Abu Adama & Ors. V. Ibrahim Anaja & Ors. (2003)

LawGlobal-Hub Lead Judgment Report

ZAINAB ADAMU BULKACHUWA, J.C.A.

This is an appeal against the decision of Modupin, J., of the Koton Karfe High Court, in suit No. ID/10/83, delivered on the 7/10/96. In the notice and grounds of appeal filed on the 18/12/96 at the Koton Karfe High Court Registry. The parties to the appeal were:

1. Alhaji Adama Abawa
2. Jibrin Mohammed … Appellants
3. Umoru A. Mohammed

AND

1. Ibrahim Anaja
2. Kadiri Oholiko
3. Bassa Traditional Council
4. Bassa Local Government … Respondents
5. Alhaji Aliyu Obaje (Attah Igala)
6. Attorney General, Kogi State

Before the hearing of this appeal, the 2nd appellant Jibrin Mohammed died on the 2nd of December, 1998, and the 1st appellant died on the 18th of July, 1999 and by an application on 21/10/99, which was heard and granted by this court on 24/04/2001, the 1st appellant was substituted by his son Dr. Abu Adama and the 2nd appellant by his son Isa Jibrin in the appeal.

Similarly, by an application filed on the 15/01/01 and heard on the 24/04/01, this court struck out the name of the 2nd respondent Kadiri Oholiko, who died on the 2nd of December, 2000.

The parties in this appeal now are therefore Dr. Abu Adama, Isa Jibrin and Umoru A. Mohammed as appellants on the one side and Ibrahim Anaja, Bassa Traditional Council, Bassa Local Governent, Alhaji Aliyu Obaje (Attah Igala) and the Attorney General of Kogi State as respondents on the other hand.

The 1st respondent filed an application before this court on the 10/02/99 for extension of time within which to cross-appeal against the decision of the trial court, he however, on the 25/04/01, withdrew the said application and it was struck out.

In a writ of summons filed on the 25/04/83, at the Idah High Court, in the then Benue State, Alhaji Adama Abawa as plaintiff claimed against Sule Ogacheko, President Bassa Traditional Council and the Attorney-General of Benue State as defendants the following reliefs:

(a) a declaration that the Ikaka ruling house is one of the ruling houses to the stool of Anaja Gbobe;

(b) that whatever decision was reached by the traditional councilor, Benue State Government, which did not take into account, the evidence or deposition of the incumbent Attah Igala is unjust and null and void;

(c) that the plaintiff now has the turn to be Anaja Gbobe, if reason and good judgment prevailed;

(d) that the purported appointment of Sule Ogacheko and the mode it was done is improper and designed to terminate the plaintiffs rights, candidature and obligations to his family;

(e) an injunction restraining the 1st defendant from parading himself as the Anaja Gbobe;

(f) an injunction restraining the 2nd and 3rd defendants and their agents from recognizing 1st defendant as Anaja Gbobe.

The suit was heard by several Judges and on the creation of Kogi State, it was transferred to Dekina High Court. The 1st defendant in the suit died in 1992 and the 1st respondent in this appeal was appointed the Anaja Gbobe.

Consequently, Jibrin Mohammed and Umoru A. Mohammed as plaintiffs initiated. in suit No. DHC/10/92, before the Dekina High Court, an action against Ibrahim Anaja, Bassa Traditional Council, Bassa Local Government and Alhaji Aliyu Obaje (Attah Igala) as defendants where they claimed the following reliefs:

(a) a declaration that the 1st defendant is not eligible nor is he the rightful candidate to ascend to the stool of Anaza (Ogaku Egbura) Gago of Gbobe having regard to native law and custom.

(b) a declaration that it is the turn of Egbura Ogodo ruling House to nominate candidates to the stool of Anaza (Ogaku Egbura)/Gago of Gbobe;

(c) a declaration that any of the plaintiffs being nominees of Egbwa Ogodo ruling house is entitled to be recommended by the 2nd defendant to the 3rd defendant for approval and/or confirmation as Anaza (Ogaku Egbura) Gago of Gbobe in accordance with the tradition, custom and consensus of Gbobe people and in line with kogi State Government guideline on appointment of Gagos;

(d) an injunction restraining the defendants, their agents servants, privies, representatives or whosoever from recognizing the 1st defendant as Anaza (Ogaku Egbura)/Gago of Gbobe;

(e) an injunction restraining the 4th defendant, their agents, servants, privies, representatives or whosoever from recognizing the 1st defendant as Anaza (Ogaku Egbura)/ Gago of Gbobe.

