Adekomi Akinmade & Ors V. Akibu Aileru & Ors (1996)
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MURITALA AREMU OKUNOLA, J.C.A.
This is an appeal against the judgment of P. O. Aderemi J of Oyo State High Court, Ogbomosho, delivered on 28/6/89.
The facts of this case briefly put were as follows:
In the Ogbomosho High Court of Oyo State of Nigeria the Plaintiffs/Appellants claimed against the Defendants/Respondents jointly and severally as follows:
“(a) A declaration that according to customary law, the holder of Baale of Idigba Chieftaincy can be appointed from amongst only the members of Bale Idigba family of Ile Baale, Idigba, Ejigbo Local Government of Oyo State of Nigeria.
(b) A declaration that the 1st Defendant is not a member of the said Baale Idigba family.”
(c) A declaration that the 1st Plaintiff is the only person who was validly nominated to succeed late Chief Bello Adegboye as Baale of Idigba.
(d) A declaration that the nomination, appointment and installation of the 1st Defendant as the new Baale of Idigba is against the customary law, custom and tradition of Idigba and is invalid, null and void.
(e) Injunction restraining the 1st Defendant from parading himself as a member of Baale Idigba family.
(f) Injunction restraining the 1st Defendant from parading himself as the Baale of Idigba.
(g) Injunction restraining the 2nd Defendant from continuing to recognise and deal with the 1st Defendant as the Baale of Idigba.”
Pleadings were filed and exchanged between the parties. The bone of contention between the parties was whether or not the 1st defendant is a member of Alaadorun’s family. The Plaintiffs averred that he is and that he was consequently not entitled to be appointed Baale of Idigba. The Defendants vehemently denied the averments. The defendants pleaded that the 1st defendant belongs to Baale Idigba family and that the 1st defendant is not a member of Alaadorun’s family.
The 2nd Plaintiff as well as both defendants gave evidence. The Plaintiffs called five witnesses while the defendants called four. The 2nd Plaintiff and the 5th P.W. testified that the 1st defendant is a member of Alaadorun’s family. The 1st defendant and the 3rd and 4th defence witnesses also gave evidence that the 1st defendant is a member of Alaadorun’s family. The 2nd Plaintiff gave evidence that no member of Alaadorun’s family was appointed Baale of Idigba previous to the appointment of the 1st Defendant. The 4th D.W. also testified that “No person from Alawo family, Alaadorun’s family or Oniyere’s family has ever become Baale Idigba.” The 2nd defendant, under cross-examination testified that nobody from Alaadorun’s family has been appointed Baale Idigba. Further in his evidence, the 2nd defendant said that the plaintiffs protested against the appointment of the 1st defendant on the ground that the 1st defendant is not a member of Baale Idigba family. It was not in dispute that the 2nd defendant did nothing about the protests even though the 2nd defendant is the prescribed authority in respect of Baale of Idigba chieftaincy. At the hearing, it was also not in dispute that every member of Baale Idigba family is entitled to vie for the stool of Idigba whenever it becomes vacant.
At the end of the trial, the learned trial judge held that no member of Alaadorun’s family could aspire to become Baale of Idigba if Alaadorun’s family is not an off shoot of Baale Idigba chieftaincy family. Consequently, the Court granted leg (a) of the Plaintiffs’ claims and dismissed the remaining legs.
Dissatisfied with the said dismissal of legs ‘b’ – ‘g’ of their claims, the plaintiffs (hereinafter referred to as the Appellants) appealed to this Honourable Court on eight grounds. From the eight grounds of appeal, the Appellants formulated the following eight issues for determination in this appeal, viz:
- Whether, in view of his findings that according to customary law the holder of Baale Idigba chieftaincy can be appointed from amongst only the members of Baale Idigba family of Ile Baale, Idigba and that no member of Alaadorun’s family can aspire to become Baale of ldigba if Alaadorun’s family is not an off-shoot of Baale Idigba chieftaincy family, the learned trial judge was correct to have dismissed legs b, d, e, f and g of the plaintiffs’ claims when, at the hearing, the defence admitted that the 1st defendant is a member of Alaadorun’s family and when it was never the defendants’ case, in their pleadings, that Alaadorun’s family is an off-shoot of Baale Idigba family.
- Whether the learned trial judge was correct to have found in favour of the defendants upon a consideration of the evidence of the 2nd plaintiff and the 3rd defence witness in isolation and without putting the totality of the testimony adduced by both parties on an imaginary scale and weighing them together.
- Whether when the evidence adduced by the Plaintiffs/Appellants is balanced against that adduced by the Defendants/Respondents, the judgment given in favour of the Defendants/Respondents is against the weight which should have been given to the totality of the evidence adduced by the parties.
- Whether the learned trial judge was correct to have held that the 1st defendant is an eminent member of Baale Idigba Chieftaincy family and to have consequently failed to hold that the nomination, appointment, and installation of the 1st Defendant as Baale of Idigba is against the customary law, custom and tradition of Idigba.
- Whether the Rules of equity are applicable to Chieftaincy matters and customary law.
