Chief Israel Adebayo Dada V. Oba J. O. Aina & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
HELEN MORONKEJI OGUNWUMIJU, J.C.A.
This is an appeal against the ruling of Hon. Justice M. A. Agbelusi of the Ekiti State High Court sitting at Ido-Ekiti delivered on 26/5/2005. The facts that led to this appeal are as follows:
The Appellant was the Plaintiff in the court below. Pleadings were filed wherein the Appellant as Plaintiff, sought the following reliefs:
“(a) A declaration that the Plaintiff is a Senior Chief in rank to the 2nd Defendant as the 4th in rank to the 1st Defendant while 2nd Defendant is 5th in rank and that the Defendants cannot in collusion usurp the rightful position of the Plaintiff or change the order of seniority of hierarchy (sic) as contained in the Morgan Commission Report and accepted by Government and which position represents the custom and tradition of Erinmope Ekiti from the immemorial (sic).
(b) An order restraining the 1st and 3rd Defendants their agents, (sic) servants and or privies from doing any act of commission or omission to suggest that the 2nd Defendant is a Senior Chief to the Plaintiff or at par with him in respect of his Chieftaincy of Obajemu of Erinmope Ekiti.”
The Appellant joined issues with the Respondent. Trial started on 2nd February, 2005. The Plaintiff testified, called two witnesses and closed his case.
The 1st Defendant gave evidence and was cross-examined. After his evidence, the counsel for the Respondents informed the court that based on the evidence before the court; he would like to apply to the trial court to strike out the action for lack of jurisdiction.
An adjournment was subsequently granted for Respondents’ counsel to file formal application, which he did. The same was argued and in a well considered ruling delivered by the learned trial judge on 26th May, 2005 the Plaintiff’s action was dismissed.
The Appellant has appealed to this Court against that ruling. The grounds of appeal are as set out below:
“1. The lower court erred in law in declining jurisdiction to entertain the Appellant case by inventing a cause of action for the Respondents and not confining itself to the Appellant’s Statement of Claim.
- The lower court erred in law by dismissing the Appellant’s case on the ground that the Appellant’s case was ousted by 1963 Constitution of the Federal Republic of Nigeria contrary to the averment in Appellant’s Statement of Claim which expressly pleaded the date of the accrual of cause to be 7th September, 1993. Additional ground of appeal will be filed later on receipt of the record of appeal.”
(Page 117 – 118 of the Record of Proceedings)
The Appellant formulated only one issue for determination. That is – “when did the cause of action arise?”
On the other hand, the Respondents’ counsel submitted that the sole issue as couched by the Appellant’s counsel did not arise from ground one of the grounds of appeal. He argued that any ground of appeal not covered by an issue is deemed abandoned and submitted that being abandoned the ground one should be struck out.
I cannot agree with Respondents’ counsel on this point. It must be noted that in spite of filing two separate grounds of appeal, the Appellant identified a sole issue for determination which he presumably derived from the two grounds of appeal. I have to say that even though the language of ground two is not quite direct, it cannot be gainsaid that the sole issue for determination can be derived from it. I will determine this appeal by addressing the two questions posed by the grounds of appeal. The Respondents’ counsel also formed another issue for determination. I will determine this appeal by addressing each of the issues put up by both counsel. I have set them out below in what feel is a clearer form:
- When did the cause of action arise (grounds 1 & 2 of the notice of appeal)
- Whether the learned trial judge was right after evidence had been led by the parties to take a motion to dismiss the Plaintiff’s case for lack of jurisdiction (ground 2 of the ground of appeal as distilled by Respondents’ counsel for determination).
On issue one, Appellant’s counsel argued that in the instant case, the cause of action is the usurpation of Appellant’s position by the 2nd Respondent. He submitted that in determining the subject matter or cause of action in a suit, the court only need look at the writ of summons and the statement of claim. He cited:
(1) NWANKWO v. ECUMENICAL DEV. CO. SOCIETY (2002) 1 NWLR Pt. 749 Pg. 513 at 531.
(2) OLAGUNJU v. YAHAYA (1998) 3 NWLR Pt. 542 Pg. 501.
He argued that the cause of action arose on 7th September 1993 and not before 3rd of December 1975 and that the trial court was wrong to hold otherwise. He submitted that the cause of action arises on the date or time when a breach or any act that would warrant the person who is adversely affected by the act of another to take action in court. He cited WOHEREM v. EMERENWA (2000) 3 NWLR Pt. 650 Pg. 529 at Pg. 538; MRPEDEM v. UDO (2000) 9 NWLR Pt. 673 Pg. 631 at 645.
It is pertinent at this stage to relate the background facts to this case which would help in our understanding and arriving at the correct answer to the question in dispute.
The Appellant’s claim before the trial lower court relates to his position or rank in the palace of the 1st Respondent vis-a-vis the 2nd Respondent. While the Appellant claims to be Number four in rank to the 1st Respondent, and that 2nd Respondent is Number five, the Respondents claim that he is Number five and not 4th in rank to the 1st Respondent and that 2nd Respondent is number four.