The two suits transferred to Koton Karfe were eventually consolidated on the 15/10/93 and the parties became Alhaji Adama Abawa, Jibrin Mohammed as plaintiffs and Ibrahim Anaja, kadiri Oholiko, Bassa Traditional Council, Bassa Local Government, Alhaji Aliyu Obaje (Attah Igala) and Attorney-General, Kogi State as defendants.

Pleadings were filed and exchanged and trial commenced and on 07/10/96, the trial court in its judgment declined jurisdiction and dismissed the plaintiff’s claim. The plaintiffs being aggrieved have now appealed to this court on 8 grounds of appeals produced hereunder shorn of their particulars:

1. The High Court misdirected itself in law when it concluded that:

‘In my view the race for the Anaja stool did not just commence yesterday but yester years and to be blunt before 1979 and what is the applicable law?

They are:

(a) The appointment and Deposition of Chiefs Ordinance, 1930;

(b) The Constitution of Northern Nigeria, 1963; and

(c) The Chiefs (Appointment and Deposition) Law 1948; See Governor of Oyo State v. Oba Folayan (1995) 8 NWLR (Pt. 413) 292, (1995) 9 SCNJ 50 at 64-81.

By virtue of section 3(a) of the Chieftaincy (preclusion of courts) ordinance 1948, section 78(b) of the Constitution of Northern Nigeria, 1963 and section 2(2) of the Appointment and Deposition of Chiefs Ordinance, 1930, this court has no jurisdiction over the plaintiffs case.”

Ground 2

The High Court erred in law, in applying the provisions of the Appointments and Deposition of Chiefs Ordinances, 1930, the Constitution of Northern Nigeria, 1963, the Chiefs (Appointment and Deposition) Law 1948 and the Chieftaincy (Preclusion of Courts) Ordinances, 1948, when the historic facts pleaded and the evidence led at the trial predates all the aforesaid laws which have no retrospective effect, even if the cause of action arose before the 1979 Constitution.

Ground 3

The High Court erred in law, in dismissing the plaintiffs/appellants entire claims, when it had jurisdiction to grant same.

Ground 4

The learned trial judge erred in law, in his finding of fact that after Agekpa’s reign as Anaja of Gbobe, the region of Ikaka line became extinct.

Ground 5

The High Court erred in law and facts, when it included the name of Ibrahim Anaja, the 1st defendant/respondent as one of the Anaja’s of Gbobe.

Ground 6

The High Court erred in law, in its findings that the plaintiffs/appellant’s case is not one of trust property.

Ground 7

The High Court misdirected itself in law and was wrong in its finding, that on the whole the plaintiffs/appellants have made a stronger case for the stool being rotated between them and Ameh Aboko/Akor line.

Ground 8

The High Court erred in law for failing to enter separate judgment for each of the consolidated suits.

As is obtained in this court, the parties filed and exchanged their various briefs of argument. The appellants filed their brief on the 26/10/98 and the appellants’ reply brief on the 30/04/01. The first respondent with the leave of court filed his brief on the 05/04/01 and the 3rd – 6th respondent also with leave of court filed their joint brief on the 18/06/01. At the hearing of this appeal, the parties adopted and relied on their respective written briefs.

The appellant formulated the following issues for the determination of this appeal:

1. Whether having regard to the claim of the appellant as couched in their respective amended statement of claim, the learned trial judge was right in holding that the law applicable to the appellant consolidated suits are:

(a) The Appointment and Deposition of Chiefs Ordinance, 1930;

(b) The Constitution of Northern Nigeria, 1963; and

(c) The Chiefs (Appointment and Deposition) Law, 1948; see Governor of Oyo State v. Oba Folayan (1995) 8 NWLR (Pt. 413) 292, (1995) 9 SCNJ 50 at 64.

