Chief F. A. Bamisile V. Francis Ojo Osasuyi & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

OGUNWUMIJU, J.C.A.

: This is an appeal against the ruling of the Ekiti State High Court sitting at Ado Ekiti in suit HAD/23/2000 delivered by Hon. Justice E. O. Kowe on 12th December, 2005 dismissing the appellant’s suit for lack of jurisdiction.

The appellant herein was the plaintiff at the lower court and the defendants at the lower court are the present respondents. The facts which led to this appeal are stated as follows:

By paragraph 30 of the statement of claim the appellant claimed at the lower court the following reliefs:

“a. A declaration that first defendant is not a member or head of the Aledi Ruling House to the Onire of Ire Ekiti Chieftaincy, and so has no right to attend, or preside over, any meeting of the said Aledi Ruling House or do anything whatsoever towards the filling of the Onire of Ire Ekiti vacant title.

b. A declaration that second defendant is not a member of the Aledi Ruling House to the Onire of Ire Ekiti Chieftaincy and consequently has no right to contest for the vacant title of Onire of Ire Ekiti.

c. An injunctive order restraining the third, fourth, fifth and sixth defendants from having anything whatsoever to do with first and second defendants in connection with the filling of the vacant title of Onire of Ire Ekiti.

d. An injunctive order restraining first and second defendants from attending any meeting of the Aledi Ruling House especially for the purpose of filling the vacant Onire of Ire Ekiti title.”

Pleadings were exchanged, issues joined and necessary amendments made. Trial commenced, but following the transfer of the former trial Judge to another judicial division, the trial of the case was adjourned to start de novo. The plaintiff then died in August, 2004 and a motion for substitution was then filed by appellant’s counsel.

Meanwhile, the firm of Abiola Ayimonche & Co. came in as counsel for the 1st and 2nd respondents because of the death of their original counsel. However, before trial could commence de novo, the 1st and 2nd respondents through their counsel filed a preliminary objection dated the 8th of June, 2005, challenging the jurisdiction of the court to hear the appellant’s suit based among other things on lack of jurisdiction of the trial court, due to non-fulfillment of a condition precedent, lack of locus standi of the appellant and that the result of the death of the appellant was that the action had abated since it was a personal action.

The appellant’s counsel filed a counter-affidavit on 1/9/2005 to the 1st & 2nd respondents’ motion for preliminary objection. The motion was fixed for definite hearing on the 24th day of October, 2005.

On the adjourned date for the said motion to be argued, the appellant’s counsel, Chief A. O. Akanle, SAN informed the court of an earlier application for the substitution of the appellant who died sometime in 2004, and insisted that same be heard first.

The 1st & 2nd respondents’ counsel, C. A. Chinaka, Esq. pointed out to the court that the preliminary objection that was set for argument challenged the jurisdiction of the court and as such should be heard first, since its outcome could mean the end of the case one way or another.

The respondents’ counsel had argued that by joining issues and filing a counter-affidavit to the preliminary objection the appellant’s counsel cannot turn around to say they should take a step back.

It was against this backdrop that the court below refused the oral application by the appellant’s counsel that the motion for substitution be heard first.

Thus, the 1st & 2nd respondents’ preliminary objection which challenged the jurisdiction of the court to hear appellant’s suit was heard, and ruling delivered on the 12th day of December, 2005, dismissing the appellant’s suit, hence this appeal.

The appellant’s brief dated 30/5/2006 and filed on 31/5/2005 was adopted by Chief Akanle, SAN on 22/11/2006. The 1st – 3rd respondents’ brief dated 14/9/2006 was filed on 28/9/2006 and adopted by Chimezie A. Chinaka, Esq. while the 4th – 6th respondents’ brief undated was filed on 16/11/2006 and adopted by Ogunmoye Solicitor-General, Ekiti on 22/11/2006. It is important to point out now that though the appellant would be referred to in this judgment, he was in fact reported dead and it is the legal implication of his death among other things that form the crux of this appeal.

The appellant’s counsel Chief A. O. Akanle, SAN identified six issues for determination which emanated from the grounds of appeal. They are stated verbatim below:

“a) Whether or not the trial court was right in hearing the case and taking the objection of the defendants in the absence of the plaintiff who had died and the court refused to take the motion to have a substitute for him (Ground 1).

b) Whether or not the objection of the defendants is tantamount to a demurrer in which case it ought to be pleaded before it can be taken (Ground 2).

c) Whether or not appellant had any domestic forum to exhaust before taking action (Ground 3).

d) Whether the plaintiff took the action in personal capacity which would die with him or in a representative capacity (Grounds 4 and 5).

e) Whether or not plaintiff has locus to bring the action has a cause of action.

f) Whether the decision of the court accords with the facts (Ground 7).”

The counsel for the 1st – 3rd respondents Mr. Chimezie A. Chinaka, Esq. identified almost the same issues for determination. They are set out below:

“1. Whether the trial court was not right in hearing first the defendants’ preliminary objection that challenged the jurisdiction of the court as against the plaintiff’s application for substitution, especially when the defendants contended in their preliminary objection that the appellant’s suit being a personal action died with him.

2. Whether the preliminary objection of the defendants amount to a demurrer.
3. Whether the plaintiff is not required under the Chieftaincy Law to exhaust the remedies statutorily provided as condition precedent before any resort to court.
4. Whether the appellant’s action is not a personal action that died with him or a representative action.
5. Whether the plaintiff has locus and a cause of action to commence the suit.
6. Whether the decision of the Honourable Court below is not in agreement with the facts of this case.”

The counsel for the 4th – 6th respondents, A. L. Ogunmoye, Esq. Solicitor-General, Ekiti State, adopted the issues for determination as crystallized by the appellant’s counsel.

In the determination of this appeal, the issues as identified by appellant’s counsel will be considered.

Issue 1 – whether the trial court was right in taking the objection of the defendants now respondents in the absence of any appellant (who was reported dead) and the court refused to take the motion to have a substitute for him.

