S. Esuruoso & Ors V. Alhaji Afolabi Ambali Ogidi (2002)
LawGlobal-Hub Lead Judgment Report
DALHATU ADAMU, J.C.A.
The five (5) appellants herein as plaintiffs sued the respondents’ at the High Court of Ogun State holden at Ijebu Igbo, claiming the following reliefs: .’
(a) The plaintiff’s claims is for a declaration that the 5th plaintiff is the lawfully recognized and regularly installed BASEGUN OF IJEBU-IGBO BRANCH OF OGUN STATE Traditional Healers “Association of Nigeria.
(b) An injunction restraining the Defendant jointly and severally from interfering in any way in the functions and activities of Ogun State Traditional Healers Association or from recognizing the second Defendant as Basegun of Ijebu-Igbo.
(c) An injunction restraining the second Defendant from parading himself as BASEGUN OF IJEBU-IGBO under the Ogun State’s Traditional Healers Association of Nigeria.
Upon being served with the writ of summons and the statement of claim the two defendants/respondents entered appearance and filed a joint statement of defence. Both parties then called their witness in proof of their pleadings during the hearing of the case. At the conclusion of hearing of the parties and their respective counsel the learned trial judge dismissed all the claims of the plaintiffs/appellants (herein after called “the appellants). The appellants who were aggrieved by the judgment of the trial Court lodged an appeal against it in this Court. They perfected all the conditions of the appeal within time.
In their original Notice of Appeal, the appellants filed three (3) grounds of appeal which they later amended with the leave of this Court (without an addition) in order to comply with the provision of Order 3 Rule 2 of the Court of Appeal Act, 1981 (as amended). Both the appellants and the 2nd defendant/respondent (hereinafter also called “the respondent) who survived the 1st respondent after the latter’s demise, have filed their respective briefs of arguments as required under the rules of this Court. Out of their three (3) grounds of appeal, the appellants have formulated the following two (2) issues for determination in their brief of arguments filed on 19/4/2000 which was adopted at the hearing of the appeal:-
“ISSUES FOR DETERMINATION”
- Whether the 1st – 4th plaintiffs were still the lawfully registered Trustees of Ogun State Traditional Healers Association and if so whether they had the LOCUS STANDI to institute the action
- Whether the title of “BASEGUN” (Head of Traditional Healers) can be regarded as a minor Chief under the Chiefs Law of Ogun State, 1978, over which the first Defendant is the prescribed Authority.”
In the respondent’s brief filed on 9/3/2001 which was also adopted by his learned counsel the following three (3) issues for determination are framed:
“1. Whether the 1st-4th Appellants had locus to institute the action as constituted.
- Whether the learned trial judge was right in holding that the 1st Defendant was the prescribed Authority over the Chieftaincy in dispute.
- Whether the learned trial judge was right in holding that factions existed in the Ogun State Traditional Herbalist Association.”
In the respondent’s brief, the above issues are related to the three (3) grounds of appeal. It is however to be observed that both parties agree on the first two issues (as reproduced above). It is only the 3rd issue of the respondent that differs from or was not raised by the appellants (in their brief). Consequently the immediate question that arises is whether a respondent can still raise an issue not raised by the appellant on the grounds of which has been abandoned by the said appellant (even though such an issue is related to the ground of appeal so abandoned). In answering the question, I have considered the effort of the respondent’s counsel who related all the respondents issues to the grounds of appeal filed in the case (see paragraph 5.00 of the respondent’s brief at page 5) thereof. Thus what the respondent has done in his framing of issues is to revive ground 3 of the grounds of appeal which was abandoned by the appellants’ counsel who framed his issues on only grounds 1 and 2. The law is clear on this type of approach and the respondent’s counsel can, even where there was no cross-appeal or a respondent notice, frame a different issue or different issues from those of the appellant provided that such issues framed by the said respondent are distilled from or are well related to the grounds of appeal filed – See Adeyemo v. Ida (1998) 4 NWLR (pt 546) 504, and Adelaja v. Oguntayo (2001) 6 NWLR (pt 710) 593. It is therefore my humble view that the 3rd (additional) issue of the respondent which covers the field or the ground (ground 3) abandoned by the appellant and which is well related to the said ground and which, also arises from the judgment of the trial court appealed against is quite in order and competent. The third issue of the respondent will consequently be considered in this judgment on its merit bearing in mind that the appellant has not replied to the said third issue by way of filing a reply brief.
The dispute that led to the suit in the present case arose after the 1st defendant, Oba Adetayo Sani Kupa Kude IV, (who is now deceased) as the traditional ruler of Ijebu-Igbo appointed and installed the 2nd defendant (the respondent herein) as the BASEGUN of Ijebu-Igbo (i.e. the head of traditional healers). Before the appointment and installation there was a tussle of leadership amongst members of the Ijebu-Igbo branch of Traditional Healers Association of Ogun State which tussle led to divisions and factions amongst the said members of the association. The deceased traditional ruler then acted by appointing the respondent his own candidate which appointment instead “of bringing an end to the tussle led to the present suit by other members of the association as its registered trustees who wanted the 5th appellant to be installed as the BASEGUN of Ijebu-Igbo.