2. Whether the learned trial Judge having regard to the evidence of tradition or historical facts, pleaded and proffered at the trial, was right to have applied the provisions of the Appointment and Deposition of Chiefs Ordinance, 1930; the Constitution of Northern Nigeria, 1963; the Chiefs (Appointment and Deposition) Law, 1948 and the Chieftaincy (Preclusion of Courts) Ordinances, 1948, when the dates of the historical facts predates all the aforesaid laws which have no retrospective effects.
3. Whether the learned trial Judge was justified in law, when he dismissed the appellants’ entire claim.
4. Whether the learned trial Judge can validly make findings of facts not supported by pleading evidence.
5. Whether the appellants proved the issue of trust of Anaza Chieftaincy stool to entitle them to the relief claimed.
6. Whether the learned trial Judge was correct, when he held that appellants made a stronger case for the rotation of the stool when only the 1st appellant sought for the relief.
7. Whether the learned trial Judge rightly entered single judgment for the consolidated suits.

The first respondent identified the following issues in his brief:

1. Whether in view of the pleadings and evidence before the lower court, that court was correct in holding that it was divested of jurisdiction because the cause of action, arose before 1979, when the applicable laws were:

(a) The Appointment and Deposition of Chiefs Ordinance, 1930;

(b) The Constitution of Northern Nigeria, 1963;

(c) The Chiefs (Appointment and Deposition) Law, 1948.

2. Whether the lower court was correct in entering a single judgment in this matter, which was a consolidated suit.
3. Whether the lower court properly assessed the evidence before it and made correct findings of fact based thereon.

The 3rd – 6th respondents in their brief raised two issues which are produced hereunder;

1. Whether the learned trial Judge was right in his application of the Appointment and Disposition of Chiefs Ordinance and the Chiefs (Appointment and Disposition) Law, 1948, to hold that he lacks the jurisdiction to inquire into and/or determine the appellants suit.
2. Whether the learned trial Judge has the jurisdiction to grant the entire claims of the appellants.

They also in their brief, raised a preliminary objection to the effect that:

(a) Ground 2 of the appeal and issue 2 distilled from it by the appellants are incompetent as they are superfluous, repetitive and subsumed in ground 1 of the appeal and also issue 1 on the appellants brief of argument.

(b) Grounds 3, 4, 5, 6, and 7 of the grounds of appeal and issues 3, 4, 5 and 6, distilled from them are incompetent.

Their grounds of objection are that the learned trial Judge having known or held that he lacks the jurisdiction to determine the suit ought not to have gone into the merits of the case. That the grounds 3, 4, 5, 6, and 7, being grounds based against the finding of facts, made by the learned trial judge, while considering the case on its merit, are incompetent as he lacks the power to do so. Adding further that issues 3, 4, 5, and 6, distilled from these incompetent grounds, are also incompetent, since something cannot be put on nothing putting reliance on two decisions of this court to wit.

Muhammed Bello v. Governor of Kogi State and 2 Ors. (1997) 9 NWLR (Pt. 521) 496 and Colonel Hassan Yakubu (rtd.) v. Governor of Kogi State (1995) 8 NWLR (Pt.414) 386.

Replying to the preliminary objection in their reply brief, learned Counsel to the appellant, contended for the appellant that it is misconceived pointing out that ground 1 and issue 1 distilled from it relates to complaints of misdirection and ground 2 and issue 2 distilled from it complains of error of law, that it is now settled law that, a ground of appeal cannot incorporate complaints of error in law and misdirection at the same time – to do so would be to render the ground incompetent and cited Akuchie v. Nwamadi (1992) 8 NWLR (Pt.258) 214 at 223 ; Godwin Loke v. I.G. of Police (1997) 11 NWLR (Pt. 527) 57.

That the two grounds are not incompetent as they have not breached the provisions of Order 3 rule 2 Court of Appeal Rules. On the other grounds i.e., 3, 4, 5, 6. and 7, submitted that the grounds for the objection are issues for which the 3rd – 6th respondents ought to have crossed-appealed, that the grounds are not rendered incompetent. He pointed out that the cases of Bello v. Governor of Kogi State (supra); and Yakubu v. The Governor of Kogi State (supra) cited by the respondents are not relevant and in applicable to the objection and urged us to discountenance the preliminary objection.

It is trite that a ground of appeal cannot allege an error in law and a misdirection on the facts at the same time where it does so, it is incompetent and is liable to being struck out by the court. See Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718: Anadi v. Okoli (1977) 7 SC 57; Akuchie v. Nwamadi (1992) 8 NWLR (Pt. 258) 214; Akaniwon v. Nsirim (1997) 9 NWLR (Pt.520) 255.