- Whether Akinniyi and Iseiku sections gave evidence before the Court.
- Whether the trial Judge misapplied the decision of the Supreme Court in Ebun Otubanjo v. Kujore & Ors. 1974 10 SC 173 at 180.
- Whether there is any justification for the use of the expression:
“I hold and believe that the first Plaintiff was never presented and could in the setting in this case, not having been validly nominated to succeed late Chief Bello Adegboye as Baale Idigba – the deceased being from his section and the last Baale before the stool became vacant. ”
When there was no indication of how the Court arrived at this conclusion no reason for the belief.
The Respondents also formulated six issues which but for style are similar to the eight formulated by the Appellants except one dealing with jurisdiction of the trial Court to entertain and grant the reliefs claimed by the Plaintiffs/Appellants in this suit. However, both learned Counsel to the parties filed herein briefs on behalf of their clients which they adopted and relied upon. The learned Counsel to the parties also addressed us viva voce to highlight certain issues. In this regard learned Counsel to the Appellants Mr. A. O. Olutunfese leading Mr. K. Alawode adopted and relied on the Appellants’ Amended brief and the Appellants Reply brief filed herein on 17/5/94 and 6/5/5/96 respectively. Learned Counsel went further to emphasize on the issue of jurisdiction stressing that having not filed the Respondent’s Notice or cross-appeal, the Respondent is not entitled to raise an issue of jurisdiction. Consequently, learned Counsel submitted that the issue of jurisdiction raised by the Respondent is not competent. Learned Counsel cited in support of this submission the cases of LCC v. Ajayi (1970) 1 All NLR 291 p.296; Elechin (Nig.) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt.14) 47 pp.73 & 74; Chief F.R.A. Williams v. D.T.N. Ltd. (1990) 1 NWLR (Pt.124) 1 p.25.
Learned Counsel to the Appellants finally urged the Court to allow the appeal.
By way of Reply, learned Counsel to the Respondent Mr. Babafemi Akande adopted and relied on the Amended Respondent’s brief filed herein on 23/4/96. On the issue of jurisdiction learned Counsel to the Respondent referred to the Ruling of this Court in this appeal on the issue delivered on 28/3/96 which he submitted is binding on the parties and the Court. He urged the Court to dismiss the appeal.
Learned Counsel to the Appellants informed the Court that the Ruling referred to ordered the Respondents to file the Respondent’s Notice or Cross-Appeal which to date has not been filed.
I have considered the submissions of both learned Counsel to the parties. However, before dealing with these submissions, it is proposed to deal with the issue of jurisdiction canvassed by both learned Counsel to the parties since it is the outcome of this that will determine whether or not other issues raised will be considered.
See Kotoye v. Saraki (1994) 7 – 8 SCNJ 524. In this regard, it is necessary to consider the submissions of both learned Counsel to the parties on this issue. The argument of learned Counsel to the Appellants relates to the mode of raising the issue of jurisdiction by the parties and not whether or when it can be raised. However, both learned Counsel to the parties agreed that this issue of jurisdiction had been laid to rest by this Court in a ruling delivered by the Court in this appeal on 28/3/96. It is now necessary to find out how this has been done by the Court since we are bound by that ruling. I have gone though the said ruling by Adamu JCA. The said ruling relates to a motion on Notice dated the 4th day of september,1995 and filed on 13/11/95 in which the Respondents/Applicants sought the following orders:
“(1) An order for leave to file the Respondent’s Amended brief in this appeal as per proposed amended brief attached as Exhibit ‘A’.
(2) An order for leave to raise the issue of jurisdiction for the first time in this Court in the appeal.
And for such further or other orders as this Honourable court may deem fit (sic)”
Dealing with the second prayer of the motion dated 4/9/95 and filed on 13/11/95 after resolving the first prayer in favour of the Respondents/Appellants, at page 11 of the Ruling delivered on 28/3/96, Adama JCA held thus:
“The Second point which complains about the new issue sought to be introduced on the ground that it is not related to or supported by any of the grounds of appeal is in my humble view premature at this stage. It should be noted that the appeal has not yet been finally fixed for hearing and it is still Possible for the respondent to apply for leave or extension of time to file a cross-appeal or to file a respondent’s notice in accordance with Order 3 Rules 4(1) and 14(3) of the Court of Appeal Rules 1981 as amended. I have also stated in relation to the first prayer that the issue of jurisdiction because of its fundamental nature is exempted from the normal disabilities or restrictions which other issues are normally Subjected to when raised for the first time at the appellate level. It is therefore my view that the absence of a ground of appeal upon which the issue of jurisdiction in the instant case can be related is not fatal to the application but should be treated as covered by the normal exemption accorded to the issue under the principles of law. Thus it can be raised at any time or any stage of the proceedings by either of the parties or by the Court suo motu and by whatever means – see ALAO vs. C.O.P. (supra). The second point must also consequently be resolved in favour of the respondents/applicants.
With both points (or issues) formulated above having been resolved in favour of the respondents/applicants, the application should succeed and the first prayer must therefore be granted. It is accordingly thereby granted. Leave is hereby granted to the respondents/applicants to file the Amended Respondents’ brief as per the one proposed and annexed as Exhibit ‘A’ attached to the motion paper.”