In the respondent’s brief “preliminary matters” are raised which give the impression that they are meant to be preliminary objections attacking ground two of the grounds of appeal and a fortion issue 2. The respondent urges us at” the end to strike out the said ground and the issue which it is distilled or formulated from the appellants’ brief.
Even though the respondent’s brief does not expressly describe or refer to the preliminary matters as preliminary objection which is recognized under Order 3 rule 15 of the Court of Appeal Rules, 1981 (as amended). I will treat them as such and must first resolve them (if need be) before going into the consideration of the issue formulated for the determination of the appeal. See EZEKWESILE V. ONWUAGBU (1998) 3 NWLR (pt. 54) 217; and “NWANWATER VS. ESUMEI (1998) 8 NWLR (pt.563) 650. I am however of the view that even if the matters raised by the respondent are treated as preliminary objections, they must comply with the rule of this Court dealing with such Objections (i.e. Order 3 Rule 15 (1) of the Rules supra). It is expressly provided in that rule of this court as follows:-
“A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give appellant three clear days notice thereof before the hearing setting out the grounds of objection and shall file such notice together with seven copies thereof with the register within the same time.”
In the present case, the respondent has failed to comply with, the above express provision of the rule of practice this court on raising preliminary objections.
He did not” give a formal notice’ of the preliminary objections within the time required. Neither did he file the seven copies required from him at the registry of this Court. I am therefore of the view that the respondent’s so called “preliminary matters” are not properly raised by the said respondent in his brief and are therefore not qualified, in the strict sense, as preliminary objections recognized under the rules of this Court. Consequently the preliminary matter raised in the respondent’s brief which are not proper and competent are hereby discountenanced and struck out – See Olawore v. Olarewaju (1998) NWLR (pt. 534) 436; Nsiriam v. Nsirim (1990) 3 NWLR (pt.138) 285; and Edoro v. Gurara (2001) 47 WRN 113 at 124.
I will now proceed to consider the three issues in the appeal.
Under issue No.1, the appellants submit in their brief against the holding of the learned trial judge that they have no locus standi to institute the action against the appellant (see page 89 of the records). The brief provides the meaning or definition of the term locus standi which denotes the legal capacity of a party to institute proceedings in a Court of law. It also means “standing” to sue. (See Senator Abraham Adesanya v. President Federal Republic of Nigeria (1981) 1 All NLR (pt.1) 19; and Odeneye v. Afenuga (1990) 7 NWLR (pt. 164) 618 at 630 cited in the appellants’ brief in support of the submission. Based on the definition of the term locus standi will be awarded to a plaintiff who shows that his civil rights and obligation have been or are in danger of being violated or adversely affected. The brief also states that the appellants in the present case have pleaded their locus standi or right to sue in paragraphs 1 – 10, 13, 21-23 of their statement of claim filed in the trial Court. Reference is also made in the said brief to Exhibits A (the Certificate of incorporation of their association) and (its constitution) wherein it is shown that the 1st – 4th appellants are the registered trustees of the association. Consequently, it is argued in the brief that the 1st – 5th appellants as trustees of the association who appointed the 5th appellant as BASEGUN having the required standing and interest in the subsequent enthronement of the respondent as the BASEGUN by the deceased traditional ruler of Ijebu-Igbo (i.e. the 1st defendant). The respondents contentions that there was a break-up or faction in the association and that the 1st-4th appellants had been removed or expelled before their purported appointment of the 5th appellant is said in the appellant brief to be unhelpful to the said respondent because the said contention was not proved and the alleged pending suit referred to in paragraph 20 of their defence cannot avail them since the said suit was then sub-judice and there was no injunction against the 1st – 4th appellant restraining them from acting as trustees of the association. Thus, they were still the registered trustees entitled to make the appointment of the 5th appellant as BASEGUN- see REGISTERED TRUSTEES OF APOSTOLIC CHURCH V. ATTORNEY-GENERAL (1972) 1 All NLR (Pt. 1) 356; IN RE IJEBU (1972) 9 NWLR (pt. 226) 414 at 423; I. BAMBO & ORS. V. Y. A. ADERINMOLA & ORS (1977) 1 SC 8 cited in the brief in support of the argument. It is however conceded by the appellants that as registered trustees of the association which is a corporate body if the appellant wanted to sue in that capacity they ought to sue in the name of the body corporate or the association under the Land Perpetual Succession Act – see ANYAEGBUNAMVS OSAKA (1993) 5 NWLR(pt. 294) 459 and ODE & ORS. V. THE REGISTERED TRUSTEES OF THE DIOCESE OF IBADAN (1966) 1 ANLR 287 cited in support of the proposition. The brief also criticized the holding of the learned trial judge (at pages 112 – 113 of the record) to the effect that it is difficult to determine which of the factions of the association is the legally recongnised faction with power to discipline and dismiss any errant number and so the dismissal of the present respondent by the appellant is inoperative null and void.
