Mr. Azeez Agboola V. Mallam Saka Kadri Agbodemu & Ors (2008)

LawGlobal-Hub Lead Judgment Report

JUMMAI HANNATU SANKEY, J.C.A.

This is an appeal against the Ruling of the High Court of Justice of Kwara State sitting at Omu-Aran, Coram: Bamigbola, J. delivered on 8th May, 2007 in which the Court dismissed the preliminary objection filed by the 1st Defendant/Appellant herein against the jurisdiction of the trial High Court to hear and determine the Claimants’ (1st to 3rd Respondents herein) suit. The Claimants, who sued in a representative capacity claimed, among other things, a declaration that the appointment of the 1st Defendant/Appellant as Oba of Agbeku was a violation of the tradition and custom of Agbeku which recognized rotation among the Ruling houses in Agbeku, and a nullification of such appointment, with a permanent injunction restraining the 2nd defendant from recognizing the said 1st Defendant/Appellant as Oba of Agbeku. The learned trial Judge held thus at page 172 of the record of the Court:

“The argument on the objection is therefore without ground and makes the objection to become a mere technicality and without any significance.

In the result I find the claimants herein have complied with the condition precedent for bringing an action under the provision of Section 15 (1) of the Chiefs Law of Kwara State.

In the final result, the objection fails on all the grounds. It is overruled and struck out. ”

Being dissatisfied with this Ruling, the Appellant filed an Appeal against this decision on seven Grounds of Appeal as contained at pages 173-181 of the record of appeal.

The brief facts of the case are that, by a Writ of Summons dated 2nd March, 2006, the 1st to 3rd Respondents, (as Claimants) claimed against the Appellant and the 4th 5th and 6th Respondents herein as follows:-

A declaration that the purported selection and recognition of the 1st defendant by 2nd defendant as the Oba Agbeku in Ifelodun Local Government Area of Kwara State is irregular and a violation of the customs, tradition and history of Agbeku and is therefore null and void and of no effect whatsoever.

(b) A declaration that historically and by tradition in Agbeku the post of Oba of Agbeku is rotational among four (4) ruling houses and it was not yet the turn of Alapo-Idera ruling house to present a candidate.

(c) A declaration that it is the turn of Agbodemu- Alaka Ruling house to nominate it’s candidate to the Chieftaincy post of Oba of Agbeku and that Prince Issa Kolawole Ibrahim Olanipekun is not only qualified but has been properly nominated and presented.

(d) A nullification of the purported selection and recognition of the 1st Defendant by the 2nd defendant on the ground that apart from the fact that he is never a prince, he not from Agbodemu-Alaka ruling house the house whose turn it was to product the next Oba of Agbeku.

(e) A permanent injunction restraining 2nd defendant from recognizing1stDefendant as the Oba of Agbeku.

(f) A permanent injunction restraining 1st defendant from further parading himself or authorizing, encouraging or allowing any publication causing himself to be addressed as Oba of Agbeku in Ifelodun Local Government Area of Kwara State.

(g) An order directing the 2nd defendant to recognize Prince Issa Kolawole Ibrahim Olanipekun as the new Oba of Agbeku, Ifelodun Local Government of Kwara State.

Upon the receipt of the Writ of Summons and Amended Statement of Claim, the Appellant, 5th to 6th Respondents and 7th to 8th Respondent entered appearances to the suit of the 1st to 3rd Respondents. The Appellant entered a conditional appearance and later filed a motion on notice on challenging the jurisdiction of the trial High Court to hear and determine the Claimant’s suit premised on six (6) grounds. Reacting to this, the 1st to 3rd Claimants filed a counter affidavit together with their written address against the 1st Defendant’s motion, while the 3rd and 4th Defendants also filed their own counter affidavit together with a written address opposing the Appellant’s motion on notice challenging the jurisdiction of the trial High Court to hear and determine the Claimants’ suit. Thereafter, 1st Defendant/Appellant filed a reply to the Claimants’ counter-affidavit and written address and filed another Reply against the arguments of the 3rd and 4th Defendants. The trial High Court heard the 1st Defendant’s/Appellant’s motion and in a considered Ruling delivered on 8th May, 2007, struck out the preliminary objection in its entirety.

When the Appeal was called up for hearing, Dr. Olatoke, learned Counsel for the Appellant, adopted and placed reliance on the Appellant’s Brief of argument, as well as the various Replies to the 1st to 3rd Respondents Brief, the 4th Respondent’s Brief, the 5th and 6th Respondents’ Brief and the 7th and 8th Respondent’s Brief, as the Appellant’s submissions in this Appeal. Counsel urged the Court to allow the Appeal. Mr. Asaolu, learned Counsel for the 1st to 3rd Respondents’ also adopted the Respondents’ Brief and further relied on the (Unreported) Appeal No. CA/IL/15/2007 Chief Ojijola Ogun Ode & another V Odofin Igbana Oba in Council delivered on the 11th June, 2007 at pages 8-9. He urged the Court to disallow the Appeal. Mr. Buhari, learned Counsel for the 4th Respondent, equally adopted the 4th Respondent’s Brief and urged the Court to allow the Appeal. Mr. Fabiyi, learned Counsel for the 5th and 6th Respondents, adopted their Brief of argument and urged the Court to disallow the Appeal. Mrs. Lawal, learned Counsel for the 7th and 8th Respondents, adopted their Brief of argument and urged the Court to allow the Appeal. In a brief reply, Dr. Olatoke submitted that the case of Chief Ajijola V Odofin Oba in Council (Supra), does not take precedence over NDIC V CBN (2002) 7 NWLR (Pt. 768) 272 at 296, which has not been overruled.

The Appellant, in his Brief of Argument, conceived five issues for determination in this Appeal. The 1stto 3rd Respondents, on their part, formulated four issues. The 4th Respondent adopted the issues as formulated by the Appellant. However, the 5th and 6th Respondents formulated three issues for determination as it affects them, while the 7th and 8th Respondents also adopted the issues for determination as formulated by the Appellant. From a close scrutiny of the Grounds of Appeal, I take the view that the following are the issues that need to be addressed for a full and final determination of this Appeal:

1. Whether the Claimants (now 1st to 3rd Respondents) have locus- standi to institute this action.
2. Whether the Claimants’ (now 1st to 3rd Respondents’) suit is caught by the provisions of the Public Officers Protection Law, Cap. 125, Laws of Kwara State of Nigeria 1994 and therefore is statute-barred.
3. Whether the Claimants’ (now 1st to 3rd Respondents’) payment of the N10, 000.00 non-refundable deposit after filing this suit contravenes Section 15 (1) of the Chiefs (Appointment And Deposition) Law, Cap. 28 Laws of Kwara State 1994 and whether the non-consideration by the learned trial Judge of the Atolagbe V Awuni case in this regard resulted in a miscarriage of justice to the Appellant.

In respect of issue one which is, whether the Claimants/1st to 3rd Respondents have locus standi to institute this action, learned Counsel for the Appellant submits that the Claimants/1st to 3rd Respondents herein have no locus-standi or sufficient interest whatsoever to institute or commence this action and as such, the trial Court ought to have dismissed the suit in limine. To substantiate this submission, learned Counsel referred to the Amended Statement of Claim filed on 11th April, 2006 which, he claimed, shows that the interest of the Claimants is no more than the fact that they are just members of Agbodemu- Alaka Ruling House of Agbeku who were allegedly entitled to nominate and/or select a candidate for the stool of Oba Agbeku. They contend that the candidate selected by this Ruling House, Prince Issa Kolawole Ibrahim Olanipekun, was not appointed by the kingmakers, Ifelodun Local Government, Igbomina Ekiti Traditional Council and the Kwara State Government.

Counsel submits that, being members or representatives of Agbemu-Alaka Ruling House of Agbeku is not sufficient to vest the right of action in this suit in the Claimants. He contends that they have the duty to state further in their Statement of Claim either that all of them have or either of them has been nominated by their Ruling House to contest the stool of Oba of Agbeku before they can have the locus standi to sue. Counsel submits that this has been a long settled principle of law. To buttress this argument, Counsel relies on Amusah Momoh V Jomoh Oloto (1970) ALL NLR at 127 and Adewumi V AG Ekiti State (2002) 2 NWLR(Pt.751)474; Adefulu V Oyesile (1989) 5 NWLR (Pt.122) 377; Oduneye V Efunuga (1990) 12 SCNJ 1 at 7 – 8 per Karibi White, JSC; Obala of Otan Aiyegbaju & Ors (1999) 2 SCNJ 1. Counsel therefore submits that the interest expressed and/or pleaded by the Claimants in this case is a general interest i.e. the interest of Agbodemu-Alaka Ruling House of Agbeku, and not a personal interest.

Counsel further submits that paragraph 21 of the Amended Statement of Claim puts paid to the interest of the Claimants to maintain this action where they averred:

“The Claimants avers that based on this, the said Agbodemu-Alaka Ruling house after its meeting unanimously nominated and presented to the town Prince Issa Kolawole Ibrahim Olanipekun as the successor to late Oba Maliki Ibidunni.”

Counsel submits that the contest for the Obaship of Agbeku was between the 1st Defendant/Appellant and Prince Issa Kolawole Ibrahim Olanipekun. However, it was the nomination of the 1st Defendant/Appellant that was successful before the kingmakers and the Ifelodun Local Government. Counsel argues that the interest of the Claimants’ family terminated when its candidate was accepted for the contest before the kingmakers or Ifelodun Local Government because they cannot force their candidate on the kingmakers. Counsel contends that the only person who has the locus to maintain this suit is the contestant, Le. Prince Issa Kolawole Ibrahim Olanipekun. He submits that the latter is the only person who can challenge the decision of the kingmakers or Ifelodun Local Government, and not his Agbodemu family. However, Prince Issa Kolawole Ibrahim Olanipekun did not institute this action neither was he joined as a party to the suit. Counsel therefore contends that the procedure adopted by the Claimants in commencing this action is incurably bad. Akpene V Barclays bank Of Nigeria (1977) 1 S.C. 30 at 38 lines 15-27 (reprint); EBN Ltd V Halilco Nig. Ltd. (2006) 7 NWLR (Pt. 980) 568 at 584; Lawson V Manuel (2006) 10 NWLR (Pt. 989) 569 at 583.

Counsel submits that the rationale for which the doctrine of locus standi was developed is to protect the Court from being used as a play ground by professional litigants, meddlesome interlopers or busybodies who have no real stake or interest in the subject matter of the litigation they wish to pursue. Counsel submits that locus standi therefore, touches on the question of the jurisdiction of the Court because where the Claimants, as in this case, have no locus to institute an action, the Court cannot properly assume jurisdiction to entertain the matter. Counsel submits that the locus standi of a claimant is a condition precedent before a court can proceed to hear and determine a matter on its merit.