My Lord, Nnaemeka-Agu, JSC, in Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718 at 744-745 on misdirection and error of law said:

“In our system in which the judge is Judge and jury, a misdirection occurs when the Judge misconceives the issues, whether of facts or of law, summarizes the evidence inadequately or incorrectly. See Chidiak v. Laguda (1964) 1 NMLR 123 at 125. He may commit a misdirection either by a positive act or by non- direction. But when his error relates to his finding, it cannot be properly called a misdirection; it could be an error in law.”

I dwelt on the above to shed more light on the difference between a misdirection and an error in law, grounds 1 and 2 and issues 1 and 2 formulated from them though raised in the preliminary objection of the 3rd – 6th respondents were never argued. There is in any case no substance in that leg of the objection it is hereby over ruled.

On grounds 3, 4, 5, 6 and 7, which I had earlier reproduced in this judgment they are all grounds attacking the decision of the trial court.

It is settled law that grounds of appeal must attack the findings or decisions of the trial court. It has been aptly defined by Karibi White, JSC in Egbe v. Alhaji (1989) 1 NWLR (Pt.128) 546 at 590 when he said:

“again the grounds of appeal against a decision must relate to the decision and should be a challenge to the validity of the ratio of the decision.”

However, the objection raised here is not as to their validity, but to the effect that the learned trial Judge having declined jurisdiction in the matter he should not have gone ahead to determine the issues raised in the suit as his decision on them is rendered null.

I am more disposed to uphold the submission of counsel for the appellant that his grounds of appeal are attacking the findings and the decision of the trial court and they are prima facie incompetent. If the 3rd – 6th respondent are dissatisfied with the finding of the lower court who made declarations after having decided that his jurisdiction was ousted, the 3rd – 6th respondents would have in the circumstances of the case cross – appealed against that finding. The objection to my mind is misconceived and unfounded and I hereby over rule and dismiss it.

I will now go into the main appeal. The appellants raised 7 issues in their brief, the 1st respondent raised 3 issues while the 3rd – 6th respondents raised only 2 issues. I had reproduced them earlier in this judgment. The appellant’s first and second issues are identical, issue one relates to misdirection while issue 2 relates to error of law, I will treat them together with issue one of the two sets of respondents in the determination of this appeal. Similarly, issue 7 of the appellants will be treated with issue 2 of the 1st respondent. Issues 3, 4, 5, and 6, of the appellant will be treated accordingly and where relevant with issue 3 of the 1st respondent and 2 of the 3rd to 6th respondents.

On the whole this appeal will be determined on the issues formulated by the appellants for a just determination of all the issues raised by all the parties.

Issues 1 and 2

1. Whether having regard to the claim of the appellants as couched in their respective amended statement of claims the learned trial Judge was right in holding that the law applicable to the appellants’ consolidated suits are:

(a) The Appointment and Deposition of Chiefs Ordinance, 1930

(b) The Constitution of Northern Nigeria, 1963; and

(c) The Chiefs (Appointment and Deposition) Law, 1948 – See Governor of Oyo State v. Oba Folayan (1995) 8 NWLR (Pt. 413) 292, (1995) 9 SCNJ 50 at 64.

2. Whether the learned trial Judge having regard to the evidence of traditional or historical facts pleaded and proffered at the trial, was right to have applied the provisions of the Appointment and Deposition of Chiefs Ordinances, 1930; The Constitution of Northern Nigeria, 1963; The Chief Appointment and Disposition Law, 1948; and the Chieftaincy (Preclusion of Courts) Ordinance, 1948, when the dates of the historical facts predates all the aforesaid laws which have no retrospective effect.

For a better understanding of the issue, I think it will be appropriate at this stage to state the facts which gave rise to this appeal. The appellants before the trial court in their testimony before that court stated that their grandfather Ikaka from Ogeneuwu in Igbirra land, founded Gbobe, when he came on a fishing/hunting expedition and gave it that name and became its first ruler, and his traditional stool was named “Anaja Ogaka Egbira Gbobe”. Ikaka was succeeded on the throne by Ayegba, was succeeded by Ohiemi thereafter, by the son of Ohiemi Ogbaje and thereafter Adekpa.

