Abidakun Sunday Gabriel & Ors V. Oladele Ezekiel Babalola & Ors (2016)
LawGlobal-Hub Lead Judgment Report
AHMAD OLAREWAJU BELGORE, J.C.A.
This is an appeal against the decision of the Ekiti State High Court of Justice, sitting at Ido-Ekiti, contained in the judgment of Honourable Justice C. I. Akintayo delivered on the 20th day of January, 2014 in suit No. HIJ/3/2010.
The Appellants; were the 3rd – 6th Defendants/Counter-Claimants at the trial Court, whereas the 1st Respondent was the Plaintiff, who had taken out a writ of summons against the Appellants and the 2nd to 8th Respondents as the Defendants at the trial Court, claiming jointly and severally against them for:
“1. A declaration that the plaintiff is entitled to be nominated as a candidate for stool of the Olu of Ipole Iloro under the native law and customs of Ipole Iloro chieftaincy and the enabling declarations,
2. A declaration that the nomination carried out by the Ekiti Kalesibe ruling house which was forwarded to the Kingmakers contained in the letter dated 31.01.2010 is valid and competent,
3. A perpetual injunction restraining the 1st ? 2nd Respondents or their agent or privies on carrying out any further
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nomination or re-nomination of the 3rd – 6th defendants or other person as the candidate for the stool of Olu of Ipole Iloro,
4. A perpetual injunction retraining the 6th ? 11th defendants from accepting, recognizing and/or taking any other nomination apart from the candidature of the plaintiff as a candidate to repost (sic) of Olu of Ipole Iloro.
The 8th Respondent herein, on the 11th day of February, 2010, entered a conditional appearance, while on 5th day of March, 2010, the 5th to 7th Respondents filed a memorandum of appearance after their application for extension of time to do so was granted by the trial Court. The 5th – 7th Respondents also filed a Notice of Preliminary Objection, the same date, on the following grounds:
1. The Plaintiff did not exhaust domestic remedies available to him before rushing to Court hence the action is incompetent and the Court has no jurisdiction to hear it;
2. The plaintiff has no cause of action or reasonable cause of action against the Defendants and the Court has no jurisdiction to hear the case;
3. The Plaintiff’s action is premature and incompetent and the Court has no
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jurisdiction to hear it;
4. The Plaintiff failed or neglected to give security in the sum of N10, 000.00 at the time of filing this case and so the action is incurably defective, incompetent and this Court has no jurisdiction to hear it;
5. The Plaintiff’s action is an abuse of the Court process and this Court has no jurisdiction to hear it.
The 1st Respondent filed his statement of claim on the 24th day of September, 2010 upon an extension of time within which to file same having being granted wherein he claimed against the Appellants and the 2nd to 8th Respondents herein as follows:-
1. A declaration that the Plaintiff is from or a member of the Ekiti Kalesibe ruling house and as such entitled to the Olu of Ipole-Iloro-Ekiti chieftaincy title;
2. A declaration that the nomination or appointment and/or selection of the Plaintiff as candidate to the Olu of Ipole-Iloro-Ekiti chieftaincy title by the head of Ekiti Kalesibe ruling house accords with the native law and custom of Ipole Iloro-Ekiti on the Olu of Ipole Iloro-Ekiti chieftaincy title;
3. A declaration that the forwarding of the name of the Plaintiff to the Kingmakers by
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the Ekiti Kalesibe ruling house through its letter dated 31st January, 2010, accords with the native law and custom of Ipole Iloro-Ekition, the Olu of Ipole Iloro-Ekiti chieftaincy title and as such vires, valid, legal, lawful, regular and constitutional;
4. A declaration that the order of the Permanent Secretary on chieftaincy affairs ordering and/or mandating the Ekiti Kalesibe ruling house to commence another process of selection without more and notwithstanding the earlier one validly ordered by the Secretary of the Ekiti West Local Government Area of Ekiti State is invalid, illegal, irregular, inconsequential, unlawful and unconstitutional;
5. A declaration that the Olu of Ipole Iloro registered chieftaincy declaration of 13th January, 2010, is defective, illegal, irregular, unlawful, ultra vires, null and void and unconstitutional as it does not represent the native law and custom on the Olu Ipole Iloro- Ekiti chieftaincy title;
6. An order setting aside the 2010 registered declaration since it is otiose and contrary to native law and custom of Ipole Iloro-Ekiti;
7. An order for the installation of the Plaintiff;
8. An order for
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the approval of the selection, appointment and installation of the Plaintiff and presentation to him of the certificate and staff of office by the 9th Defendant;
9. An order of perpetual injunction restraining the 1st and 2nd Defendants, their agents, servants and privies from nominating any of the 3rd – 6th Defendants or anybody at all as candidate to the Olu of Ipole Iloro-Ekiti chieftaincy title, the Plaintiff having been validly, legally, regularly and lawfully nominated;
10. An order of perpetual injunction restraining the Defendants, their agents, servants, and privies from accepting, encouraging and/or recognizing any other nomination or appointment into the Olu of Ipole Iloro-Ekiti chieftaincy save and except that of the Plaintiff now forthwith and henceforth.
