Alhaji Raimi Adigun & Anor V. Alhaji Yekinni Aremu Ariori Osaka (2002)

LawGlobal-Hub Lead Judgment Report

ONALAJA, J.C.A. 

The plaintiff commenced an action against the two defendants, jointly and severally in the High Court of Oyo State, holden in Oyo. After service of the writ of summons on the defendants pleadings were filed, delivered, exchanged and amended several times. The trial was concluded on further, further amended statement of claim and amended statement of defence.

As it is trite law in our civil jurisprudence that, the facts pleaded in the statement of claim supersede the facts in the writ of summons and so the claims of the plaintiff are as pleaded in paragraph 34 of the further, further amended statement of claim as follows:-

“34 Whereof the plaintiff claims declaration that:-

1. The recommendation, nomination and/or selection of Alhaji Raimi Adigun (1st defendant) for the conferment of the chieftaincy title of Onidese, by His Royal Highness, Alaafin of Oyo, Oba Lamidi Olayiwola Adeyemi III, be declared null and void, contrary to customary law regulating the nomination, selection and conferment of the said Onidese Chieftaincy.
2. That the recommendation, nomination, selection and/or conferment of the title of Onidese, on Alhaji Raimi Adigun by His Highness, Alaafin of Oyo, Oba Lamidi Olayiwola Adeyemi III, is not in accordance with the hitherto existing Onidese Customary Law relating to Onidese chieftaincy title.
3. That the plaintiff was the rightful candidate recommended, nominated and selected by members of Onidese family for the conferment of the chieftaincy title of Onidese of Idese by His Highness, Alaafin of Oyo, Oba Lamidi Olayiwola Adeyemi III.
4. The conferment of the title of Onidese on the 1st defendant be declared irregular and contrary to Onidese Customary Law, null and void and of no effect and should be set aside.
5. Perpetual injunction restraining the defendants by themselves, their privies, servants and/or agents otherwise whosoever from conferring, parading, recommending, nominating or selecting the 1st defendant with the chieftaincy title of Onidese of Idese.
6. Perpetual injunction restraining the 1st defendant from parading or holding out himself as and/or performing the traditional functions of Onidese.

To establish his claims, plaintiff testified for himself and called two witnesses. On his part 1st defendant testified for himself and called four witnesses. 2nd defendant did not testify and did not call evidence.

Learned trial Judge in review of the evidence and pleadings of the parties at page 50 of the record of appeal observed and stated as follows at lines 4-37:-

“From the pleadings on both sides, it is not in any doubt between the parties that, Dese Olaogoru was the first Onidese of Idese Chieftaincy family, otherwise called Ariori Osaka Chieftaincy family. But, the plaintiff in his pleadings, aver that he is a principal member of Osaka family, the only ruling house that is entitled to Onidese of Idese Chieftaincy and that the 1st defendant is a descendant of Arinago family; his (1st defendant) ancestor being one Akingbade, a guest of Ariori at Osaka compound. Tracing the history of the 1st defendant, he further avers that Kike had two wives namely (i) Adeoti and (ii) Latoun. Adeoti begat Jaiyeola, Segilola and Adebomi for Kike and Latoun begat 6 children namely: Salami Esuola, Juweratu, Adeniran, Asiawu Lowo, Moradeun and Raimi Adigun (1st defendant) for Kike. Although, according to him (plaintiff), Latoun remarried Ojo Ariori on the death of Kike, the only child Latoun had for Ojo Ariori was Adekunle (now deceased) and not the 1st defendant (Raimi Adigun).

The case of the 1st defendant in support of his contention that he is entitled to Onidese chieftaincy title is that, Ariori Osaka begat Kike otherwise called Kike Adekambi. Latoun who married Kike Adekambi had Salami, Esuola, Juweratu and Moradeun for Kike by that marriage. He denies that Kike was the son of Akingbade of Arinago family. On the death of Kike Adekambi, the 1st defendant avers that after the death of Kike, Latoun, his wife, was bequeathed to Ojo Ariori and in turn she gave birth to Adeniran, Lowo, Raimi Adigun (1st defendant) and Adekunle. It is also his case, that the birth of the plaintiff by his mother (Ogunjoke) for Ojo Ariori, generated a heated controversy as he was alleged to have been born by Ogunjoke to one Adeyanju of Adagbaboyembe compound, Oyo, but was later adopted by Ojo Ariori.”

The learned trial Judge reviewed plaintiff’s evidence and his two witnesses at pages 50 to 52 of the record of appeal. The cross examinations were also recorded, reviewed and noted. The letter of nomination and selection of plaintiff by Osaka family as Onidese was conveyed to 2nd defendant and was admitted as exhibit P1.

Through 2nd PW, who testified as Secretary of Onidese chieftaincy family otherwise called Osaka family, tendered as exhibit P2 the minutes of the meeting of Osaka family held on 28/7/91, was written in Yoruba language not being the language of the court, the learned trial Judge directed that the parties were to appoint a translator mutually agreed and acceptable to the parties. This directive was not followed or heeded by the parties hence Exhibit P2 was not used as evidence in the consideration of this case by the learned Judge.

At pages 51-54A the learned trial Judge reviewed the evidence and the case of the 1st defendant and his witnesses.

After this, the learned trial Judge summarised the addresses of learned Counsel to the parties wherein plaintiff formulated three issues as arising in the case for resolution as follows:-

“(1) Whether the plaintiff and 1st defendant are members of Onidese family;

(2) Whether Onidese chieftaincy family has been legally conferred on the 1st defendant; and

(3) Whether the nomination and the recommendation of the plaintiff by the Onidese family for the conferment of Onidese title is proper and legal.