When Adekpa died, there was no grown up male child from the Ikaka line to succeed him, Okwu Ogodo the grandmother of the appellants then entrusted the performance of the Okuta rites on Ameh Aboko her grandson. The appellants contend that Ameh Aboko is related to them through their female ancestor.

When Okwu Ogodo died, Ameh Aboko went to the then reigning Attah of Igala and told him that his grand mother Okwu Ogodo had before her death, conferred on him the title of Onaja of Gbobe and asked the Attah to bead him. He was not beaded by the Attah, but ordered to return and continue with the performance of the rituals. On his return however, he informed the people that the Attah had made him the Anaja of Gbobe.

On the death of Ameh Aboko, the appellants ancestors demanded for return of their title, but they were unsuccessful and Akor the brother of Ameh Aboko was given the title of Anaja, and beaded by the Attah of Igala, thereafter Attebije, Ogala, Ogacheko, Akpaoala, Akubo, Unwujo, Yakubu, Musa, Sule and Ibrahim Anaja, the 1st respondent, and are all descendants of Ameh Aboko and Akor, who had been rotating the stool amongst them to the exclusion of the descendants of Ikaka. The appellants who are Igbirras, had at every stage of the ascendancy to the stool challenged the appointment of each and everyone of then but to no avail.

The defendant on the other hand, before the trial court, testified that their ancestor, Ameh Ayati came to Gbobe on a hunting expedition with the then Attah of Igala Agekpa. He requested for the land of Gbobe from the Attah and the Attah gave it to him, the land was then uninhabited, and beaded him as the 1st Onu Oja of Gbobe.

After the death of Ameh Ayati, Ameh Aboko was beaded the Anaja and he was succeeded on his death by Akor. That since then, the Chieftaincy of Anaja of Gbobe has been rotated between the descendant of Ameh Aboko and Akor and the last Anaja Sule Ogacheko is from the Akor ruling house, while the 1st defendant/respondent, the newly appointed Anaja is from the Ameh Aboko ruling house.

These are the facts briefly stated which gave rise to this appeal. I will now go into the appeal. As I stated earlier. I will treat the first two issues as formulated by the appellants. It is the contention of the appellants that it is settled law that the relevant enactment applicable to an action or matter is the legislation in force at the time the cause of action arose, that a repeal or amendment of the law after the cause of action had arisen is of no moment. He submits that the learned trial Judge, had misdirected himself in relation to the applicable law, for the evidence of the appellants on which he relied showed that the cause of action arose prior to 1930. That the applicable law therefore, is the law, in force prior to 1930 and not the 1930, ordinance and any subsequent legislation, which have no retrospective effect. For that submission, learned Counsel to the appellants relied on and cited the cases of: Owata v. Anyigor (1993) 2 NWLR (Pt.276) 380; Utih v. Onoyivwe (1991) 1 NWLR (Pt.166) 166; A.-G., Lagos State v. Dosunmu (1989) 3 NWLR (Pt.111) 552; Governor of Oyo State v. Folayan (1995) 8 NWLR (Pt.413) 292; Rossek v. ACB (1993) 8 NWLR (Pt.312) 382; Bello v. Governor of Kogi State (1997) 9 NWLR (Pt.521) 496; Essin v. Edick 4 NLR 99.

It was further submitted for the appellants that, the traditional or historical evidence led by both parties regarding the founding of their respective dynasties, dates back to at a least 1838. The application, therefore by the trial judge of the 1930, ordinance and other subsequent statues, which came into force many years later will amount to a grave miscarriage of justice.

That the principle claims or reliefs sought by the appellants from the trial court is for declarations that the Ikaka ruling house (same as the Egbura Ogodo ruling house, the title chosen by the 2nd and 3rd appellants) is a ruling house to the stool of Anaja of Gbobe chieftaincy and that the remaining claims flow from the aforesaid main reliefs. That these being discretional reliefs though touching on chieftaincy matter did not relate to the selection appointment, recognition etc. of a Chief, the action can therefore not fall within the ambit of the ouster clauses of the 1930 Ordinance or of the 1963 Constitution. He submitted that the trial court having found that the Ikaka Ruling House is one of the ruling houses to the stool of Anaja of Gbobe it had occasioned miscarriage of justice and urged us to intervene and allow the appeal.

