it failed, or did not make enough effort, to fully appreciate the facts pleaded in support of the reliefs sought, and to isolate and rely on the decisions relevant to the circumstances of this case. In the result, it fell into error in the conclusion it reached thus per Onalaja, JCA:
“Applying the above cases and the essential requirements of the averment after a critical, analytical, cool calm view consideration of the averments in the statement of claim. I come to the irresistible conclusion that appellants only pleaded membership of the chieftaincy ruling house, they did not state how their interest had been adversely affected nor disclose dispute between themselves and 1st respondent, leading me to the conclusion that appellants have not disclosed in the statement of claim sufficient legal interest in their action against 1st respondent thereby and a fortiori they lacked the locus standi to maintain the action against 1st respondent.”
What has happened in this case, seeing the conclusion reached above by the court below, is that there was a failure to appreciate the facts necessary to support the locus standi of the Ruling House to bring this action, even though they have been pleaded. This derives from a misconception of the ratio decidendi in Momoh v. Olotu (supra).
The learned Justice of Appeal obviously considered the appellants as individuals fighting their personal cause. He did not see the Afurukeregboye Ruling House as the appellants, or perhaps did not give that aspect any consideration. This is plain from reading his judgment from the beginning to the end. For instance, in the passage I earlier quoted from the judgment of the learned Justice of Appeal, he sought on the question of locus standi to “discover the real issue in controversy between the appellants and 1st respondent in particular and to discover whether there is dispute between them;” and then later he reasoned that what had to be ascertained was “whether in the statement of claim appellants apart from pleading membership of Afurukeregboye Ruling House showed that their personal interests had been adversely affected in this action or the civil injury suffered by them.” (italics mine).
I am satisfied that the two courts below failed to realise that the appellants in this action are the Afurukeregboye Ruling House and that the preliminary issue on locus standi which was raised was, and could be raised at all, was whether that Ruling House had disclosed that it has the necessary standing to approach the court for the reliefs being sought on behalf of itself. Having thus missed the crucial point, the error that was occasioned in resolving the preliminary issue was inevitable. It is an established principle of law, arising from the logic of reasoning, that when a court misconceives the nature of what it is called upon to decide, it will in all probability arrive at a wrong conclusion: see Udengwu v. Uzuegbu (2003) 13 NWLR (Pt. 836) 136 at 152 A-B. That was what happened in the present case.
I therefore find merit in this appeal and allow it. I set aside the decisions of the two courts below together with the costs awarded. It is ordered that the suit be heard on its merits by a Judge of the Ogun State High Court other than Osidipe, J. I award the appellants N2,000.00 as costs in the High Court, N5,000.00 as costs in the Court of Appeal and N10,000.00 as costs in this court against the 1st respondent.
SC.173/2000