Finally the brief urges this Court under issue No.1 to hold that the decision of the lower court that the appellants have no locus standi to institute the present suit was erroneous and to reverse or overturn that decision.
In the respondent’s brief of argument the submissions re-affirms the importance of locus standi of a plaintiff to institute an action in a court of law. The definition of the term “locus standi” is rested in the respondents brief which cites the cases of Senator Abraham Adesanya v. president Federal Republic of Nigeria (supra), Thomas v. Olufofoye (1986) 1 NWLR (pt.18) 669 at 685, Momoh v. Olotu (1970) 1 All NLR 117; and Adefulu v. Oyesile (1989) 5 NWLR (pt. 122) 377 at 410. It is conceded in the brief that in ascertaining the plaintiff’s locus standi, the Court looks at the writ of summons and the statement of claim. It is however argued that the paragraphs of the statement of claim which the appellants rely upon as giving them the standing or right to sue (as above mentioned) do not actually do so as they do not establish sufficient interest or right of the 1st – 4th appellants to institute the present case, of the trial Court. Rather they merely described them as the registered trustees of the association while the numerous paragraphs thereof only touch on the 5th appellant whose locus standi was not questioned or affected by the decision of the trial court in the present case. It is pointed out that being registered trustees per se only gives the 1st – 4th appellants to sue over a wrong concerning or affecting the association generally instead of and not merely affecting an individual member of the said association (i.e. the 5th appellant). The interest of the 1st – 4th appellant in the present case are also described in the respondent’s brief as a common or general interest affecting all members of the association similar to that described by Bello JSC (as he then was) in Adesanya’s case as not a litigable interest.
Thus the brief state that in the present case, although the 1st -4th appellants as registered trustees have a general and common interest with the 5th appellant, they (i.e. 1st – 4th appellants) have no locus standi to’ sue over a chieftaincy or leadership tussle or controvery affecting only the 5th appellant.
On the effect of the consequential order of dismissal of the ‘appellants action made by the trial judge after finding that the 1st – 4th appellants have no locus standi, the respondent concedes that the proper order to be made by the said trial judge when there is lack’ of locus standi was to strive out the suit rather than its dismissal – See Otapo v. Sunmonu (1987) 2 NWLR (pt.58) 587 at 591; Olonode v. Oyebi (1984) 5 SC 1 and Adesokan v. Adetunji (1994) 5 NWLR (pt. 346) 540. It is however argued that the trial Court decision on locus standi only affected 1st – 4th appellants and did not include the 5th appellant whose locus standi in the case remained intact and was not affected by the decision on locus standi. It is also argued that there is no ground of appeal challenging the final or consequential order of dismissal made by the trial court and so the argument thereon in the appellants brief should not be entertained by this court – See Western Steel Works Ltd v. Iron & Steel Workers Union (1987) 1 NWLR (pt. 49) 284 cited in the brief in support of the point. The brief finally urges this court to resolve Issue No. 1 against the appellant and to dismiss the appeal under the said issue.
From the above submissions in the two briefs the curtail issue raised is whether or not the 1st – 4th appellants as trustees of the association have locus standi to institute or maintain their action at the trial court.
The issue of locus standi of a plaintiff to sue, or to approach the Court for a judicial relief is a very important and fundamental one.
The term has been rightly defined by our superior Court. It denotes the standing, right or interest or legal capacity of the plaintiff to institute proceedings in or before a Court of Law – See Senator Abraham Adesanya v. The President Federal Republic of Nigeria (supra), Thomas v. Olufosoye (supra) Fawehinmi v. Akilu (1987) 4 NWLR (pt 67) 797; Olorioode v. Oyebi (1984) 5 SC 1; and Owodunni v. Registered Trustees of CCC (2000) 6 SC (pt III) 60; (2000) 1 WRN 29. It therefore follows that from the definition of the term “locus standi” as expounded in the above case law authorities the concept has become very fundamental and as a threshold to adjudication, it is a condition precedent to the exercise of judicial power by the Court which will have no jurisdiction or competence to hear or determine the suit at the instance of a plaintiff who has no locus standi. In order to invoke the judicial power of the Court, the plaintiff must show that either his personal interest will immediately be or has been affected by the action complained of or that he has sufferred or sustained or is in immediate danger or injury of himself which is over and above that of the general public. In other words, the plaintiff or claimant must show that he has some justiciable interests or rights which may be affected by the action – Senator Adesanya v. President Federal Republic of Nigeria (supra). It is also because of the importance and fundamental nature of locus standi which is akin to analogous and similar to the issue of jurisdiction that once it is raised before any Court, it should be given priority of consideration and determination in lamine over other issues in the case in order to avoid an exercise in futility. This is because the lack of it would rob the Court of its jurisdiction and the whole proceedings a nullity no matter how will conducted – See Adefulu v. Oyesile (1989) 5 NWLR (pt. 122) 377 at 409; and Oloriode v. Oyebi (supra).