Counsel contends that, having established that the claimants have no locus standi to institute this action, the trial High Court had no jurisdiction to entertain same and ought to have dismissed or struck out the suit in limine. Umar V. W.G.G. (Nig) Ltd (2007) 7 NWLR (pt.1032) 117 at 151; AG Anambra State V. AG Federation (2007) 12 NWLR (pt. 1047) 4 at 94.95.

Counsel submits that the averments in the Claimants’ Amended Statement of Claim particularly, paragraphs 1, 21 and 28 thereof show clearly that the only person whose personal or peculiar interest was injured in this case is Prince Issa Kolawole Ibrahim Olanipekun. Counsel therefore argues that, Prince I.K. Ibrahim Olanipekun is the only person clothed with the locus standi to challenge the appointment of the 1st Defendant/Appellant. Counsel urged the Court to dismiss the suit in its entirety. Chief Irene Thomas & Ors V Olufosoye (1986) ALL NLR 281 at 275 – 277.

In responding to the submissions of the Appellant, the 1st to 3rd Respondents submit that locus standi, being the legal capacity to institute proceedings in a court of law, such capacity or interest must be determined in the light of the facts and circumstances of each case. Counsel for the Respondents submits that in this instance, the Appellant jumped the gun at the lower Court when he brought the application. Counsel contends that demurrer has long since been abolished in our High Courts. Order 26 Rules 1 and 2 of the Kwara State High Court (Civil Procedure) Rules 2005. Counsel submits that the Appellant/1st Defendant, having failed to file his Statement of Defence before raising this issue of law, his objection was rightly dismissed. He therefore urged the Court to so hold. Ajilowura V Disu (2006) ALL FWLR (Pt. 333) 1613; G.T. & G.C. (Nig) Ltd V Nevico Ltd (2004) 3 NWLR (Pt. 860) 327; Alhaji Aminu Ibrahim V Felix Osim (1988) 6 SCNJ 203 at 213; Chief S.A. Dada V Otunba Adeniran Ogunsanya (1992) 4 SCNJ 162 at 168 169 & 175. On this basis, Counsel prayed that issue one should be resolved against the Appellant in this case.

As an alternative submission, Counsel submits that the lower Court was in order when it held that:

”It is to be noted that the claimants have brought the action for themselves and on behalf of Agbodemu-Alaka Ruling House of Agbeku. I am of the considered view that the claimants herein have brought the substantive suit in order to protect not only their own individual interest in the chieftaincy stool in question but the interest of their entire family members including the aforementioned Prince Issa Kolawole Ibrahim Olanipekun who, they claimed had been nominated for appointment to the chieftaincy stool. ”

Counsel referred to the dictum of Fatayi-Williams, CJN (as he then was), in the locus classicus case of Adesanya V President of The Federal Republic of Nigeria (1981) 5 S.C. 112 at 128; (2001) FWLR (Pt. 46) 859 at 884 and Oyewunmi V Osunbade (2001) FWLR) FWLR (Pt. 82) 1919 at 1954-1957 for the definition of locus standi. Counsel submits that standing to sue in a chieftaincy matter may arise in two different ways as spelt out in the case of Eleso V Governor, Ogun State (1990) 2 NWLR (Pt. 133) 420; (1990) SCNJ 45 and re-affirmed in the cases of Akanni V Odejide (2004) ALL FWLR (Pt. 218) 827; Prince A. Oduneye V Efunuga (1990) 7 NWLR (pt. 618) 641; Ladejobi V Ogun Tayo (2001) FWLR (Pt. 45) 780 at 797; Jagungbade III V Laniyi (1999) 13 NWLR(Pt. 633) 92 at 110-111; and Obanla V Adesina (1999) 1 SCNJ I.

Counsel submits that in the instant case, it is the first of the two ways that is applicable because the Claimants herein sued in a representative capacity for Agbodemu-Alaka Ruling House. Counsel refers to the Writ and Amended Statement of Claim, particularly paragraphs 1, 15 to 24 and 26 to 33 of the thereof, to submit that the right to sue being asserted by the Claimants in this chieftaincy dispute is that of their family by reason of their hereditary interest. Counsel argues that it would not be proper in law to claim that a Ruling House whose exclusive turn was to nominate a candidate for a stool cannot sue if it has been denied that right.

In respect of the argument advanced by the Appellant that it is only Prince Issa Kolawole Ibrahim Olanipekun who has the locus to maintain this suit as, according to the Appellant, he is the only one that can challenge the decision of the kingmakers, Counsel denies the impression created that the Claimants had admitted in their Statement of Claim that there were kingmakers in Agbeku. Rather, they maintain that there were none. He referred in particular to paragraph 23 of the Amended Statement of Claim at pages 38-39 of the records.

Secondly, Counsel submits that it was wrong to claim that only Prince Issa Kolawole Ibrahim Olanipekun has locus to sue. Counsel submits that the right being sought to be protected in the suit was the right of the Agbodemu-Alaka Ruling House whose turn it was to present a candidate. Counsel referred to paragraphs 15, 16, 17, 18, 19, 20 and 22 of the Amended Statement of Claim for how each of the four Ruling houses mentioned in paragraph 12 of the pleadings had, in succession, presented candidates who ruled within specified years. The Claimants pleaded that, in this order of rotation, it was the turn of the Agbodemu-Alaka Ruling House to present a candidate again. Counsel contends that to date, there is no contrary pleading to this. Thus, the Claimants, in paragraphs 21 and 22 of the Amended Statement of Claim asserted that the decision taken by the only Ruling House qualified to present a candidate was unanimous, as there was no opposition in the said Ruling House in respect of the candidate nominated.

Counsel submits that, in the instant case, there is a cause of action which confers an enforceable right on the Claimants, being full-fledged members of Agbodemu-Alaka Ruling House. Counsel submits that it was not the right of Prince Issa Kolawole Ibrahim Olanipekun that was violated here but that of the Agbodemu Alaka Ruling House, whose turn it was to present a candidate and whose turn was wrongly turned down in violation of the custom of Agbeku town.

Counsel submits that the facts in the cases of Amusah Momoh V Jimoh Oloto (1970) ALL NLR 121 and Adewumi V AG Ekiti State (2002) 2 NWLR (Pt. 751) 474 are not the same with the instant case. Therefore, the ratio enunciated therein is inapplicable and he prayed the Court to so hold. Counsel therefore prayed the Court to hold that the Claimants have locus standi to sue, and so, to dismiss this Appeal and affirm the Ruling of the lower Court.

The 4th Respondent adopts the issues formulated by the Appellant for determination. Counsel for the 4th Respondent submits that by paragraphs 1, 21 and 28 of the Amended Statement of Claim, the Claimants disclose that they have no locus standi to institute this action. Counsel contends that since none of the Claimants was nominated by their Agbodemu-Alaka Ruling house and presented to Agbeku town, instead one Prince Issa Kolawole Ibrahim Olanipekun was presented the only injured person is Prince Issa Kolawole Ibrahim Olanipekun. Counsel urged the Court to allow the Appeal on this ground.

On his part, Counsel for the 5th and 6th Respondents was of the view that the 1st to 3rd Respondents, (Claimants), herein have locus standi or sufficient interest to institute this action, and therefore, the trial High Court was right in dismissing the Appellant’s (1st Defendant’s) motion challenging the jurisdiction of the trial High Court to entertain the matter. Counsel submits that what the 1st to 3rd Respondents need to show to establish that they have sufficient interest is that their civil rights and obligations have been or are in danger of being infringed. The fact that the 1st to 3rd Respondents may not succeed in their action does not have anything to do with or have any bearing on their interest or standing to sue. Counsel submits that once it is disclosed in the 1st to 3rd Respondent’s Statement of Claim that they will suffer injury or a deprivation of their right, they are entitled to be heard by the trial Court. Counsel therefore referred to paragraphs 1, 20, 21, 22, 23, 27, 28, 29, 30, 32 and 33 (v-vii) of the Claimants’ Amended Statement of Claim which, he claims, show vividly that the 1st to 3rd Respondents have an interest to protect in this suit which, if not protected by the Court, will cause injury or deprivation to their rights or interests. Counsel submits that from these averments, the 1st to 3rd Respondents have sufficient interest in this suit which, when established, will entitle them to the reliefs sought in paragraph 33 (i-vii) of their Amended Statement of Claim. Counsel submits that it has long been a settled principle of law that the test of sufficient interest is whether the person seeking for redress or remedy will suffer from injury or hardship arising from the litigation. Counsel refers to Eta Luku V NBC Plc (2004) 13 NWLR (pt. 896) 370 and Adesanoye V Adewole (2005) 7 SC (PT.III).

Learned Counsel for the 7th to 8th Respondents, on his own part, submits that the 1st to 3rd Respondents do not have locus standi or sufficient interest whatsoever to institute this action and as such, the trial High Court ought to have dismissed the case in its entirety. Counsel agrees that in order to determine locus-standi, the only court process to look at is the Statement of Claim. Counsel submits that from paragraphs 1, 21 and 28 of Amended Statement of Claim, the interest of the Claimants is no more than the fact that they are just members of Agbodemu-Alaka Ruling House of Agbeku who, allegedly are entitled to nominate and/or select a candidate for the stool of Oba Agbeku. However, the candidate selected by their Ruling House, (Prince Issa Kolawole Ibrahim Olanipekun), was not appointed by the kingmakers, Ifelodun Local Government, Igbomina Ekiti Traditional Council and the Kwara State Government. Counsel submits that, for a party to have locus-standi to challenge the appointment of another to a chieftaincy office, the plaintiff must aver in his statement of claim the intimacy with the chieftaincy house to extent that he has the right to contest the chieftaincy if and when vacant. Adesanya V Adewole (Supra) at 1005-1006. Counsel submits that the Respondents did not disclose in their Amended Statement of Claim that either of them have intimacy with the stool of Oba of Agbeku to the extent that they have the right to nominate a candidate to fill the vacant stool. Counsel therefore submits that the interest expressed and/or pleaded by the Claimants in this suit is a general interest i.e. the interest of Agbodemu-Alaka Ruling House of Agbeku. Hence, they have no locus-standi to institute the action having failed to show that they are contestants to stool of Oba of Agbeku.

Counsel submits that the contest of the Obaship of Agbeku was between the 1st Defendant/Appellant and Prince Issa Kolawole Ibrahim Olanipekun, but it was the 1st Defendant/Appellant that was successful before the kingmakers and the Ifelodun Local Government. Counsel submits that the only person who therefore has locus-standi to challenge the decision of the kingmakers or Ifelodun Local Government is Prince Issa Kolawole Ibrahim Olanipekun and not his Agbodemu family. He contends that the procedure adopted by the Claimants in instituting this action was irregular and so, is incurably bad as you cannot put something on nothing and expect it to stand. It will collapse. EBN Ltd V Halilco Nig Ltd (2006) 7 NWLR (pt 980) 568 at 584. Counsel submits that, from paragraphs 1, 21 and 28 of the Amended Statement of Claim, the only person whose personal or peculiar interest was injured is Prince Issa Kolawole Ibrahim Olanipekun. Counsel therefore urged the Court to resolve this issue against the 1st to 3rd Respondents.

