Alh. Rasheed Adeoye Adesanya & Anor V. Alh. Rabiu Adekola Olayeni & Ors (1998)
LawGlobal-Hub Lead Judgment Report
MUKHTAR, J.C.A
In the Court below the respondents in this appeal who were the plaintiffs there took out an action against the appellants for the following reliefs, as per their statement or claim:
i. declaration that the 1st defendant is not a member of the Demoku/Aboki Ruling House of the Olisa or Ijebu-Ode Chieftaincy family and that he is therefore not entitled to be nominated and/or appointed as the Olisa of Ijebu-Ode.
ii. A declaration that the 2nd defendant is neither the Head or the Demoku/Aboki Ruling House nor the Head of the Olisa of Ijebu-Ode Chieftaincy Family and that he is therefore not entitled to convene a meeting of the said Ruling House for the purpose of nominating a candidate for appointment to the vacant Stool of Olisa of Ijebu-Ode. nor to present any candidate and in particular the 1st defendant to the Awujale of Ijebu land for his consent.
iii. A declaration that the traditional kingmakers of the Olisa of Ijebu-Ode Chieftaincy Family under the Registered Declaration have not appointed the 1st defendant to the vacant Stool of Olisa of Ijebu-Ode pursuant to the Registered Declaration for the Olisa of Ijebu-Ode Chieftaincy and as required by the Chiefs Law Cap. 20. Laws of Ogun State of Nigeria.
iv. A declaration that membership of the appropriate Ruling House and an appointment by the traditional kingmakers of Olisa of Ijebu- Ode Chieftaincy are conditions precedent to an approval of the candidature of an Olisa by the Ogun State Executive Council, and that in the absence of such membership and appointment the purported approval conveyed by the Office or the Executive Governor of Ogun State in its letter reference No. CHM.5/26/T/2 dated 29th July, 1993 is a nullity.
v. A declaration that the 4th Plaintiff having been properly nominated by the Demoku/Aboki Ruling House and having been properly appointed by the kingmakers is entitled to be considered for approval by the Ogun State Government after the consent of the Awujale of Ijebu land would have been obtained thereto.
An order of perpetual injunction restraining the defendants from performing an installation ceremony and in particular restraining the Ogun State Government from presenting an instrument of Appointment as the Olisa of Ijebu-Ode to the 1st defendant at the said or any ceremony.
A notice of preliminary objection for an order striking out the suit on the ground that it is incompetent was filed by learned Senior Advocate or Nigeria for the defendants. The grounds of objection as staled in the notice are as follows:
i. The plaintiffs have no locus standi to institute the suit herein as they purported to have done.
ii. That leave of this honourable court to sue in a representative capacity was obtained as a result of misrepresentation/concealment of material facts from this honourable court.
The notice was supported by an affidavit together with annexures. Submissions were made by both counsel and at the end of the day the learned trial Judge dismissed the preliminary objection in a well considered ruling. Dissatisfied with the dismissal the defendants appealed to this court on six grounds of appeal.
Anxious that the appeal be disposed off with dispatch learned counsel for the plaintiffs/appellants took it upon himself to compile the record of appeal and file it before the court by way of a motion on notice for an order of accelerated hearing of the appeal, and an order or departure from the rules of this court, so as to allow to be heard on the bundle of documents he had compiled. Prior to that, learned Senior Counsel for the defendants had filed a motion or stay of further proceedings, which has not been taken.
Briefs of argument were exchanged by both sides with the exception of the Attorney General of Ogun State who is a nominal party, in compliance with order 6 rules (2) and (4) of the Court of Appeal Rules 1981, as amended. Learned counsel for the respondents was not in court at the hearing of the appeal, but since it was on record that he was aware that the appeal would be heard on that day, the appeal was taken in accordance with order 6 r.9(6) of the Courts Rules, and so the learned Senior Advocate adopted his brief of argument. Issues for determination were formulated in the two briefs, but I find that of the respondents more succint, and so will adopt them in the treatment of this appeal. The first issue is –
Was the learned trial Judge right in her conclusion that the defendants ought to have filed their statement of defence pursuant to the provisions of order 24 rules 2 and 3 of the High Court of Ogun State (Civil Procedure) Rules before filing their notice of preliminary objection?