In his Amended Statement of Claim, the Plaintiff stated that the dispute on the question of seniority between him (Plaintiff) and the 2nd Defendant first arose on 7th September, 1993.
The Respondents (1st and 2nd Defendants) in their further Amended Statement of Defence pleaded that seniority dispute first occurred in 1972 at the first meeting attended by the Appellant as Obajemu in the palace of the then Obaleo, the 1st Respondent’s predecessor in office. The parties had thus joined issue on the date of accrual of the cause of action in this suit.
In his evidence under cross-examination, the Appellant admitted writing a letter dated 4th March, 1976 to the 1st Respondent wherein he (Appellant) intimated the 1st Respondent of the dispute between the Appellant and the 2nd Respondent on the issue of seniority between the Appellant’s Ejemu title and the 2nd Respondent’s Edemorun title that started during the reign of the 1st Respondent’s predecessor.
This letter written in Yoruba language and its English translation were admitted in evidence by the trial court as Exhibits E and E1 respectively through the 1st Respondent while he was giving evidence on oath.
The 1st Respondent gave oral testimony that the dispute in seniority between the Appellant as Ejemu and the 2nd Respondent’s title of Edemorun started during the reign of Obaleo Atere Atoyosoye (1st Respondent’s predecessor) who hailed from Ijewu ruling house, the same quarters as the Appellant.
1st Respondent testified further that the Edemorun on the throne when the dispute arose was Agbebi (predecessor to the original 2nd Respondent – Late Chief J. O. Oyebola – who was replaced by the present 2nd Respondent). He stated that the dispute was not resolved up till when he became the Obaleo in 1975. That the Appellant wrote Exhibit E to him in 1976 concerning the dispute.
Learned Respondents’ counsel argued that parties had joined issues on when the cause of action arose. He argued that from the evidence of the 1st Respondent who tendered Exhibit E & E1 – a letter written to him by the Appellant referring to the dispute as late as 1976, the cause of action arose in 1976.
The learned trial judge held as follows:
“But paragraph 12 of the Amended Statement of Defence of 1st, 2nd, and 3rd Defendants, the Defendants pleaded “that the 1st and 2nd Defendants deny paragraph of the statement of claim and aver that the dispute over seniority between the Plaintiff’s title of Obajemu and 2nd Defendant’s Edemorun title first occurred in 1972 at the 1st meeting at Obaleo’s palace attended by the Plaintiff after his installation ….. ”
I hold that after evidence had been taken and exhibits admitted the court is at liberty to look at the
entire proceeding including the writ of summon, the statement of claim and statement of defence.
Therefore I agree with the Defence counsel that the cause of action arose before the 3rd of December 1975 which was the date 1st Defendant was installed.”
I cannot bring myself to agree with the learned trial judge on this finding of fact stated above. I agree with the Appellant’s counsel that the cause of action would arise on the date and time when a breach or any act that would warrant the person who is adversely affected by the act of another to take action in court. In my view, there was apparently simmering tension between the Appellant and the predecessor in title to the 2nd Respondent as at 1975. However from the pleadings and evidence matters did not come to a head until 7th September 1993 when the incident of the struggle over meat to be shared amongst the High Chiefs during the festival according to seniority occurred, in which there was a physical engagement between the Appellant and the 2nd Respondent. That singular incident of the 2nd Respondent making an overt effort to take the portion of meat the Appellant believed to be his, led to the filing of this action. In my view that was when the cause of action accrued or arose. I have come to this conclusion based on the definition of cause of action by Agbaje JSC in AMODU v. AMODE in (1990) 5 NWLR Pt. 150 Pg. 356 at 367 where he quoted the following definition of the term “cause of action”.