It was submitted for the 1st respondent on this issue that from the pleadings of the parties and their evidence adduced before the lower court the cause of action was in existence before 1930, when the Appointment and Deposition of Chiefs Ordinance and other relevant legislation were subsequently made ousting the jurisdiction of the court, and whatever right of action the appellants had became extinguished by 1930. They further argued that the appellant’s cause of action could not have survived the said legislations and the appellants argument that the said legislations were not in existence 100 or 80 years ago when the cause of action arose and to apply them would be to give them retrospective effect could not hold water as by their operation since 1930 they have collectively extinguished the appellants cause of action.

This being so the finding of the lower court that the failure of a ruling house to ascend the stool in dispute for a long time does not disqualify it would still not confer jurisdiction on the court to determine the appellants case in view of the clear provisions of the Depositions Law of 1930.

For the 3rd to 6th respondents it is the submission of their counsel that the cause of action in this matter arose, as per evidence led at the death of Ameh Agodo when there were then grown up male descendants of Ikaka who then asked that the stool be returned to them; pointing out that this was before the 1979 Constitution carne into effect and the applicable laws to the case are properly the 1930 Ordinance and the Chieftaincy (Preclusion of Court) Ordinance, 1948 and the 1963 Northern Nigeria Constitution, which ousted the jurisdiction of the court to hear and determine the matter.

It was also the submission of counsel to 3rd – 6th respondents relying on Ige & Anor. v. Akoju & Ors. (1994) 4 NWLR (Pt. 340) 535, (1994) 4 SCNJ 288, that the conferment over chieftaincy matters on the courts by the 1979 Constitution, cannot and does not give the court the jurisdiction or power to enquire and determine chieftaincy dispute that arose before the coming into force of the 1979 Constitution. He urged us to dismiss grounds one and two of the appeal.

The determination of these issues will involve examining or looking into the issues of jurisdiction and the cause of action based on the claim of the parties before the lower court.

It is the law that the question of whether or not, a court can entertain or exercise jurisdiction in a particular cause or matter will depend on the endorsement of the claim on the writ of summons and the statement of claim. Accordingly, where by the said endorsement, a cause of action is disclosed in law, unless its jurisdiction is ousted by other statutory provisions the court is entitled to entertain and determine such a claim – See Alese v. Aladetuyi (1995) 6 NWLR (Pt.403) 527.

The 1st appellant’s amended statement of claim, claimed the following reliefs from the trial court;

(a) a declaration that Ikaka ruling house is one of the ruling houses to the stool of Anaja of Gbobe:

(b) a declaration that the stool of Anaja of Gbobe is rotational between Ikaka and Ameh Aboko ruling houses;

(c) a declaration that the current Anaja of Gbobe ought to be produced by Ikaka ruling house;

(d) a declaration that the selection and the intended appointment and or approval of the 1st defendant as the Anaja of Gbobe is illegal contrary to native law and custom of the Anaja stool and the people of Gbobe;

(e) an order of injunction restraining the 1st defendant from parading himself and or performing any functions attributable to Anaja of Gbobe;

(f) an injunction restraining the 2nd to 6th defendants from recognizing the 1st defendant as the Anaja of Gbobe; and

(g) an order directing the defendants to accept, recognize and bead the 1st defendant as the Anaja of Gbobe.

The 2nd and 3rd appellants in their amended statement of claim also sought the following reliefs;

(a) a declaration that Egbura Ogodo ruling house, is a ruling house to the stool of Anaja (Ogaku Ebira)/Gago of Gbobe chieftaincy;

(b) a declaration that Ameh Abodo or Akor or Igala Oyimo ruling house is a trustee of the stool of Anaja (Ogaku Egbura)/Gago of Gbobe Chieftaincy;

(c) a declaration that the recommendation and approval of the 1st defendant as Anaja (Ogaku Egbura) and/or Gago of Gbobe by the 3rd and 4th defendants are null and void and of no effect whatsoever;

(d) a declaration that the nomination of the plaintiffs by Egbira Ogodo ruling house of Gbobe conforms with the existing guidelines on the section of Gagos:

(e) an order that the 3rd defendant should consider only nomination of the plaintiffs from Egbira Ogodo ruling house for the vacant stool of Anaja (Ogaku Egbira) and or Gago of Gbobe having regard to native law and custom and existing guidelines on appointment of Gagos, and

(f) an injunction restraining the defendants, their agents, servants, privies, representatives and or whosoever from recognizing the 1st defendant as Anaja (Ogaku Egbira) and/or Gago of Gbobe. From the above statements of claim both sets of parties are claiming from the defendants the right to the chieftaincy stool of the Anaja of Gbobe. Being a chieftaincy matter before the trial court can assume jurisdiction the cause of action must be after the coming into force of the 1979 Constitution as prior to that time the jurisdiction of Northern Nigeria and other legislations.