On this issue, learned appellant’s counsel argued that the case came to court in April 2000, the initial trial Judge was transferred in July, 2004. Mid 2004, Mr. C. R. Adedeji of counsel for the 1st & 2nd defendants (now respondents) died in September, 2004. The appellant died in August 2004 and on 30th August, 2004, the appellant’s counsel filed a motion to make a substitution for the deceased appellant. At that point, the case had been transferred to Hon. Justice Kowe. The new counsel for the 1st & 2nd respondents, Mrs. Abiola Anyimonche filed a motion seeking to dismiss the substantive suit for lack of jurisdiction.

The question in issue here is the order of precedence with regard to the two motions before the learned trial Judge.

Learned senior counsel Chief A. O. Akanle, SAN submitted that the law is that all motions in a case must be taken and disposed of. He cited Okolo v. UBN Ltd. (2004) 3 NWLR (Pt. 859) pg. 87 at 114.

He also submitted that all necessary parties to a case must be joined. He cited Or. 11 r. 3 & 5 of the Ondo State High Court Rules applicable to Ekiti State; Oloriode v. Oyebi (1984) 1 SCNLR 390 at 400; NEC v. Izuogu (1993) 2 NWLR (Pt. 275) pg. 270 at pg. 295.

In answer to the above argument, the learned counsel for 1st-3rd respondents argued that in June, 2005 when the new respondents’ counsel discerned that the respondents had good grounds of law which if raised would bring the action of the appellant to an end, counsel promptly filed a motion of preliminary objection dated 8/6/2005 challenging the jurisdiction of the trial court to hear the appellant’s suit. The appellant’s counsel filed a counter-affidavit on 1/9/2005 and the motion was fixed for hearing on 24/10/2005. On that day, the learned trial Judge decided to hear the motion of preliminary objection first. He submitted that the correct order of precedence is that where there is a preliminary objection, it is mandatory on the court to decide it first. He cited Afro-Shelters v. FAAN (2004) All FWLR (Pt. 208) pg. 941; Ibrahim v. Gaye (2003) FWLR (Pt. 171) pg. 1559; (2002) 13 NWLR (Pt. 784) 267.

On this issue learned counsel for the 4th – 6th respondents, Mr. Ogunmoye, Solicitor-General, Ekiti State submitted that the lower court was perfectly right to have heard the motion for preliminary objection first since the decision of the court on the issue of jurisdiction raised in the preliminary objection would determine whether or not there existed a judicial basis to exercise any further power in respect of the matter. He cited Ogoja Local Government v. Offoboche (1996) 7 NWLR (Pt. 458) pg. 48 and Ajomale v. Yaduat (No.2) (1991) 5 NWLR (Pt. 191) pg. 266.

On this issue, I think that generally, the procedure is well settled that where there is a notice of preliminary objection against the hearing of a suit even at the appeal stage, the proper thing for the court to do is to hear the preliminary objection first, before proceeding to hear the suit, application or appeal as the case may be. Even where the two matters – preliminary objection and substantive issues are taken together, the court is still obliged to determine the preliminary objection first before delving into the consideration of the substantive issue.

The application filed before the lower court by the appellant was for substitution of the deceased appellant. However, the preliminary objection of counsel to the 1st – 3rd respondents in the lower court was a challenge to the competency of the entire action as constituted and the jurisdiction of the trial court to entertain same.

An objection to the competency of an action must be resolved by the court first since where it is upheld it marks the end of the substantive matter before the court.

The courts have always held consistently that it is always advisable to decide and dispose of a preliminary point if it would dispose of the case without the need to call evidence. See Adigun v. Ayinde (1993) 11 SCNJ 1; (1993) 8 NWLR (Pt. 313) 516 and ACB v. Obmiami (1993) 6 SCNJ Or. (1990) 5 NWLR (Pt. 149) 230.

The practice is well settled that where a defendant conceives that he has a good defence to the action against him, he may by motion raise such defence and seek to dismiss or strike out the action without hearing evidence. It cannot be premature to seek to dismiss a suit or an appeal on a preliminary objection as to the jurisdiction of the court. See Martins v. Federal Admin. Gen. (1962) 1 SCNLR pg. 209; Aina v. Trustees of NRC Pensions Fund (1970) 1 All NLR pg. 281; State v. Onagoruwa (1992) 2 NWLR (Pt. 221) pg. 33 at pg. 55 and UBA Plc v. Ujor (2001) 10 NWLR (Pt. 722) pg. 589.

The point which seemed to agitate the mind of appellant’s counsel is that as at 24/10/2005 when the preliminary objection by the respondents’ counsel was taken by the court, there was no plaintiff to defend the motion of preliminary objection, thus the case was not properly constituted. That would have been a valid argument if for example the points raised in the preliminary objection had nothing to do with the ‘locus standi’ of the ‘plaintiff’ sought to be substituted. Let us examine the grounds of the preliminary objection which have been set out verbatim below for clarity.

“Grounds of application

1. This Honourable Court has no original jurisdiction by way of declaratory order to adjudicate disputes relating to the composition, headship and membership of Aledi Ruling House or determining the rightful lineage in Aledi Ruling House to the Onire of Ire stool, or the nomination thereto or generally hear for determination Chieftaincy matters which is the first – instance jurisdiction of the Executive given under the Chiefs Law (as amended) of Ondo State 1984 except by way of review or supervision of matters done thereunder.
2. The issues raised in the writ of summons, the pleadings of all parties herein and by the declaration sought are Chieftaincy disputes, the powers to hear and resolve which are given to relevant statutory bodies under the said Chiefs Law as tribunals of first instance before calling in this Honourable Court’s jurisdiction.
3. The appellant action is precipitate not having exhausted the statutory pre-conditions before the institution of this action in this Honourable Court.
4. The plaintiff has no locus standi to commence this action.
5. The plaintiff has no cause of action.
6. The plaintiff’s action is action in personam instituted in his personal capacity and having died the action abated.”