In a reply on points of law to the arguments of the 1st to 3rd Respondents, Counsel for the Appellant submits that the issue of whether the Appellant’s application challenging the jurisdiction of the trial court is competent or not and whether the issue of jurisdiction is the same as the issue of demurrer has been settled by the trial Court in its considered Ruling delivered on 8th May, 2007, in favour of the Appellant. Counsel refers to pages 166-167 of the record of appeal where the learned trial Judge held as follows:-

“The issue of jurisdiction is not a matter for demurer proceedings. It is much more fundamental than that and does not entirely depend as such on what a plaintiff may plead as facts to prove the reliefs he seeks… It does not always follow that he must plead first in order to raise the issue of Jurisdiction… In the instant application, the objection of the Applicant by way of motion on notice is therefore proper and valid in law. The Applicant needed not plead first in order to raise the issue of jurisdiction. I therefore resolve the first issue in favour of the Applicant”.

Counsel submits that the 1st to 3rd Respondents cannot raise the issue again in this Court since they did not file an appeal or cross-appeal against the said Ruling. Counsel prayed the Court to so hold and to discountenance the 1st to 3rd Respondents’ argument on same.

Counsel sought to distinguish the case of Adesanya V President of the Federal Republic of Nigeria (Supra) cited by the 1st to 3rd Respondents from the facts of this case. Counsel also sought to distinguish the cases of Eleso V Govt. of Ogun State (Supra) and Akanni V Odejide (supra). Counsel however submits that the decisions of the Supreme Court in the cases of Amusah Momoh V Jimoh Oloto (1970) ALL NLR at 127 and Adewumi V AG Ekiti State (2002) 2 NWLR (Pt. 751) 474 at 521 cited by the Appellant still represents the position of the law in this country as regards the determination of a plaintiff’s locus standi in chieftaincy matters, and by the principle of stare-decisis, this Court is bound by the decision of the Apex Court. Counsel relies on Adebayo V O.A.U.T.H. C.M.B. (2000) 9 NWLR (Pt. 873) 585 at 607.

Again, in specific reply to the 5th and 6th Respondents’ arguments on points of law, Counsel for the Appellant submits that there is no proper claimant before the Court and that the trial Court lacked the requisite jurisdiction to try the suit, since the 1st to 3rd Claimants/Respondents in this case are merely claiming general interest as members or representatives of Agbodemu Alaka Ruling House of Agbeku. Counsel therefore submits once more that the suit is incompetent for lack of locus standi of the 1st to 3rd Claimants/Respondents. He again urged the Court to resolve this issue in favour of the Appellant.

The issue of locus standi or standing to sue is indeed primeval and fundamental in any action in court. The law is trite that in our civil jurisprudence, a defendant can impeach the locus standi of a plaintiff under Section 6 (6) (b) of the 1999 Constitution. Once the locus standi of a party is challenged by the defendant, the issue must first be resolved before any other consideration of the matter. The issue can be raised at anytime in the course of trial or on appeal because it is an indirect challenge to the jurisdiction of the court.

In law, locus standi denotes the legal capacity based upon sufficient interest in a subject matter to institute proceedings in a court of law to pursue a specified cause. It is a constitutional requirement to enable a person to maintain an action and it is limited to the prosecution of matters relating to the civil rights and obligations of the plaintiff. Put another way, the term entails the legal capacity for instituting, initiating or commencing an action in a competent court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever, including the provision of any existing law. Oyewumi V Osunbade (2001) FWLR (Pt. 82) 1919; Elendu V Ekwoaba (1995) 3 NWLR (Pt. 386) 704. In the consideration of the challenge to locus standi, the references are necessarily the writ of summons and the averments in the statement of claim. It must be reiterated that when the standing of a plaintiff to institute an action is challenged, the court looks only at the writ of summons and statement of claim. It is the averments in the statement of claim that are paramount. The court shall then consider whether there is a justiciable issue before the court. Ladejobi V Oguntayo (2001) FWLR (Pt. 45) 780; Thomas V Olufosoye (1988) 2 SC 325; Elendu V Ekwoaba (Supra).

The law is settled and brooks of no argument that in chieftaincy cases, two classes of persons possess the standing to sue. They are a candidate or contestant for the disputed chieftaincy stool who may assert his own right to the stool, and the family/clan or ruling house. In the latter case, the right that is being asserted is that of a plaintiff’s family or ruling house by reason of their hereditary interest. In that case, it is the family, usually through their representative, who can bring the action on the premise that it is the civil right of the family that has been violated.

When a person’s standing to sue is in issue, the question is whether the person whose standing is in issue is a proper person to request an adjudication of the issue. The question whether the person has sufficient justifiable interest or sufferance of an injury or damage depends on the facts and circumstances of each case. The term “sufficient interest” is to be determined in the light of the facts and circumstances of each case. What this means is that the court will be very wary of busybodies and interlopers and their presence in court will not be sanctioned. Only persons who have in actual fact suffered a wrong or threat to their civil rights and obligations can approach the court. Therefore, without sufficient legal interest, a party cannot seek redress in a court of law. Badejo V Federal Ministry of Education (1990) 4 NWLR (pt. 143) 254.

In the instant Appeal, the fulcrum of the Appellant’s argument is that the interest of the Claimants is no more than the fact that they are members of the Agbodemu-Alaka Ruling House who are entitled to nominate and present a candidate for the stool of the Oba Agbeku. Counsel contends that being members or representatives of Agbodemu-Alaka Ruling House is not sufficient to vest the right of action in the Claimants as the interest pleaded is a general interest and not a personal interest. The 1st to 3rd Respondents’ reaction to this is that, by the facts pleaded in their Amended Statement of Claim, the right which the Respondents assert is that of their Ruling House who have brought this action on the premise that the civil rights of the Ruling House has been breached. The lower Court agreed with the Respondents and in its Ruling at page 168 of the transcripts of the record of the lower Court, held thus:

“It is to be noted that the claimants have brought the action for themselves and on behalf of Agbodemu-Alaka Ruling House of Agbeku. I am of the considered view that the claimants herein have brought the substantive suit in order to protect not only their own individual interest in the chieftaincy stool in question but the interest of their entire family members including the aforementioned Prince Issa Kolawole Ibrahim Olanipekun who, they claimed had been nominated for appointment to the chieftaincy stool. ”

I have examined the Writ of Summons and Statement of Claim of the 1st to 3rd Respondents, particularly paragraphs 1, 15 to 24, and 26 to 33 of the latter in the light of the principles of law relating to locus standi. I note indeed, (as did the lower Court), that the Claimants filed this action as representatives of the Agbodemu-Alaka Ruling House. Their complaint is that it is the turn of their Ruling House to present a candidate for the Chieftaincy stool of Agbeke. In fulfillment of this, the House presented one Prince Issa Kolawole Ibrahim Olanipekun. Notwithstanding this, the 1st Defendant/Appellant from another Ruling House, Ile-Alapo-Idera Ruling House, has been nominated and appointed by the 4th 7th and 8th Respondents, acting in concert, to ascend to the disputed stool. The law is now certain that in chieftaincy matters, locus standi can be available to a family or a Ruling House in a corporate sense. Ladejobi V Oguntayo (supra).

From the averments, the 1st to 3rd Respondents as representatives of the Agbodemu-Alake Ruling House have not brought the action simply to ensure that the said Prince Issa Kolawole Ibrahim Olanipekun or any other qualified candidate of the Agbodemu-Alake Ruling House is presented for the stool. It is more fundamental than that. They want the recognized custom to be observed. They want the right of the Agbodemu-Alake 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 Oba of Agbeke, is not presented for the stool. The 1st to 3rd Respondents have pleaded facts that raise issues which threaten the position of the Ruling House they represent, and which consequence they regard as a violation of the rights of that Ruling House. By these averments, I find that the said Respondents, in their representative capacity for themselves and on behalf of the Agbodemu-Alake Ruling House of Agbeke are eminently qualified to institute this action. They have shown by the averments in their Amended Statement of Claim that they have the standing to sue. The grievances of the Ruling House showing how its rights have been infringed forms the foundation of this action. There is no basis on which the Appellant can reasonably argue that the facts averred to by the 1st to 3rd Respondents do not bear out their locus standi. I therefore come to the irresistible conclusion that the 1st to 3rd Respondents have clearly pleaded facts in their Writ of Summons and Statement of Claim which show how their interest has been adversely affected, as well as the dispute between themselves and the Appellant, 4th 5th and 6th Respondents, (being the 1st 2nd 3rd and 4th Defendants at the lower Court). Consequently, the inevitable conclusion that I must reach is that the 1st to 3rd Respondents herein have disclosed in their Amended Statement of claim sufficient legal interest, thereby and a fortiori, they have the requisite locus standi to maintain the action against the said Defendants at the lower Court. I do so find.

Before concluding on this issue, it is imperative to address the reference made by both learned Counsel to the Unreported Appeal No. CA/IL/15/07 Ode V Odofin Oba-in-Council decided by this Court on 11th June, 2008. The said Judgment did not in any way find that a party had locus standi to commence an action prior to the appointment of the Oba by the Governor of Kwara State. The Appellants in that case were challenging the “selection process” conducted by the kingmakers, the Oba-in-Council, and the issue was whether they possessed the requisite locus standi having not paid the deposit of N10, 000. 00 in compliance with Section 15 (1) of the Chiefs Law. It should be noted that the Governor, in that case, was yet to formally appoint the candidate in pursuance of his powers under Section 3 of the Chiefs Law, when the parties went to court to challenge the process of the emergence of the candidate. Therefore, the challenge of the suit, based on non-compliance with section 15 (1) of the Chiefs Law for failure to pay the deposit, was found to have no basis, on the peculiar facts of the case. This Court therefore held thus:

“…it is evident that the Appellants are challenging the selection process conducted by the Oba-in-Council which threw up the yet respondent as the candidate for appointment as Chief of Idofin Igbana. It is their position that selection to the stool is by rotation and presently, it is the turn of the lie Olowu family in Odo-Eru Ruling House to produce the Oba of Idofin Igbana… Since, as aforesaid, the cause of action is to be gleaned from the claim of the Claimants, it is quite obvious that what is being challenged in the claim at the lower court is the selection process by the Oba-in-Council of a candidate for the stool of the Oba of Idofin Igbana. It is this process of the emergence of the candidate that is under challenge in the suit at the lower Court and not the validity of the candidate appointment as Oba by the Governor or the Appointing Authority. Visibly, from the Statement of claim, that bridge was vet to be crossed at the time the suit was filed. Since that is so, the application of Section 15(1) of the Chiefs (Appointment and Deposition) Law to the case was, in my opinion, hasty, untimely and premature… There is no doubt that the Law vests the power to grade the offices of the chiefs on the Governor, and in pursuance of that the Governor did go on to grade the category of chiefs as set out in the said Legal Notice. However, the grading of the stool or chieftaincy of an area must be distinguished from appointment to that graded stool/chieftaincy. Indeed, the wordings of Section 5 of the Chiefs Law erase any such ambiguous and hazy application of the Law. For the avoidance of doubt, it provides thus:

5. The Governor may grade the office of a head chief as first, second or third class, according to the size and importance of such office. (Underlining supplied for emphasis).