In ascertaining whether or not a plaintiff has locus standi to bring an action, the Court does not consider the merit of the case of such plaintiff but it looks at or examines his statement of claims (i.e. the averments thereto) to see if he has disclosed a justiciable right or interest which is said to have been violated or about to be violated- See Momoh v. Olotu (1970) 1 All NLR 7; Bolaji v. Bamgbose (1989) 5 NWLR (pt 18) 699; Odeneye v. Efunkju (1990) 7 NWLR (pt 18) 618; Owodunni v. CCC (supra) and Global T. O. S. A v. Free Enterprises Nig. Ltd. (2001) 84 LRCN 574 at 597.
With the above rules and principles on the issue of locus standi which is raised under issue No 1, my next task is to consider the statement of claims filed by the appellants (i.e. 1st- 4th appellants) at the trial Court in order to ascertain whether or not they have the required locus standi to institute the present action at the said trial Court. It is to be observed that there was no counter-claim by the respondents as defendants at the trial Court. Consequently by virtue of the above rules on locus standi, their statement of defence should not be invoked into in ascertaining the locus standi. The statement of defence in this type of cases is only relevant in order to know whether or not the defendants have raised the issue of locus standi in their pleadings. In the present case, the respondents who raised the issue of locus standi in paragraph 31 of their statement of defence should have applied to the trial court to hear first and determine the issue in lamine before dealing with other issues in the substantive suit. The said defendants however did not invoke the Court on the said issue of locus standi. Even then and despite such failure of the respondents to raise the issue the learned trial judge should have raised it sou motu and determine it first before going into the substance of the case. As we have seen, the issue of locus standi is so fundamental and like its sister issue of jurisdiction to which it is closely related and equated, it goes into the root of adjudication and affects the competence of the proceedings which will become a nullity in its absence. Thus the Court would have no right, competence or jurisdiction to entertain a suit at the instance of a party or person who lacks the required locus standi to institute the suit – See Madukolu v. Nkemdilim (1962) 2 SCNLR 341; A. G. Lagos State v. Dosunmu (1989) 3 NWLR (pt 111) 552 and Bolaji v. Bamgbose (1986) 4 NWLR (pt 37) 632. It was therefore a mistake or error on the part of both the learned counsel for the respondent and the trial judge when they failed to raise and determine the issue of locus standi of the 1st-4th appellant at the earliest opportunity in order to save time, inconveniences costs.
In the statement of claim of the appellants filed at the trial court, the following paragraphs are relevant in ascertaining the locus standi of the 1st-4th appellant. In their 2nd and 3rd, 4th and 5th paragraphs of statement of claim, it is averred as follows:”
“1. The first to 4th plaintiffs are the Registered Trustees of Ogun State Traditional Healers Association and are registered under the Land (Perpetual Succession) Act Cap 98 with their certificate dated 12th day of March, 1986 on NO. 3320 which certificate will be tendered and relied on at the hearing.
- The fifth plaintiff is the elected, installed and recognized BASEGUN OF OGUN STATE TRADITIONAL HEALERS ASSOCIATION, IJEBU-IGBO Branch.
- At the hearing, plaintiffs will tender and rely on the certificate issued and signed by the 1st-4th plaintiff to the 5th plaintiff which certificate is dated 14th day of August, 1991.
- The first, second, third and fourth plaintiffs are also President, Vice President, Treasurer and General Secretary of Ogun State Traditional Healers Association and have been so exercising those functions without hindrance from any by presiding over meetings of the Association, issuing certificates to deserving members and carrying other necessary duties.
- The OGUN STATE TRADITIONAL HEALERS ASSOCIATION HAS BRANCHES ALL OVER THE State and each branch has its separate officers all responsible to the State body based at 21 Abowaba Street, Igbehin Abeokuta.”
It is my humble view that by virtue of the above averments inter alia, the 1st – 4th appellents as the registered trustees of the Traditional healers association have, prima facie, the required interest right, or cause of action in the appointment of the BASEGUN of Traditional healers Association Ijebu-Igbo branch. The subsequent approval of the appointment and installation of the respondent as BASEGUN by the 1st defendant (the deceased Oba of Ijebu-Igbo) contrary to and in disregard of the earlier appointment of the 5th appellant by the 1st – 4th appellants (i.e. the trustees of the association) has in my view given a right of action or a cause of action to the said 1st – 4th appellants and infact to the 5th appellant as the incumbent BASEGUN. Thus their joint interest which has become personalised due to their positions as the trustees who appointed the 5th appellant (as the incumbent BASEGUN) will immediately be or has been adversely affected by the subsequent appointment of another BASEGUN OF IJEBU-IGBO.
