Alhaji Aileru Jubril V. Alhaji Abdullahi Atanda Kolawole & Anor (1996)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A. 

This is an interlocutory appeal against the ruling of Gbadeyen J. of the then Omu- Aran High Court of Justice of Kwara State delivered on 18/6/92 striking out suit No. KWS/OM/5/91 filed in that court by the appellant who was the plaintiff against the respondents.

The claims of the appellant as contained in the writ of summons are for the following declarations and an injunction.

“1 That under native law and custom of Ganmo the position of or the right to become Bale of Ganmo is the exclusive preserve of the plaintiff’s family who are the direct male descendants of the first Bale of Ganmo Bale Sunmonu Okunloye.

2. That there is no other family other than that of the plaintiff who are entitled to contest for and occupy the stool of Bale of Ganmo under the native law and custom.
3. That the children, descendants or blood relation of Junadu Kolawole are not entitled to become the Bale of Ganmo under the native law and custom of Ganmo they not being in any way related to the first Bale of Ganmo.
4. That the Bale of Ganmo under native law and custom is not a sub-chief under the Olupo of Ajasse-Ipo chieftaincy and the 2nd defendant was (sic) no power to install, turban or conduct coronation of any Bale of Ganmo.

AN ORDER restraining the defendants from interfering with or desecrate the native law and custom of Ganmo as declared by the Court.”

The 1st respondent on being served with the writ of summons together with the appellant’s statement of claim filed a motion on notice for an order striking out the appellant’s suit. The reliefs claimed on the motion paper dated 31/5/91 reads:-

“1. An Order striking out the plaintiff/respondent’s suit No KWS/OM/5/91 on the ground that the plaintiff has failed to deposit the sum of TEN THOUSAND NAIRA (N10,000.00) prior to instituting the suit as required by Section 15(1) of the Chiefs (Appointment and Deposition (Amendment) Edict No.3 of 1989.

2. AND for such further order /orders as this Honourable Court may deem fit to make in the circumstances.”

The respondent took this step in filing the motion without first filing his statement of defence. After taking arguments from counsel on both sides, the learned trial Judge in a reserved ruling delivered on 18/6/92 held that the suit of the appellant was incompetent for the appellant’s failure to comply with the condition precedent of paying the mandatory deposit of the sum of N10,000.00 before filing the suit and accordingly struck out the suit. Part of the ruling containing the reasons for striking out the suit at page 39 of the record reads:-

“I find most relevant to this case the decision in Gambari v. Gambari (supra) to the effect that the condition precedent to instituting a competent action has not been met. It is futile, therefore, putting anything further on a nullity. See Skenconsult v. Ukey (supra).

Because the Ifelodun Local Government, the Ifelodun/Irepodun Traditional Council, and the State Government are deliberately left out, in this action, I agree that not all the essential proper parties are joined and that makes the action all the more irregular. (See Onwunalu & 2 Ors v Osademe (1971) 1 All NLR 14, Oloriode & Ors v. Oyebi & Ors. (1984) 5 Sc. 1 at 17; (1984) 1 SCNLR 390; Olawuyi v. Adeyemi (1990) 4 NWLR (Pt. 147) at 746; and Okoye v. Nigerian Construction & Furniture Co. Ltd. (1991) 6 NWLR (Pt.199) 501 S.C (1991) 7 SC. (Pt. 11) 365.

Consequently, the proper thing here is to strike out the action and accordingly, the suit is, hereby, struck out.”

The appellant who was not satisfied with this ruling has now appealed to this Court. The notice of appeal filed with the leave of this Court contains 6 ground of appeal. The grounds of appeal without the particulars are as follows:-

“1. The learned trial Judge erred in law by striking out the suit of the appellant on the ground that the appellant did not fulfill a condition precedent.