A cause of action has been defined as a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. Put differently, it is the act on the part of the defendant which gives the plaintiff his cause of complaints – See Okeefe v. Welsh (1903) 2 IRR 718; Letang v. Cooper (1965) 1 Q.B. 232-242; Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669, (1982) 2 SC 325; Bello v. A.-G., Oyo State (1986) 5 NWLR (Pt. 45) 828; Read v. Brown (1889) 22 QBD 128; Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1; Sanda v. Kukawa L.G. (1991) 2 NWLR (Pt.174) 379.

When did the cause of action in this matter arise? The 1st appellant in his testimony before the court at page 44 of the records said:

“While Okwu Ogodo was training Ameh Aboko, there was a shrine called Okwe which a woman does not touch, the woman Okiru Ogodo asked Ameh Aboko to do sacrifice for the shrine as she cannot touch it …

Then Ameh Aboko packed the shrine after the death of the grandmother, because there was no one on the throne because a little child cannot take the title of Anaja and all the male grandchildren were very little i.e., the children of those who had reigned before, were small. Ameh Aboko is a female descent of Ikaka through Okwu Ogodo. After Ameh Aboko packed the stool, he carried all those things to the Attah of Igala then by name Ameh Ocheje and stated that his grandmother had given him the stool before he (sic) died. The Attah of Igala then (Ameh Ocheje) said he should go home and be performing the ceremony, till the male children of this person are grown up. When Ameh Aboko came home he announced himself as the Anaja of Gbobe that Attah has given him the title. The male children of Ikaka by the time they grew up Ameh Aboko had died and they demanded a return of their stool but they refused to give it to us. We are still on the fight…

The testimony of the 2nd plaintiff at p. 73 is also relevant:

“The trouble started after the death of Adepa. Adepa’s sister known as Okwu Ogodo insisted that the younger children of her brothers, should not immediately ascend the throne because the custom of Egbira and Anaza Ogaku of Egbira stool does not allow children to ascend the throne. She then entrusted the performance of the rituals performed by Anaza Ogaku Egbira to her son called Ameh Ayati. Ameh Ayati died before his mother Okwu Ogodo. Okwu Ogodo entrusted the performance of the rituals to her grandson called Ameh Aboko. Ameh Aboko’s father was called Aduku. He was then holding the lineage chieftaincy title of Idah area and that title is Abeko and the greeting of that title is ‘Ebije’ meaning Iron in English. It was during the performance -of rituals by Ameh Abeko that Okwu Ogodo died. Then Akunga Alauze protested against Ameh Abeko and went to Attah to be beaded as Anaza Ogaku Egbira because Ameh Aboko coming from a female line was not entitled to inherit or ascend the throne of Anaza Egbira. The Attah then was Ameh Ocheje. Ameh Ocheje said it would be a disrespect to other Ogodo to stop Ameh Aboko from performing the rituals but after Ameh Aboko, Aikunga’s line which is the male line entitled (Ikaka) to the throne could then come forward to be beaded as Anaza Ogaku Egbira.”

Also relevant is the testimony of the 3rd appellant under cross-examination at page III of the records:

… “Ameh Aboko came to the throne is about (sic) 100 years ago to the throne in dispute and we have all along been contesting the stool in dispute.”

And the trial court in its judgment at p. 261 of the records said:

” … My view the race for the Anaja stool did not just commence yesterday, but yester years and to be blunt before 1979″

The culmination of all the above is that the cause of action in this case arose when Ameh Aboko, a female descendant ascended to the throne as against the male heirs of Ikaka, who were then too small to ascend the throne. From evidence adduced before the lower court this dates back to about 100 years, though the exact time was not pin pointed by either of the parties. What the evidence only showed was that there was a challenge at every stage of ascendancy to the throne of the defendant’s lineage by the lineage of the plaintiffs.

