Bamidele Oladipo S. Apadi & Ors V. Oba Samuel O. Banuso & Ors (2007)
LawGlobal-Hub Lead Judgment Report
M.D. MUHAMMAD, J.C.A.
The Appellants herein as Plaintiffs at the Ilara Judicial Division of the Ogun State High Court, hereinafter referred to as the court below, commenced Suit No/HCL/19/88 against the Respondents, the Defendants thereat claiming the following:-
(1) Declaration that by the age long custom and tradition of Igere Village, it is the Ipodo Ogubi Family of Igbese that appoints the Ba’ale of Igere Village from Gbogi-Idada Family of that village.
(2) Declaration that the 1st plaintiff has been appointed as Ba’ale of Igere Village by those entitled by Customary Law of the Community to appoint him and in accordance with the Chiefs Law of Ogun State; an order directing the 1st defendant to give statutory approval to the appointment of the 1st plaintiff as Ba’ale of Igere Village.
(3) Declaration that the 2nd defendant is not entitled to be nominated or approved by the 1st defendant or any vital person(s) as Ba’ale of Igere Village.
(4) Perpetual injunction restraining the 1st defendant, his agents, servants or privies from approving or installing the 2nd defendant or any other person (save members of the plaintiffs’ family) as Ba’ale of Igere.
Pleadings were filed and eventually settled. The case went to full trial. In proof of their case, the plaintiffs called five witnesses.
Five witnesses equally gave evidence in support of the case for the defendants.
From their pleadings as well as the evidence adduced, appellants’ case is that the Ba’ale of Igere is a minor Chieftaincy title filled exclusively, given an Igere age old custom by members of the Gbogi-Idada Family of Igere. A candidate nominated by the said family members from amongst themselves is recommended to the head of the Ipodo Ogunbi Family who in turn presents the appointee to the Oba of Igbessa, the prescribed authority, for the latter’s approval as required under the Chiefs Law, Cap. 20, of the Laws of Ogun State. The Ba’ale is then installed as Ba’ale of Igere. Wheto Ajiadi and Oketola were members of the Gbogi-Idada family previously appointed and installed as Ba’ales in line with customary requirements.
It is appellants’ further case that 1st plaintiff had been appointed as Ba’ale in accordance with the age old custom but that 1st defendant had refused to give his approval as required by custom when same had been sought by the plaintiffs.
Instead, 1st defendant had given his approval for the installation of the 2nd defendant as the Ba’ale. 2nd defendant’s installation not being a member of the Gbogi-Idada family, was unlawful.
Defendants’ case, on the other hand, is that the minor Chieftaincy title of the Ba’ale of Igere is filled by election of any member of the community who enjoyed the support of the majority of the other members of the Community. The election of the member is then ratified by the majority of the members of the Ipodo family.
The chieftaincy title was filled in rotation by candidates from Igere-Oke and Igere-Igale families. The former is the plaintiffs’ family. The latter is 2nd defendant’s family. Also, 2nd defendant’s election as Ba’ale having been ratified had further been approved by the 1st defendant.
In its considered judgment at the end of trial, the lower court inter-alia at page 162, lines 29-32 and page 163, lines 1-15 made some crucial findings thus:
“From the evidence adduced all both sides the following facts emerge:
(1) That the Gbogi-Idada Family had produced three successive Ba’ales of Igere namely: Wheto Aina, Apadi and Samuel Oketola of 1gere. No other family had produced a Ba’ale for this village;
(2) That Gbogi-Idada Family has the exclusive right to nominate a candidate, among members of this family for this Chieftaincy;
(3) A candidate so nominated by the Gbogi-Idada Family should be approved by Ipodo Ogunbi Family before such a candidate is presented to the prescribed authority for final approval.
(4) The Gbogi-Idada Family had validly nominated the 1st plaintiff i.e. Bamidele Oladipo Samuel Apadi as Ba’ale of Igere in accordance with custom of this Chieftaincy and had obtained the approval of Ipodo Ogunbi for this nomination;
(5) The nomination was not approved by the 1st defendant who sought to install 2nd defendant as Ba’ ale of Igere because, so the 1st defendant thought) this, title should be rotation (sic) between the three districts comprising Igere village.”