2. The learned trial Judge erred in law when he held that the failure of the appellant to deposit a non-refundable fees of N10,000.00 vitiated the action by virtue of Section 15(1) of Edict No.3 of 1988.
3. The learned trial judge erred in law and exceeded his jurisdiction by granting prayers that were not sought nor prayed for by the respondent thus denying the appellant his right to fair hearing.
4. The learned trial judge erred in law by his failure to consider all the arguments of law and authorities of higher courts referred to in argument more especially the Supreme Court decision in Utih v. Onoyivwe (1991) 1 NWLR (Pt. 166) 166 at 222 – 223 and this occasioned grave miscarriage of justice on the appellant.
5. The learned trial judge has no jurisdiction to grant the application since the applicant has no locus standing to ask for the reliefs and the court was addressed on the point.
6. The learned trial judge erred in law when he granted the prayers of the applicant when the applicant’s application was filed in contravention of the mandatory provisions of the rules of the court and this denied the court jurisdiction to hear and adjudicate on the application.”

Arising from these grounds of appeal, 4 issues for determination have been identified in the appellant’s brief of argument filed in compliance with the rules of this Court on 19/1/93. The 4 issues identified are:-

“1. Whether having regard to the claims of the appellant which are merely declaratory of the relevant native law and custom on the Bale of Ganmo chieftaincy, the provisions of Section 15 of the Chiefs (Appointment and Deposition) (Amendment) Edict No.3 of 1988 is applicable to this case at all?

Ia. If the answer to the above is in the negative, is the Bale of Ganmo a “Chief” within the purview and meaning of Section 15(1) of the Chiefs (Appointment and Deposition) (Amendment) Edict No.3 1988? Grounds 1 and 2 of the Grounds of Appeal.

2. Whether the trial judge could strike out the case of the appellant on any other ground apart from the ground on the face of the motion paper of the 1st respondent without hearing the appellant’s counsel on such new ground? Ground 3 of the grounds of appeal.
3. Whether the provisions of Section 15 (1) of the Edict No.3 of 1988 could enure to the benefit of any person or authority outside those stated in the said Section and whether the 1st respondent had the locus standi to rely on the said section 15(1) of Edict No.3 of 1988 to ask for the striking out of the appellant’s case? Grounds 4 and 5 of the grounds of appeal.
4. Whether the application of the 1st respondent asking for striking out the suit filed, before he filed a statement of defence was not in contravention of the mandatory provisions of Order 24 rule 1 of the Kwara State High Court (Civil Procedure) Rules 1989?”

From the same 6 grounds of appeal however” 5 issues for determination were formulated in the respondent’s brief as follows:-

“1. Whether the learned trial Judge was in error in striking out the suit of the appellant on the ground that he did not fulfill a condition precedent. This issue arises from ground 1.

2. Whether the learned trial Judge erred in law when he held that the failure of the appellant to deposit a non-refundable fees of ten thousand naira (N10,000.00) vitiated the action by virtue of Section 15(1) of Edict No.3 of 1988. This issue arises from ground 2.
3. Whether the trial Judge could strike out the case of the appellant on any other ground apart from the ground stated on the face of the motion paper. This 3rd issue arises from ground 3.
4. Whether the 1st defendant/respondent has the locus standi to challenge the plaintiff/appellant for failure to deposit the non refundable fees of ten thousand Naira (N10,000.00)before he instituted the action. This issue arises from ground 5.
5. Whether the application of the 1st defendant/respondent asking for striking out the suit filed, before he filed a statement of defence was in contravention of the provision of ORDER 24 RULES 1& 2 OF THE KWARA STATE HIGH COURT (CIVIL PROCEDURE) RULES 1989. This issue arises from ground 6.”

It is noted that although the title of this appeal shows that there are two respondents, the 2nd respondent who did not participate in the proceedings at the lower court and this Court died before the appeal came up for hearing. Therefore the 1st respondent is the only respondent in this appeal.