The defendants submitted that the procedure for his nomination, selection and appointment by the 2nd defendant was proper in law and valid with support in the case of Jokanola v. Mil. Gov., Ondo State (1996) 5 SCNJ 101 at 107, (1996) 5 NWLR (pt.446) 1 and that plaintiff case be dismissed.

The learned trial judge encompassed the issues for determination into two:-

(1) Whether the 1st defendant is a member of Onidese chieftaincy family.

(2) If the 1st defendant is found to be a member of the Onidese chieftaincy family, whether he was validly nominated, appointed and installed as Onidese of Idese.”

The learned trial Judge stated in resolution of the two issues formulated by him in part of the judgment that-

“What is called for, is balancing of the pieces of evidence on one side of the dispute against the other and find where the truth lies. The first witness called by the plaintiff is one Salawu Olawuwo of Ilaka compound, he did not hold himself out as a member of Ariori Ojo Osaka family, rather, he said and he was not challenged that 1st defendant is his uncle.

The first witness called by the 1st defendant was Lasisi Owoade, who holds himself out as a member of Ariori family. Watching his demeanour inside the witness box while giving evidence, he did not impress me as someone totally free in mind while testifying. The testimony of the 2nd DW cannot be said to have any evidential value all he said was that Ariori begat the plaintiff and the 1st defendant ____With respect to the 1st and 2nd witnesses called by 1st defendant. It seems to me that these witnesses have a purpose of their own to serve in this case and on the authorities of (1) Bear Man Ltd. v. Metropolitan Police District Receiver (1961) 1 AER 384 and (2) R. v. Prater (1960) 1 AER 298. I must take those pieces of evidence adduced by the aforementioned witnesses with a pinch of salt. Of all the witnesses paraded, the 1st PW- Salawu Olawuwo of Ilaka Compound impresses me as a detached witness.

He is even the uncle of the 1st defendant that ascension was not challenged by the 1st defendant and neither was it contended that there was no love lost between the 1st PW and 1st defendant as to place the former in a position where he could be said to have a grouse against the said 1st defendant. Indeed, the 1st PW gave me an impression of someone who has respect for truth while testifying. I believe his testimony as one predicated on the truth and the result is that I find that the 1st defendant is one of the children, which Latoun had for Kike.

The 1st defendant is not the son of Ojo Ariori and therefore, he is not a member of Osaka Onidese chieftaincy ruling family.

From the totality of the evidence, I hold the Onidese chieftaincy title had always been filled by members of Onidese chieftaincy ruling house whenever a vacancy occurred. It is exclusive to only members of the family. That has been customary practice established through evidence before me.

The result of all I have been saying is that the plaintiff’s case must succeed and it accordingly, succeeds and granted all the 6 reliefs claimed by plaintiff.”

The 1st and 2nd defendants were dissatisfied with the decision of the High Court of Oyo, delivered by Hon. Justice P. O. Aderemi (as he then was) on 11th day of February, 1998, and filed a notice of appeal at pages 60 and 61 of the record of appeal. 1st and 2nd defendants in the said notice of appeal, raised four grounds of appeal and in accordance with the rules of this court furnished the particulars. The notice of appeal was served on the plaintiff. Henceforth in this judgment, the 1st and 2nd defendants are referred to as 1st and 2nd appellants whilst the plaintiff is called the respondent in this judgment.

With leave of this court on 8th July, 1999, appellants filed additional 2 grounds of appeal making 6 grounds of appeal by the appellants on the respondent, with the leave of this court appellants filed on 20th Sept., 2001 an amended appellants’ brief of argument.

Arising from the grounds of appeal at page 4 paragraph 3, appellants raised the issues for determination as under:-

“3. Issues for determination

1. Issue No. I based on ground 1 of the grounds of appeal

Whether the trial court has original jurisdiction either to entertain the case and/or to grant the reliefs and claims of the plaintiff, which is in respect of a minor chieftaincy and in respect of a decision of a prescribed authority (an inferior tribunal) within the preview of section 22 of the Chiefs’ Law of Oyo State.

2. Issue No.2 based on ground 2 of the grounds of appeal

Whether having regard to the evidence of the 1st defendant and the 1st defendant’s witness, it is proper for the learned trial Judge to hold that it was the second defendant who recommended, nominated and conferred the 1st defendant the title of Onidese of Idese.

3. Issue No.3 based on grounds 3, 5 and 6 of the grounds of appeal

Whether having regards to the pleadings and taking together the totality of the admissible evidence on record the learned trial Judge was right and justified in granting the claims and reliefs sought by the plaintiff.”

On 13th April, 2000, respondent filed his brief of argument, which was relied upon in argument of the appeal. At page 1 paragraph 2 respondent raised the undermentioned as the issues for determination in this appeal.

“2.0 Issues for determination

“(i) Issue 1 based on ground 1 of the grounds of appeal

Whether the trial court has jurisdiction to entertain and grant the respondent’s claims.

2.2(2) Issue 2 based on ground 2 of the grounds of appeal

Whether the 1st appellant was properly recommended, nominated and/or selected for conferment of the chieftaincy title of Onidese of Idese by 2nd appellant.

3.3(3) Issue No.3 based on grounds 3, 4, 5 and 6.

Whether the learned trial Judge was right, and justified in granting the claims and reliefs sought by the respondent.”