In conclusion, the court held itself bound by the decision of this court in Lateef Salako & 3 Ors. v. Jerome Alao & 3 Ors. (1994) 8 NWLR (Pt. 360) 47, where a plaintiff’s action was declared incompetent because of his failure to fulfill a condition precedent to the commencement of his action. The plaintiff in the case had not made representations to the prescribed authority as required by section 22 of the Chiefs Law, Cap 20, Laws of Ogun State, 1978. The lower court consequently declined jurisdiction and dismissed plaintiffs’ action. Being dissatisfied with the decision of the court delivered on 6-9-94, they have appealed to this court on a notice dated 3rd October, 1994 containing three grounds. They pray that the lower court’s decision declining jurisdiction over the instant matter be set aside and based on the court’s findings of fact that plaintiffs had made out their claim enter judgment for them. Parties will henceforth be referred to as appellants and respondents respectively.
Following respondent’s neglect and, or failure to file their brief of argument, the appellants pursuant to Order 6 rule II applied for and obtained this court’s order that the appeal be heard on their brief alone. At the hearing of the appeal, respondents who had notice of the hearing absented themselves. They were also not represented.
Appellants adopted and relied on their brief of argument which contains three issues for the determination of the appeal. The three issues read:
“(1) Can section 22(2) – (7) of the Chiefs Law, Cap 20 of the Laws of Ogun State be properly construed as capable of ousting the jurisdiction of the court in a Chieftaincy matter in the face of the clear and unambiguous provisions of section 6(6)(b) and section 230 of the unsuspended Constitution of the Federal Republic of Nigeria, 1979?
(2) Whether the decline of jurisdiction by the trial court purportedly under section 22(2) – (7) of the Chiefs Law of Ogun State is supported by evidence on record?
(3) Whether the plaintiffs were afforded the full enjoyment of their Constitutional right to fair hearing before their action was struck out by the court.”
It is contended under their first issue that appellants had the unhindered right to approach the lower court and have their complaints determined on issues cognisable by law. This court’s decision in Lateef Salako & 3 Ors. v. Jerome Alao & 3 Ors. (1994) 8 NWLR (Pt.360) 47 which the lower court rested its decision on is a pronouncement on section 22 of the Chiefs Law of Ogun State which is inconsistent with section 6(6)(b) and section 236 of the 1979 Constitution of the Federal Republic of Nigeria applicable to the instant suit. The decision is for that reason inapplicable to the facts of the instant case and the lower court is in great error to have invoked and relied on the decision to decline jurisdiction over appellants’ case. It is trite law, appellant’s counsel submits, that any legislation which is inconsistent with the express provision of the constitution, and section 22 of the Chiefs Law of Ogun State is such law, is null and void to the extent of the inconsistency. Relying inter alia on Ishola v. Ajiboye (1994) 6 NWLR (Pt. 352) 506, Olu of Warri v. Kperegbeyi (1994) 4 NWLR (Pt. 339) 416 at 435; Oseyomon v. Ojo (1997) 7 SCNJ 365 at 380, reported as Benin Rubber Producers Ltd. v. Ojo (1997) 9 NWLR (Pt.521) 388 and Governor of Ondo State & Anor. v. Adewunmi (1985) 3 NWLR (Pt. 13) 493 at 501, counsel submits that the lower court’s faulty decision be jettisoned by us. The court has actuated a miscarriage of justice to the appellants in its declining jurisdiction on the basis of the null and void law. It is urged that this issue be resolved against the respondents.