I wish to observe at this stage that from the 6 grounds of appeal and the issues raised by the learned counsel to both parties, it would appeal that the learned counsel in their effort to satisfy their respective clients, have introduced fresh matters which may tend to complicate this appeal which is otherwise a straight forward one. It is quite clear from the lone relief sought by the respondent who was the applicant at the trial court, the arguments advanced at the lower court by learned counsel on both sides and the decision of the learned trial Judge part of which I have earlier quoted in this judgment, that the only ground upon which the appellant’s suit was struck out was that it was incompetent for failure of the appellant to comply with Section 15(1) of the Kwara State Chiefs (Appointment and Deposition) Law as amended by Edict No.3 of 1988. Although the learned trial Judge observed in his Ruling that not all the essential proper parties were joined in the suit which made the suit more irregular, he did not strike out the suit on that ground. It is quite plain from the ruling of the learned trial judge which is the subject of this appeal that the suit of the appellant against the respondent was struck out because as the judge said at page 39 of the record –

“the condition precedent to instituting a competent action has not been met.”

In other words, the lone ground upon which the respondent challenged the competence of the appellant’s action was the sole ground upon which the action was struck out. For this reason, I am of the view that the only germane issue for determination in this appeal is whether the learned trial Judge was in error in striking out the appellant’s suit on the ground of failure to fulfill a condition precedent of the payment of N 10,000.00 as required by S.15( 1) of the Kwara State Chiefs (Appointment and Deposition) Law as amended by Edict No.3 of 1988 before filing the suit. This issue covers issues 1 (a) & (b) in the appellant’s brief of argument and issues I & 2 in the respondent’s brief. Therefore the remaining 3 issues raised in the appellant’s and the respondent’s brief touching on the alleged grant of relief not sought, the competence or otherwise of the respondent’s to claim the relief sought in his motion and the alleged failure of the respondent to comply with Or. 24 R.1 of the Kwara State High Court (Civil Procedure} Rules 1989 shall be ignored in the determination of this appeal as the issues did not strictly arise from the ruling of the lower court of 18/6/92 which is the subject of this appeal.

It is trite that the jurisdiction of an appellate court as this court is to review the decisions and judgments of the lower courts from which appeals lie to it. If therefore an issue neither arose nor called for determination of the lower court, such an issue may not form the basis of an appeal as an appeal on such issue will be incompetent and liable to be struck out. See Uhunmwangho v. Okojie (1989) 5 NWLR (Pt. 122) 471 at 491. Put it differently, this Court will normally not allow a fresh point to be taken before it on appeal if such a point was not raised, canvassed and/or pronounced upon by the court below unless the leave of this Court was first sought and obtained. Attorney-General of Oyo State v. Fairlakes Hotels Ltd. No. 1 (1988) 5 NWLR (Pt. 92) 1 and Adigun v. Attorney-General Oyo State (No.2)(1987) 2 NWLR (Pt. 56) 197. Indeed it is the duty of this Court being an exclusively appellate court in dealing with matters before it on appeal to ensure that in the determination of this appeal it is generally bound to limit its considerations to the case made out and decided by the lower court. See Anja v. Ayagbola (1977) 4 SC. 63 at 67 – 68.On the only issue for determination of this appeal, it was submitted in the appellant’s brief and oral submission of his learned counsel that having regard to the nature of claims of the appellant on the writ of summons which were not challenging the appointment of any chief, the requirement of the payment of N10,000.00 upon filing the ,suit in compliance with 5.15(1) of the Chief (Appointment and Deposition) Law of Kwara State as amended by Edict No. 3 of 1988 does not apply to the action. Learned counsel pointed out that the Bale of Ganmo was not a chief as defined under S.2 of the Chiefs Law as amended by Modification of Laws (Kwara State) Order 1983 L.N. 1 of 1983 and argued that S.15(1) of the Chiefs Law as amended by Edict No. 3 of 1988 was not meant to apply to all disputes about chieftaincy generally as that amendment only affected the chieftaincies that might require the approval of the Military Governor or Executive governor as the case may)be or other appointing authority including the Traditional Council having jurisdiction in the area concerned. That since there is no evidence that either the Military Governor or Traditional Council would need to approve the appointment of Bale of Ganmo to give the post recognition, the provision of S.15(1) of Chiefs (Appointment and Deposition) Law ,as amended by Edict No.3 of 1988 does not apply. Counsel referred to the provisions of S.15( 1) & (2) of the law and submitted that any party wishing to found an objection on the section must prove that –