It therefore follows that the grading by the Governor is the grading of the office and not of the person occupying the office. Same cannot be equated to appointment into the office of a chief as prescribed by Section 3 of the Law. Consequently, it is my view that, the fact that the office of the Odofin of Idofin Igbana has been graded as a fourth class chief by the Legal Notice No. 14 of 2005, does not by itself without more require compliance with Section 15(1) of the Law by any person seeking to challenge the selection process of a candidate to the stool. The stool was evidently graded in 2005, (as published in the said Legal Notice No. 14 of 2005), while the selection process by the Oba-in-Council (who, from the Statement of claim in the record of the lower Court, are the kingmakers or traditional selectors,) now under challenge took place in 2006. (Underlining supplied for emphasis).

This case is therefore not an authority to say that a cause of action in a chieftaincy matter is disclosed even before the processes of selection and appointment are completed. That was certainly not the issue before the Court in that Appeal. Based on all the findings above, issue one is necessarily resolved against the Appellant.

Issue two is whether the Claimants’ /1st to 3rd Respondents’ suit are statute barred. Counsel for the Appellant submission on this is that the Claimants’ suit is statute barred as same is caught by the provisions of the Public Officers Protection Law, Cap. 125 Laws of Kwara State of Nigeria, 1994 and the Public Officers Protection Act, Cap. P14, Laws of the Federation of Nigeria, 2004.

Counsel submits that the rationale behind the principle of limitation of action is based on public policy which enjoins that there should be an end to litigation and that stale demands should not be allowed. I.T.F.Vs N.R.C. (2007) NWLR (Pt.1020) 28 at 61-62.

Counsel submits that from the pleadings, the appointment of the 1st Defendant/Appellant as 4th class Oba of the Agbeku was made on 15th October, 2005 following the nomination and recommendation made by the king makers on 6th August, 2005 to Ifelodun Local Government. Counsel submits that the appointment was made by the Governor of Kwara State vide Exhibit A2 attached to the affidavit in support of Appellant’s motion. Counsel submits that the Governor of Kwara State is a public officer under the provisions of the Constitution of the Federal Republic of Nigeria, 1999. He refers to the 5th Schedule to the Constitution Part 1 paragraph 19, Part II of this Schedule, paragraph 4 thereof and the decision in Ibrahim V Judicial Service Committee (1998) 1 SCNJ255 at 278 – 280, where the term “Public Officer is defined.

Counsel submits that the Governor of Kwara State appointed the 1st Defendant/Appellant as Oba of Agbeku in the exercise of his public/statutory duty as stipulated in Section 7 of the Chiefs (Appointment and Deposition) Law, Cap. 28 Laws of Kwara State of Nigeria, 1994. Counsel submits that since the 1st Defendant is a graded Chief and his appointment was made by the Governor of Kwara State, his appointment constituted the exercise of the powers of a public officer which can only be challenged in court within three (3) months from the date of the exercise of such power. This is in line with Section 2 of the Public Officers Protection Act, Cap. P14, Laws of the Federation of Nigeria, 2004 (which is in pari materia with section 2 of the Public Officers Protection Law, Cap. 135, Laws of Kwara State, 1994).

Counsel submits that from the record before the lower Court, the Writ of Summons was filed on 30th January, 2006, which was a period of three months and five days next after the act complained of by the Claimants herein. Counsel contends therefore, that the Claimants action is statute barred, and he prayed the Court to so hold. He referred to Forestry Research Institute of Nigeria V Gold (2007) 11 NWLR (Pt. 1044) 1.

Counsel submits that the effect of this provision of law on the Claimants’ suit, having been filed outside the statutory period of three months, is that it is not maintainable. He contends that the Claimants’ rights to maintain the suit had since been extinguished and they are only left with a bare and empty cause of action which is not enforceable in law. Counsel submits that the trial Court that entertained same lacked the jurisdiction to do so. He therefore urged the Court to declare the assumption of jurisdiction or arrogation of vires by the trial High Court to itself as null and void ab-initio. Counsel again relies on F.R.I.N. V GOLD (Supra) at 18-19 and Ibrahim V JSC (SUPRA) @ 272 – 273, where the Apex Court held that where a statute provides for the institution of an action within a prescribed period, proceedings shall not be brought after the time prescribed by such statute. Consequently, any action instituted after the period stipulated by statute is totally barred as the right of the injured person to commence the action would have been extinguished by law. Based on these, learned Counsel urged the Court to resolve this issue in favour of the Appellant.

On his part, learned Counsel for the 1st to 3rd Respondents submits that, when dealing with whether a cause of action is statute barred or not, it is essential to determine the precise date upon which the cause of action arose because it is from that date that time will begin to run. He submits that the period of limitation is determined by placing the period when the wrong suffered

by the claimants was committed side by side with the time the Writ of Summons/Statement of Claim were filed. He contends that the Court is enjoined to look only at the Writ of Summons and Statement of Claim and not the Statement of Defence for such a determination. Egbe V Adefarasin (2000) 14 W.R.N. 57; (1981) 1 NWLR (Pt. 47) 1 at 20. Counsel refers to Alao V NIDB (1999) 9 NWLR (pt. 617) 103 at 113, where the Court held that it is wrong in law, for a Court to compute time from a date pleaded in a Statement of Defence which has not been admitted by the Plaintiff. See also UBN Ltd V Oki (1999) 8 NWLR (pt…) 244; Military Administrator, Ekiti State V Aladeyelu (2007) ALL FWLR (pt. 369) 1195 at 1218 – 1219.

In the instant case, Counsel submits that what the Appellant did was to depose to certain facts in an affidavit and supported same with Exhibit A2. Counsel submits that this was a wrong procedure which makes the objection to lack merit. Counsel refers to Ege Shipping & Trading Industries V Tigris International Corporation (1999) 14 NWLR (pt. 637) 70. Counsel therefore prayed the Court to determine whether this suit was statute barred based only on the date pleaded in the Statement of Claim, and place same side by side with the date on which the Writ of Summons was issued. Learned Counsel refers to paragraphs 24, 25, 26 and 27 of the Amended Statement of Claim to contend that no specific date was mentioned as the actual date the appointment of the Appellant was claimed to have been made. He contends that this can only come forth during trial. For this reason, Counsel submits that this objection was not only premature, but ill conceived, and so, should be dismissed.

As an alternative submission, Counsel submits that even based on the date on which, Exhibit A2 at page 77 of the records was written, this case is not statute barred. Counsel submits that time began to run only when the principal of the 6th Defendant, that is, the Governor of Kwara State, ratified the appointment of the 1st Defendant. Counsel therefore contends that, in this instance, it is the letter, Exhibit A2, dated 25th November 2005 that can be referred to as the last straw that completes the cause of action. It was on 25th November, 2005 that the appointment of the Appellant was made public. Counsel argues that the date of accrual could not be 15th October, 2005, the date the appointment was retrospectively said to be effective, because as at that date, the intention of the Governor was not made public. Counsel argues that unless the Claimants are members of staff of the Governor who are able to see a draft of Exhibit A2 in advance, they cannot go to Court until the appointment is signed and released to the public. He contends that to do otherwise would not only be pre-emptive, but would amount to mischief making. Counsel compares this to what Pats-Acholonu JCA, (as he then was), said in Okoro V Okafor (2001) FWLR (Pt. 77) 932 at 940-941 that there cannot be said to have arisen a cause of action when the Governor has not taken any step. Counsel therefore submits that to base the date when the cause of action arose in this case to 15th October, 2005 is to expect the Claimants to take a pre-emptive action which the Court will never allow or condone.

Counsel further submits that time begin to run from 25th November, 2005 when there was in existence the Claimants who could sue and another party who could be sued. UBA Plc V BTL Industrials Ltd (2007) ALL FWLR (pt. 352) 1615 at 1651; Hambe V AG Benue State (2000) 3 NWLR (pt. 649) 419 at 433 & 439. Counsel therefore submits that the lower Court was perfectly in order when it held in its findings at page 130 of the records thus;

“… It is clear that the disagreement between the parties is on the accrual date of the cause of action which with all intent and purposes they would appear was complete upon the receipt of the said letter. (Exhibit A2 by the Applicant). The letter shows the appointment of the applicant, I agree with the Respondent that it was the last step taken in the process of the Applicants appointment which also makes the cause of action to be complete and actionable in court in a suit against the Applicant… I must share the view expressed by the Respondent that the court should make use of the 26/11/05 as that was the date the appointment came to the knowledge of the parties in this case, having regards to all the facts before the Court.”

Counsel submits that by calculation, if the act that gives rise to this action is agreed to have arisen on 26th November, 2005 and the suit was filed on 30th January, 2006, then the action could not be statute-barred as the period in between the two dates was two and months three days which is less than the three months required by Section 2 of the Public Officers Protection Law, Cap. 135, Laws of Kwara State. Counsel therefore prays the Court to dismiss the Appeal on this ground.

The 4th Respondent in his Brief agrees that the Appellant that the operative date of appointment was 15th October, 2005 by the Governor of Kwara State who is a public officer by virtue of paragraph 19 of the 5th Schedule Part 1 to the 1999 Constitution. Ibrahim V Judicial Service Committee (Supra). Counsel submits that the appointment of the Appellant falls within the acts of the Governor which can only be challenged within three (3) months of such appointment. The appointment of the Appellant was made on 15th of October, 2005 by the Governor of Kwara State and this suit was filed on 30th January, 2006. Counsel submits that since three months from 15th of October, 2005 lapsed on 14th of January, 2006, this ousted the jurisdiction of the trial Court to entertain the matter.