Upon the appeal coming up for argument appellants relied and adopted their amended appellants’ brief of argument filed on 20th September, 2001 and relied on additional judgment of the Supreme Court in the case of Mr. Oladiti Adesola (on behalf of himself and other members of Aderin Branch of Oluokun family v. (1) Alhaji Raimi Abidoye (2) Oba Yesufu O. Asanke (for himself and/or as the Olubadan of Ibadan land and on behalf of the Olubadan-in-Council) (1999) 14 NWLR (Pt. 637) 28 at 33 to 41 SC. Based upon the above though the issue of jurisdiction was not raised in the High Court but raised with leave of this court granted on 29/6/99. The issue can be raised for the first time therefore appellants contended that the Oyo High Court lacked jurisdiction to have entertained and adjudicated on the claims and reliefs of respondent. The appeal court is therefore urged to allow the appeal for lack of jurisdiction.

Issue 1 in respondent’s issues for determination equally posed whether the trial court had jurisdiction to entertain and grant respondent’s claims.

It is trite law that once the jurisdiction of court is challenged or raised for the first time either in the Court of Appeal or the Supreme Court it must be considered first before any other consideration.

Bronik Motors & Anor v. Wema Bank Ltd. (1983) 6 SC 158-350, (1983) 1 SCNLR 296; Savannah Bank (Nig.) Ltd. v. Pan Atlantic Shipping & Transport Agencies Ltd. (1987) 1 NWLR (Pt. 49) page 212 SC.; Eze v. A-G., Rivers State (1999) 9 NWLR (Pt. 619) page 430 CA.; Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) page 116 SC.; Akande v. Alagbe (2000) 15 NWLR (Pt. 690) page 353 CA.; Adesola v. Abidoye & Anor. supra; Hamza Lawal. (2) Oba Samuel Banuso (The Oloja of Igbesa) v. Kafaru Oke & 4 Ors. (2001) 7 NWLR (Pt. 711) page 88 CA.

Appellants submitted that the dispute between the pm1ies was in respect of Idese chieftaincy, which is a minor chieftaincy with 2nd appellant as the prescribed authority over all minor chieftaincies in Oyo town.

The 2nd appellant received nominations of bath respondent and 1st appellant far installation as the Onidese. 2nd appellant as the prescribed authority approved the nomination of 1st appellant and proceeded to install him as the Onidese, who had since been performing the duties of his office as Onidese. Dissatisfied with the selection, appointment and installation of 1st appellant as Onidese, respondent issued in the High Court, Oyo township writ of summons and claimed as set out supra in paragraph 34 of the further further amended statement of claim. The case proceeded to trial at the conclusion of which all the six declarations sought by respondent conclusion of which all the six declarations sought by respondent were granted. It is that judgment against which the appellants were dissatisfied that gave rise to this judgment of the court.

The fulcrum of issue 1 in appellants’ brief is that the lower court lacked jurisdiction as the failure of respondent for noncompliance with sections 22 sub-section (2), (3), (4) and (5) Chiefs Law of Oyo State as the non-compliance could not be challenged by declarations as decided in Healy v. Minister of Health (1955) 1 QB 221/228 per Lord Denning, L.J. (as he then was) and Barraclough v. Brown (1897) A.C. 615 at 620. Without admission respondent could have come by judicial review of certiorari to quash the decision of the prescribed authority but not by declaratory orders. The procedure to challenge the decision of 2nd appellant was clearly set out in section 22 of Chiefs Law and this Court of Appeal was opportuned to interprete the section in Sarumoh v. Asanike (1996) 7 NWLR (Pt. 460) 370 at 377-378 and stated that:

“Where the respondent has not challenged the validity of the decision of the prescribed authority either by

appeal to the Executive Council for review or by certiorari removing it to the High Court to be quashed it, is inappropriate to do so by a declaration. The decision of the prescribed authority therefore remains valid and effective adopted by the Supreme Court in Equanwense v. Amaghizemwen (1993) 9 NWLR (Pt. 315) page 1 at 25.”

The facts of the above case were on all fours with the present appeal and finally confirmed in Oladiti Adesola v. Raimi Abidoye (supra) wherein the Supreme Court interpreted exhaustively section 22 and sub-sections (2),(3)(4) and (5) Chiefs Law and noncompliance rendered the decision incompetent for lack of jurisdiction similarly the court should allow this appeal as the action now on appeal was incompetent as Oyo High Court, lacked jurisdiction and for the action to be struck out.

Respondent in argument of his issue 1, referred to the six declarations sought by respondent and reproduced section 22 and its sub-sections 2-7 of Chiefs Law Cap. 21 of Oyo State 1978; which created a domestic forum wherein disputed chieftaincy between aggrieved party could be solved. Respondent stated that without first appealing to the prescribed authority it was premature to approach the court first. That it was only after respondent had complied with the condition precedent as laid down by section 22 and felt dissatisfied with the decision of the prescribed authority or the Executive Council that respondent could resort to the court. It was the case of respondent that the dispute involved a minor chieftaincy covered by part III of the Chiefs Law, Cap. 21 by its section 22. Section 22(3) does not cover a dispute caused by act of commission or omission of the prescribed authority in order for the prescribed authority to retain its independence and impartiality. The prescribed authority is incapable of determining the dispute that it involved it so as not to be a Judge in its own cause LSDPC v. Fawehinmi (1985) 2 NWLR (Pt. 7) page 300, Amuda v. Adelodun (1997) 5 SCNJ 266 at 271, (1997) 5 NWLR (Pt.506) 480.

Respondent’s case was that 1st appellant was not a member of Onidese chieftaincy family and not having been validly nominated, recommended or selected by 2nd appellant as Onidese therefore respondent submitted section 22(3) Chiefs Law was in applicable.