It is clear from the above that the motion of preliminary objection combined the issue of the lack of competence of the court to preside over the matter due to the absence of the fulfillment of a condition precedent with the issue of the locus standi of the deceased appellant and an objection to his substitution by another person. I cannot find any reason to disagree with the decision of the learned trial Judge to address in limine and at one fell swoop the issues of whether the deceased appellant had locus standi to commence the action, whether he had a cause of action at all and whether or not or his death the action becomes abated if it was a personal action. See grounds 4, 5 and 6 of the application. By taking the preliminary objection as couched by respondents’ counsel the learned trial Judge in my humble opinion had tried to address all the issues tabled before him by both parties including the legal propriety of a substitution of the plaintiff.

The argument of learned appellant’s counsel that the absence of any ‘plaintiff’ in the circumstances of this case at the time the motion of preliminary objection was heard and determined resulted in the improper constitution of the action before the trial court is in my humble opinion and with the greatest respect, misconceived. The authorities cited by appellant’s counsel viz Mazie v. Mbamalu (2006) 15 NWLR (Pt. 1003) pg. 466 at 512 and Oloriode & Ors. v. Oyebi (1984) SCNLR 390 at 405 only go to show that it was right of the trial Judge to determine the proper constitution of the parties and thus the action before it before proceeding further. I am of the view that this issue as formulated by the appellant’s counsel must be resolved in favour of the respondents.

The second issue for determination is whether or not the objection of the 1st – 2nd respondents at the lower court tantamount to a demurrer in which case it ought to be pleaded before it can be taken. Learned appellant’s counsel argued on this point that demurrer has long been abolished by virtue of Or. 24 rr. 1, 2, 3 and 4 of the Ondo State Rules of the High Court applicable to Ekiti State. He submitted that the law is that a party who wants to raise a point of law to fight a case is to raise the issue in his pleadings and the court can take it as a preliminary issue and that would be the end of the case. He argued that the pleading herein was filed between 2000 and 2001 and the respondents did not raise these points in their statement of defence.

He submitted that it was wrong of the learned trial Judge to have overruled the appellant on this issue at the trial court when it was raised. He cited the following cases: Dasuki v. Muazu (2002) 16 NWLR (Pt. 793) pg. 319 at pg. 336; Disu v. Ajilowura (2001) 4 NWLR (Pt. 702) pg. 76 at pg. 89 – 90; Songhai Energy Services Ltd. v. Maersk (Nig.) Ltd. (2001) 17 NWLR (Pt. 743) pg. 517 at pg. 544.

Counsel to the 1st – 3rd respondents on this point submitted that the purport of the provisions of Order 24 rules 1, 2 and 3 of the above rules, which bars demurrer, only operates to prevent the determination of a suit before pleadings are exchanged. Thus, a defendant cannot, without having filed his statement of defence bring an application under Order 24, to have the appellant’s claim dismissed for non-compliance with a statutory provision which is a condition precedent to the court’s competence. It is, therefore, when the defendant raises a preliminary objection without first filing his statement of defence that the proceeding will amount to a demurrer.

In the present case, pleadings were exchanged and issues joined before the defendants challenged the jurisdiction of the court. Counsel cited Iorshagher v. Oloruntobi (2004) All FWLR (Pt. 228) 801 CA at page 806; Zest News Ltd. v. Waziri (2004) 8 NWLR (Pt. 875) 267 CA at pages 664 – 665; and African Reinsurance Corporation v. J.D.P Construction (Nig.) Ltd. (2003) FWLR (Pt. 176) 667 CA at page 681; (2003) 13 NWLR (Pt. 838) 609.

Learned counsel for the 4th – 6th respondents submitted that the complaint of the learned appellant’s counsel here bothers on the fact that the challenge of the respondents’ counsel as contained in the preliminary objection amounts to demurrer and that the point of law that was raised therein did not form part of the statement of defence of the defendants. He further argued that the law is trite that a jurisdictional issue can be raised at any point in time in the proceedings before judgment. He cited Amadi v. NNPC (2000) 2 SCNQR pg. 990 at 996 and 1029; (2000) 10 NWLR (Pt. 674) 76; Araka v. Ejeagwu (2000) S.C.N.J. pg. 50 at 51 and 64; (2000) 15 NWLR (Pt. 692) 684. He also argued that as at the time the new counsel to 1st and 2nd respondents came into the case, the farthest parties had gone was completion of pleadings. Moreover, the nature of steps taken by the new counsel zeroed in on a jurisdictional issue, which can be entertained at any stage before judgment at the instance of any party or even raised suo motu by the court. He cited Oloha v. Akereja (1988) 3 NWLR (Pt. 84) 508 and also Amadi v. N.N.P.C. (supra) and Araka v. Ejeagwu (supra). He also cited Okonkwo v. INEC (2003) 33 WRN pg. 93 at 41; (2004) 1 NWLR (Pt. 854) 242 and NDIC v. CBN (2002) 18 WRN pg. 1 at 18 – 19; (2002) 7 NWLR (Pt. 766) 272.

The provisions of Or. 24 of the High Court Rules of Ondo State applicable to Ekiti State are set out below for ease of reference.

“1. No demurrer shall be allowed.

2. Any party shall be entitled to raise in his pleading any point of law, and any points so raised shall be disposed of by the Judge who tries the cause at or after the trial; Provided that by consent of the parties, or by order of the court or Judge on the application of either party, the same may be set down for hearing and disposed of at any time before trial.
3. If, in the opinion of the court or a Judge, the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counter-claim, or reply therein, the court or Judge may thereupon dismiss the action or make such other order therein as may be just.
4. The court or a Judge may order any pleading to be struck out on the ground that it discloses no reasonable cause of action or answer, and in such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the court or Judge may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.”

It is clear from the above that proceedings by way of demurrer have been abolished in Ekiti State and indeed in most of the High Courts in Nigeria. However, it is apt in my opinion to make a brief study of it to avoid continuous confusion of this procedure with any other procedure adopted from time to time by counsel following the rules of court.