(a) the stool being contested is qualified as “chief’ in accordance with the section. ”

(b) That the Military Governor (civilian Governor) approved the appointment of an incumbent.

(c) That the approval was by the appointing authority.

(d) That the plaintiff in instituting the action joined the state government or any of its agencies as a party to the action.

Learned counsel to the appellant then contended that all the four conditions must co-exist in the present case. It was further argued in the appellant that the case of Gambari v. Gambari (1990) 5 NWLR (Pt. 152) 572 relied upon by the trial court is distinguishable from the facts for the present case. In that case the claim specifically asked for the nullification of the appointment of a chief duly appointed and, recognised by the defendants who fell within the definition of Approving Authority under S.15 of the law. Concluding his argument learned counsel urged this Court to hold that having regard to the reliefs, sought and the stage of the matter, S.15 (1) of Edict No.3 of 1988 is not applicable to the present case and that the trial court has jurisdiction and competence to deal with the matter without the necessity of the appellant paying any deposit of money pursuant to S.15(2) of the law.

Learned counsel referred to the unreported decision of this Court in Ailara v. Garuba Appeal No. CA/K/160/94 of 29/11/95 and urged this Court to allow the appeal.

In his response on this issue learned counsel for the respondent had submitted that the learned trial Judge was right in striking out the appellant’s suit for his failure to deposit non-refundable fees of ten Thousand Naira (N10,000.00) which vitiated the action by virtue of S.15(1) of Edict No.3 of 1988. That looking at the entire reliefs claimed by the appellant in the writ of summons and the statement of claim, there was no doubt that the-appellant was challenging the appointment of the 1st defendant as the Bale of Ganmo which appointment was made by Ifelodun Local Government as the appointing authority by a letter dated 17/10/90. That by the definition of a chief under S.3 of the Interpretation Act as “any native whose authority and control is recognised by a native community”, and that since the authority and control of the respondent as the Bale of Ganmo is recognised by his community, he is therefore a chief. For that reason the challenge of the appointment of the respondent as the Bale of Ganmo by Ifelodun Local Government in a suit at the instant of the appellant came within the provisions of s.15 of Edict No.3 of 1988 to warrant paying the required deposit of N10,000.00. That failure of the appellant to pay the required deposit was therefore fatal to his action which was rightly struck out by the trial court.

The current law in Kwara State on this issue is that by virtue of S.15(1) of the Chiefs (Appointment and Deposition) Law CAP 20 of the Laws of Northern Nigeria applicable in Kwara State as amended by Edict No.3 1988 of Kwara State, any person who institutes an action to challenge the validity of an appointment and/or deposition of a chief shall first deposit with the State Accountant -General a non-refundable sum of ten Thousand (N10,000.00) S.15( 1) of the law which is relevant to the present case reads:-

“15(1)Where the Military Governor or the 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 Accountant – General a non-refundable sum of ten thousand Naira.”

This law which came into force in Kwara State with effect from 13th January 1988 by virtue of Edict No. 3 of 1988 amending the Chiefs (Appointment and Deposition) Law of the State, is no longer recondite as it has received judicial pronouncements from this Court and the Supreme Court in what has now become known in judicial circle as the rule in Gambari v, Gambari in the cases of Gambari v, Gambari (1990) 5 NWLR (Pt. 152) 572 and Obaba v. Military Governor of Kwara State (1994) 4 NWLR (Pt. 336) 26. It was decided in these cases that the payment of the N10,000.00 deposit pursuant to S.15 of the law is now a condition precedent to a valid sustainable suit challenging the validity of an appointment or deposition of a chief in Kwara State. The only issue for determination in this appeal is whether or not the provision of S.15(1) of the Chiefs (Appointment & Deposition) Law as amended by Edict No.3 of 1988 applied to the suit filed by the appellant at the trial court as found by the learned trial Judge.