On behalf of the 5th and 6th Respondents, it is submitted that the Claimants’ suit is not statute barred, the suit having been filed within the three month period stipulated by Section 2 of the Public Officers Protection Law Cap 135 Laws of Kwara State, 1994. Counsel submits that by the interpretation of Section 2(a) of the Public Officers Protection Law, the Claimants were required to institute their action within three months of when the act or neglect complained of occurred or within three months next after the ceasing of the act, neglect or injury. Counsel contends that from Exhibit A2, which was written on 25th November, 2005, the process of the appointment of the 1st Defendant/Appellant was only completed on the 25th of November, 2005 when Exhibit A2 was issued. Therefore, the date on which the act of the 8th Defendant/Respondent was completed was the 25th of November 2005. Counsel submits that the Claimants could not have instituted an action or taken any step before the issuance of Exhibit A2, because the injury or deprivation of their rights came to their notice on the 25th of November 2005 when Exhibit A2 was issued. Counsel submits that the period between 30th January, 2006, when the Claimants instituted this action, and 25th November, 2005 when Exhibit A2 was issued, was a period of 2 months and 4 days only. Therefore, the suit was instituted within the three months limit specified by the Public Officers Protection Act. Counsel refers to Lasisi Fadare V AG Oyo State (1982) FNLRVol.1 Page 98. Counsel submits that the Claimants could not have instituted this action without the issuance of the Exhibit A2. Exhibit A2 is the only formal official instrument through which the purported appointment of the Claimant/Appellant was made public and made known to the Claimants. Counsel therefore submits that the cause of action accrued on the 25th of November 2005. Counsel urged the Court to uphold the Ruling of the trial Court that this suit was instituted by the Claimants within the three months limitation period provided by the Public Officers Protection Act, and is, for that reason, not statute barred.

It is submitted on behalf of the 7th and 8th Respondents that the evidence on record shows that the appointment of the 1st Defendant/Appellant as 4th class Oba of Agbeku was made on 15th October, 2005, following the nomination and recommendation made by the kingmakers on 6th August, 2005 to Ifelodun Local Government. The appointment was made by the Governor of Kwara State vide Exhibit A2 attached to the affidavit in support of the Appellant’s motion on notice challenging the jurisdiction of the trial Court to entertain this suit. Counsel referred to the record of the lower Court discloses that the Writ of Summons in this case was filed on 30th January, 2006 which was a period of three months and five days next after the act complained of by the C1aimants/1st-3rd Respondents. Counsel therefore contends that the C1aimants/1st-3rd Respondents’ action is statute barred.

Counsel submits further that an action which is statute barred cannot be resuscitated and that when a statute provides for the institution of an action within a prescribed period, proceedings shall not be brought after the time prescribed by such statute. Any action instituted after the period stipulated by statute is totally barred as the right of the injured person to commence the action would have been extinguished by law. Counsel therefore urges the Court to resolve this issue in favour of the Appellant.

In individual replies filed to the 1st to 3rd Respondents’ Brief of Argument as well as the 5th and 6th Respondents’ Brief of Argument, Counsel for the Appellant concedes that the 1st Defendant/Appellant did not file any Statement of Defence in this case. However, he submits that the 1st Defendant filed a motion on notice challenging the jurisdiction of the trial Court to hear and determine the Claimants’ case in line with the provisions of the Kwara State High Court (Civil Procedure) Rules, 2005. He therefore contends that the argument of the 1st to 3rd Respondents in this regard is not relevant. Counsel argues that the cases of Egebe V Adefarasin (2000) 14 WRN 57; (1981) 1 NWLR (pt. 47) 1 at 20 and Alao V NIDB (1999) 9 NWLR (Pt. 617) 103 cited are not apposite to the case at hand.

Counsel further submits that the issue of whether or not the Appellant’s motion on notice challenging the jurisdiction of the trial Court is competent, right or proper had been settled once and for all by the trial Court in its considered ruling of 8th May, 2007 and the 1st to 3rd Respondents herein cannot re-open that issue having not-cross-appeal against the said Ruling. Counsel argued that it is wrong for the 1st to 3rd Respondents to argue this in considering whether the Claimants’ claim is competent or not, the Court must restrict itself to the Writ of Summons and Statement of Claim alone and that the court cannot look at any other materials like the affidavit in support of the motion challenging the jurisdiction of court. Counsel relies on NDIC V CBN (Supra) and Military Administrator, Benue State V Abayilo (2001) 5 NWLR (pt. 705) 19 at 32-33.

Counsel submits further that the affidavit and Exhibit 2 in support of the motion are very crucial and germane in determining whether or not the trial Court has jurisdiction to hear the Claimants. Counsel submits that this is more so since the Claimants concealed these facts in their Writ of Summons and Amended Statement of Claim. Since the Claimants/1st – 3rd Respondents agree that they did not specify the date of appointment of the Appellant as 4th class Oba of Agbeku, nothing is wrong with the Appellant deposing in an affidavit, the date of his appointment by the Governor in order that the Court can compare that date with the date on which the Claimants’ case was filed, i.e. 30th January, 2006. This is so as to come to a decision on whether the Claimants’ action is statute barred or not.

On whether the Appellant’s preliminary objection to the jurisdiction of the trial court is premature or not, Counsel submits that this issue cannot be reargued in this Court as the issue had been finally resolved by the trial court in its Ruling of 8th May, 2007 when it held thus:

“On the authority of MADUKOLU V. NKEMDILIM (1967) 591 @ 589-590, having regard to this court that the application is challenging the jurisdiction of this Honourable Court to entertain this suit. In the even, the application can be filed and/or taken at anytime of the proceeding. That is to say before the completion of pleadings, after completion of pleadings, before trial or even on appeal, see the case of BAMBE & ORS. V. ADERINOLA & ORS (1977) NSCC 1 cited by the learned counsel for the applicant and also N.D.I.C VS.CB.N. (2002) 7 N.WL.R. (PT. 766) 272 held the view that, objection can be taken at anytime depending on what materials are available… ”

Counsel submits that the lst-3rd Respondents did not in any way cross-appeal against this Ruling. They are therefore estopped from complaining against same in this Court.

Counsel submits that since both the Appellant and the 1st to 3rd Respondents agreed that what gave rise to the claim was the fact that the 1st Defendant/Appellant was appointed as 4th class Oba of Agbeku as evidenced by Exhibit A2, the cause of action accrued on 15th October, 2005 on which date, the Appellant’s appointment took effect. Counsel relied on NNPC V Abdulrahman (2006)12 NWLR (Pt. 993) 202, which held that the cause of action generally accrues on the date which the cause of action occurs. Therefore, Counsel submits that the cases of Okoro V Okafor (2001) FWLR (Pt. 77) 932 at 940-941; UBA Plc V BTL Industries Ltd (2007) ALL FWLR (Pt. 352) 11615 at 1651 and Hambe V AG Benue State (2000) 3 NWLR (Pt. 649) 419 at 433 & 439 are not apposite to the case at hand.

Counsel further submits that in limitation law, knowledge of the Plaintiff/Claimant of the date of accrual of a cause of action is immaterial and that a Defendant raising a defence of a limitation law or pleading that an action is statute barred needs not prove that the Plaintiff/Claimant had the knowledge of the alleged wrong complained of. Elabanjo V Dawudu (2006) 15 NWLR (Pt. 1001) 76.

As afore-stated, this next challenge to the competence of the suit before the lower Court is the plea that it is statute-barred. The Appellant has pleaded Section 2 of the Public Officers Protection Law Cap 125 Laws of Kwara State of Nigeria, 1994.Where an action is statute-barred, a plaintiff who would have had a cause of action automatically loses the right to enforce same by judicial process because the time laid down by the limitation law for instituting such an action has elapsed. In the case of Ibrahim V Judicial Service Committee (1998) 1 SCNJ 255 at 272-273, the Supreme court per Iguh, JSC held thus:

“The general principle of law is that where a statute provides for the institution of an action within a prescribed period, proceedings shall not be brought after the time prescribed by such statute. Any action that is instituted after the period stipulated by statute is totally barred as the right of the injured person to commence the action would have been extinguished by law”

See also SPDC V Farah (1995) 3 NWLR (Pt. 382) 148. In deciding whether an action is caught up by a statute of limitation, regard must be had to the time when the right or cause of action accrued to a party. A cause of action has been defined as the facts or set of facts which establish or give rise to a right of action. The cause of action would accrue when it becomes complete such that the aggrieved party can begin and maintain his claim. ITF V NRC (2007) 3 NWLR (1020) 28. In the determination of whether or not an action is statute-barred, the Court looks at the Writ of Summons and Statement of Claim alleging when the wrong, which gave the plaintiff a cause of action, was committed. It then compares that date with the date on which the Writ of Summons was filed. If the date on the Writ is beyond the period allowed by the limitation law, then the suit is statute-barred and the court is without jurisdiction to entertain it. Military Administrator, Ekiti State V Aladeyelu (2007) ALL FWLR (Pt.369) 1195; FRIN v. Gold (2007) 11 NWLR (pt. 1044) 1; Egbe V Adefarasin (1987) 1 NWLR (pt. 47) 1.

There is no gainsaying the fact that the appointing authority in this case was the Governor of Kwara State. By paragraph 19 of the 5th Schedule to the Constitution of the Federal Republic of Nigeria, 1999, the Governor is a public officer. All parties before the Court are ad idem on this, and so nothing will be served by delving extensively into the question of ‘who is a public officer’ as has been done in the Briefs of arguments of the parties, since it is not an issue in contention. The case of Ibrahim V Judicial Service Committee (1998) 1 SCNJ 255 at 278-280 has put that question beyond debate when it defined a public officer as:

“Public Officer: or “Public department” extends to and includes every officer or department invested with or performing duties of a public nature whether under the immediate control of the President or of the Governor of Northern Nigeria or not”

The argument of the Appellant on this issue is that by the Exhibit A2 attached to the affidavit of the Appellant as 1st Defendant at the lower Court, the Governor of Kwara State appointed the 1st Defendant/Appellant as the Oba of Agbeku in the apparent exercise of his duty under Section 7 of the Chiefs (Appointment and Deposition) Law Cap 28 Laws of Kwara State, 1994. By Section 2 of the Public Officers Protection Law Cap 135 Laws of Kwara State, 1994, the appointment, made in the exercise of his powers as a public officer can only be challenged in court within three months from the date of the exercise of that power. Counsel has submitted that by the Exhibit A2, the appointment took effect retrospectively from 15th October, 2005, whereas the Writ of summons was filed on 30th January, 2006. That therefore the suit was statute-barred having been filed three months and five days next after the act complained of. An examination of the said appointing letter indeed confirms that the appointment was given retrospective effect as stated by the Appellant. However, the letter making the appointment was dated 25th November, 2005. The question that has now arisen is, what is the date of the accrual of the action? Is it the 15th October, 2005, the date when the appointment took effect retrospectively, or was it the 25th

November, 2005, the date of the appointment letter The Apex Court has since risen to the occasion to give direction in cases involving such a dilemma, as in the case of Forestry Research Institute of Nigeria V Gold (2007) 11 NWLR (Pt. 1044) 1 at 18, where Mukhtar, JSC held thus:

”I find solace in the dicta of Oputa, J.5.C in the case of Fred Egbe V Honourable Justice Adefarasin (Supra) which is encapsulated thus:

“A cause of action is thus said to be statute – barred if in respect of its proceedings cannot be brought because the period lay down by the limitation law or Act had elapsed. How does one determine the period of limitation. The answer is simply – by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from the witness. If the time of the writ is beyond the period allowed by limitation law then the action is stated barred. ”