What then would be the applicable law when the cause of action arose. It is quite clear that the dispute was over a chieftaincy matter see in particular the reliefs as claimed by the appellants before the lower court.

The trial court at p. 261 of the records held as follows:

“In my view, the race for the Anaja stool did not just commence yesterday, but yester years and to be blunt before 1979 and what is the applicable law?

They are:

(a) The Appointment and Deposition of Chiefs Ordinance, 1930;

(b) The Constitution of Northern Nigeria, 1963; and

(c) The Chiefs (Appointment and Deposition) Law 1948 – See Governor of Oyo State v. Oba Folayan (1995) 8 NWLR (Pt. 413) 292, (1995) 9 SCNJ 50 at 64 – 81”

The appellants are of the view that the learned trial Judge was wrong to have held so for as they contend that the applicable law is the law in force prior to 1930 and not the 1930 Ordinance or any subsequent legislation, which have no retrospective effect.

I beg to differ with that proposition, I am particularly fortified by the decision of Baker, J., in Essien v. Edick 4 NLR 99 where he said:

“I am satisfied that the Appointment & Deposition of Chiefs Ordinance of 1930, is conclusive and that whatever jurisdiction the courts possessed to declare a Chief of a village or district prior to 1930, has now been ousted by this Ordinance.”

See also Utih v. Onoyivwe (1991) 1 NWLR (Pt.166) 166 where at 205, Bello, CJN, at p. 205 said:

“Since the decision of the privy council delivered on 5th May, 1952. See The Resident of Ibadan v. Lagunju 14 WACA 549, up to 30th September, 1979, when the 1979 Constitution changed the situation by conferring general unlimited jurisdiction under sections 6 and 236, the law had always been that courts of law had no jurisdiction to entertain any question relating to the appointment, approval or appointment. Recognition grading and deposition of a Chief.”

See also Alese v. Aladetuyi (1995) 6 NWLR (Pt.403) 527; Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt.58) 539; Alao v. Akano (1988) 1 NWLR (Pt.71) 431.

For from the pleadings of the parties and the evidence adduced before the trial court, the cause of action was in existence before the enactment of the 1930 Ordinance and the other relevant legislation which ousted the jurisdiction of the courts in chieftaincy matters. It follows therefore, that whatever rights the appellants had before 1930, had been extinguished by the coming into force of that legislation.

In view of the above, the learned trial Judge was therefore, right to have applied the said legislations and decline jurisdiction in the matter.

Issue 3

It is the submission of the appellants on that issue that the trial Judge having held that he has no jurisdiction over the appellants claims ought to strike out the suits instead of an order of dismissal.

I have no hesitation in upholding that submission. For where a court finds that it has no jurisdiction to entertain or adjudicate over a matter as in the instant case where it held that if jurisdiction has been ousted, the appropriate order to make is that of striking out the matter and not make an order dismissing the case.

See Zakari Goni v. The State (1996) 7 NWLR (Pt.458) 111; Bello v. Governor of Kogi State (1997) 9 NWLR (Pt.521) 496.

In the light of my findings in the above issues, I believe to go into the remaining issues as raised by the appellants in this appeal will be an academic exercise in futility. It suffices to add that having upheld the finding of the lower court that it lacks jurisdiction, this court also lacks the competence to go further into the matter. For the declaration of lack of competence in respect of the subject matter is an admission of legal incompetence to make any further valid or binding decision or declaration in the matter.

The trial court having found that it had no jurisdiction on the matter what it ought to have done was to have struck out the case, not to go ahead and determine the rights of the parties. Any subsequent finding of the court after a finding of lack of competence becomes a nullity, this court will therefore not have jurisdiction to review a null decision.

In the circumstances, I uphold the finding of the trial court that its jurisdiction in the subject-matter had been ousted by the provisions of:

(a) The Appointment and Deposition of Chiefs Ordinance, 1930;

(b) The Constitution of Northern Nigeria, 1963; and

(c) The Chiefs (Appointment and Deposition) Law, 1948.

The appeal lacks merit and it is hereby, dismissed. The judgment of the trial court delivered on the 07/10/96 is affirmed. The order dismissing the suit is set aside and substituted with an order striking out suit Nos. ID/10/83 and DHC/10/92.

I award costs of N 10,000.00 to each set of respondents against the appellants.

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Other Citations: (2003)LCN/1345(CA)