Demurrer is an old English common law procedure of challenging a pleading on a point of law. It is one of the methods of fighting an opponent’s pleading. The essence of the procedure by way of demurrer is that the party raising it contends that even if all the allegations in the pleadings were true, it still does not in law disclose a cause of action for the party to answer or a defence to the party’s claim. It could, therefore, be raised by a defendant to attack the statement of claim or by a plaintiff in challenging the defence. In each case the contention is in the same form namely, assuming all the allegations in the pleading are to be true, it is nonetheless bad in law, it discloses no cause of action or defence to a claim. Where there is a demurrer, the party making the contention does not proceed with his own pleading but has to wait for the decision of the court on the objection.

It is from this aspect of waiting for a decision in the procedure that the word “demurrer” originated, being a derivative from the Latin word “demurrer” meaning to “wait” or “stay”.

Also, for the purposes of such application, the defendant should be taken as admitting the truth of the appellant’s allegations, and no evidence respecting matters of fact, and no questions of fact should be allowed.

It is clear from the foregoing therefore, that a defendant who felt that he had a legal or equitable defence to the claim against him might attack the statement of claim by way of demurrer. He did this by filing a motion praying the court to dismiss the plaintiff’s claim.

He should not file any statement of defence before bringing up the motion, the procedure only applied before the statement of defence had been filed.

If pleading had been filed and exchanged by both parties, the case must proceed to trial and the legal point raised by the defendant would then only be properly taken by the court after hearing evidence. See pgs. 418, 419 and 421 of Civil Procedure in Nigeria by Fidelis Nwadialo, 2nd Edition, 2000 published by University of Lagos Press.

It is therefore, when the defendant raises a preliminary objection without first filing his statement of defence that the proceedings will amount to a demurrer which is no longer the practice. The proceedings in lieu of demurrer set out under Or. 24 of the High Court Rules already shown above is to the effect that both parties must file pleadings and that no party will be allowed to raise a point of objection in law without first filing pleadings. That is not to say as argued by learned appellant’s counsel that a point of law not raised in the statement of defence cannot be raised as a point of law in a separate motion on a preliminary objection. The delivery of pleadings by both parties is a prerequisite to the raising of an objection in limine to a suit. The objection may be raised immediately after the close of pleadings. See Oruobu v. Anekwe (1997) 5 NWLR (Pt. 506) pg. 618 at pg. 630, Ogunsanya v. Dada (1990) 6 NWLR (Pt. 156) pg. 347.

The courts are empowered to strike out or dismiss a plaintiff’s claims or defence on a point in the pleadings or act upon a point of law on which it is satisfied that the case may be disposed of either in part or in whole. Per Dahiru Musdapher, JCA (as he then was) in Dasuki v. Muazu (2002) 16 NWLR (Pt. 793) pg. 319 at 335 – 336. See also Ege Shipping and Trading Ind. v. Tigris International Corp. (1999) 14 NWLR (Pt. 637) pg. 70, Douglas v. Shell Petroleum Dev. Co. (1999) 2 NWLR (Pt. 591) pg. 466. In Lasisi Fadare & Ors. v. Att.-Gen. of Oyo State (1982) 4 SC 1 the Supreme Court explained at length the new procedure in lieu of demurrer.

However, the question posed by appellants’ counsel is that can the respondents raise in a preliminary objection a point or an issue not raised in the pleadings already filed? The answer to this question in my humble opinion would depend on the issue raised.

It is trite law that an issue of jurisdiction can be raised at any point in time in the proceedings before judgment and can even be raised on appeal. See Amadi v. NNPC (2000) 2 SCNQR 990 at 996; (2000) 10 NWLR (Pt.674) 76; Araka v. Ejeagwu (2000) 10-12 SCNJ 206; (2000) 15NWLR (Pt.692) 212. It has even been held that the issue of jurisdiction can be raised before pleadings are filed provided adequate facts and materials are before the court endorsement on the writ may be sufficient. NDIC v. CBN (2002) 3 SCNJ 75; (2002) 7 NWLR (Pt.766) 272.

The fundamental nature of the issue of jurisdiction where and when raised is such that the court is duty bound to resolve it one way or the other before any further steps are taken in the proceedings as any judicial exercise without jurisdiction constitutes an exercise in futility. See Okonkwo v. INEC (2003) WRN 93 at 41; (2004) 1 NWLR (Pt.854) 242. It is clear, at least to me, that the preliminary objection filed in the lower court by counsel for the 1st – 2nd respondents was proper in law and the lower court rightly entertained it as the issue of jurisdiction is markedly distinct from demurrer in law. See NDIC v. CRN (2002) 18 WRN pg. 1 at pg. 18 – 19; (2002) 7 NWLR (Pt. 766) 272 at 296-297 where Uwiafo, JSC held on this issue as follows:-

“The tendency to equate demurrer with objection to jurisdiction could be misleading. It is a standing principle that in demurrer, the plaintiff must plead and it is upon that pleading that the defendant will contend that accepting all the facts pleaded to be true, the plaintiff has no cause of action, or, where appropriate, no locus standi … But as already shown, the issue of jurisdiction is not a matter for demurrer proceedings. It is much more fundamental than that and does not entirely depend as such on what a plaintiff may plead as facts to prove the reliefs he seeks. What it involves is what will enable the plaintiff to seek a hearing in court over his grievance, and get it resolved because he is able to show that the court is empowered to entertain the subject matter. It does not always follow that he must plead first in order to raise the issue of jurisdiction.”

Thus, the rule against demurrer does not bar a party from raising a notice of preliminary objection challenging the jurisdiction of the court even when such an issue of fact or law was never raised in his pleadings. I have taken the pains to answer the question posed by learned appellant’s counsel. It must be noted however that in this case in hand an attention to page 11 paragraph 13 and pg. 76 paragraphs 13 of the record of appeal shows that in fact the 1st and 2nd respondents in their joint statement of defence and amended statement of defence averred that:

“The defendants will raise as a preliminary issue at the trial that the plaintiff has no locus standing to take this action as head of the Aledi Ruling House to the Onire of Ire Chieftaincy.”

Obviously, the wind has been taken out of the sails of the argument of learned appellant’s counsel by the fact that indeed 1st-2nd respondents, had pleaded in their statement of defence the objection later raised by way of preliminary objection.

I am of the humble opinion that in view of the reasons given above, the 2nd issue be resolved in favour of the respondents.