By the peculiar facts and circumstances of this case, the date of the appointment of the 1st Defendant has not been specifically stated in the Writ of Summons neither is it contained in the Statement of Claim. However, the Appellant, as 1st Defendant at the lower Court, took it upon himself to exhibit the appointment letter as Exhibit A2 attached to his affidavit challenging the competence of the action at the trial court. This document, (contained at page 77 of the transcript of the records), which is the pivot of this issue, is dated 25th November, 2005 and states inter alia thus:

“APPOINTMENT/GRADING AS A FOURTH CLASS CHIEF

I am directed to inform your Royal Highness that His Excellency the Executive Governor of Kwara State, Dr. Bukola Saraki, in exercise of the powers conferred on him by Section 5 of the Chiefs (Appointment and Deposition) Law, 1994 Cap 28 has approved your Appointment/Grading as a 4TH CLASS Chief with effect from 15TH OCTOBER, 2005,”

I find myself agreeing with the 1st to 3rd Respondents in their stance on this issue. It is evident ex facie that this appointment letter was made on the 25th November, 2005. The Governor, being the appointing authority, exercised his power to give the appointment retrospective effect, as it is his prerogative to do. However, giving the appointment a retrospective effect does not in any way affect the date of the accrual of the cause of action. A cause of action is only said to accrue when there are facts or a set of facts which establish or give rise to a right of action. In the instant case, it is incontrovertible that before this letter was made and/or issued on the 25th November, 2005 by the Governor, the Claimants had no cause to complain that the turn of the Agbodemu-Alaka Ruling House to which they belong, had been by-passed in the rotation exercise of the four Ruling Houses in Agbeke when, (as they claim), it was their turn to nominate and/or present a candidate for the stool of the Oba. The Claimants then had no cause to complain that the person appointed was not a direct descendant of their progenitor, Boogi, and so not a member of one of the four Ruling Houses in Agbeke. In fact, it was only after the issuance of Exhibit A2 that the Claimants’ cause of action ripened and accrued, notwithstanding the fact that the said letter made the effective date of the appointment about three weeks earlier than the pronouncement. To have attempted to file an action before any person was appointed to the stool would have been totally anticipatory and pre-emptive, even bordering on mischief and trouble-shooting. It is only after the appointment of the Appellant had been made to the disputed chieftaincy stool that the set of facts crystallized into a cause of action where there was in existence the Claimants who could sue and the Defendants who could be sued. See UBA Plc V BTL Industrials ltd (2007) ALL FWL (pt. 352) 1615; Hambe V AG Benue State (2000) 3 NWLR (Pt. 649) 419. It was only then that the Claimants had cause to file an action complaining, in line with Section 6 (6) (b) of the Constitution of the Federal Republic of Nigeria, 1999, that their civil rights and obligations had been violated.

In Akibu V Oduntan (2000) 7 SCNJ 189, the Lagos Island Local Government Council acted pursuant to powers conferred on it by the Oba and Chiefs of Lagos Edict, 1975 NO.2 of 1975 in making a chieftaincy declaration in respect of the Eletu-Iwase Chieftaincy stool. The declaration was approved by the Lagos State Executive Council on 7th August, 1980. After that, it was duly registered. When faced with the question of when the cause of action arose, the Apex Court held that same would only arise when there is in existence the entire set of circumstances giving rise to an enforceable claim. The Court held therefore, that where the Chieftaincy Declaration made in respect of the Eletu-Iwase Chieftaincy title was not approved by the Executive Council until 7th August, 1980 (and thereafter registered), the contention made that the cause of action arose on 20th August, 1979 when the Declaration was made, was not tenable. The Apex Court therefore held that it was only after the 7th August, 1980, when the State Executive Council approved the Declaration, that anyone aggrieved by the declaration had cause of action to challenge it.

A replica of this scenario in reverse order was played out in the case of Okoro V Okafor (2001) FWLR (Pt. 77) 932. In this case, which had its origin as a chieftaincy dispute, the Plaintiff, who (it was averred) had been identified and selected to be the Eze of the community by the community, filed a suit wherein he prayed the Court to restrain the Governor from according recognition to the 1st Defendant as the Eze and to restrain him (1st Defendant) from parading himself as the Eze of the community. In its Judgment, this Court frowned at this anticipatory action and held that before an action is commenced in court, there must be a lis inter partes, i.e. an existing controversy between the disputants.

“An action is not taken in vacuo. It will be regarded as atrophy for a person to institute an action in court when there is no controversy.”

The Court held that in a chieftaincy matter, where the law provides a role for the Governor to playas an appointing officer, unless and until he exercises those powers of appointment and recognition, there cannot be said to have arisen a cause of action. It is therefore fortuitous for a party to commence an action of this nature based on mere primordial intuition or apprehension not buttressed or grounded by anything solid or tangible. It is important to repeat extensively here the finding of this Court, as it applies mutatis mutandis to the facts of this Appeal. The venerable Pats-Acholonu, JCA (as he then was), stated thus at pages at 940-942 of the report:

”Now, the core argument of the appellant is that there is no basis at all for the action as the Governor has not done anything in this regard. Now, in the case of AG ANAMBRA STATE V OKAFOR (1992) 2 NWLR (Pt. 224) 396 at 418-419 which is a chieftaincy matter, the Supreme Court per OMO, JSC said:

“Once the Governor has exercised his executive power of recognition under section 5 of the aforementioned law, any person who feels his rights are infringed thereby can take action in the High Court which is exercise of his jurisdiction under section 236 of the constitution is empowered to entertain same. The implication of this is that there cannot be said to have arisen a cause of action when the Governor has not taken any step. It is my view that it is fortuitous for a party to commence an action of this nature based on mere primitive instinct of fear not buttressed or grounded on anything concrete.”

In this case before us, the Governor has not as yet exercised his statutory power of according recognition. The matter was very much on the table. What then is the reason for the institution? It is said to be fear… It is easily noticeable that the action was pre-emptive, intended to tie the hand of the Governor in the most ignoble manner, indeed to prevent him from exercising his statutory powers. It was rash and I daresay inordinate. There was no cause of action as far as I am concerned. The Respondents should have waited for the Governor to take action… In my view, the action is obviously incompetent. In effect, the action ought not to have been instituted at all. ”

Therefore, a person can only go to court where there has been an infraction of his right or an imminent infraction of that right. If that were not so, busybodies and malcontents would simply embark on adventurism, filing actions in court on non-existent controversies and where there is no lis inter partes.

Consequently, based on the facts of this case and the law, I find no reason to fault the finding of the trial Court on this issue. The findings of fact made by the Court below on this issue are consequently affirmed. The cause of action accrued on the 25th November, 2005 when the letter of appointment appointing the Appellant as the Oba of Agbeke was made, issued and published by the Governor of Kwara State. The suit filed by the Claimants/1st to 3rd Respondents challenging this appointment on 30th January, 2006, having been filed within the three month period provided by the Limitation Law, is not statute-barred, and I do so find.

The third issue questions whether the Claimants’ (now 1st to 3rd Respondents), payment of the N10, 000.00 non-refundable deposit after or subsequent to the filing of this suit contravenes Section 15 (1) of the Chiefs (Appointment And Deposition) Law, Cap. 28 Laws of Kwara State 1994, and whether the non-consideration by the learned trial Judge of the Atolagbe V Awuni case in this regard resulted in a miscarriage of justice to the Appellant. Counsel for the Appellant submits that the Claimants did not follow and/or observe the pre-requisite conditions precedent to enable them institute this action so as to clothe the trial Court with the competence, power, and/or jurisdiction to hear, entertain and determine the suit. Counsel submits that Exhibit A2, which is self explanatory ex-facie, shows vividly that it was the Governor of Kwara State that approved the appointment of the 1st Defendant/Appellant as the Oba of Agbeku in Ifelodun Local Government of Kwara State. Counsel argues that the law is that any person who intends to challenge the validity of such appointment must comply with the provisions of section 15 (1) of the Chiefs (Appointment & Deposition) Law, Cap.28, Laws of Kwara State, 1994 before he can validly maintain and/or institute a suit to challenge same. Counsel contends that there is no averment in the Statement of Claim to the effect that the Claimants had deposited the sum of N10, 000.00 with the Kwara State Accountant General before instituting this suit. Counsel submits that the failure on the part of the Claimants to comply is fatal as it renders their suit incompetent. Aribisala V Ogunyemi (2005) 2 S.C.N.J. 18; Atolagbe V Awuni (1997) 7 S.C.N.J. 1 at 18; Counsel submits that the failure of the Respondents to meet the condition precedent spelt out in S.15 (1) (supra) has made their suit incompetent and has divested the trial High Court of jurisdiction to hear and determine this matter. Mobil Producing Nig. V LSEPA (2001) 0 8 NWLR (Pt. 715) 489 at 501; Shugaba V UBN Plc (1999) 11 NWLR (Pt. 627) 459 at 478; Omaliko V Awachie (2002) 12 NWLR (Pt.780)1 at 26.

Counsel submits further that a Court can only be competent to assume jurisdiction to hear and determine a suit when the case before the court is initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of the jurisdiction of the trial court. Counsel contends that in the instant case, the action was not initiated upon fulfillment of the conditions precedent to the exercise of the jurisdiction of the trial court; to wit, instituting the action within three months of the accrual of the cause of action. Counsel therefore argues that the defect in the competence of the trial High Court is fatal because the proceedings will be nullity however well conducted and decided, the defect being extrinsic to adjudication. ITF V NRC (2007) (Supra) at 65; F.R.T.N. V. GOLD (Supra) at 18-19; Madukolu V. Nkedilim (1962) ALL NLR 591 at 589 – 590. Counsel prays the Court to resolve this issue in favour of the Appellant because issue of jurisdiction is more than a mere technicality and is not synonymous to mere technical justice.

On this matter, the 1st to 3rd Respondents argue that the issue whether the payment of N10, 000.00 non-refundable deposit after the filing of the action under section 15(1) of the Chiefs (Appointment and deposition) Law of Kwara State 1994 is a procedural irregularity as opposed to a violation of a substantive law which deprives the lower Court of jurisdiction. Counsel submits that the provision of section 15 (1) of the Law requiring the payment of a N10, 000.00 non-refundable deposit fee against a graded stool is not a substantive law but a procedural law, and therefore, a violation of same is peripheral in nature and curable. Counsel submits that any irregularity that may occur is not fatal nor can it deprive the Court of jurisdiction over the case. He referred to N.V. Scheep V MV. S. Araz (2001) FWLR (Pt. 34) 543 for the distinction between “adjectival law” and “substantive law”. See also Mobile Producing (Nig) Unlimited V Lasepa (2003) FWLR (Pt.137) 1027 at 1052 – 1053. Counsel submits that in this case, the Claimants filed their suit on 30th January, 2006 at Omu-Aran High Court Registry. In response to the Appellant’s motion on notice praying for the dismissal of the Claimants’ suit for non-compliance with Section 15(1) of Chiefs (Appointment and Deposition Law of Kwara State, the Claimants, in paragraph 6 of the Counter affidavit deposed to the fact that the said money had been paid, and a receipt marked Exhibit 1 was thereto attached. The date on the said receipt was 17th February, 2006, meaning that the non-refundable deposit was paid after the filing of the said suit in Court. Counsel submits that the charging of fees against a party wishing to institute any action in respect of a chieftaincy dispute pertains to practice and procedure which makes the failure to pay the prescribed fees before filing the action, a procedural irregularity which the Claimants ought not to be penalized for, especially when the said sum was eventually paid even before the issuance of the Writ of Summons.

