Amusa Momoh & Anor Vs Jimo Olotu (1970)

LawGlobal-Hub Lead Judgment Report

 ADETOKUNBO ADEMOLA, CJN

This is an appeal from a ruling made by Kester, Acting Chief Justice, Western State, as he then was, on a motion filed in Suit No. 1/115/66 praying the court to order a dismissal of the plaintiff’s action on the ground that it is frivolous, vexatious and an abuse of the process of the court, and also on the grounds that

(a) the court has no jurisdiction to entertain the claims;
(b) the relief claimed is one which the court ought not to grant; and (c) the plaintiff has no locus standi to maintain the action.

It was also sought in the alternative to strike out the statement of claim on the ground that it disclosed no cause of action, and that judgement be entered for the defendant.

The writ of summons in the case is for “a declaration that the correct custom for the selection of an Olukare is not from father to the eldest son, but devolves on whosoever the Owalukare family in conclave puts forward and is accepted by the king-makers.”

Pleadings were ordered and filed in the matter, and the relevant paragraphs of the statement of claim filed are the following; that is to say paragraphs 1,2,3,4,6, 7, and 8 and are as follows:
“( 1) The plaintiff is a member of Owalukare ruling house of Okela Quarters, Ikare.
(2) The plaintiff brings this action on behalf of himself and other members of Owalukare ruling house.
(3) The first defendant was in 1955 and 1956 the Chairman of the Ikare District Council.

(4) The first defendant is the present Olukare of Ikare and claims to be the direct son of previous Olukare.
(6) Sometime in 1956 a declaration was made and signed by the first defendant as Chairman of the Ikare District Council stating that the correct custom for the succession to the Olukare Chieftaincy is that the “eldest son (of a reigning Olukare) succeeds to the title.”

(7) The said declaration was accepted by the Ministry of Chieftaincy Affairs as the correct native law and custom regulating the succession to the Olukare Chieftaincy.

(8) The plaintiff avers that the said declaration is not in accordance with the native law and custom of the Ikare people and has not been published in any gazette and is of no effect or validity.”

In the statement of defence of the 2nd defendant, there are the following pertinent paragraphs, namely paragraphs 2, 3, 4, 5, and 6 which are as follows:
” (2) The 2nd defendant is not in a position to admit or deny paragraphs 1 and 2 of the statement of claim.
(3) The 2nd defendant is not in a position to admit or deny paragraphs 1 and 2 of the statement of claim.
(4) With reference to paragraphs 6, 7, 8, 9, 10 and 11 of the statement of claim the 2nd defendant avers that:
(a) a declaration relating to the Olukare of Ikare chieftaincy dated 14th June, 1956, and signed by the 1st defendant as the Chairman of the Ikare District Council was made in 1956;
(b) as a result of certain things the apropriate authority caused an inquiry to be held to ascertain, inter alia, whether the said declaration was in accordance with the relevant native law and custom;
(c) the inquiry was held and a report dated August 1956, was submitted to the appropriate authority;
(d) amendment of the said declaration in certain respects became necessary;
(e) the declaration (as amended) was dated 22nd October, 1956, and was signed by one Bada as the Chairman of the Ikare District Council; and
(j) the declaration (as amended) has been approved and registered.

(5) With further reference to paragraphs 6, 7, 8, 9, 10 and 11 the 2nd defendant avers that:
(a) on the death of an Olukare, his eldest son succeeds to the title unless he shall be known to be a thief, be left-handed, be of unsound mind, impotent, be in anyway bodily deformed, has still-born at first child’s birth or be known to be a stammerer; and
(b) if the eldest son shall be disqualified on any of the afore-mentioned grounds, then the next son of the deceased Olukare shall succeed to the title.

(6) The 2nd defendant avers that the registered declaration which contains the statements in paragraphs 5(a) and 5(b) above correctly states the customary law regulating the selection of a person to be the holder of Olukare of Ikare chieftaincy.
After hearing arguments of counsel on the aforesaid motion the learned trial judge ruled that although sections 22 (1) (b) and 158 (4) of the Constitution of the Federation ousted the jurisdiction of the courts in Chieftaincy questions, the claim before the court, in his view, was not a chieftaincy matter and as such he dismissed the motion. In his ruling the learned trial judge said as follows

“The claim before the court does not raise any issue as to the validity of the selection or appointment of the present Olukare. It does not raise any question as to the validity of the appointment of a Chief… Paragraph I of the statement of claim which is not denied shows that the plaintiff has a real interest to raise the question; and the defendants having joined issue with him have made themselves proper contradictors. They have true interest to oppose the declaration sought. Until evidence is led and until after hearing the court cannot say if it should exercise its discretion in granting the relief sought or not.”

The learned judge continued
“As to the plaintiff not having locus standi to maintain the action,
paragraph 1 of his statement of claim says that he is a member of Owalukare ruling house of Ikare. That fact has not been denied. In my view he has a right to bring the action because he has been excluded by the declaration. He has a grievance.”
Finally he said-
“From the averments in the statement of claim there is a dispute and the parties have joined issue in that respect. Paragraphs 3 and 6 of the statement of claim say that the 1st  defendant was the Chairman of the Council and that he signed the declaration about the custom complained of. Paragraph 7 says that the 2nd defendant accepted the declaration as the correct native law and custom. The application to strike out the statement of claim is refused. Motion is dismissed.”
We are in no doubt that the learned Acting Chief Justice was in error when he held that the matter before him was not a chieftaincy question. Whichever way one looks at the case, it is clear that the claim should have been dismissed.