“The term “cause of action” means all those things necessary to give a right of action whether they are to be done by the Plaintiff or a third person. Hernaman v. Smith (1855) 10 Exch. 659 per Parke B at Pg. 666. “Cause of action has been held from the earliest time to mean every fact which is material to be proved to entitle the Plaintiff to succeed – every fact which the Defendant would have a right to traverse” Cooker Cill (1873) LRSC p.10 per Bret J at p.116″
It has also been defined as the entire set of facts or circumstances that would give rise to an enforceable claim. See JOHN EBOSEDE EMIANTOR v. NIGERIAN ARMY (1999) 9 SCNJ Pg. 53. It was also defined in DR THOMAS v. MOST REV. OLUFOSOYE (1986) 1 NWLR Pt. 18 Pg. 669 at 671.673 per Obaseki JSC quoting Diplock L.J. in LETANG V. COOPER (1965) 1 QB 222 at 242 as meaning – “simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.” In my view, until the matter came to a head in 1993, no factual situation had occurred to give rise to a cause of action for which the Appellant could claim a remedy. There may have been grievance against the Appellant exhibited by the 2nd Respondent’s predecessor in office when he walked out of the palace in 1975 and never attended meetings again. However none of the parties did anything to force the issue until 7th September 1993. That was when according to the Appellant on page 70 of the Records the 2nd Respondent sought to assert the superiority of his title by taking the meat before the Appellant. The fact of who took the meat first was of course contradicted by the 1st Respondent on page 89 of the Records. A factual situation does not occur when the parties are still fencing. The action accrues when they cross swords. The learned trial judge put a lot of weight on Exhibits E and E1 tendered by the 1st Respondent. I have looked at the evidence on oath of the 1st Respondent. There was nowhere that the 1st Respondent stated categorically that the parties ever joined issues formally before him and he made a categorical decision on their status as the paramount chief. The letter Exh. E & E1 written to him by the Appellant merely surreptitiously sought his support. There is no evidence that he in turn leaned toward or gave directions one way or another in which event there would be a complete set of circumstances in which the Appellant would have been entitled to lodge a formal complaint by way of legal action. In fact under cross-examination on page 99 of the records, the 1st Respondent said –
“There had been quarrels of seniority in the sharing of meat in the palace before. At all times I had pacified them. What I meant to say was that before my installation I had heard that there were quarrels between Edemorun and Ejemu over the sharing of meat as to who was senior to who. Between 1975 and 1993 there was no Edemorun. I cannot remember when Edemorun Oyebola was installed. He was installed after my installation. After his installation another chief was installed. Chief Jones Asaba was installed. He then proposed afest for chiefs. This was brought to the palace and which lead to the award between Chief Edemorun and Chief Obajemu. The ward was the 1st between the late Edemorun and the Plaintiff Obajemu. Over the sharing of meat. The 1993 episode was the 1st time Chief Oyebola Edemorun would first in the palace with Obajemu the Plaintiff.”
There is no evidence that the parties formally joined issues before him or other statutory or traditional body prior September 1993. This did not occur in this case until 1993 September. It is trite that the law applicable to a cause of action is the law in force at the time the cause of action arose. See ADETORO v. OGO OLUWA KITAN TRADING CO. (2002) 1 NWLR Pt. 771 Pg. 157 at 201; AKIBU v. ODUNTAN (2001) 7 SCNJ 189; OKENWA v. MIL GOVERNOR IMO STATE (1997) 6 NWLR Pg. 507 Pg. 136. It is not in dispute that this is a chieftaincy matter. The 1963 Constitution prohibited litigation in chieftaincy matters. The executive had the final say. However the 1979 Constitution conferred jurisdiction in the courts to determine chieftaincy disputes. See IKINE v. EDJERODE (2001) 18 NWLR Pt. 745 Pg. 446 at 488.
In the circumstances, I agree with the learned Appellant’s counsel, and having found that the cause of action accrued in 1993, the applicable law was the 1979 Constitution under which the trial court had jurisdiction and His Lordship should have so assumed jurisdiction. The 1st issue is resolved in favour of the Appellant.
The 2nd issue derived by the Respondents’ counsel from the 2nd ground of appeal and which was left unanswered by the Appellant’s counsel is whether in the circumstances of this case, the learned trial judge was right in looking at the pleading and evidence before him before arriving at a decision.
In the course of hearing the suit, the counsel to the Respondents tendered through the 1st Respondent a letter written by the Appellant to 1st Respondent on 4th of March 1976 soliciting the support of the 1st Respondent against the 2nd Respondent in respect of the issue of seniority.
The said letter written in Yoruba Language and subsequently translated into English was admitted and marked Exhibit E and E1.
Consequently, the counsel to the 1st and 2nd Respondents brought a motion to further amend their Amended Statement of Defence and same was granted.
I agree with the learned Respondents’ counsel that to find the date the cause of action arose in the circumstances of this case, the trial court had to examine both the pleadings and evidence led by the parties. See MOGAJI v. CADBURY NIG. LTD. (1985) 2 NWLR Pt. 7 Pg. 393 at 413. This situation is different from where the objection to jurisdiction was raised in limine after pleadings were filed before evidence was led. In such a case, the learned trial judge would be obliged to limit himself to the examination of the Plaintiffs Writ and Statement of Claim alone. He cannot have recourse to the Defendants’ Statement of Defence in determining when the cause of action arose. The Defendant must rely on only the date pleaded by the Plaintiff rather than the date pleaded by him unless the date pleaded by the Statement of Defence is admitted by the Plaintiff in his reply. See ADEYEMI v. OPEYORI (1976) 9-10 SC 31; IZENKWE v. NNAEDOZIE (1953) 14 W.A.C.A 361; AREMO II v. ADEKANYE (2004) 7 SCNJ 218 or (2004) 13 NWLR Pt. 891 Pg. 572; WOHEREM v. EMEREUWA (2004) 7 SCNJ 119 or (2004) 13 NWLR Pt. 890 Pg.398.
In this case, evidence was led by the parties and the judge based his finding on the evidence on oath before him. I hold the view that his procedure was right even though I hold with respect that his conclusion and finding of fact was erroneous.
In the circumstances, this appeal substantially succeeds.
It is hereby allowed. The case is sent back to the High Court of Ekiti State to be tried by another judge. N10,000.00 costs to the Appellant against the Respondents.
Other Citations: (2007)LCN/2619(CA)