There is no doubt whatsoever that from the reliefs claimed by the appellant in his writ of summons against the respondent earlier quoted in this judgment particularly the 3rd relief which states –

“3 .. That the children, descendants or blood relations of Jinadu Kolawole are not entitled to become the Bale of Ganmo under the native law and custom of Ganmo, they not being in any way related to the first Bale of Ganmo.”

The statement of Claim filed by the appellant and the facts that later surfaced in the affidavits and counter affidavit upon which the motion for the striking out of the appellant’s suit was heard and determined, the appellant was indeed in his action challenging the appointment of the respondent as the Bales of Ganmo whose status is that of a village head of his community. Therefore what I have to determine now is whether or not a Bale being a village head is a chief within the provision of S.15(1) of the Chiefs (Appointment & Deposition) Law of Kwara State.

Indeed learned counsel to the respondent did put up a strong argument that by virtue of the definition of a ‘chief’ under the interpretation Act, the respondent is a chief warranting anyone challenging his appointment in court to first deposit the sum of N10,000.00 as required by the law. Learned counsel referred to S.3 of the INTERPRETATION ACT which according to him defined a chief as-

“any native whose authority and control is recognised by a native community.”

With due respect to the learned counsel, this definition is no longer in force in the current INTERPRETATION ACT CAP 192 of the Laws of the Federation of Nigeria 1990. The word ‘chief’ is now defined under S.18 of the Act as –

“a person who, in accordance with the law in force in any part or Nigeria, is accorded the dignity of a chief by reference to that part or to a community established in that part.”

It is therefore clear from this definition that a person is only a chief if he is recognised as such under an existing law. The existing law in this respect having regard to the present appeal is of course the Kwara State Chiefs (Appointment & Deposition) Law S.15(1) of which provisions are under consideration. In S.2 of that law as modified by the Modification of Laws (Kwara State), Order No. 1 of 1983, the word ‘chief’ or ‘head chief’ is defined as-

“any person for the time being recognised by the Governor as a chief or head chief and includes an Emir.”

Therefore from this definition there is no doubt that the word ‘chief’ referred to in S. 15(1) of the Chiefs (Appointment & Deposition) Laws of Kwara State is a person recognised as such by the Governor, Military Governor or Military Administrator of Kwara State as the case may be under that law. Obviously that law deals exclusively with the appointment, grading and deposition of chiefs, head chiefs and Emirs duly recognised by the Kwara State Government as such. In other words the law does not deal with the appointment of village head or Bale which is the status of the respondent. Consequently, I have come to the conclusion that a Bale or village head in Kwara State although a recognised leader in his own community, is however not a chief under the Chiefs (Appointment & Deposition) Law of Kwara State.

With this result, it is not difficult to see that since the appellant in his action filed at the lower court was not challenging the appointment or deposition of a chief as defined in the Chiefs (Appointment & Deposition) Law, he was not required to comply with S.15(1) of that law by paying a non refundable deposit of N10,000.00 before his action could be prosecuted. Thus the learned trial Judge was therefore in error in striking out the appellant’s suit which was otherwise COMPETENT.

The appeal therefore SUCCEEDS AND IT IS HEREBY ALLOWED. The Order of the trial court of 18/6/92 striking out the appellant’s suit No. KWS/OM/5/91 IS HEREBY SET ASIDE. The case is remitted back to the trial court for hearing by another Judge.

There shall be one thousand, five hundred naira (N1,500.00) costs to the appellant.

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Other Citations: (1999)LCN/0246(CA)