The 2nd and 3rd issues for determination drawn from the 2nd and 3rd grounds of appeal respectively are jointly argued in the appellants’ brief. Parties, it is argued, did not raise in their pleadings and evidence the issue of the lower court’s jurisdiction on the basis of appellants’ failure or otherwise to make representation to the “prescribed authority”. Both parties, it is contended, submitted themselves to the jurisdiction of the court without any reservation. Although, the importance of jurisdiction cannot be over-emphasized, a party or even the court raising the issue suo motu must utilize the correct procedure which gives due regard to the fundamental rights of the parties. In the case at hand, it is argued, the lower court had raised the issue of its jurisdiction suo motu but failed to ask parties before it to address it on the issue before coming to a decision. Since the issue was neither raised in the pleadings of the parties nor otherwise formally by any of the parties and evidence backing up the complaint proffered, the lower court is wrong to have so decided the issue. Learned appellant’s counsel relies on Sachia v. Kwande Local Government Council & Ors. (1990) 5 NWLR (pt. 152) 548 at 555-556; Shitta-Bey v. Federal Pubic Service Commission (1981) 1 SC 40 at 59; A.-G., Anambra State v A.-G., Federation (1993) 6 NWLR (Pt. 302) 692 at 742 and Adeyemi v. Opeyori (1976) 9-10 SC 31 and urges that this Court sets aside the lower court’s unlawful decision. Concluding, appellants have urged us to uphold all the findings of fact made by the lower court and find for them on the basis of those facts.
This appeal raises very vital questions on the respective concept and doctrine of jurisdiction and precedent in the litigation process.
The appeal impliedly dwells on the matter of hierarchy of legislations and the effect of an inferior legislation being inconsistent with the clear provision of a more superior one. In resolving these germane questions, the submissions of learned appellant counsel cannot be lightly ignored. They are not only congent and appropriate to the facts of the case at hand and the issues which the appeal raise and yearn for resolution but equally unassailable.
Firstly, it must be out rightly conceded that the existence or absence of jurisdiction of a court to hear and determine a cause or matter before it, is very fundamental since it touches on that court’s competence at adjudication. The existence or absence of jurisdiction in the court goes to the root of the matter and sustains or nullifies the decision of the court regarding the relevant subject matter. Being the threshold matter that it is, it can be raised at any time or stage in the proceedings and even on appeal as a substantive matter of law. See Obikoya v. Registrar of Companies (1975) 4 SC 31 at 34; Bronik Motors Ltd. v. Wema Bank (1983) 1 SCNLR 296 and Onyema v. Oputa (1987) 3 NWLR (Pt.60) 259.
In Dongtoe v. C.S.C., Plateau State (2001) 4 SC (Pt. 11) 43 at 53; (2001) 9 NWLR (Pt.717) 132, the Supreme Court has re-emphasized the point that absence of jurisdiction in the court does accentuate the want of legal capacity and competence in the court and the court is in that regard barred from exercising the powers vested in courts by section 6(6)(b) of the Constitution to enquire and pronounce on any matter parties would want it so to do. Any proceedings embarked upon and the judgment therefrom are obvious nullities once the court lacked the jurisdiction to exercise in the enquiry and determination of the relevant issue. See also Sule v. Nigerian Cotton Board (1985) 2 NWLR (Pt 5) 17; Western Steel Works Ltd. v. Iron & Steel Workers Union (1986) 3 NWLR (Pt. 30) 617 and Skenconsult (Nig.) Ltd. v. Sekondy Ukey (1981) 1 SC 6.
In Madukolu v. Nkemdilim (1962) 2 SCNLR 341, the Supreme Court has held that a court is said to have jurisdiction and therefore competent upon an action when:
(a) It is properly constituted as regards numbers and qualification of the members of the bench and no members is disqualified for one reason or the other;
(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 fulfillment of any condition precedent to the exercise of Jurisdiction. (Italics supplied for emphasis) See also Rossek v. African Continental Bank Ltd. (1993) 8 NWLR (Pt. 312) 382.
In the instant case, the lower Court had declined jurisdiction in the matter after full trial into the cause. The court held that by virtue of the Court of Appeal’s decision in Lateef Salako & 3 Ors. v. Jerome Alao & 3 Ors. (supra), since appellants had not fulfilled a condition precedent to the commencement of the their action as required under section 22 of the Chiefs Law, Cap. 20 of the Laws of Ogun State, 1978, the action was incompetent. In particular, section 22(5) of the very statute provides thus:
“(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 representation 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 “. (Italics supplied for emphasis)
Appellants’ grouse in all the three issues formulated for the determination of the appeal revolves around the procedure the lower court employed in its decision to decline jurisdiction over their case.