Jurisdiction to determine disputes is covered by section 6(6)(b) and 236 of 1979 Constitution, which must be guarded jealously and zealously, Military Governor of Ondo State v. Adewunmi (1988) 3 NWLR (Pt.82) page 280 at 295 SC. Calling on respondent to protest to the prescribed authority, then to the Executive Council before coming to court limits respondents access to the court contrary to sections 6 and 236(1) of 1979 Constitution which is unconstitutional.

The word “MAY” in section 22(3) Chiefs Law means an aggrieved party has a choice to petition the prescribed authority or executive councilor go to court for judicial resolution of the dispute which will be binding on the executive council. Section 22(3) Chiefs Law does not lay down a condition precedent before an aggrieved party may come to court. Erejuwa II v. Kperegbeyi (1994) 4 SCNJ (Pt. 241) at 263, (1994) 4 NWLR (Pt.339) 416. In addition sections 22(3), (4) Chiefs Law are inconsistent with sections 6(1), (2), (6)(a), (b) and 236(1) of 1979 Constitution. Sections 22(3), (4) and (5) Chiefs Law seek to derogate or circumscribe the provision of section 236(1) of 1979 Constitution thereby void Offor v. Osagie II (1998) 1 SCNJ 122 at 128, (1998) 3 NWLR (Pt.541) 205. From the foregoing, the Court of Appeal should resolve issue 1 to the effect that the trial court had jurisdiction to entertain and grant all the reliefs sought by respondent and thereby reject appellants contentions and submissions that the trial court lacked jurisdiction to adjudicate on the matter by dismissing appellants’ appeal.

It is common ground that the dispute that led to this action was the installation of 1st appellant as the Onidese chieftaincy by 2nd appellant, who refused and rejected the selection, recommendation and installation of respondent following the nomination of respondent by Onidese chieftainy family to 2nd appellant. Also respondent sought injunctive orders as set out in reliefs 5 and 6 in respondent’s claims supra against the appellants. It is common ground that Onidese chieftaincy is a minor chieftaincy under the Chiefs Law, Cap. 21 of Oyo State, with 2nd appellant as the prescribed authority.

From the foregoing, the Chiefs Law, Cap. 21, Volume 1, Laws of Oyo State of Nigeria, featured prominently and for ease of reference the following sections which are germane in this appeal read thus:-

“Section 2 “Chief’ means a person whose chieftaincy title is associated with a native community and includes a minor chief and a recognised chief. “Minor Chief’ means a chief other than a recognised chief.

“Recognised Chief’ means a person appointed to a recognised chieftaincy “Recognised chieftaincy” means a chieftaincy to which the provisions of part 2 apply.”

Section 22

“22(2) Where a person is appointed, whether before or after the commencement of this law, to fill a vacancy in the office of a minor chief by those entitled by customary law so to appoint and in accordance with customary law, the prescribed authority may approve the appointment.

(3) Where there is a dispute whether person has been appointed in accordance with customary law to minor chieftaincy the prescribed authority may determine the dispute.

(4) The decision of the prescribed authority;

(a) to approve or not to approve an appointment to a minor chieftaincy; or

(b) determining a dispute in accordance with subsection 3 of this section.

shall be final and shall not be questioned in any court.

(5) Any person aggrieved by the decision of the prescribed authority in exercise of the powers conferred on the prescribed authority by subsections (2), (3) and (4) of this section may, within twenty-one days from the date of the decision of the prescribed authority, make representations to the Commissioner to whom responsibility for chieftaincy affairs is assigned that the decision be set aside and the Commissioner may, after considering the representations, confirm or set aside the decision.

(6) Before exercising the powers conferred by subsection (5) of this section, the Commissioner may cause such inquiries to be held in accordance with section 21 as appear to him necessary on desirable.

(7) Where the Commissioner in his determination under subsection (5) of this section sets aside an appointment to a chieftaincy, he shall require the persons responsible under customary law for the appointment of the person to fill the vacancy in that chieftaincy to appoint another person in accordance with the customary law within such time as he may specify.”

In his submission, respondent contended that section 22 ,subsections 2-7 supra are inconsistent with section 6(1), (2), (6)(a), (b) and 236(1) of 1979 Constitution which provisions read as follows:-

“Section 6(1) The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.

(2) The judicial powers of a State shall be vested in the courts to which this section relates being courts established, subject as provided by this Constitution for a State.

(6) The judicial powers vested in accordance with the foregoing provisions of this section;

(a) shall extend notwithstanding anything to the contrary in this Constitution to all inherent powers and sanctions of a court of law;

(b) shall extend to all matters between persons or between government of authority and any person in Nigeria and to all actions and proceedings relating thereto for the determination of any question as to the civil rights and obligations of that person” (retained as stated in section 6, 1999 Constitution)

Section 236(1)

Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a State shall have unlimited jurisdiction to hear and examine any civil proceedings in which the existence or extent of a legal right power, duty, liability, privilege, interest obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person (now section 272(1) 1999 Constitution, judicially interpreted that the High Court of a State has unlimited jurisdiction. Bronik Motors & Anor. v. Wema Bank Ltd. (1983) 6 SC 158350, (1983) 1 SCNLR 296; A.-G., Fed. v. Guardian Newspapers Ltd. (1999) 1 NWLR (pt. 618) 187 SC.