Learned Counsel likened the provision of Section 15(1) of the Chiefs (Appointment and Deposition) Law of Kwara State to the provision of the Electoral Law which provides that security for costs be given by a prospective petitioner before he can validly bring a petition; or the payment of filing fees in cases before the regular courts. Counsel relies on Bank of the North Ltd V Adehi (2003) FWLR (pt. 137) 1135 and Shinowo V Shinowo (2005) ALL FWLR (Pt. 281) 68 at 1719. Counsel submits that in Nwobodo V Onoh (1984) 1 SCNLR I at 23-24, the Court held that the non-deposit of security costs simultaneously at the time of filing the petition was a mere irregularity and does not affect the jurisdiction of the court to try the petition. Again, in Atolagbe V Awuni (1997) 7 SCNJ 1; (1997) 9 NWLR (pt. 522) 536 at 563, Uwais, CJN, (as he then was), held that the provisions of Section 15 of the 1988 Edict do not constitute substantive law but are procedural or adjectival. The Court stated that the law applicable to practice and procedure of a court is an adjectival law and so the payment of fees to institute an action is procedural. Counsel further refers to the decision of Tobi, JCA, (as he then was), in Ezegbu V F.A.T.B. Ltd (1992) 1 NWLR (pt. 220) 699 at 722-723 where he postulated that although Rules of court are meant to be obeyed, their obedience cannot or should not be slavish to the point that the justice of the case is destroyed or thrown overboard.

Counsel submits further that the suit was filed on 30th January, 2006 and the non-refundable deposit of N10, 000.00 was paid on 17th February, 2006. The application to sue in a representative capacity, (being the first step to be taken by the Claimant), was moved and granted on 2nd March 2006 and the Writ of Summons was not issued until 2nd March, 2006. Counsel submits that this in essence means that, before any further step was taken, the prescribed deposit of N10, 000.00 was paid by the Claimants. This, Counsel submits, had cured the procedural irregularity in the filing. Counsel refers to the pronouncement of Achike, JCA in Vulcan Gases Ltd V Okunlola (1993) 2 NWLR (pt. 274) 139 at 155, where the learned Jurist opined that a procedural defect is not always fatal. A distinction should be drawn between where proceedings are procedurally irregular and they can be cured by making good the defect, in contradistinction to where the proceedings are a nullity and therefore incurable. Counsel further submits that the time of payment in this instance is immaterial since what is important is the assurance that the sum is paid by a litigating aggrieved party. He supports this submission by the Judgment of the Supreme Court per Uwais CJN, (as he then was), in the locus classicus case of Atolagbe V Awuni (1997) 9 NWLR (pt. 522) 563, where the learned Jurist explained that the import of Section 15 of the Limitation Edict of 1988 is that a right to sue exists but that the exercise of the right is dependent on the payment of a non-refundable deposit of N10, 000.00.

Counsel therefore prays the Court not to be swayed by the argument of learned Counsel to the Appellant as to be so persuaded is to uphold technicalities above justice, which the courts, on several occasions, have frowned at. Counsel submits that the trial Court was perfectly in order when it refused to accede to the request of the Appellant to strike out this case when the payment of the N10, 000.00 non-refundable deposits was effected even before the issue was raised by the Appellant. He posits that the learned Judge of the lower Court was right to have turned down the Appellant’s application, as to do otherwise would have denied the case from been heard on its merit. Duke V Akpabuyo Local Government (2006) ALL FWLR (Pt. 294) 559; Inakoju V Adeleke (2007) ALL FWLR (pt. 353) 3 at 119-120; Famfa Oil Ltd V AG Federation (2003) FWLR (pt. 184) 195; (2003) 18 NWLR (pt. 852) 453 at 471-472; Jadcom Ltd V Oguns Electricals (2003) FWLR (Pt. 183) 165 at 192.

Learned Counsel for the 4th Respondents, on his part, submits that since requisite payment of N10, 000.00 was not made before the commencement of the suit, same was incompetent. Aribisala V Ogunyemi (2005) 2 SCNJ 18; Atolagbe V Awuni (1997) 7 SCNJ 1 at 18. Counsel therefore submits that having failed to comply with the condition precedent before instituting the action, the trial Court lacked jurisdiction to entertain same. Owoseni V Joshua Faloye (2005) 14 NWLR (Pt.719); SALEHV MUNGUNO (2003) 1 NWLR (pt.801) 221.

The 5th and 6th Respondents made no submissions in their Brief of Argument on this issue. However, the 7th and 8th Respondents had plenty to say. The fulcrum of their submissions is that where any person intends to challenge the appointment of a person as a chief who was approved by the Governor or appointing authority, such a person shall first deposit with the State Accountant General, a non refundable sum of N10, 000.00 only. Section 15(1) of the Chiefs (Appointment & Deposition) Law, Cap 28, Laws of Kwara State, 1994. Counsel contends that in this case, there is no averment in the Claimants’ Statement of Claim to the effect that the Claimants had deposited the said sum before instituting this suit as required by the law. Counsel therefore submits that failure on the part of the Claimants to comply with the provisions of section 15(1) renders their suit incompetent. See Aribisala V Ogunyemi (2005) 2 SCNJ 18. Counsel submits that the provisions of section 15(1) are clear and unambiguous on the pre-requisite conditions precedent to be followed before a court can hear, entertain and determine any suit challenging the appointment of a person as a chief approved by the Governor. Counsel contends that the action was not initiated upon fulfillment of the condition precedent to the exercise of the jurisdiction of the trial Court. He therefore prayed the Court to resolve this issue against the 1st to 3rd Respondents.

It is the law that where a statute or the rules of court prescribe a condition precedent to the assumption of jurisdiction, that condition precedent must first be fulfilled before there is jurisdiction. Ezegbu V F.A.T.B. Ltd (1992) 1 NWLR (Pt. 216) 197; Madukuolu V Nkemdilim (1962) 2 SCNLR 341 at 348. A case must therefore come before the court only when initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. In this vein, Section 15 (1) of the Chiefs (Appointment and Deposition) Law Cap 28 Laws of Kwara State, 1994 provides:

Where the Governor or appointing authority has approved the appointment of a person as a chief, any person who intends to challenge the validity of such appointment shall first deposit with the State Accountant-General, a non refundable sum of Ten Thousand Naira only.

The Supreme Court in Chief Obaba V Military Governor, Kwara State (1994) 4 SCNJ (Pt. 1) 121, when considering the Chiefs (Appointment and deposition) Law of Kwara State Edict NO.3 of 1988, which is in pari materia with Section 15 of the Chiefs (Appointment and Deposition) Law of Kwara State now under consideration, held thus per Belgore, JSC (as he then was):

”Section 15 of the Chiefs (Appointment and Deposition) Law of Kwara State is a condition precedent for litigating on chieftaincy matters in Kwara State and it relates only to fees to be paid… All that the N10, 000.00 is for is to have access to the court to be heard. It is a different thing if once the access is thus procured for the court to have jurisdiction to look into the cause or matter. No action could be filed without the payment of a fee and it is after an action is filed that the preliminary issue of jurisdiction can be raised.

The facts of the instant case disclose that the Claimants at the lower Court filed this action on the 30th January, 2006 at the Omu-Aran High Court Registry without having paid the requisite deposit of N10, 000.00 to the Accountant General. Shortly after that, precisely on the 17th February, 2006, the Claimants proceeded to pay this deposit in purported compliance with Section 15 (1) of the Chiefs Law. The question that has arisen now is whether the payment of the N10, 000.00 non-refundable deposits after or subsequent to the filing of this suit contravenes Section 15 (1) of the Chiefs (Appointment and Deposition) Law, Cap. 28 Laws of Kwara State 1994. There is no question that the deposit was paid after the suit had been filed in Court. It is therefore beyond argument that there was strictly speaking, to that extent, a non-compliance with the law. The law provides that the deposit be made even before the suit is filed. However, by the admission of the 1st to 3rd Respondents, this deposit was paid after the suit had been filed. The Appellant argues that the failure of the Respondents to meet the condition spelt out in Section 15 (1) of the Law is fatal, has made the suit incompetent and divested the trial Court of jurisdiction to entertain the matter. The 1st to 3rd Respondents argue that the payment of the deposit after the filing of the suit amounted to a mere procedural irregularity which is curable, as opposed to a violation of a substantive law which deprives the court of jurisdiction.

That having been said, one of the main issues considered by the Supreme Court also in the case of Atolagbe V Awuni (Supra), is whether the payment of the non-refundable deposit to the Government before filing a Chieftaincy suit in Kwara State partakes of the nature of a filing fee, and whether it constitutes a hindrance or inhibition to the right of access to Court. In a majority verdict, (with Ogundare, JSC dissenting), Uwais, CJN (as he then was), stated thus at pages 18-19 of the report:

”It is common ground that by providing that a non-refundable sum ofN10, 000.00 should be deposited by a prospective plaintiff in a chieftaincy dispute in which the Government of Kwara State or any of its agencies is intended to be a part, the Edict has imposed a condition. All the parties in presenting their cases and also the courts below have regarded the ”condition” as “condition precedent” which is a term of art… From the foregoing it is clear that there is a difference between a “condition” and a “condition precedent”. A careful reading of section 15 of the 1988 Edict convinces me that the provisions thereof are not saying that the right to sue does not exist because they talk of a person that “intends to challenge the validity of an appointment” and ”person that has been aggrieved”. The import of the provisions of the section is that a right to sue exists but that the exercise of the right is dependent on the payment of a non-refundable deposit of N10, 000. 00. I will therefore refrain from referring to the condition imposed by the Edict as a ”condition precedent”.

My Lord went on:

”Now in my view the provisions of section 15 of the 1988 Edict do not constitute substantive law but are procedural or adjectival. The law applicable to practice and procedure of a court is an adjectival law. The payment of fees to institute an action is procedural. ”

The Apex Court then went on to liken the requirement of deposit in the Chiefs Law to the payment of fees for the filing of ordinary suits, or suits under the Companies and Allied Matters Act, or fees in matrimonial proceedings or non-contentious probate fees. The Court also likened it to the payment of fess before the filing of election petitions.