Parties had not joined issues on whether or not appellants had, as required by section 22(5) of the Ogun State Chiefs Law, Cap 20 of 1978 made any representation to the prescribed authority before commencing their action, a condition precedent to the filing of a competent suit under the law. Besides, parties were never asked to address the court on the issue after the court had suo motu raised it. These short comings, appellants’ counsel submits, are so fundamental and go to the root of the court’s decision. The decision cannot endure and same must on the authorities be set aside. Appellants also urge us to find for them given those persistent findings of fact made by the court below.
Appellants are on a very firm wicket here. The point has become trite that though the issue of jurisdiction of a court can be raised at any time even for the first time in the Supreme Court, in the case at hand, however, where the lower court raised the issue suo motu, it was only possible for the court to lawfully resolve the issue after the parties before it, particularly the appellants who were to be adversely affected had addressed the court on the issue.
A decision arrived at without hearing the parties constitute a breach of the constitutional right of the parties to fair hearing. The decision cannot certainly endure. See Araka v. Ejeagwu (2000) 15 NWLR (Pt. 692) 684 at 700; Oro v. Falade (1995) 5 NWLR (pt.396) 385 and Oje v. Babalola (1991) 4 NWLR (Pt. 185) 267. The decision in Lateef Salako & 3 Ors. v. Jerome Alako & 3 Ors (supra) which the court below purportedly drew from is not as formidable as the trial court envisaged. By raising an issue suo motu and deciding it without hearing the parties to the action wherein the issue was raised, the court fell in breach of appellants’ constitutional right and the lapse is never remedied by any law embodied in the judicial decision relied upon by the court. It is particularly for these reasons that appellant’s 3rd issue for the determination of the appeal has to and is resolved in their favour.
Under their 2nd issue for determination, appellants have proffered that a decision either way as to whether they had fulfilled the condition precedent to the commencement of the instant action must necessarily be grounded on evidence. It is contended that parties had neither pleaded any facts on whether or not appellants had made representations to the “prescribed authority” nor proffered any evidence in that regard. The lower court’s decision declining jurisdiction because of appellants’ failure to fulfill the condition precedent stipulated by virtue of section 22(5) of Cap 20 the Chiefs Law of Ogun State is therefore perverse. One cannot agree more.
An examination of the record of appeal clearly bears out learned appellants’ counsel. In Nnonye v. Anyichie (2005) 1 SC (Pt. II) 96 at 105, (2005) 2 NWLR (Pt.910) 623, the Supreme court reiterates the position of the law that where properly raised, a court can resolve objection to its exercise of jurisdiction over a given matter on the basis of any of the following:
(a) On the basis of the statement of claim or
(b) On the basis of the evidence received or
(c) On the basis of the facts set out in the affidavit in Support of the motion challenging the court jurisdiction or
(d) On the face of the writ of summons, where appropriate, as to the capacity, on which the action was brought, or against whom the action was brought.
The apex court’s foregoing decision merely restates its long standing position on the issue. See Attorney General of Kwara State v. Olawale (1993) 1 NWLR (Pt. 272) 645; N.D.T.C. v. Central Bank of Nigeria (2002) 7 NWLR (Pt. 766) 272 and Arjay Ltd. v. Airlines Management support Ltd. (2003) 7 NWLR (Pt.820) 577. In the case at hand, since the objection to the courts jurisdiction was neither raised by the respondents nor was same decided on the basis of either parties’ pleadings or the writ of summons before the court, the lower court had erred in its failure to call for such materials from the patties that would have legitimately enabled it resolve the issue that it had raised suo motu. The court’s decision on an issue it had itself raised, be it repeated by way of emphasis, in the absence of any evidence on record that had been made available to the court by the party to be particularly affected by the court’s eventual decision is perverse and cannot stand. See Kausani v. Kausani (2000) 2 NWLR (Pt. 646) 681 CA and Sagay v. Sajere (2000) 6 NWLR (pt.661) 360 Sc. Appellants are obliged and such decision must and is hereby set aside.