Also by virtue of the relief they claimed at the trial Court which is for a declaration that the 5th appellant is the lawfully recognized and installed BASEGUN OF IJEBU – IGBO Branch of their Association and injunctive orders to restrain the respondent from making a similar appointment, it is very clear that those relief particularly the injunctive orders sought from the trial Court would if granted confer some benefits or advantage to the appellants – See Adesanya v. President (supra); Oloriode v. Oyebi supra) and Owodunni v. CCC (supra) at p. 44 of the report).
As I stated earlier, the issue of or the challenge against the locus standi of the 1st – 4th appellants in the present case though properly raised in the statement of defence (in paragraph 3 thereof) was unfortunately not decided or determined in lamine by the trial Court which proceeded (wrongly) to hear and determine the suit in its substantive form or manner at the end of which exercise it decided that the 1st – 4th appellants have no locus standi to institute the action. At the end of his exercise when considering the issue of locus standi of the 1st – 4th appellant, the learned trial judge in his judgment concluded. (See page 89 lines 19 – 23 of the record) as follows:-
“The question here is not whether the 1st – 4th plaintiffs were the proper persons to request for adjudication in this particular case. I hold therefore that they have no locus standi in this case.”
With respect to the learned trial judge his above pronouncement is clearly contrary to the principles of law on locus standi as in the above cited cases and as I have already discussed in my above consideration of the topic. Apart from the wrong reasons given by the learned trial judge in divesting the locus standi, of the 1st – 4th appellants, his above holding is also contrary to the evidence adduced by the said 1st – 4th appellants which included the certificate of incorporation of their association showing them as its registered trustees and the certificate of appointment they signed and issued to the 5th appellant (see Exhibits A -D and F). I am of the view that this is an appropriate instance or incidence where this court as an appellate court should interfere with the erroneous holding of the trial court which is found to be perverse, not supported by evidence and contrary to the recognized and settled principles of law – See Odofin v. Ayoola (1984) 11 SC; Ajayi v. Texaco (Nig) Ltd. (1987) 3 NWLR (pt 62) 577; Onwuka v. Ediala (1989) 1 NWLR (pt 96) 182 and Salami v. Gbadoolu (1997) 4 NWLR (pt 499) 277.
On my above considerations of issue No 1 of the Appellants brief which corresponds with the 1st issue of the respondent brief the said issue and its relevant ground of appeal (i.e. ground 1) must be resolved in favour of the appellants. I accordingly hereby so resolve it and hold that all the five appellants have locus standi right or interest to institute the present suit at the trial court contrary to the decision of the learned trial judge in his judgment of 30/11/94 that they had no locus standi to institute the action.
Under the second issue titled “Issue No 2” in the appellant’s brief the submissions are based on the title of BASEGUN which is said to be only occupied by an herbalist and a member of the trade or profession. The occupant of that title must also be duly nominated and elected by a herbalist and members of that trade or profession. Reference is made to paragraphs 8, 9 and 10 of the statement of claim which contain averments to that effect. It is also pointed out in the brief that the respondents have also acknowledged or admitted the above position in paragraph 8 of their statement of defence (at page 13 of the record) wherein it is averred as follows:
“8. Further to paragraph 7 above, the defendants aver that in each Local Government in the State there is a branch of the Ogun State Traditional Healers Association and the Basegun is appointed by members of the branch of the association from among its members.” (Underlining supplied in the brief for emphasis).
It is submitted in the brief that the above averment amounts to an admission of the averments in the appellants pleadings on the nomination and election of “Basegun” from amongst the members of the Traditional Healers Association, Ijebu-Igbo branch. It is then argued in the brief that the title of Basegun being associated with professional members of the herbalists association is not one of the “recognized” or minor chieftaincies for which the first defendant is the prescribed authority as the ORIMOLUSI of IJEBU-IGBO under the Chiefs Law (cap 20) Vol. 1 Laws of Ogun State, 1978. Reference is also made to section 2 of the Chiefs Law (supra) which defines the term “Chief” as a person whose chieftaincy is associated with the native community and includes a “minor chief” and a “recognized chief”. It is also pointed out that under the law supra the distinguishing factors is whether a chieftaincy’ title is either a recognized chieftaincy or a minor one. In either case there must be either a registered declaration in the case of a recognized chieftaincy or a ruling house in the case of a minor chieftaincy. It is submitted that the respondents have not, in their pleadings and evidence at the trial court, related the post of “BASEGUN” to any ruling house.