Again, in NV Scheep V MV “S. Araz (Supra) at page 577, Ogundare, JSC makes the distinction between procedural/adjectival law and substantive law. He postulates that “adjectival or procedural law”

“… basically prescribes the method of enforcing rights or obtaining redress for their invasion. It is essentially rules of court, whether civil- criminal or appellate. Laws which fix duties, establish rights and responsibilities among and for persons- be they natural or corporate – are known as substantive laws. But those which merely prescribe the manner in which such rights and responsibilities may be exercised and enforced in a court are adjectival or procedural laws. ”

It is therefore apparent that the failure to comply with the relevant rules of court and statutes for the payment of these fees would deny a party access to the Court. To my mind the issue that must now be addressed is whether the delay of the Claimants in paying the deposit of N10, 000. 00 renders the suit before the Court incompetent in view of the findings of the Supreme Court in Atolagbe V Awuni (supra). With the greatest respect to the learned Counsel for the Appellant, I am quite unable to align myself with the position taken by the Appellant on this issue and to lean on the side of what” to me is technical justice as opposed to substantial justice. While it is true that the provision pertaining to the payment of the deposit is contained in a statute, the Chiefs Law, and amounts to a condition precedent to the filing of the action, the provision is the creation of a procedural or adjectival law. It only sets out the procedure by which litigants may approach and so gain access to the courts. Without wishing to play down the efficacy of such procedural laws, they are in the nature of rules of court which prescribe for the payment of fees in order to gain access to courts. The payment of fees to institute any action in court is procedural. I therefore take the view that the prescription of the fees to be paid in instituting any action based on a chieftaincy dispute pertains to practice and procedure. Atolagbe V Awuni (Supra). I am fortified in this position by the fact that slavish obedience to procedural rules to the point where the justice of the case is thrown overboard is now antiquated. The greater barometer, as far as the public is concerned is whether, at the end of the litigation process, justice has been done and been seen to be done to the parties. Impeding access to justice by litigants should be discouraged, and where it is at all possible to remove such obstacles without doing violence to the law, that option should be preferred. As my learned Lord, Niki Tobi, JSC put it very picturesquely yet faultlessly in Ezegbu V F.A.T.B. Ltd (Supra) at pages 722-723:

“Therefore, if in the course of doing justice some harm is done to some procedural rule which eventually hurts that rule, the court should be happy that it took that line of action in pursuance of the justice. This Court and indeed any other court for that matter cannot myopically or blindly follow rules of procedure and fall into a mirage and get physically and mentally lost No, that is not the proper thing to do. It is wrong.

In striving to do substantial justice, I again borrow a leaf from this Court in the action it took in the case of Vulcan Gases Ltd V Okunlola (1993) 2 NWLR (Pt. 274) 139 at 155. In considering whether a suit was incompetent on the ground that the requisite power of attorney was not obtained before the suit was filed, Achike, JCA (as he then was), held thus:

“It cannot be said that the trial court in this case now on appeal was incompetent because of the incapacity of the respondent in not having obtained the power of Attorney at the time he sued. Since the court was otherwise competent, its proceedings were not rendered a nullity. It was no doubt assailable on the ground of procedural irregularity in the conduct of the trial. But a procedural defect is not always fatal. Often it may turn out that the defect in procedure is waived, as may be the case where the defect is minor or trivial. The opposing party may, if he so desire, launch an attack on procedural irregularity. Such was the attack launched on the proceedings by the appellant when it challenged the capacity of the respondent in its counter-affidavit. The attack was timeously checkmated by the respondent by filing the power of attorney, five days thereafter, and before the trial commenced to adjudicate on the matter. Such checkmate would not have availed the respondent if the court were not competent because the entire proceedings would not just have been rendered irregular but a nullity. It follows that where proceedings are procedurally irregular they can be cured by making good the defect in contradistinction to where the proceedings are a nullity and therefore incurable. It follows that the procedural defect in commencing an action by a plaintiff without being armed with the power of attorney could be regularized by subsequent execution of the plaintiff… To hold otherwise is to succumb to the allurement of technicalities. The current weight of judicial authorities predominates in favour of the courts doing substantial justice rather than relying on technical rules. Undue reliance on technicalities is today frowned upon as not being in the interest of justice. ”

In the instant case, even though the Writ of Summons was filed on the 30th January, 2006, same was not issued by the Court until 2nd March, 2006 when the Court granted an application for the Claimants to institute the action in a representative capacity. However, even before then, the Claimants had discovered their oversight and had proceeded post-haste to pay the deposit of N10, 000. 00, in compliance with the Chiefs Law on the 17th February, 2006. This therefore served to cure the irregularity in filing even before the Writ was issued. It is difficult to see what harm has been done to the Appellant by this failure to pay the deposit immediately upon filing, and it is significant that no prejudice has been pleaded. Courts these days lean on the side of saving proceedings in court so that they can, as much as possible, be heard and determined on their merits. The days of trial by ambush, technical justice and/or judgment given in default are long since gone. Therefore, where a party files process or takes steps which are likely to cure a procedural irregularity, the courts are presently more inclined to allow such process to be regularized so as to carry on with the business of determining the suit on its merit. This was the view of the Supreme Court in the case of Duke V Akpabuyo Local Government (2006) ALL FWLR (Pt. 294) 559 at 570 where Pats-Acholonu, JSC delivering the lead Judgment of the Apex

Court opined thus:-

“Over reliance on a technical slip or mistake should not play a part in seeking the enthronement of justice The empirical element in adjudication is to render justice that has the face and character of humanness and is in accord with ethics. By this, the law is fashioned out to do what is conceived to be, i.e. to give people their due recompense or reward for which the court is called upon to do in its adjudicatory process and not resort to process that might give the wrong-message of being neither egalitarian non comprehensible.”

With the greatest respect, I chose to toe the line of substantial justice in keeping with the stance of this Court as very ably and aptly described by Ikongbeh, JCA (of blessed memory) in Dagogo V AG Rivers State (2000) FWLR (Pt. 131) 1956 at 1983 thus:

”Justice is a two-way traffic. Just as the defendants are entitled to an opportunity to present their case, so also are the plaintiffs. We must not lose sight of the fact that chieftaincy disputes are volatile matters. Passions are easily inflamed by these disputes as they all too uncomfortably often have been in the remote and immediate past… For these reason I think we should try as much as possible to avoid unnecessary premature termination of cases on mere technical grounds. Such course of action i.e. prematurely terminating easel invariably brings about unsatisfactory results and lead to unnecessary expenses and disgruntlement. Of course there is no guarantee that the result of a case heard to it’s logical conclusion will not inflame passions. There will, however, then be justification for subduing a disgruntled party who tries to take the law into his own hands. And it is easier to subdue one with genuine cause to complain (a disgruntled person) than one who has (an aggrieved person). A litigant who is thrown out of court empty-handed on a mere technical ground could more genuinely be aggrieved than one whose case has been heard to finality by due process of law, albeit unfavourably to him. Society can with cleaner conscience hold the latter accountable for his unruly behaviors than the victim of a technicality”.

Finally, I am fully persuaded by the wisdom in the timeless words of advice given by the very eminent Jurist, Olatawura, JSC (of blessed memory) in the case of Umukoro Usikaro & Drs V Itsekiri Communal Land Trustees & 12 Ors (1991) 2 L.R.C.N. 541 at 551, where he passionately exhorted:-

”Let no man walk out of our courts disappointed in the administration of justice. He will prefer to lose his case on its merit than to allow his opponent win by default. There is no provision for a walk over in our adversary system”.

It is therefore for these reasons that I cannot see my way clear to interfere with the Ruling of the learned trial Judge when he found at page 172 of the record thus:

“The payment of the sum of money required was made. The issue raised in the affidavit in support was adequately met having regard to the Counter affidavit. And there was no deposition in a further counter affidavit to controvert the claim of the claimants that the money was paid.

Moreover, the Applicant did not show any prejudice he has suffered on account of the disparity in dates on the writ of summons and the receipt of payment, exhibit 1.

The argument on the objection is therefore without ground, and makes the objection to become a mere technicality and without significance.

In the result I find the claimants herein have complied with the condition precedent for bringing an action under the provision of Section 15 (1) of the Chiefs Law of Kwara State. ”

Before concluding this Judgment, a word must be said on the challenge to the competence of the motion on notice at the lower Court from which this Appeal has arisen. It is apparent from the transcribed record of the Court that the issue of whether or not the Appellant’s motion on notice challenging the jurisdiction of the trial Court is competent, right or proper had since been settled by the trial Court in its Ruling of 8th May, 2007. The 1st to 3rd Respondents herein, having not filed a cross-appeal, cannot re-open that issue. Counsel for the 1st to 3rd Respondents has also argued that the Appellant’s preliminary objection to the jurisdiction of the trial court is premature. Again, this issue cannot be re-argued in this Court as the issue had been canvassed and resolved by the trial Court in the same Ruling of 8th May, 2007, when it held thus:

“On the authority of MADUKOLU V. NKEMDILIM (1967) 591 @ 589-590, having regard to this court that the application is challenging the jurisdiction of this Honourable Court to entertain this suit. In the even, the application can be filed and/or taken at anytime of the proceeding. That is to say before the completion of pleadings, after completion of pleadings, before trial or even on appeal, see the case of BAMBE& ORS. Vs. ADERINOLA & ORS (1977) NSCC1 cited by the learned counsel for the applicant and also N.D.I.C VS. CB.N. (2002) 7 N.W.L.R. (PT. 766) 272 held the view that; objection can be taken at anytime depending on what materials are available… ”

I agree with Counsel for the Appellant that since the 1st to 3rd Respondents did not cross-appeal against this Ruling, they are estopped from raising same in this Court again.

Finally, learned Counsel for the Appellant has made heavy weather over the fact that, in the application of the limitation law, knowledge of the Plaintiff/Claimant of the date of accrual of a cause of action is immaterial and that a Defendant raising a defence of a limitation law or pleading that an action is statute barred needs not prove that the Plaintiff/Claimant had the knowledge of the alleged wrong complained of: Elabanjo V Dawudu (2006) 15 NWLR (Pt. 1001) 76, I am of the firm view that the authorities cited in this regard are not relevant, as the facts are not apposite to the facts in the instant case.

In conclusion, in the light of the findings of this Court that the Claimants, (1st to 3rd Respondents,) are possessed of the requisite locus standi to institute this action, the suit is not barred by the Limitation Law of Kwara State and the condition precedent to the filing of this action has been met, I find that the action before the trial Court is both properly constituted and discloses a reasonable cause of action. Having therefore found against the Appellant in all three issues before the Court, this Appeal must fail. It is accordingly dismissed for lacking in merit.

Costs of N30, 000.00 is awarded to the Respondents.

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Other Citations: (2008)LCN/3004(CA)