The Supreme Court in an instructive, illuminating and exhaustive consideration interpreted section 22 sub-sections 2-7, in the case of Mr. Oladiti Adesola v. Alhaji Raimi Abidoye & Anor. (1999) 14 NWLR (Pt. 637) 28 and held as follows:-

1. “On meaning of “Chief’

A Chief means a person, whose authority and control is recognised by a community. He is an acknowledged leader in his society and among members of his community, which status carries with it, both social prestige and political functions. In the instant case, where the title of Mogaji is associated with Ibadan community and makes the holder eligible to appointment as a senior chief in the Ibadan chieftaincy hierarchy leading to the ultimate position of the Olubadan of Ibadan, the learned Counsel for the appellant cannot be understood to be suggesting that the holder of the title of Mogaji in Ibadan, does not fall within the definition of ‘Chief’ (Ononye v. Obanye (1945) 11 WACA 60; (1944) 10 WACA 4; Olaniyi v. Aroyehun (1991) 5 NWLR (Pt. 194) 652 distinguished) (Pt. 53, paras. C-H; 54, paras. B-C; 64, paras. A-B)

2. On meaning of a “Chief’ under the Chiefs Law of Oyo State, 1978. Under section 2 of the Chiefs Law of Oyo State, 1978, a ‘Chief’ means a person whose chieftaincy title is associated with a native community and includes a minor chief and a recognised chief. (P. 52, para. F)
3. On meaning of a “minor chief’ under the Chiefs Law of Oyo State, 1978 – Under section 2 of the Chiefs Law of Oyo State, 1978, “a minor chief’ is a chief other than a recognised chief. In the instant case, the title of Mogaji in Ibadan cannot be anything less than a minor chieftaincy of which the Olubadan is the prescribed authority. (Pp. 52, para. G; 64, para. A)
4. On meaning of “recognised chief’ and “recognized chieftaincy” under the Chiefs Law of Oyo State, 1978- Under section 2 of the Chiefs Law of Oyo State, 1978, “a recognised chief’ means a person appointed to a recognised chieftaincy. While a “recognized chieftaincy” means a chieftaincy to which the provisions of part 2 of the law applies. (P. 52, para. G)
5. On whom jurisdiction to determine dispute concerning minor chieftaincy under customary law conferred in Oyo State- By virtue of the provision of section 22(3) of the Chiefs Law of Oyo State, 1978, where there is a dispute as to whether a person has been rightly appointed to a minor chieftaincy in accordance with customary law, the prescribed authority is conferred with jurisdiction to determine such dispute. However, its decision shall be final and shall not be questioned in any court by virtue of section 22(4) of the Chiefs Law of Oyo State, 1978. (Pp. 58, paras. B-C)
6. On procedural step for redressing grievance in respect of the decision of the prescribed authority concerning chieftaincy dispute- By virtue of the provision of section 22(5) of the Chiefs Law of Oyo State, 1978, a person aggrieved by the decision of the prescribed authority under sub-sections (2), (3) and (4) of section 22 of the Law is entitled within twenty-one days of the making of the decision to make representations to the Commissioner for Chieftaincy Affairs, who may confirm or set aside the decision of the prescribed authority. On his part, the Commissioner for Chieftaincy Affairs may cause such inquiries to be held as appears to him necessary or desirable for the determination of the dispute. In the instant case, it cannot be accepted that the appellant is entitled to ignore or discountenance the provisions of the said section 22(5) of the Chiefs Law of Oyo State and decide to go to the High Court, a superior court, to have his grievance determined, instead of the Commissioner for Chieftaincy Affairs (Pp. 58, paras. C-E; 65, paras. C-F; 66 – 67, paras. H-A)
7. On precondition for access to cout1 in respect of dispute arising from the determination of the prescribed authority in a minor chieftaincy matter in Oyo State. The precondition for access to the court in respect of dispute arising from the determination of the prescribed authority in a minor chieftaincy dispute in Oyo State are that:

(a) the prescribed authority must have made a determination;

(b) the aggrieved party should have made a representation to the Commissioner for Chieftaincy Affairs within twenty-one days of the giving of the decision; and

(c) the Commissioner for Chieftaincy Affairs should have determined the dispute after due inquiry.These steps exhaust the remedy available to persons aggrieved under the exercise of powers vested in the prescribed authority. In the instant case, the appellant did not satisfy any of the above steps. (P. 58, paras. G-H)

10. On whether the Chiefs Law of Oyo State, 1978, violates right of access to the courts –

The relevant sections of the Chiefs Law of Oyo State, 1978, do not contain any provisions making the determination of the administering authority, the Commissioner for Chieftaincy Affairs, final and conclusive. As the determination of the Commissioner for Chieftaincy Affairs is clearly not excluded from the jurisdiction of the court, the issue of access to the courts is not foreclosed as to make the provision a violation of the right of access to the courts (P. 58, paras. E-F)

Per Karibi-Whyte, J.S.C. at page 56, para. H:

“The essence of the provision of section 22(5) is to afford the person aggrieved by the decision of the prescribed authority to make representation to the Commissioner for Chieftaincy Affairs. The provision is not in violation of section 33(2)(a) of the Constitution and has not interfered with appellant’s access to the court – See Umaru v. Abdul-Muttallabi (1998) 11 NWLR (Pt. 573) 247.”

11. On whether supervisory jurisdiction of the High Court is Excluded by section 22 of the Chiefs Law of Oyo State, 1978- The provisions of section 22 of the Law of Oyo State, 1978, do not exclude the exercise of supervisory jurisdiction by the High Court. In the instant case, however, the declarations sought were not claimed as supervisory remedies as they do not challenge any “decision” made by the prescribed authority but act of “installation”. (P. 69, paras. B-C)
12. On construction of “may” in section 22(5) of the Chiefs Law of Oyo State, 1978.