The last three issues for determination are predicated on the points of law raised by the respondents in the preliminary objection. The third issue for determination is whether or not the appellant had a domestic forum to exhaust which constituted a condition precedent to the exercise of the courts jurisdiction. Learned appellant’s counsel argued on this issue that ordinarily, a State High Court has jurisdiction over any matter; the only exception is where a law specifically ousts its jurisdiction. He cited sections 6(6) and 272 of the 1999 Constitution. He also submitted that under the Chiefs Law of Ondo State, applicable to Ekiti State, there is no restriction placed on taking chieftaincy matter to court as regards recognized Chieftaincies-Obas by sections 8, 9, 10 and 11 of the Chiefs Law. The only exception is as regards minor chieftaincies (the Onire is not one, he is a recognized Oba). The stipulation is that anybody who wants to complain about the appointment of a minor Chief must refer the matters to the Commissioner for Chieftaincy Matters before having a resort to Court as provided by section 13(3), (4) and (5) of the Chiefs Law, Ondo State. He argued that the cases relied upon by the trial court are relevant to only minor chiefs. He also cited the following cases:

Eleso v. Ogun State Government (1990) 2 NWLR (Pt. 133) 420 at 444; Eguamwense v. Amaghizemwen (1993) 9 NWLR (Pt. 315) pg. 1 at 23; Aribisala v. Ogunyemi (2005) 6 NWLR (Pt. 921) pg. 213 at 231.

He submitted that it was awfully wrong for the trial court to transfer the stipulation appertaining to minor chieftaincies to recognized chieftaincies.

Learned counsel for the 1st-3rd respondents argued on this issue that the appellant having not followed and/or exhausted the statutorily laid down provisions as condition precedent, was not entitled to have resort to the law court on the matter. He cited Okomalu v. Akinbode (2006) All FWLR (Pt.314) 211 SC at 227 to 230; (2000) 5 NWLR (Pt.985) 338; Arihisala v. Ogunyemi (2005) All NLR (Pt.252) 451 SC at 465-466; (2005) 6 NWLR (Pt. 921) 213. He argued that a citizen has the legal right to seek redress in the High Court unless such jurisdiction has been clearly excluded by the provisions of a statute as in the instant case. But where the application of the provisions of the statute is in question, an aggrieved party can invoke the supervisory jurisdiction of the High Court to either set aside or nullify any such decision arising from the misapplication of the statute. He cited Abu v. Odugbo (2001) FWLR (Pt. 69) 1260 SC, page 1313 at pg. 1316; the interpretation section of Chiefs Law, 1984 (as amended) of Ondo State, applicable in Ekiti State; sections 8, 9, 10 and 11 in Part 9 of the said Chiefs Law; Eguamwense v. Amaghizemwen (1993) 9 NWLR (Pt. 315) 1 SC; and Inah v. Ukoi (2003) FWLR (Pt. 143) 382 CA at page 404; (2002) 9 NWLR (Pt. 773) 563.

Learned counsel for the 4th – 6th respondents also weighed in powerfully on this issue. Counsel submitted that in interpreting the provisions of the 1999 Constitution, all its relevant provisions must be read together and not disjointedly and an interpretation that would serve the interest of the constitution and best carry out its object and purpose should be preferred. He cited Tinubu v. I.M.B. Securities Plc (2001) 12 S.C.N.J. pg. 73 at 81; (2001) 16 NWLR (Pt. 740) 670.

Hence, sections 6(6) and 272 of the 1999 Constitution must be read in conjunction with section 274 of the same Constitution. He further submitted that the exercise of jurisdiction by the trial court in this case is subject to the High Court Law of Ondo State as applicable in Ekiti State and the practice and procedure as prescribed by the House of Assembly and in the instant case, the Chiefs Law of Ondo State as amended which provides for exploration of administrative forum in Chieftaincy matters before approaching the law court for redress.

Learned 4th – 6th respondents’ counsel also submitted that although the word “may” is used in section 11(2)(b) of the Chiefs Law, however, it is now trite that the word “shall” does not always mean “must” and that it could be interpreted where the con so admits as “may”. In the same vein, the word “may” does not always mean “may” as it may be equivalent to “shall” and not construed as discretionary but imperative depending on the conual usage. He cited Edewor v. Uwegba (1987) 1 NWLR (Pt. 50) pg. 313; Ude v. Nwara (1993) 2 NWLR (Pt. 278) pg. 638; Isaac Ogualaji v. Attorney General, River State & Anor. (1997) 6 NWLR (Pt. 508) pg. 209 at pg. 224.

On this issue, the learned trial Judge held thus:-

“In the instant case the plaintiff/respondent has not complied with the provisions of section 11 of the Chiefs Law which set out the procedural steps for venting his grievance and he therefore acted prematurely in instituting this action. He has not exhausted the remedy available to him and has in consequence not satisfied the precondition for access to court. It is hasty on his party (sic) to bring an action to seek declarations in this court. His action in this court is premature and does not give rise to a cognizable cause of action having been brought before the fulfillment of condition precedent to the exercise of the court’s jurisdiction. See Faloye v. Omoseni (supra); Madukolu v. Nkemdilim (1962) 1 All NLR 587 at 595; Green v. Green (2001) FWLR (Pt. 76) 795 at 822. Thus by virtue of section 11 of the Chiefs Law, 1984, determination of a disputed recognized chieftaincy is a jurisdiction by statute vested in the executive council. This court has no jurisdiction to exercise that power which is vested in the executive council. See Adesola v. Abidoye (1999) 14 NWLR (Pt. 637) pg. 28 at 65 – 66).”