Appellants’ 2nd issue succeeds as well. Same is also resolved against the respondents.
Finally, it must be stated that appellants’ first issue being academic by nature is unworthy of this court’s attention. Court’s have always ignored such issues. Under the particular issue, the appellants have asked whether section 22(2) – (7) of the Chiefs Law Cap 20 of the Laws of Ogun State is, in the face of section 6(6)(b) and section 236 of the 1979 Constitution capable of ousting the lower court’s jurisdiction over the instant matter. Laws are never applied or construed at large or in vacuum.
The fact whether or not appellants had made representation to the “Prescribed Authority” as envisaged by section 22(5) of the Chiefs Law, Cap 20 remains unavailing. Our construction of the law in the absence of these facts amounts to a consideration of a hypothetical issue. Neither this nor the lower court is free to indulge in such speculative and futile exercise. See Okulate v. Awosanya (2000) 2 NWLR (Pt. 646) 530 SC and Morohunfade v. Adeoti (1997) 6 NWLR (pt. 508) 326 CA.
In sum, this appeal has merit and same is accordingly allowed. I am equally of the firm and informed view that appellants are entitled to the relief they seek following their success in the appeal. Why? In Nnonye v. Anyichie supra at pages 103-104 of the law report; (2005) 2 NWLR (Pt.910) 623 at 647, the Supreme Court dwelt on facts such that feature in the instant case thus:
“As it has been shown earlier above, the objection to jurisdiction was founded on non-compliance with the requirement of pre-action notice which does not abrogate the right of a plaintiff to approach the court or defeat his cause of action if, therefore, the subject matter is within the jurisdiction of the court, as in this case, failure of the plaintiff to serve the pre-action notice on the defendant gives the defendant a right to insist on such notice before the plaintiff may approach the court.
In other words, non service of a pre-action notice merely puts jurisdiction of a court on hold pending compliance with the pre-condition the effect of non-service of a pre-action notice, where it is statutorily required, as in this case, is only an irregularity which, however, renders an action incompetent. It follows therefore that the irregularity can be waived by a defendant who fails to raise it either by motion or plead it in the statement of defence. See Katsina Local Authority v. Makudawa (1971) 1 NMLR 100. If, therefore, a defendant refuses to waive it and he raises it, then the issue becomes a condition precedent which must be met before the court could exercise its jurisdiction: See Madukolu v. Nkemdilim (supra). The defence, like any similar defence touching on jurisdiction, should be raised preferably soon after the defendant is served with the writ of summons. It could also be pleaded in the statement of defence. But once it is raised, and it is shown that there has been non-service, as in the present case, the court is bound to hold that the plaintiff has not fulfilled a pre-condition for instituting his action. See Ademola II v. Thomas (1946) 12 WACA 81; Katsina Local Authority v. Makudewa (supra) and Eze v. Ikechukwu (supra). ” (Italics supplied for emphasis)
Applying the foregoing principle outlined by the apex court to the facts of the case at hand, since the jurisdiction of the court below had neither been challenged by the respondents nor had same been successfully raised by the lower court itself, appellants’ cause of action had remained within the jurisdiction of the court. Appellants’ failure, to make representation to the “prescribing authority” before instituting their action, if at all, constitutes an irregularity the respondents had waived. The lower court had found at pages 162 to 163 lines 29-32 and 1-15 of the record of appeal that appellants had made out their case but for the fact that it lacked jurisdiction to enquire and grant same for the reasons that have just been faulted. It stands to reason that appellants who were otherwise deprived from the reliefs they had successfully made out be declared entitled to those very reliefs. Having allowed the appeal and set aside the order of the lower court declining jurisdiction, judgment is hereby entered for the appellants per their writ of summon dated 25th August, 1994.
No order is made as to costs of this appeal.
Other Citations: (2007)LCN/2526(CA)