Although, the etymological meaning of “may” is permissive and facultative, and seldom can mean “must” and imperative, it assumes this last mentioned character, when there is anything in the provision that makes it the duty on the person on whom the power is conferred to exercise that power. When the exercise of the power is coupled with a duty on the person to whom it is given to exercise it, then it is imperative. In the instant case, where section 22(5) of the Chiefs Law of Oyo State, 1978, places a duty on the aggrieved, who desires to set aside the decision of the prescribed authority to make his representation to the Commissioner for Chieftaincy Affairs within twenty-one days of the decision, the use of the expression “may” in this situation is not merely facultative, but mandatory. There is no alternative. The aggrieved has no choice of action in the remedy provided for him. Accordingly, the word “may” in section 22(5) of the Chiefs Law of Oyo State, 1978 should be construed as imperative; the exercise of the right not being optional (Bakare v. A.-G., Federation (1990) 5 NWLR (Pt. 152) 516 referred to.) (P. 56, paras. D-F)

13. On need for aggrieved person to exhaust remedy particularly prescribed by statute-

Where a statute has prescribed a particular remedy, an aggrieved party should be left to exhaust the remedy. In the instant case, where the appellant has not resorted to the remedies statutorily available to him on the infringement of the alleged right by the prescribed authority. His action is premature and does not give rise to a cognisable cause of action. The appellant jumped the gun in instituting his action. He should first have exhausted the remedies laid down by the relevant laws before embarking on litigation. (Eguamwense v. Amaghizenwen (1993) 9 NWLR (Pt. 315) 1; Ariori v. Elemo (1983) 2 SCNLR 1 referred to.) (Pp. 59, paras. F-G; 60, para. F; 65-66, paras. H-A)

14. On need for aggrieved person to exhaust remedy particularly prescribed by statute-

Although a rule of court, in an appropriate cause, may, because of the peculiar and exceptional circumstances of the case, be dispensed with in the overall interest of justice and so long as no miscarriage of justice is thereby occasioned, a statutory provision may not be ignored by a court of law. Accordingly, where, as in the instant case, a special statutory provision is made for the filing of or the prosecution of a relief, the procedure so laid down ought to be followed and complied with unless it is such that may be waived. In the instant case, where a person aggrieved by the decision of the prescribed authority is enjoined statutorily to appeal or make representations within 21 days to the Commissioner, it is inappropriate for the appellant to have resorted to a declaratory action directly in the High Court in pursuit of his grievance against the decision of the appropriate authority. (Ariori v. Elemo (1983) 1 SCNLR 1 referred to.)

15. On whether parties can confer jurisdiction on court Where the court Jacks jurisdiction the parties cannot confer and vest jurisdiction on it. Accordingly, the fact that the parties fought a case erroneously on the basis that the court had jurisdiction when there was none cannot estop a party from subsequently taking the contrary position. In the instant case, where the determination of disputed minor chieftaincies is a jurisdiction by statute vested in the prescribed authority, the Court of Appeal was right, when it held that the trial court lacked jurisdiction to entertain the appellant’s claims. (Shitta-Bey v. A.-G., Federation (1998) 10 NWLR (Pt. 570) 392 referred to.) (Pp. 52, paras. A-B; 59, paras. E-F; 67, para. A; 69, para. C)
16. On whether jurisdiction can be acquired by consent or enlarged by estoppel –

Jurisdiction cannot be acquired by consent of the parties nor can it be enlarged by estoppel (Jadesimi v. Okotie Eboh (1986) 1 NWLR (Pt. 16) 264 referred to.) (P. 52, para. B)

17. On effect of steps taken in respect of a matter where court lacks jurisdiction –

If a court has no jurisdiction to hear and determine a matter before it, any step taken in relation to the matter is a nullity and void. (Timitimi v. Amabebe 14 WACA 374; Madukolu v. Nkemdilim (1962) 2 SCNLR 341 referred to.) (P. 52, para. C)

18. On whether objection to jurisdiction can be waived- Where there is no power to exercise jurisdiction, no legal action results. The question of waiver of jurisdiction does not arise. What is not within the control or competence of a party cannot be subject matter of a waiver. (Fawehinmi Construction Co. Ltd. v. O.A.U. (1998) 6 NWLR (pt. 553) 195 referred to.)
19. On when issue of jurisdiction may be raised-

The issue of jurisdiction which determines the competence to exercise jurisdiction can be raised at any stage of a trial and, indeed, even for the first time on appeal. (Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296; Onyema v. Oputa (1987) 3 NWLR (Pt. 60) 259 referred to.) (P. 52, paras. B-C)

20. On whether parties can on appeal build their case on a different factual basis other than one agreed on at the trial –

Where parties expressly or by implication, agree on the factual issues and the case has been fought on the basis of those agreed factual issues, none of them should be permitted on appeal to build his case on a different factual basis or as if the factual aspect remains at large. (Pp. 51, para. H; 68, paras. C-D)

Without reference to the judgment of the Supreme Court case of Adesola v. Abidoye supra this Court of Appeal in Hamza Lawal & Anor. v. Kafaru Oke & 4 Ors. (2001) 7 NWLR (Pt. 711) page 88 interpreted section 22 sub-sections 2-7 Chiefs Law of Ogun State, which are ipsissima verba sections 22 sub-sections 2-7 Chiefs Law of Oyo State in similar terms the said section 22 sub-sections 2-7 and came to the same conclusion wherein it was held as follows:

1. On procedure to be followed by a person aggrieved with decision of a prescribed authority in respect of chieftaincy matters in Ogun State- By section 22(5), part 3 of the Chiefs Law of Ogun State, any person aggrieved by the decision of the prescribed authority in the exercise of the powers conferred on the prescribed authority, may within twenty-one days from the date of the decision of the prescribed authority, make representations to the Commissioner to whom responsibility for chieftaincy affairs is assigned that the decision be set aside and the Commissioner may, after considering the representations confirm or set aside the decision. It is the Commissioner that could direct the prescribed authority to appoint another person to fill the vacancy. In the instant case, the respondents did not make representations to the Commissioner charged with the responsibility for chieftaincy affairs. The respondents’ counsel erroneously wrote to the Egbado South Local Government Council contrary to the requirement of the law as the council cannot be substituted for the Commissioner. The failure and non-compliance rendered the action incompetent. Therefore, the High Court lacked jurisdiction and ought to have struck out the suit. (P. 106, paras. E-H)
2. On procedure to be adopted by a person aggrieved with decision of a prescribed authority in respect of chieftaincy matters in Ogun State- By virtue of section 22(6), (7) of the Chiefs Law of Ogun State, before exercising its powers pursuant to section 32(5) of the law, the Commissioner may cause such inquiries to be held in accordance with section 21 as appear to him necessary or desirable. Where the Commissioner sets aside an appointment to a chieftaincy, he shall require the persons responsible under customary law for the appointment of the person to fill the vacancy in that chieftaincy to appoint another person to fill the vacancy in that chieftaincy to appoint another person in accordance with the customary law within such time as he may specify. (Pp. 112-113, paras. H-A)
3. On appointment of prescribed authority under the Chiefs Law of Ogun State –

By section 22(1) of the Chiefs Law of Ogun State, the Executive Council may appoint in respect of the area of any Local Government or group of Local Governments, an authority consisting of one person, or of more persons than one, who may be the chairman and other members of a committee, to exercise the powers conferred in respect of the office of any minor chief whose chieftaincy title is associated with a native community in that area. (p. 112, paras. C-D)

4. On power on prescribed authority to approve the appointment of minor chiefs in Ogun State- By section 22(2), (3) of the Chiefs Law of Ogun State, where a person is appointed, whether before or after the commencement of the law, to fill a vacancy in the office of a minor chief by those entitled by customary law so to appoint and in accordance with customary law, the prescribed authority may approve the appointment. However, where there is a dispute whether a person has been appointed in accordance with customary law to a minor chieftaincy the prescribed authority may determine the dispute. The decision of the prescribed authority:

(a) to approve or not to approve an appointment to a minor chieftaincy; or

(b) determining a dispute in accordance with the sub-section 3 of this section.

shall be final and shall not be questioned in any court. (P. 112, paras. D-F)

5. On purport of the Chiefs Law of Ogun State – The Chiefs Law of Ogun State is a law to provide for the appointment and approval of chiefs, for the determination of certain chieftaincy disputes, for the suspension and deposition of certain chiefs and for purposes connected therewith. (P. 112, paras. A-B)
6. On duty on plaintiff to exhaust administrative remedy if available before instituting his action –

Where a statute provides for resort to an administrative remedy, the court cannot competently adjudicate on any suit arising there from unless the administrative remedy had been exhausted. Where the plaintiff fails to exhaust the administrative remedy, he cannot be heard to talk of the rule of natural justice until the administrative body had had a chance to deliberate on the matter. (Akintemi v. Onwumechili (1985) 1NWLR (Pt. 1) 68 referred to.) (Pp. 106-107, paras. H-A)

9. On when a court is competent court is competent when:

(a) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and

(b) the subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and

(c) the case comes before the court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.

Any defect in competence is fatal, for the proceedings are a nullity however, well conducted and decided, the defect is extrinsic to the adjudication. In the instant case, the action filed by the respondents was incompetent, and being a defect in competence it is fatal for the proceedings are a nullity no matter how well conducted and decided as the defect is extrinsic to adjudication. As the action was incompetent, the High Court lacked jurisdiction to entertain it. (Madukolu v. Nkemdilim (1962) 2 SCNLR 341; A.-G., Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552; Oruobu v. Anehve (1997) 5 NWLR (pt. 506) 618 referred to.) (Pp. 115, paras. E-F, 117, paras. G-H)

10. On When issue of jurisdiction may be reaised-

A defendant is entitled to raise the issue of jurisdiction for the first time on appeal, even at the Supreme Court. The courts can also suo motu raise the issue of jurisdiction and competence. [Bronik Motors v. Wema Bank (Nig.) Ltd. (1983) 1 SCNLR 296; Oredoyin v. Arowolo (1989) 4 NWLR (Pt.l14) 172; General Electric Co. v. Akande (1999) 1 NWLR (Pt.588) 534; Ogunmokun v. The Military Administrator of Osun State (1999) 3 NWLR (Pt.594) 261 referred to.] (Pp. 115, paras. E-F; 117, paras. G-H)

11. On effect of defect in a court’s jurisdiction – The term jurisdiction has different meanings in different contexts. It is a radical and crucial question of competence for if the court has no jurisdiction to hear a case, the proceedings are and remain a nullity however well conducted and brilliantly decided they might otherwise have been, as a defect in competence is not intrinsic but extrinsic to adjudication. (Pp. 117-118, paras. H-A)
12. On whether court can confer jurisdiction on itself by misconstruing a statute –

A court cannot confer jurisdiction on itself by misconstruing a statute. (P. 118, paras. B) 13. On proper order to make where a court lacks jurisdiction Where an action is incompetent as a result of lack of jurisdiction, the consequential order is to strike out the case. (P. 117, paras. A)