The Appellants filed their joint Statement of Defence on the 1st day of February, 2011, having been granted extension of time within which to file same, by the trial Court. In the said Statement of Defence, Appellants, after denying material facts averred by the Plaintiff, counterclaimed as follows:-
1. Declaration that as princes and members of Ekiti Kalesibe ruling house,
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they are entitled to be appointed as Olu of Ipole Iloro-Ekiti;
2. A declaration that the Plaintiff is from the female line of Ekiti Kalesibe ruling house and could only be considered if there are no candidate/candidates from the male line of Ekiti Kalesibe ruling house;
3. A declaration that the purported selection, nomination and appointment of the Plaintiff by the 1st, 2nd and 7th Defendants or any person or persons was not in accordance with the Chiefs Edict and a fundamental breach of Ipole Iloro-Ekiti native law and custom and tradition and therefore null, void and of no effect;
4. A declaration that the 7th Defendant is not a RECOGNIZED HIGH CHIEF since his appointment has not been approved by the Prescribed Authority as required under the Chiefs Edict and can therefore not preside over meetings where there are RECOGNIZED HIGH CHIEFS;
5. A perpetual injunction restraining the 7th Defendant from parading or holding himself up as the head of the Kingmakers in Ipole Iloro until he is RECOSNIZED BY A PRESCRIBED AUTHORITY or appointed as a WARRANT CHIEF for the purpose of the appointment of Olu of Ipole and any.
6. A declaration that
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the State Executive Council Ekiti State can lawfully and validly make and register chieftaincy declarations under the native law, custom and the chieftaincy declaration of 13th January, 2010 is valid and subsisting in respect of Olu of Ipole Iloro-Ekiti chieftaincy;
7. A perpetual injunction restraining the 1st, 2nd, 7th, 8th, 9th, 10th and 11th Defendants from taking any further action in the selection, nomination and appointment of the Plaintiff as Olu of Ipole Iloro-Ekiti until the final determination of this suit.
The 1st Respondent and also 2nd, 3rd & 4th Respondents then filed their replies to Appellants’ Statement of Defence and Counterclaim dated the 7th day of June, 2011 and the 20th day of June; 2011 respectively, while the 8th Respondent, and subsequently, the 5th -7th Respondents filed their respective Statements of Defence dated 20th day of June, 2011 and 18th day of July, 2011.
The 2nd, 3rd & 4th Respondents, by a Motion dated 9th day of October, 2013 and filed on the 11th day of October, 2013, prayed the trial Court for an order striking out both the claim of the 1st Respondent and the Counter- Claim of the Appellants on
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the following grounds:-
1. The Plaintiff and the 3rd-6th Counter Claimants have not exhausted all the local remedies available in law as provided for and stipulated under the Chiefs Law of Ekiti State before coming to Court;
2. The actions of the Plaintiff and the 3rd ? 6th Defendants are premature and hasty;
3. Suits of the Plaintiff, 3rd- 6th Defendants are abuse of Court process;
4. The suits of the Plaintiff, 3rd – 6th Defendants are incurably bad.
Parties filed their respective written addresses, and after hearing submissions from both sides, the trial Court found for the Applicants and held that both the claim and the counter-claim were incompetent, both the claimant and the counter-claimants having failed to comply with the conditions precedent, and that the Court lacked the jurisdiction to entertain the matter.
Dissatisfied, the Appellants filed their Notice of Appeal on the 24th day of February, 2014 containing three grounds of appeal. The grounds of appeal are hereby reproduced, shorn of their particulars:
1. The learned trial judge erred in law when he held Defendants/Appellants’ Counter-Claim and
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Claimant/Respondent’s claim are incompetent in view of the fact that the claimant and the counter-claimant failed to comply with the condition precedent before coming to Court and thereby occasioned a miscarriage of justice.
2. The learned trial judge misdirected himself when he held that the Counter-claim of the 3rd – 6th Defendant was challenging the appointment of Olu of Ipole Iloro Ekiti.