From the above ruling it is clear that the decisions LCC v. Ajayi and Elechin (Nig.) Ltd. v. Mbadiwe (supra) cited by learned Counsel to the Appellants relate to mode of raising jurisdiction by parties but this Court and the Supreme Court had held in various decisions (including the above ruling) that the issue of jurisdiction can be raised at any stage of en action including on appeal either by parties or by the Court suo motu thereby exempting it from the normal disabilities or restrictions which ether issues are normally subjected to when raised for the first time at the Appellate level. See Chief Daniel A. Aloba v. Isaac O. Adureja (1988) 7 SCNJ 56; Yusuf v. Coop Bank Ltd. (1994) 9 SCNJ 67. It is pertinent to point out that the Appellant’s Counsel in the instant appeal had employed and appealed to the Court in the guise of legal technicality to make the Court gloss over the issue of jurisdiction, which effort is not in tune with the prevailing authorities which enjoin the Appellate Court to consider jurisdiction whether or not parties raise it or are silent on it as the issue affects whether or not other issues raised will be considered. See Kotoye v. Saraki (1994) 7-8 SCNJ 524.
In the light of the foregoing, the issue of jurisdiction raised shall be considered by this Court as held by Adamu JCA supra. This is moreso since the defect in the form of raising the objection will not affect the defect caused by lack of jurisdiction as judgment arising from such a proceeding is a nullity and will remain a nullity and will not be saved by any formality or non formality. See Western Steel Works Ltd. & Anor. v. Iron & Steel Workers Union of Nigeria & anor. (1987) 2 .SCNJ 1.
On this issue learned Counsel to the Respondent at page 22 of the Respondent’s brief submitted that evidence having been led by the Appellants themselves that a Baale for the Idigba Chieftaincy would be chosen by the family for the approval of the Elejigbo, the the prescribed authority and there being no kingmakers. Learned Counsel further submitted that the Baale of Idigba Chieftaincy being a minor Chieftaincy the procedure laid down under Section 22 of the Chiefs Law must be complied with and exhausted before coming to Court. Learned Counsel to the Appellants at pages 5-7 of the Appellants Reply brief submitted in summary that the provisions of section 22 of the Oyo state Chiefs Law now applicable in Oshun State in which the decision in Eguamwense v. Amaghizemwen (1993) 9 NWLR (Part 315) 1 was based are in pari materia with section 22 of the Bendel State Traditional Rulers and Chiefs Edict 16 of 1979. Counsel therefore distinguished that decision from this case and urged the Court to follow the Supreme Court’s decision in Erejuwa II & Ors. v. Kperegbeyi & Ors. (1994) 4 NWLR (Pt.339) 416. I have considered the facts and the decisions of the Supreme Court in the two cases of Eguamwense v. Amachizemwen (supra p.35 and Erejuwa II & Ors v. Kperegbeyi & Ors. (supra). In my view the facts of the present case fit more into the earlier case than the latter. Section 22 of the Oyo State Chiefs Law 1978 makes it mandatory for the aggrieved person dissatisfied with the decision of the prescribed authority to appeal first to the Commissioner in charge of Chieftaincy matters and obtain his decision before going to Court thereby making going to Court the second and not an alternative remedy. Thus, since the Plaintiffs/Appellants did not appeal against the decision of the Elejigbo to contest whether as ‘prescribed authority’ he decided his matter rightly or wrongly, their resort to the High Court in my view was wrong.
The suit taken out in the trial Court is incompetent being in violation of the provision of Section 22(5) of the Chiefs Law Cap. 20 Vol. 1 Part 3 Laws of Oyo State 1978 and I so hold. See Ajewole v. Adetimo (1994) 3 NWLR (Pt.335) 739 pp.758, 770 & 771; Eguanwense v. Amaghizwense (1993) 9 NWLR (Pt.315) 1 p.35; Macfoy v. UAC Ltd. (1961) 3 All NLR 1169; Alhaji S.A. Sarumoh v. Oba Yesufu Asanike & Anor, unreported Appeal No. CA/I/159/90 delivered by Court of Appeal, Ibadan on 6/6/96.
In the result, the appeal fails and it is dismissed. Since the appeal fails as the condition for the exercise of jurisdiction by the lower Court to entertain the suit had not been met, the proceedings and judgment of the lower Court amount to a nullity. See Healey v. Minister of Health (1955) 1 QB 221; Punton v. Ministry of Pensions and National Insurance (1964) 1 WLR 226; Fawehinmi v. A.G. (No.1) (1989) 3 NWLR (Pt.112) 3 NWLR 707; Madukolu & Ors. v. Nkemdilim (1962) 2 SCNLR 341 (1962) All NLR 548.Consequently, the action in the lower Court is hereby struck out as the available remedies have not been exhausted. The issue of jurisdiction has disposed of all other issues in this appeal. In view of the family nature of this action, I shall be making no order as to costs.
Other Citations: (1996)LCN/0245(CA)