14. On meaning of condition precedent-

Condition precedent is something that must be done or happen in a particular case before one is entitled to institute an action. It is not of the essence of such a cause of action but it has been made essential by law. IAI 361 Inc. v. Mobil Oil (Nig.) Plc. (1999) 5 NWLR (Pt. 601) 9 referred to and adopted.) (P. 116, paras. D-E)

15. On effect of non-compliance with provision for pre-action notice –

The requirements of a pre-action notice are not merely ornamental but go to the root of what will make the institution of such action in court valid and would enable the court to exercise jurisdiction so conferred on it. Once the defendant raises objection as to non-compliance with condition precedent to exercise of court’s jurisdiction, it is for the court seised of the proceedings to most profoundly examine the objection to ascertain whether it could adjudicate. The court cannot side-track such an objection by a mere wave of the hand. (Fawehinmi Construction Co. Ltd. v. Obafemi Awolowo University (1998) 6 NWLR (Pt. 553) 171; NNPC v. Fawehinmi (1998) 7 NWLR (Pt. 559) 598 referred to.) (P. 115, paras. C-E)

16. On interpretation of clear and unambiguous words in a statute-

In the interpretation of a statute, where the words of the statute are clear and unambiguous, the intention of the draftsman should be construed through the words actually used. Where the words are clear, the natural, ordinary and grammatical meaning is applied. However, if such application shall result in absurdity, then other relevant canons or principles of interpretation may be adopted. In other words, where the wordings of a statute are clear and unambiguous, one does not have to search hard or strain ones imagination and intellectual powers to get at the meaning and intention of the section according to the ordinary canon of construction, that is, by giving them their ordinary meaning in English language as applied to such a subject in Nigeria, unless some gross and manifest absurdity would be thereby produced. In the instant case, the words used in section 22 of the Chiefs Law of Ogun State are not ambiguous, the natural, grammatical and ordinary meaning is adopted in interpreting the section. It does not lead to any absurdity. (Awolowo v. Shagari (1979) 6-9 SC 51; Toriola v. Willams (1982) 7 SC 27; Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377; Mandara v. A.-G., Federation (1984) 1 SCNLR 311; Braithwaite v. Grassroot Democratic Party (1998) 7 NWLR (Pt..557) 307 referred to.)

17. On extant nature of pre-action notice-

Pre-action notices far from being unjust, have been for a long time accepted as part of Nigerian Civil Procedure whether statute prescribes that such should be given. (Fawehinmi Construction Co. Ltd. v. Obafemi Awolowo University (1998) 6 NWLR (Pt. 553) 171; NNPC v. Chief Gani Fawehinmi (1998) NWLR (Pt. 559) 598 referred to.) (P. 115, paras. B-C)

Applying the above authorities, which fact and law are on all fours with the facts and applicable law in this case to wit section 22 sub-sections 2-7 Chiefs of Oyo State established and proved quod erat demonstran dum (QED) that non-compliance with the provisions of section 22 sub-sections 2, 3, 4, 5, 6, 7, Chiefs Law of Oyo State supra before instituting an action in the High Court is premature and incompetent.

Any defect in competence is fatal for the proceedings are a nullity however, well conducted and decided. Madukolu v. Nkemdilim (1962) 2 SCNLR 341 as the defect is extrinsic to the adjudication. In the instant appeal as the action filed by the respondent without compliance with the procedure laid down in section 22 sub-sections 3, 4 and 5 Chiefs Law Oyo State supra, the action filed by the respondent was incompetent and being a defect in competence it is fatal for the proceedings are a nullity no matter how well conducted. As the action was incompetent Oyo High Court lacked jurisdiction to entertain it. Issue 1 of appellants’ brief of argument is cogent, impeccable, convincing and meritorious thereby resolved in favour of appellants. The argument of the respondent in issue 1 of respondent’s brief of argument though valiantly argued is unconvincing and hereby rejected and resolved against respondent.

Following the rules of stare decicis in our jurisprudence, I am bound by the decision of the Supreme Court by its decision in Adesola v. Abidoye supra. This court is enjoined to loyally follow and adopt the judgment of the Supreme Court Cassel & Co. Ltd. v. Capt. Bromme & Anor. (1972) 2 WLR page 645 at 653 House of Lords. Jalo Tsamiya v. Bauchi Native Authority (1957) NWLR page 75, Pascal & Ludwig Inc. v. A. T. Kiren (1975) NMLR page 74.

I am also bound by the previous decision of this court and can only depart under the rule of decision in Young v. Bristol Aeroplane Co. Ltd. (1944) KB 718 therefore, I adopt and follow the decision of this court Hamza Lawal & Anor. v. Kafaru Oke & 4 Ors. supra and to hold that the High Court Oyo township, lacked jurisdiction to adjudicate in this matter.

Having declared the lack of jurisdiction of High Court Oyo township, the appeal of appellants are allowed the action that led to this appeal and judgment is hereby struck out Ogbuehi v. Governor of Imo State (1995) 9 NWLR (Pt. 417) page 53; Ogunmokun v. Military Administrator Osun State (1999) 3 NWLR (Pt. 594) page 261 CA.

In view of the striking out of the action issues 2 and 3 canvassed by appellants are no longer relevant in the consideration of this appeal they are rendered otiose.

As this appeal succeeds, the appellants are entitled to the cost of this appeal, which I fix at N5,000.00(Five thousand naira) in favour of appellants against respondent.

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Other Citations: 2002)LCN/1170(CA)