The case of Imonike v. A.G. Bendel State (1992)6 NWLR (pt 248) 396 at 410-411 is cited in the brief as an authority that a registered declaration which is relevant to a recognized chieftaincy is presumed or deemed to be the law regulating the selection of a person as holder of that chieftaincy. It is further contended that the post of BASEGUN being one associated with or being relating to a trade or profession, the OBA or a titular head has no business with it and cannot therefore appoint or approve the appointment of the holder of that post. This Court is finally urged in the appellant’s brief, under the issue to resolve it in favour of the appellants.
In what is headed as “why the appeal should be allowed” the appellant brief re-visited the decision of the trial Court on their lack of locus standi in the case and pointed out that with the holding of the said trial court that they lacked locus standi to institute the action, it then became wrong for the said trial court to proceed to determine the merits of the case up to judgment. Although I have already considered this point under the first issue, I must acknowledge the authorities cited in the appellants brief in support of the settled law that where a Court holds that the plaintiff has no locus standi the proper order for the trial court to make is that of striking out the suit and not to proceed to give judgment on the merit of the suit or to dismiss” it. The cases cited in the brief are:-
- OTAPO V. SUNMONU (1987) 2 NWLR (pt 58) 587 at 591
- ADESOKANV. ADETUNJI (1994) 5 NWLR (pt 346) 540
This Court is finally urged in the brief to apply the principles in Dantumbu v. Adene (1987) 4 NWLR (pt 65) 314 at 316; and Ibe v. Ugboaja (1993) 6 NWLR (pt 301), 539 at 567 by setting aside the order of dismissal of the Plaintiffs’ suit either substituting it with an order of striking out their suit if they are found to be lacking locus standi or by allowing the appeal if it is found that they have locus standi and sending the case back for re-hearing at the trial court.
Reply to issue No 2 of the appellant is covered under the second issue of the respondents brief (see paragraphs 7.00 – 7.13 thereof).
Under the issue the respondent’s brief refers to paragraphs 15, 18 and 19 of the appellants statement of claim wherein they averred that the 1st defendant was not the prescribed authority for the chieftaincy title of “BASEGUN” of Ogun State Traditional Healers Association. It is then pointed out that the respondent traversed the appellant’s pleadings by, asserting that the 1st defendant was the prescribed authority for that title. Hence it is submitted in the brief that issues were joined on the point and the onus was on the appellant to prove that the 1st respondent was not the prescribed authority. It is therefore argued that the appellant have misplaced the onus of proof on the issue of prescribed authority when they complained in their ground of appeal (at p. 118 of the record) that the learned trial judge erred when he held that the first defendant was the prescribed authority while the defendants did not discharge the onus as required by law.
In his alternative submissions under the second issue, the respondent submits in the event that his above submission is over-ruled that the 1st respondent is the prescribed authority by virtue of sections 22 and 26 of the chiefs Law of Ogun State (supra).
It is pointed out that the first respondent has been made the prescribed authority by implication under the delegation on him of all the powers vested in the State executive – See the schedule to the Chiefs Law cited in the brief in support of the contention. It is also stated that the first defendant as the Orimolusi of Ijebu-Igbo was named in the said schedule as the prescribed authority of the area traditionally associated with Ijebu-Igbo. Since the title, of Basegun is associated with traditional or native community of Ijebu-Igbo, the first defendant is consequently the prescribed authority for the title and that the concept of a Ruling House only applies in a case of a recognized chieftaincy under section 12(1) of the Chiefs Law (supra) – see Ayoade v. Military Governor of Ogun State (1993) 8 NWLR (pt 309) 11 cited in the brief and so does not apply to a minor chieftaincy as in the present case. The brief goes further to discuss the rule of construction which requires that words must be given their ordinary meaning – see Abioye v. Fakubu (1991) 5 NWLR (pt. 190) 130; AG. Bendel State v. AG of Federation (1981) 10 SC 1; Kotoye v. Saraki (1994) 7 NWLR (pt 357) 414 at 426 and Aya v. Henshaw (1972) 5 SC 87 at 96 cited in support of the proposition. Finally the brief urges this Court to resolve the second issue in favour of the respondent and to dismiss ground 2 under which the issue is framed.