3. The learned trial judge erred in law when he declined jurisdiction to entertain this action in view of the fact that the claimant and counter-claimants did not exhaust local remedies.
In their joint Brief of Argument, the Appellants submitted three (3) issues for the determination of this Court, the issues are reproduced as follows:-
1. Whether the trial Court was not wrong to have held that the Appellants’ Counter-Claim was challenging the appointment of the Olu of Ipole Iloro Ekiti when no such appointment was made. (Ground 2)
2. Whether Appellants’ Counter-Claim was incompetent for failure to comply with the condition precedent before coming to Court. (Ground 1)
3. Whether it was right for the lower Court to have declined jurisdiction
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to entertain the Appellants’ Counter-Claim on the basis that they did not exhaust administrative remedies. (Ground 3)
On the first issue, the Appellants argued that Section 8(1) & (2) of the Chiefs Law of Ekiti State provides for the procedure to fill vacancy in a chieftaincy position, whereas, in this case, same is breached or not followed, there cannot be said to be an appointment. They further argued that by virtue of Section 11B (2) of the Chiefs Law of Ekiti State, where there is no proper approval, an appointment process cannot be deemed complete. They submitted that at the time of the institution of the action, the stool of the Olu of Ipole Iloro Ekiti was vacant and could not have been challenged. They urged this Court to find for them on this issue on the ground that what their counter-claim challenged was nomination and not appointment.
They argued in support of their second issue that the relevant provision of the Chiefs Law of Ekiti State relating to the payment of security for cost does not apply to them since the action was not instituted by them. The provision at best will apply to the 1st Respondent who instituted the action at the
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Court below. They submitted that when the claim in an action fails, the Court is not precluded from proceeding to hear the counter-claim. They referred to Order 17 Rule 11 of the High Court of Ekiti State (Civil Procedure) Rules, 2011.
It was submitted in respect of issue number three that having lodged their complaint before the appropriate authority via their letter of protest to which the 5th – 7th Respondents made a decision via another letter, they had complied with the provisions of the Chiefs Law of Ekiti State before approaching the Court. They argued that even the 2nd – 4th Respondent who alleged the non-compliance that the Court lacked jurisdiction, did not plead any material to support the assertion in their defence.
In the premises, they urged this Court to hold that the trial Court was wrong to have declined jurisdiction to entertain their counter-claim, and on the whole, to allow this appeal.
On the part of the 1st Respondent, his brief of argument was filed on 9th day of February, 2016, raising a sole issue for the determination by this Court and it reads thus:
Whether the lower Court properly, legally and
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regularly declined jurisdiction to entertain the counter-claim of the Appellants. (Grounds 1, 2 & 3)
It was contended for the 1st Respondent that the cause of action before the lower Court arose upon his selection, nomination and appointment as the Olu of Ipole Iloro Ekiti by the 2nd – 4th Respondents and referred to the Appellants’ third relief as contained in their counter-claim where reference was made to appointment of the 1st Respondent by the 2nd – 4th Respondents.
He also noted the definition of appointment expressed by the Appellants at paragraph 4.06 of the Brief of Argument before us. He urged us to resolve that the trial Court was right to have held that the counter-claim was challenging the appointment of the Olu of Ipole Iloro Ekiti and declining jurisdiction to hear same.
The three sets of the 2nd – 4th; the 5th – 7th & the 8th Respondents on their own part submitted three (3) issues each for determination of this Court. The issues are in pari materia with the three (3) issues as formulated by the Appellants. The crux of their arguments being that the Appellant failed and/or neglected to exhaust the local
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remedies as established by the Chiefs Law of Ekiti State, which are conditions precedent before filing their counter claim.
They submitted and urged this Court to hold that the lower Court was robbed of jurisdiction and was right to have declined same.
Finally, the Appellants filed replies on points of law to the briefs filed by the 1st; 2nd ? 4th; and 5th – 7th Respondents’ Briefs, wherein the main contention and submission was that there was no issue of appointment submitted before the lower Court as same never existed under the 2010 Law, it was only lumped together by the 1st Respondent. They conceded that there was confusion in the manner their reliefs were couched and it was what gave the impression that they were challenging appointment and submitted that if there was no appointment, the counter-claim of the Appellants did not offend the relevant provision of the Chiefs Law of Ekiti State.
?They finally submitted that the cases cited by the Respondents are not apposite as neither of them dealt with a counter-claim, they urged this Court to treat this case on its own merit and hold that the payment of security is the sole responsibility
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of a Plaintiff/Claimant to grant him access to Court while a Counter-claim is only filed upon the receipt of the Plaintiff/Claimant’s case.