The issue is in pari materia with issue (3) in the appellants’ brief of argument. The appellants’ argument under this issue is that the learned trial Judge erred in law in holding that a pica* of lack of locus standi must by virtue of order 24 rules 2 and 3 of the High Court (Civil Procedure) Rules of Ogun State, be pleaded in the statement of defence and raised at the trial usually by way of preliminary objection. He further proferred that it is trite that locus standi is a matter of jurisdiction that can be raised by way of motion even before the defendant files a statement of defence. He placed reliance on the case of Ebofigo v. Uwemedimo (1995) 8 NWLR (Pt.411) p. 22. According to the learned Senior Advocate the only relevant document is the statement of claim. See Elendu v. Ekwoaba (1995) 3 NWLR (Pt.386) page 704. Learned counsel for the respondents in his argument drew a distinction between where demurrer still exists and where it has been abolished, like in the jurisdiction under which the present case arose, and in which order 24 rules I and 2 of the High Court of Ogun State (Civil Procedure) Rules specifies the procedure governing the situation at hand. For the purpose of clarity I will reproduce the said rules below. It states:
“1. No demurrer shall be allowed.
- Any party shall be entitled to raise by his pleading any point of law, and any points so raised shall be disposed of by the Judge who tries the cause at or after the trial;
Provided that by consent of the parties, or by order of the Court or a Judge on the application of either party the same may be set down for hearing and disposed off at any time before the trial.
Italics is mine Learned counsel submitted that the cases of Ikpuku v. Ipuku (1991) 5 NWLR (Pt.193) Page 571, and Ebongo v. Ewumedimo supra arose from decisions on demurrer proceedings jurisdictions where such proceedings are still operative.
Yes, the jurisdiction where the suits were initiated fall within a jurisdiction where demurrer has not been abolished, and thus the procedure in raising the objection he must do so with a certain degree or caution on locus standi is bound to be different, hence the postulation in the cases. More importantly the issue or locus standi was not raised in the motion on notice, upon which the trial judge in the Ebongo’s ease predicated his ruling, he undertook the adventurous journey of locus standi suo motu on his own accord. Although however the Judge can raise the issue of jurisdiction standi suo he must do so with a certain degree of caution. The cases are therefore distinguishable in every respect. Indeed, the court is duty bound to see and draw the difference between the two situations where the need to file pleadings incorporating the objection and where such can be dispensed with by virtue of the fact that demurrer is allowed. That order 24 above disallows demurrer in this case is not ambiguous, for it is clearly stated. Rule (2) supra also specifically provides the requirement to be met in raising any point of law, and there is no gainsaying that rules of court are not made for fun, out made to be obeyed. See C.O.P. V. Fasehun (1997) 6 NWLR (Pt. 507) page 170, and Tidex (Nig.) Ltd. v. Maskew (1997) 1 NWLR (Pt.482) page 453.
Whilst still on the said rule (2), it must be emphasised that it talks of any point of law, which takes me to the argument of learned Senior Advocate that locus standi is a matter of law, it is sui juris, and is unlike other issues of law because it is a threshold matter and it is one of the matters a Judge can raise suo motu. In his reply learned counsel for the respondent submitted that there is nothing in the authorities cited by counsel to suggest that in raising such a threshold issue the applicable rules of court should be ignored. He placed reliance on the cases of Dada v. Ogunsanya (1992) 3 NWLR (Pt. 232) page 754, Co-operative Bank (Nigeria) Ltd. V. Attorney General of Anambra State & anor (1992) 3 NWLR (Pt.228) page 128. I think the implication of these arguments is whether a party can be allowed to achieve his goal by any other means outside the procedures laid down by the rules of court which governs a particular jurisdiction, irrespective of the importance or the strength of the fundamental nature of the subject matter in question. I think the answer to this poser is obvious in view of the provisions of order 24 rules(1) and (2) supra which not only crystalises the procedure and steps to be taken to raise or sustain an objection of such nature but is quite inequivocal. The provision leaves me with no doubt whatsoever on the need to file a statement of defence wherein the objection may be raised. It is with the above procedure in mind that I uphold the opinion of learned trial Judge that –
“I agree with the plaintiffs’ counsel that the defendants must have brought the application in compliance with Order 24 rules 2 and 3 of the Ogun State High Court (Civil Procedure) Rules.”