On the matter of jurisdiction, the learned trial judge in his judgement agreed that where there is a registered declaration as to a particular chieftaincy the jurisdiction of the court is ousted, and he referred to the case of Abaekere and 2 others v. Ministry of Chieftaincy Affairs and 2 others Case No. AK/15/63 decided by Fatayi-Williams, J. at the High court at Akure on 8th November, 1963, and approved of by this court on appeal on 4th May, 1966. The learned trial judge in the present case however sought to show a point of difference. After referring to the case, he said:
“I agree that where there is a registered declaration, the jurisdiction of the court is ousted. But in the present cast there is no evidence yet to that effect and the court cannot assume its existence. In Abaekere’s case, both sides admitted that the declaration had been registered.”

It is not correct that there is no evidence before the learned trial judge that the declaration in this matter has been registered. It is clearly set out in the statement of the defence of the defendants that “the declaration as amended has been approved and registered,” and it has never been controverted, even in court.

Now, a cursory glance at the paragraphs of the statement of claim herein before set out as well as the paragraphs of the statement of defence of the 2nd respondent shows that the declaration made by the 1st defendant as Chairman of the Ikare District Council (see paragraph 6 of the statement of the claim) was not accepted by the 2nd defendant, as the plaintiff stated in paragraph 7 of the statement of claim. Paragraph 4 of the statement of defence (1st defendant) clearly states that the declaration made on 14th June, 1956 had been rejected as. a result of enquiry made and another panel was set up. A declaration was made on 22nd October, 1965 and signed by one Bada as the Chairman of the said Ikare District Council.

We observe that the pleadings of the defendants clearly put to the plaintiff the position as it was in 1956. If he disputed the facts in paragraph 4 of the statement of defence of the 2nd defendant, he should have filed a reply to that statement of defence and so join issue thereon with the defendants.

If paragraph 4 of the statement of defence of the 2nd defendant (supra) is correct, where then is the cause of action against the defendants for a declaration made in June 1956 by the 1st defendant, which declaration had been rejected by the 2nd defendant

Was the plaintiff aware that the declaration signed by the 1st defendant as Chairman of the Ikare District Council on 14th June, 1956 had been rejected by the 2nd defendant Was he aware that as a result of an enquiry made another body was set up under one Bada who was then Chairman of the Ikare District Council and that that body on 22nd October, 1956 made an amended declaration Was he aware that the declaration (as amended) had been approved and registered since 1956 If plaintiff is aware of all these, and there is nothing to show since the statement of defence had been filed that he was not, why must he, ten years later (1966), bring the present action against the 1st defendant It is clear that the action is misconceived.

In regard to paragraph 1 of the statement of claim and the point raised that the plaintiff has no locus standi in the matter, the learned trial judge, ruled that as this paragraph has not been denied, the plaintiff cannot be said to have no interest.

Now, what is the averment in paragraph 1 The plaintiff says that he is a member of the Olukare family. The question may be asked, is it enough for the plaintiff to state that he is a member of the family Has he not got to state that he has an interest in the chieftaincy Surely not every the chieftaincy family as such has interest in the chieftaincy, We are of the view that it is not enough for the plaintiff to state that he is a member of the family; he has to state further that he has an interest in the chieftaincy title, and furthermore, state in his statement of claim how his interest in the chieftaincy title arose.

It is difficult to say on the pleadings filed that the plaintiff has any locus in the matter.
We now turn to other aspects of the matter. The plaintiff brought this action in her personal capacity, but paragraph 2 of his statement of claim reads-
“2. The plaintiff brings this action on behalf of himself and other members of Owalukare ruling house.”

The court below, rightly in our view, took no notice of paragraph 2 and treated the action as a personal action. This brings us to the question of the position of the plaintiff in this matter.

Plaintiff has not claimed that he has a standing in this matter which entitles him to bring an action; or that he is representing a certain ruling family in this matter whose interests are affected and who are to be benefited by the declaration sought in the writ or that his existing right or his family’s existing right has been infringed. See Lawani Odusanya and others v. Bakare Odefodurin and others W.A.C.A. 3016 (Cyclostyled reports) decided 19th October, 1949.

Mr Ayoola for the plaintiff agreed before us that since the section was not instituted as a representative action, the court cannot take notice of paragraph 2 of the statement of claim and that this is purely a personal action. On that score, we fail to see the position of the plaintiff, who cannot say, and has not alleged, that his personal rights have been infringed.

In view of the above premises we fail to see how the plaintiff can maintain an action on the statement of claim filed. We think that the learned trial judge was in error when he ruled that the matter before him was not a chieftaincy matter, and that on the face of it, the statement of claim disclosed a cause of action, or that the plaintiff has a locus standi; or that the 1st defendant had signed a declaration about which the plaintiff can justifiably complain. The learned trial judge was clearly wrong in refusing to strike out the statement of claim and/or the action before him. We are of the view that the action should have been dismissed and we will accordingly so order.

The plaintiffs action against the defendants is therefore dismissed and the order for 25 guineas costs against the 1st defendant is hereby set aside.

Costs of 20 guineas is hereby awarded against the plaintiff in favour of the 1st defendant, being costs in the court below and further costs of 40 guineas will be awarded against the plaintiff in favour of 1st defendant as costs in this Court.

Other Citation: (1970) LCN/1799(SC)