It was urged that the appeal be allowed and that the decision of the lower Court be set aside.
This judgment will be based on the issues as formulated by the Appellants. The issues formulated by the Respondents can be subsumed into those of the Appellants.
ISSUE NO.1
The argument of the learned counsel for the Appellants, that what the 1st Respondent claimed was with regard to his entitlement to be nominated as a candidate for the stool of Olu of Ipole Iloro Chieftaincy and that that was what the Appellants were claiming in their counter-claim, is grossly misconceived. This argument is not borne out of the pleadings before the lower Court. In the 1st Respondent’s statement of claim, his claims before the lower Court are very clear. See paragraph 37 (a), (g), (h), and (j) of the statement of claim at pages 16 and 17 of the record of appeal. He is also challenging Chieftaincy Declaration of 2010 made by the 5th, 6th and 7th Respondent as it affected his own nomination/appointment.
The issue of
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appointment is very prominent in, and central to, the 1st Respondent’s claims and that was exactly what the Appellants were challenging in their counter-claim. This is made clear by the averments by the Appellants in paragraph 1. (a),(c), and (g) of their counter-claim at pages 40 and 41 of the printed record. This does not detract from the fact that a counter-claim needs not be analogous to the plaintiff’s claim. See OKOLO v. UNION BANK OF NIGERIA LTD, (1998) 2 NWLR (PT. 539) 618 where it was held that:
“The subject-matter of a counter-claim may be of any kind, liquidated or unliquidated (Sic) damages. The plaintiff’s claim may be on contract while the counter-claim may be in tort and the amount of plaintiffs claim may be more or less than the defendant’s counter-claim. It is not necessary for the counter-claim to be analogous to the plaintiff’s claim”.
The Appellants made heavy weather of the fact that the 1st Respondent was not appointed and that he was only nominated. In defining APPOINTMENT, learned counsel for the Appellants stated in paragraph 4.06, page 12 of the Appellants’ Brief of Argument that:
“Appointment is a process that begins
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with nomination, selection, and approval of appointment”.
This is very true and correct as it accords with law and common sense.
Section 11B. (2) of the Chiefs Law of Ekiti State, 2010 provides as follows:-
?Appointment of Oba deemed completed on approval,-
The appointment of a person as a Oba is deemed to have been completed on the date of approval of the appointment by the Executive Council in accordance with the provisions of the Chiefs Law”.
From the tenure of these provisions, it is crystal clear that nomination of a person for the post of a Oba is synonymous to that person’s appointment under the Chiefs Law of Ekiti State, awaiting only the approval of the State Executive Council to be completed. The law does not talk of approval of nomination BUT approval of appointment. This does not derogate from the definition provided by the Appellants in their brief as earlier quoted in this judgment.
?In the instant case the Appellants, by their counter-claim, were challenging the appointment of the 1st respondent as Olu of Ipole Iloro-Ekiti and I have no difficulty in finding that the learned trial Judge was not wrong to have
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held that the Appellants’ counter-claim was challenging the appointment of the 1st Respondent as Olu of Ipole Ilor-Ekiti. To this end, Issue No.1 is resolved against the Appellants and in favour of the Respondents.
ISSUES NOS. 2 & 3
I will treat Issues 2 & 3 together because the two issues are interwoven and are mutually related, Issue No. 1 has to do with the fact of having exhausted all the statutory/administrative remedies provided before approaching the Court; and of having paid the security sum before instituting the counter-claim, while Issue No.2 has to do with the fact that the determination of the matters in Issue No.1 touches on the jurisdiction of the lower Court to entertain the counter-claim.
I must state right from the onset that the issue of jurisdiction is very fundamental in any matter before the Court and that is the reason why the law allows it to be raised at any stage of the proceedings, even on appeal, and by any means. It does not matter how it is raised: it could be by way of motion; it could be raised in a pleading; the law permits it to be raised orally. ?Therefore, the complaint/argument of the Appellants
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that the 2nd, 3rd,and 4th Respondents were wrong to have raised the issue of jurisdiction, as they did, without having pleaded it in their statement of defence, is misconceived and untenable. The ratio in FINNIH v. IMADE (1992) 1 NWLR (pt. 219) 511 @ 537 cited and relied upon by the Appellants belongs to a different keg of fish. It has nothing to do with the issue of how the jurisdiction of a Court is raised. The Supreme Court has given us the correct approach to follow in OWOSENI v. FALOYE [2005] 14 NWLR (PT. 946) 740 @ 758 where it held that – “The question of absence of jurisdiction in a Court to adjudicate on a matter can be raised at any stage of the proceeding and indeed for the first time on appeal. However, before a defendant can raise the matter before evidence is led, material giving rise to the complaint to absence of jurisdiction must be apparent on the face of the Statement of Claim.