Towards this. I answer the issue above in the affirmative, and dismiss grounds of appeal Nos (1) (2), and (8) of appeal married to this issue.
The next issue is, was the learned trial Judge correct to have relied on the averments in the statement of claim in deciding whether the plaintiffs have locus standi to sue or ought she to have considered and pronounced on the conflicting affidavit evidence by the parties before reaching her conclusion?
Learned Senior Advocate has attacked what he regarded as findings of fact by the learned trial Judge. This finding reads:
“They, i.e. the plaintiffs, as principal members of the Ruling House, have hereditary customary rights and have been authorised by the Ruling House to protect the violation of their rights by instituting the present action.”
Learned counsel’s attack is borne out of the fact that the learned trial judge (according to him) based the finding on the statement of claim which was not supported by evidence, as should have been as required by law, and as per the authorities of Basheer v. Same (1992) 4 NWLR (Pt. 243), page 491, and Haruna v. Ojukwu (1991) 7 NWLR (Pt.202) Page 206. Learned counsel for the respondents opposed the attack saying that the said finding was a mere recapitulation of the averments in the statement of claim. I agree, for indeed what the learned trial Judge did was meely to look at the statement of claim carefully, as is required by law when determining whether a plaintiff has locus standi, and to convey her understanding and purport of the pleadings in this respect. In doing so the need to recapitulate averments in the statement of claim is bound to arise and that is what the learned trial Judge did in this case. In my view she neither substituted the averments with imaginary evidence, nor construed the averments to be evidence. As a matter of fact the learned trial Judge was quite mindful of the fact that she is not allowed to do so by the law. Indeed this position of the law was very much in her mind when in her ruling she opined thus:
“The defendants can only defeat the action at this stage on question of law or accepted incontrovertible facts. Not as in this case when the question of who are the members of the Ruling House o remain in contest to be resolved only by evidence at the trial.”
It is thus obvious that her understanding of the principles of law of pleadings informed the above opinion. I subscribe to the arguments of the respondents that jurisdiction is determined by the nature of a plaintiff’s claim, and the court is duty bound to look at the statement of claim. His reliance on the case of Adeyemi v. Opeyori (1976) 9 and 10 S.C. 31, and Shell BP Petroleum Development Co. Of Nigeria Ltd. & Others v. Onasanya (1976) 1 All NLR (Pt.1) 425 is in order. I am not convinced that the portion of the ruling reproduced supra that was attacked are finding of facts, for they are not. It will thus be a misconception of the exercise to think otherwise for the way I see it, unless the learned trial Judge peruses and determines the content of an averment, it will be difficult to translate it into what the correct position is. In the light of the arguments I think I will say the answer to the issue just discussed is in the affirmative, and so grounds of appeal Nos.(3) and (4) related to the issue fail.