The relevant portion of the appellant’s statement of claim at the lower court has been set out earlier in this judgment. It is the claim before the court that has to be examined to ascertain whether the case comes within the jurisdiction conferred on the court. The amended statement of claim of the appellant is that there is a vacancy in the Onire of Ire Stool which is to be filled. That the Aledi Ruling House is to produce a new Onire. The appellant and the 1st respondent nominated candidates to fill the vacancy because of their competing claims to the headship of the Ruling House and membership of the said Aledi Ruling House. Each disputed the other’s lineage to the Onire stool and their candidates’ lineage. The crux of the appellants claim is a declaration that the 1st & 2nd respondents are not eligible to the membership of the Aledi Ruling House and in particular that the 2nd respondent is not eligible to be considered for or contest the Onire of Ire stool. The issues declared in the statement of claim therefore show that there is a controversy between the parties as to who is eligible for nomination and appointment to the Onire of Ire stool. It is thus a Chieftaincy dispute within the meaning and redressible under the Chiefs Law of Ondo State applicable in Ekiti State.

It is true as posited by learned appellant’s counsel that a Chieftaincy dispute is a justiciable right within the meaning of S. 6(6)(b) and S. 272(1) of the 1999 Constitution. See Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) pg. 587 at 591.

The combined effect of S. 6(6)(b); Ss. 272(1) and 274 of the 1999 Constitution is that the exercise of the jurisdiction by the High Court of a State must be in accordance with the statute law, the High Court Law and practice and procedure for the time being in force as prescribed from time to time by the House of Assembly of the State.

On an examination of the Chiefs Law of Ondo State, 1984 as amended in 1991 and applicable to Ekiti State, it is observed that Ss. 1 – 12 of the Law deal with recognized Chiefs while Ss. 13 – 16 deal with minor Chiefs.

The Chiefs (Amendment) Edict, 1991, Ondo State, applicable in Ekiti State, defines who is a recognized Chief and who is a minor Chief in its interpretation section, to wit:

i. Minor Chief means a Chief other than an Oba.

ii. Recognized Chief means an Oba appointed to a recognized chieftaincy.

iii. Recognized chieftaincy means chieftaincy to which the provisions of part I apply.

It is common ground between the parties that the Onire of Ire Chieftaincy stool is a recognized Chieftaincy which produces Obas.

The question at stake here is whether or not; the stipulation as regards exhaustion of administrative remedies before taking legal action applies both to minor Chiefs and recognized Chiefs alike. An aggrieved party in a minor chieftaincy dispute must explore all domestic remedy before going to court is a mandatory rather than a discretionary stipulation. This has also been upheld by the Supreme Court in Adesola v. Abidoye (supra) and Aribisala v. Ogunyemi (supra). For clarity, it is worthwhile to reproduce the relevant sections of the Chiefs Law of Ondo State applicable in Ekiti State and set out below:

11. (1) Subject to the provisions of this section, the Executive Council may approve or set aside an appointment of a recognized Chief.

(2) Any unsuccessful candidate who or a ruling house which alleges that the proper order of rotation has not been observed or has other reasons why the appointment should not be approved may make representations to the executive council that the appointment or approval be set aside.

(3) In determining whether to approve or set aside an appointment under this section the executive council shall have regard to whether or not –

(a) the provisions of section 8 or section 9 have been complied with; or

(b) any candidate was qualified or disqualified in accordance with the provisions of section 7; or

(c) the customary law relating to the appointment has been complied with; or

(d) the kingmakers, in the case of a ruling house chieftaincy, had due regard to the ability, character or popular support of any candidate; or

(e) the appointment was obtained corruptly; or

(f) the appointment was obtained by the undue influence of any person; or

(g) the appointment is in the interest of peace, order and good government.

(4) Where the Executive Council sets aside an appointment under paragraphs (b), (e) and (f) of subsection (3) of this section it shall:

(a) in the case of a ruling house chieftaincy require a ruling house in respect of the chieftaincy to submit the names of some other persons as candidates to the kingmakers and the ruling house and the kingmakers shall then proceed in accordance with section 8 as if the name of the ruling house has been announced by the Secretary of the Committee;

(b) in the case of any other recognized chieftaincy require the person responsible by customary law for the nomination and selection of a person to fill the vacancy in that chieftaincy to appoint another person in accordance with that customary law within such time as he may specify.

13(1) The Governor may appoint in respect of an area (which expression shall in this Part and Part III be deemed to include a reference to part of an area) of any Local Government, an authority, consisting of one person, or of more person than one, (in this part referred to as the prescribed authority) to exercise the powers conferred by this section in respect of the office of any minor Chief whose chieftaincy title is associated with the local community of that area.

(2) In any area in respect of which a prescribed authority is appointed no person entitled under customary law so to do shall appoint or install any person to the office of a minor Chief without prior written approval of the prescribed authority associated with the local community of the area.

(3) No one shall hold himself out to be appointed to the office of a minor Chief without ensuring that prior written approval of the prescribed authority had been obtained by the person entitled under Customary Law to make the appointment.

(4) Where there is a dispute as to whether a person has been appointed in accordance with Customary Law to a minor chieftaincy the prescribed authority may determine the dispute and the person concerned shall be notified of the decision.

(5) Any person who is not satisfied with the decision of the prescribed authority may within twenty-one days from the receipt of the notification, make representations to such member of the Executive Council to whom responsibility for chieftaincy affairs is assigned that the decision be set aside and he may, after considering the representations confirm or set aside the decision.

(6) Before exercising the powers conferred by sub-section

(5) of this section, the member of the Executive Council responsible for chieftaincy affairs may cause inquiries to be held as appear to him necessary or desirable.

(7) Where the member of the Executive Council responsible for chieftaincy affairs in his determination under sub-section (6) 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.”

It is clear from a wholistic reading of S. 11 of the Chiefs Law that S. 11(1) gives the Executive Council the power to approve or set aside an appointment of a recognized Chief within 21 days. S. 11 (2). Any protest against such appointment must be lodged within the said 21 days by an interested party S. 11(3) & S. 11(4) made copious provisions in relation to the steps to be taken by the Executive Council while deciding either to approve or set aside the appointment. In S. 11(3) the word ‘shall’ is used by the legislature. These provisions in S. 11(3) are made mandatory. Thus it is my view that S. 11 provides for mandatory legal obligations incumbent on the unsuccessful candidate or dissatisfied ruling house and corresponding legal obligations on the Executive Council.