After due considerations of the above submissions in the two briefs under the second issue, I am more impressed with those of the appellants brief which are more plausible and reliable. It is clear from both pleadings and evidence adduced in the case that the title of Basegun of Ijebu-Igbo branch of the Traditional Healers Association of Ogun State is not a recognized” or a “minor” chieftaincy title for which the second defendant as a traditional ruler or Oba of Ijebu-Igbo will be a prescribed authority as anticipated under section 2 of the Chiefs Law of Ogun State (supra)
Rather, it is a title associated with members of the trade or profession of Traditional Healers resident in Ijebu-Igbo but who are also members of the Ogun State Traditional Healers Association which is a registered Association or Trade Union under the Lands (Perpetual Succession) Act (supra). This position has been accepted and admitted by the respondents in their statement of defence (paragraph 8 thereof) wherein they admitted that there is a branch of the Traditional Healers Association of Ogun State in each Local Government and a BASEGUN is appointed by the members of the association from amongst themselves. With this admission by the respondent in my view, the issue has been put to rest and need no further proof by the appellants of what the respondents have expressly admitted. The subsequent traverse in their pleadings by the said respondents would not assist or avail them. It is trite that the parties and the Court are bound by the pleadings and that facts admitted in the pleadings need no further proof – See Odonigi v. Oyeleke (2001) 6 NWLR (pt. 708) 12; Atanda v. Ajani (1989) 3 NWLR (pt. 111) 511; NIPC Vs. Thompson Organization Ltd (1969) 1 NWLR 99; Okmiami Brick & Stone (Nig) Ltd. v. ACB Ltd (1992) 3 NWLR (pt 229) 260; Magnusson v. Koibi (1993) 9 NWLR (pt 317) 287; Okafor v. Dumez (Nig) Ltd (1998) 13 NWLR (pt. 580) 88; Gwabro v. Gwabro (1998) 4 (NWLR (pt 544) 60, and Acrimugu v. Minister FCT (1998) 11 NWLR (pt. 574) 467. I therefore reject the respondent contention that the parties have joined issues on the question of who is responsible for the appointment or installation of BASEGUN of Ijebu-Igbo Branch of Traditional Healers Association. It is my humble view that the onus of proof on that is the prescribed authority or on whether the title of Basegun is a minor or recognized chieftaincy for, which the second defendant is the prescribed authority lie on the respondent who asserted it in their subsequent averments in the pleadings.
I do not accept the submission of the said respondent that because the first defendant is vested with or delegated with the function of the executive counsel should by implication be treated as the prescribed authority for the appointment of BASEGUN which has been admitted to be a purely professional title and relates only to the eligible members of the Traditional Healers Association. It is my view that the members of the Ogun State Executive Council whose powers have been delegated to the first defendant or even their boss – the Governor – must be shown to have such power which has been so delegated. In the absence of such proof the rule of delegates non protest delegare applies to the first respondent who cannot in law exercise the power which his masters or those he purported to act for (i.e. the members of the executive council of Ogun State) did not possess even going by the rule of interpretation advocated by the said respondent it is wrong for us to read into the status meaning, by implication, different from its express wordings which are unambiguous – See Edozien v. Edozien (1998) 13 NWLR (pt 580) 133; UBN Plc v. Fajebe Foods Ltd (1998) 6 NWLR (pt 554) 330; and Daniel v. Fadigba (1998) 13 NWLR (pt 582) 482. I therefore agree, and accept the appellants’ submission that the first defendant as the titular or traditional ruler or Oba of Ijebu-Igbo has no business with the title of BASEGUN OF Ijebu-Ode Branch of the Ogun State Traditional Healers Association which title is or has been admitted to be related to the members of the association and is purely professional one. There is also nowhere under the Chiefs Law of Ogun State (supra) where the first defendant has been conferred with the power as a prescribed authority to make appointment for the post of BASEGUN of the Traditional Healers Association simply because they happen to be practicing in his domain the contrary the appellants despite the respondents admission of the above position still went on to prove that their Traditional Healers Association is responsible for that appointment by virtue of their certificate of incorporation and the constitution of their association which have been admitted in evidence in the case (see Exhibit A and E). They also issued a certificate to the 5th appellant on his appointment as BASEGUN of their association (see Exhibit D).
For my above considerations of the second issue, the said issue and its relevant ground of appeal (ground 2) must also be resolved in favour of the appellants and against the respondent. They are accordingly hereby so resolved.
The third issue of the respondent’s brief is the additional issue framed by respondent to cover the third ground of appeal for which no issue is formulated in the appellants brief. The appellants brief therefore contains no submission under the third issue as the ground of appeal under which, it is predicated has been abandoned by the appellants (in their said brief).
Despite this however, I will still consider the third issue which I have already held to be competent on its merits, Under the issue the respondents submissions are centered on the propriety of the holding of the learned trial judge that there was such a faction which made him to conclude that the dismissal of the respondent by the 1st – 4th appellants as null and void – see page 111 of the record. It is however conceded by the respondent that the certificate of registration of the association contained the names of the 1st – 4th appellants as the Trustees of the said association. Reference is made in the brief to the respondent pleading that the 1st – 4th appellants who dismissed him from the association had themselves been removed from the association before they purportedly removed him. It is argued that this assertion by the respondent (in his pleadings) is consistently supported by the evidence adduced by him which shows the existence of a faction in the association see the evidence of PWS3, 5, 6th and 7. In another arm of the respondent’s submission it is argued in the brief that this Court as an appellate Court should be reluctant in interfering or disturbing the findings of the trial Court or its evaluation of evidence except in exceptional circumstances which are enumerated in the brief – See Woluchem v. Gudi (1981) 5 SC 291 Fashanu v. Adekoya (1974) 1 All NLR 35; Akibu v. Opaleye (1974) 11 SC 189 at 203; Atanda v. Ajani (supra); Chinwendu v. Mbamali (1986) 3 NWLR 731; and Khalil v. Odumade (2000) 7 SC (pt. 1) 1 69 at 70 cited in the brief in support of the point. This Court is therefore urged not to interfere with the trial Courts finding on the existence of factions and on the nullity of the dismissal of the respondent by the 1st – 4th appellants. Finally the respondent urges this Honourable Court to resolve the third issue in his favour and to dismiss the appeal on ground 3 under which the issue is framed.