The last issue for determination is, was the learned trial Judge right to have held that the plaintiffs sued in a representative capacity? Learned senior counsel for the appellants has submitted that the learned trial Judge erred in law in holding that “since all the plaintiffs are members of Demoku/Aboki ruling house whose legal rights in the Olisa Chieftaincy is being threatened and violated, each has a right even without the consent of the ruling house to sue an order to protect the legal right of the ruling house.” His argument here, is hinged on the supposition that anyone suing in a representative capacity must do so with consent of the family he is representing. I hasten to say that the case of Eleso v. Government of Ogun State (1990) 2 NWLR (Pt.133) page 420 cited by learned counsel has no place in this argument, most especial]y the part of the case he has reproduced in the appellant’s brief of argument. Learned counsel for the respondents has replied that the statement of claim said the respondents were being sued in a representative capacity, and the trial court had granted the respondents’ application to sue in a representative capacity. He placed reliance on order 11 rule 8 of the Ogun State High Court Rules, and the case of Busari v. Oseni (1992) 4 NWLR (Pt.237) page 557 on the position of a case even where no approval has been sought and obtained. See also Salako v. Dosunmu (1997) 8 NWLR (Pt. 517) page 371, Adegbite v. Lawal (1948) 12 WACA 398 and Mba Nta & Ors. v. Ede Nwede Anigbo & Ors. (1972) 5 S.C. 156. The said Order II rule 8 provides:
“Where more persons than one have the same interest in the same suit, one or more of such persons may, with the approval of the court, be authorised by the other persons interested to sue or defend in such suit for the benefit of or on behalf of or on behalf of all parties so interested.”
In order to consider the arguments one will need to look at the record of proceedings and reproduce some relevant portions here. I will start with paragraph (1) of the statement of claim, which specifically talked of representation. It states:
- The plaintiffs are members of the Demoku-Aboki (otherwise called Ademoku/Olupoiki-Aboki) Ruling House of the Olisa Chieftaincy family of Ijebu-Ode (Hereinafter referred to as the said Ruling House). They sue for themselves and on behalf of other members of the Ruling House.
That the plaintiffs/respondents sued in a representative capacity is not in any way in doubt, as the reproduced supra averment confirms, and to comply with order 11 rule 8 supra the plaintiffs sought leave from the court to institute the action in a representative capacity, and it was granted. The learned trial Judge in considering the issue of representation had this to say:
“Furthermore, since all the plaintiffs are members of the Demoku/Aboki Ruling House whose legal rights in the Olisa Chieftaincy are being threatened and violated each has a right even without the consent of the Ruling House to sue in order to protect the legal right of the Ruling House, Olowosago v. Adebanjo (1988) NWLR (Pt.88) 275. Even where the court finds that the representative action is not properly entitled, necessary amendment may be allowed to rectify the error.”
I subscribe to the above assertion. On the question or consent I find solace in the case of Melifonwu v. Egbuji (1982) 9 S.C. 145, and the case of Anatogu & ors. v. Attorney-General of East Central State of Nigeria & ors. (1976) 11 S.C. 109 where Madarikan J.S.C. said –
“The rule as to representative action was derived from the Court of Chancery which required the presence of all parties to an action so as to put an end to the matter in controversy….
The rule has been described as ‘a rule of convenience only’ (See Harrison v. Abergavenny (Marquis of) (1887) 3 T.C.R. 324 at page 325, as a rule that was originated for convenience, it has been relaxed. (See Bedford (Duke of) v. Ellis (1901) A.C.I at page 8) It is a rule which ought not to be treated as rigid but as a flexible tool off convenience in the administration of justice, (See John v. Rees (1969) 2 W.L.K. 1294 at page 1306) at page 175-177.”
The cases of Odenere v. Efunuga (1990) 7 NWLR(Pt.164) page 618, and Dadi v. Garba (1995) 8 NWLR (Pt.411) page 12 relied upon by learned Counsel are of assistance, For the foregoing discussions the answer to the above issue is in the affirmative, and so grounds of appeal Nos. (5) and (7) fail.
ÂIn the final analysis all the grounds of appeal are dismissed, and the appeal is dismissed in its entirety. The Ruling or Mabogunje J. of the Ogun State High Court sitting in Ijebu-Ode is affirmed, and it is hereby ordered that the case be remitted for hearing in the lower court. I assess costs at N3,000 in favour of the respondents.
Other Citations: (1998)LCN/0459(CA)