I agree with the reasoning of Mr. Ogunmoye learned Solicitor General, Ekiti State that the prerequisite that an aggrieved person must first seek executive interference or supervision before going to court is a mandatory rather than a directory provision. This is because in determining whether a provision is mandatory or directory, the intention of the legislature must be ascertained by looking at the statute as a whole and the general objective it seeks to ensure. I quite appreciate the argument of learned appellant’s counsel that the cases cited dealt with minor chieftaincies. S. 13(5) of the Chiefs Law of Ondo State relating to minor chieftaincy was interpreted by the Court of Appeal in Faloye v. Omoseni (2004) FWLR (Pt. 35) pg. 723; (2001) 9 NWLR (Pt. 717) 190 in which the word ‘may’ as used by the legislature was interpreted by the court to mean a mandatory rather than a directory provision.

S. 11 (2) of the Chiefs Law which made a similar provision in respect of recognized chieftaincy also used the word ‘may’.

The word “may” in S. 13(5) of the Chiefs Law has been interpreted to mean “shall” by the Supreme Court and I daresay that meaning also holds good for the word ‘may’ as used in S. 11(2) of the same Law.

In Adesola v. Abidoye (1999) 14 NWLR (Pt. 637) pg. 28 at pg. 56, the Supreme Court explained the position per Karibi-Whyte, JSC. S. 13(5) of the Chiefs Law, Ekiti is in pari materia with S. 22(5) Chiefs Law of Oyo State. My Lord held as follows:-

“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, there is 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 also referred to.

See also ICAN v. A.-G., Fed. (2004) 3 NWLR (Pt. 859) pg. 186 at pg. 207 – 209 where this court held that the word ‘may’ can some times be construed as ‘shall’ or ‘must’ so that justice may not be a slave to grammar. Thus where the con in which it appears is indicative of discretion then it shall be interpreted as ‘may’ but where the con is indicative of command or in a controlling factor, then the word will be interpreted as ‘shall’ with mandatory effect.

In principles of construction of statutes, the court shave adopted a liberal and purposive approach to give effect to the true intention of the law makers. In that sense, the entire statute must be considered and the general object meant to be secured by the statute should be looked at. See Rufus Femi Amokeodo v. I.G.P (1999) 5 SCNJ pg. 71; (1999) 6 NWLR (Pt. 607) 467; PDP v. INEC (1999) 7 SCNJ 297; (1999) 11NWLR (Pt. 626) 200, Chief Egolum v. Gen. Obasanjo (1999) 5 SCNJ 92; (1999) 7 NWLR (Pt. 611) 355.

It is apparent that the legislative intention was to stem the spate or deluge of litigation in chieftaincy matters by providing a forum for administrative and hopefully amicable settlement of chieftaincy disputes.

Thus an aggrieved person or ruling houses that alleges irregularity in the appointment of a recognized Chief must per force or mandatorily make representation to the State Executive Council that the appointment be set aside. I agree with the position of the learned respondents’ counsel that where administrative remedies are statutorily provided for determination of an issue the aggrieved party must exhaust all the remedies available to him before going to court. See Eguamwense v. Amaghizemwen (1993) 9 NWLR (Pt. 315) pg. 1 at pg. 25; Faloye v. Omoseni (2001) FWLR (Pt. 35) pg. 723 at 724 – 725; (2001) 9 NWLR (Pt.717) 190. Thus, where a law or statute has laid down a procedure for doing a thing, compliance with that procedure is a condition precedent to doing that thing. See Coop Commerce Bank & Anor. v. A.-G., Enugu State (1992) 8 NWLR (Pt. 261) pg. 528, Okolo Aribisala v. Ogunyemi (2005) 6 NWLR (Pt. 921) pg. 212.

I must point out the fact from that the pleadings in this case no formal appointment of a recognized chief had been made by the kingmakers and communicated to the-appropriate authorities. Thus the action that should jump start the process of complaint and investigation of complaint had not yet been concluded. This suit is a case of pre-emptive attack.

The appellant in this case having failed to avail himself of the administrative remedy which is a condition precedent to invoking the jurisdiction of the lower court, the effect is that the lower court was incompetent at that time to assume jurisdiction over the matter.

See Miscellaneous Offences Tribunal v. Okoroafor (2001) 12 SCNJ pg. 162 at pg. 174; (2001) 18 NWLR (Pt. 745) 295. This issue is also hereby resolved in favour of the respondents.

The 4th issue is whether or not the plaintiff took the action in his personal capacity or in a representative capacity.

Learned appellant’s counsel argued that it is obvious from the claims of the appellant that even though he did not state that he was suing on behalf of the Aledi Ruling House, it is clear that he was pressing a representative rather than a personal claim. He submitted that the law enjoins a court to give judgment to the family in a case filed by a member of the family if the court finds such a member is suing in effect for the family.

He submitted that the death of the plaintiff/appellant cannot put an end to the claim of the Aledi Ruling House.

He cited: Udugba v. Emenw (1966) NMLR pg. 102 at pg. 104; A.-G., Kwara State v. HRH Ariwajoye 1(2001) 5 NWLR (Pt. 707) pg. 525 at 545; In Re: Ayoola Adeosun v. Military Governor of Ekiti (2001) 8 NWLR (Pt. 714) pg. 200 at pg. 215. Order 11 rule 35 of the Ondo State Rules of the High Court, applicable to Ekiti State. He also cited Ibigbami v. Military Governor of Ekiti State (2004) 4 NWLR (Pt. 863) pg. 243 at pg. 266.

Learned counsel for the 1st – 3rd respondents in reply argued that the writ in this case was filed contrary to the mandatory provisions of Or. 5 r. 11(1)(a) of the Ondo State High Court Rules applicable to Ekiti State. It provides thus:-

“Before a writ is issued it shall be endorsed where the plaintiff sues in a representative capacity, with a statement of the capacity in which he sued.”