Alternatively, the defendant may plead the issue himself…”
This authority also decided that domestic remedies provided by the applicable law must be exhausted and/or the prescribed procedure followed before recourse to Court. In this
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connection, see ARIBISALA v. OGUNYEMI (2005) 6 NWLR (PT. 921), 231 where it was held that in chieftaincy dispute, an aggrieved person who brings a suit must show that he brought his suit only after he had exhausted the remedies provided for or that he has followed the procedure prescribed under the applicable law.
Although, the Appellants claimed to have exhausted the domestic administrative remedies provided by the provisions of Section 11 of the Chiefs Law of Ekiti State, 2010, I find no evidence in support of such claim and in that regard; the counter-claim is incompetent for failure to comply with the condition precedent before instituting same. See also ADESOLA v. ABIDOYE (1999) 14 NWLR (PT. 537) 23, 59; JUBRIL v. KOLAWOLE (1996) 5 NWLR PT. 152) 34, 43-44; AND OBOABA v. MILITARY GOVERNOR OF KWARA STATE (1994) 4 NWLR (PT 336) 26, 40.
With regard to the issue of payment of the security sum as prescribed under Section 11B (1)(a) and (b) of the Chiefs Law of Ekiti State, 2010, this is a condition precedent to the institution of an action in the High Court. The Law provides as follows:-
“11B. (1) Any person who is aggrieved by the appointment
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of another person as an Oba shall within seven days of the date of such appointment institute action in the High Court challenging the appointment.
(a) Any person who intends to institute an action against or challenge such appointment shall give security for-
(i) A sum of twenty-five thousand naira in respect of such action instituted against the appointment in any Local Government headquarters;
(ii) A sum of ten thousand naira in respect of such action Instituted against the appointment in towns other than Local Government headquarters.
(b) Any security given in pursuance of paragraph (a) shall be paid into the High Court at the same time the necessary Court processes are filed?.
The Appellants contended that it was the 1st respondent who instituted the action upon which they have counter-claimed and as such only the 1st respondent was required by the law to furnish security. They laid emphasis on the word INSTITUTE, that they did not institute any action, they only counter-claimed. This submission is absurd, unreasonable and unacceptable to common sense. A counter-claim is a distinct and separate action instituted by the
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defendant in an existing action already instituted by a plaintiff. The defendant is the plaintiff in respect of his counter-claim, while the original plaintiff becomes the defendant to the counter-claim.
This point is made clear by the decision of the Supreme Court in O.O.M.F. LTD v. N.A.C BANK LTD. [2008] 12 NWLR (PT. 1098) 412 @ 428 where it was held that
“When a process is not duly filed before the Court, it does not, in the eyes of the law, exist and as such cannot invoke the jurisdiction of the Court. It is not a matter of procedural jurisdiction as contended by learned counsel for the respondents but of substantive jurisdiction.
In the instant case there is no evidence that the counter-claim was separately paid for by the respondents so as to bring same properly before the Court. On the other hand, the statement of defence was assessed and paid for. It is law that a counter-claim is a separate and independent action which has to be instituted in accordance with the rules of the Court. In the instant case, there is no evidence of any payment for the institution of the counter-claim which, granted that the motion was ordered as prayed,
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which is not conceded, would still have rendered same (counter-claim) incompetent. It is also my view that there being no counter-claim to which the appellants would have filed a defence, it was wrong for the trial Court to hold that no defence was filed to a non-existent counter-claim and that the lower Court was equally in error when it affirmed the decision of the trial Court.” (Underlining and emphasis are mine).
The fact that the Appellants failed to avail themselves, and did not exhaust domestic remedies prescribed by the Chiefs Law of Ekiti State, 2010 before instituting their counter-claim robbed the trial Court the jurisdiction to entertain the counter-claim.
In the light of the foregoing, Issues 2 and 3 are hereby resolved against the Appellants. All the three issue in this appeal having been resolved against the Appellants, this appeal fails and it is accordingly hereby dismissed.
The decision of the lower Court, in Suit No. HIJ/3/2010 and delivered on the 20th day of January, 2014, is hereby affirmed.
Cost assessed at N60,000,00 is awarded in Favour of the 1st to 4th Respondents.
Other Citations: (2016)LCN/8749(CA)