From the above submissions, it is clear that the respondent who raised the third issue is on the defensive by urging this Court not to interfere with the finding of the trial Court. It is pertinent to point out that the appellants who did not frame any issue on the ground of appeal complained of by the respondent have thereby abandoned it. The appellant’s abandonment of the ground is in my view because of its apparent insignificance to the fate of the appeal and its lack of substance. They (i.e. the 1st – 4th appellants) are entitled to pursue the first two grounds that are more relevant and substantial to their appeal (while leaving or abandoning the third ground which they consider insignificant to the fate of their appeal. In my view the respondent by his raising or reviving the 3rd ground abandoned by the appellants is indirectly assuming the role of a cross-appellant. He cannot in law do so as he did not file a cross-appeal in this Court. The law is settled on this point that a respondent who has not cross-appealed or filed a respondents notice cannot frame issues that are different from those of the appellant’ – See Mogaji v. Mil. Admin., Ekiti State (1998) 2 NWLR (Pt 538) 425; Skie v. Lokoja (1998) 3 NWLR (pt 540) 56; and Majekodunmi v. Co-op. Bank Ltd (1997) 10 NWLR (pt 524) 198. Moreover, the respondent himself has shown in his submission under the issue that the learned trial judge has found or concluded that it is difficult to say which of the two factions of the association was legally recognized. If so, then it was wrong or erroneous of the said learned judge to conclude that the action of the 1st – 4th appellants in their dismissal of the respondent was null and void without proof that their faction is not the legally recognized one.
The finding was also contrary to Exhibits A and D which are respectively the certificates of incorporation of the association bearing the names of the 1st – 4th appellants as the registered trustees and the one they issued to the 5th appellants on his appointment as BASEGUN of Ijebu-Ode branch of the Ogun State Traditional Healers Association. Thus the finding or conclusion of the learned trial judge is apparently contrary to evidence adduced in the case and is consequently perverse for it is not based on evidence.
For this reason, the respondent’s submission that this court should not ordinarily interfere with the finding or evaluation of evidence by the trial court is not acceptable under the circumstances of the present case’. I have already dealt with the attitude of the appellate court towards the findings and evaluation of the trial court and concluded that the present case is an appropriate one for this court to interfere with the findings of the trial court for its perversity and for being contrary to the recognised principle of law (See my consideration of issue No.2 above). In my final consideration of the third issue in the respondent’s brief, the said issue must also be resolved against the respondent who framed it. I hereby so resolve it.
Having resolved all the three issues in the appeal in favour of the appellant and against the respondent, the appeal has consequently succeed and must be allowed, I hereby accordingly allow it.
I have considered the suggestion of the appellant on the viability of making an order of retrial de novo in the present case in the event of the success of the appeal. I am however of the view that this is not a proper or appropriate case for an order of retrial.
Having found that the judgment of the trial court was perverse, the proper approach is for this court to set it aside and, on re-evaluation of the evidence to substitute the said judgment of (the trial court. Moreover there has been a long lapse of time from 1992 when the suit was filed and if the case is sent back for retrial the appellant may no longer be able to prove their case due to the absence or disappearance of their potential witness- Dele Aboyeji v. Momoh (1994) 4 NWLR (pt.341) 646; Salami v. Gbadaolu (1997) 4 NWLR (pt.449) 377, Okonko v. Udoh (1997) 9 NWLR (pt.519) 16 and Abodunde v. The Queen (1959) 5 CNLR 162. Consequently instead of ordering a retrial de novo, I will in the instant case after allowing the appeal, set aside the judgment of the trial court which is perverse and enter judgment for the appellant as per their writ of summon as follows:
- A declaration that the 5th plaintiff/appellant are the lawfully recognised and regularly installed BASEGUN of Ijebu-Igbo branch of Ogun State Traditional Healers Association of Nigeria.
- The defendants/respondents are hereby jointly and severally restrained from interfering in any way in the function and activities of Ogun State Traditional Healers Association or from recognizing the second defendant/respondent as Basegun of Ijebu-Igbo.
- The second defendant/respondent is restrained from parading himself as Basegun of Ijebu-Igbo under the Ogun State Traditional Healers Association of Nigeria.
I assess the cost of this appeal at N7, 000.00 which I hereby award in favour of the appellants and against the respondent.
Other Citations: (2002)LCN/1094(CA)