He argued that the writ stated that the plaintiff/appellant sued in his personal capacity in that “the action was at the suit of Chief F. A. Bamisile, Egbe Quarters, Ire Ekiti.” The fact that the appellant called himself the head of the family did not make him their representative. He cited the following cases:

Ifeka v. Madu (2001) FWLR (Pt. 38) 1252 CA at page 1266; Onajobi v. Olanipekun (1985) 4 SC 156 at page 163; Olubode v. Salami (1985) 2 NWLR (Pt. 7) pg. 282; Bankole v. Pelu (1991) 8 NWLR (Pt. 211) pg. 523; Kyari v. Alkali (2001) FWLR (Pt. 60) pg. 1481 SC at page 1514; (2001) 11 NWLR (Pt. 724) 412; Re: Ayoola Adeosun v. Military Governor of Ekiti State (2001) 8 NWLR (Pt. 714) 200 at pages 221 – 222; Oyeyemi v. Commissioner for Local Government, Kwara State (1992) 2 NWLR (Pt. 226) 661 SC at page 678.

Learned counsel for the 4th – 6th respondent submitted that headship of the family is not synonymous with representative capacity of a party in a law suit as one does not need to become the head of the family before being qualified to bring an action in a representative capacity as long as he either has the authorization of members of the family to institute the suit on their behalf or his pleading or evidence before the court reveal representative capacity.

The learned trial Judge on this issue held as follows on pages 111 – 112 of the records of proceedings:

“It is therefore glaring that from the above mandatory provision of the rules of this court, the capacity in which a party intends to prosecute a case must be expressed on the writ of summons and the statement of claim.

The word “shall” as copiously used in these rules makes the provisions mandatory peremptory and failure to comply therewith is a fundamental error in proceedings. See Onajobi v. Olanipekun (1985) 4 SC 156 at 163, Olubode v. Salami (1985) 2 NWLR (Pt. 7) 282; Bankole v. Pelu (1991) 6 NWLR (Pt. 211) pg. 545; Adewumi v. Attorney-General, Ekiti State (supra) at 1868. In the instant case there is no evidence of any representation of any group of persons or families by the appellant/respondent. He did not disclose on his writ of summons or in his amended statement of claim that he was suing for and on behalf of Aledi Ruling House. Being a member or head of Aledi Ruling House simpliciter does not give the plaintiff a right to sue a contestant or mandated to sue on behalf of the Ruling House. See Momoh v. Olotu (supra) p. 104. Thus the capacity in which he sued was personal, and therefore no application can be granted for any amendment of his writ or statement of claim to reflect representative capacity. In the circumstance, it is my respectful view that the action died with the plaintiff and I so hold.”

It is trite that where a plaintiff did not sue in a representative capacity and there is evidence to show he was so suing, the court shall aim at doing substantial justice and save multiplicity of suits by amending the capacity in which the suit is instituted so as to bring it in line with the evidence even without any formal application. Where however, the plaintiff made out no case in a representative capacity, such a proceeding cannot be a proper one where an amendment of the writ and statement of claim can be made. See In Re: Adeosun (2001) 8 NWLR (Pt. 714) pg. 200 at 221.

Let us look at the decision law on this matter. In Busari v. Oseni (1992) 4 NWLR (Pt. 237) pg. 557 at pg. 582 Niki Tobi, JCA (as he then was) was prolific on what constitutes representative action. My Lord was of the opinion that the fundamental principles governing suits or actions brought in a representative capacity are:

(a) Those represented have a common interest and a common grievance; and

(b) The relief sought must in its nature be beneficial to all those whom the plaintiff is representing. My Lord referred to the following cases Atanda v. Olanrewaju (1988) 4 NWLR (Pt. 89) 394; Akporzte v. Okei (1973) 12 S.C. 137; Olatunji v. The Registrar, Cooperative Societies, Ibadan (1968) NMLR 393.

My Lord further opined that representative action is not a matter of strict law which requires adherence and compliance. It is a rule of convenience. It was a rule that was originated for convenience and for the sake of convenience. Its application in cases has been relaxed. It is therefore not to be treated as a rigid rule but as a flexible tool in the administration of justice. He cited Anatogu v. A. -G., East Central State (1976) 11 S.C. 109; Obiode v. Orewere (1982) 1 – 2 SC 170. The 1st – 3rd respondents have rightly adopted the proper procedure to challenge the authority of a person to bring a representative action which is by way of preliminary objection on motion and not by way of defence. See Ifonwu v. Egbuyi (1982) 9 S.C. 145.

To determine at this point whether or not the appellant sued in a representative capacity, his writ of summons and in particular his statement of claim must be closely considered.

The writ discloses that he sued as “Head of the Aledi Ruling House”. Paragraph 1 of the amended statement of claim states as follows:

“Plaintiff is a farmer and member of Inijan family of Egbe Quarters, Ire Ekiti; he is the head of the Aledi Ruling House to the Onire of Ire Ekiti title whose turn it is to produce a new Onire to fill the title which is now vacant. Plaintiff has been recognized as head of the said Ruling House by the Oye Local Government as well as the Government of Ekiti State.”

Also, paragraphs 12, 16, 18, 20, 25, 26, of the amended statement of claim show all too clearly that at all material time the appellant was recognized by all constituted authority as the “Head” of the Aledi Ruling family representing its interests. They are set out below:

“12. On 18th February, 1999, fourth defendant wrote a letter, reference OYLG/66/99, to plaintiff as the Head of the Aledi Ruling House of plaintiff to present candidates to the kingmakers within fourteen days for the appointment of a new Onire of Ire Ekiti and the kingmakers were to make appointment within fourteen days of their having the name or names.

16. On 9th June, 1999 the Chairman or aye Local Government, 1999 inviting plaintiff to a meeting slated for 15th June, 1999 where the Chairman tried to force the candidate of second defendant on the Ruling House.
17. On 23rd July, 1999 the Chairman of Oye Local Government brought his letter OYLG/66124 on 23rd July, 1999 invited plaintiff to a meeting billed for 28th July, 1999, whereat the Chairman repeated his action of 15th June, 1999.
18. On 14th September, 1999 the State Government Secretary invited to a meeting scheduled for 21st August, 1999. Vide letter reference number CD/OYE/16/002/126.
19. On 20th March, 2000 the kingmakers invited plaintiff to a meeting to hold on 23rd March, 2000, but plaintiff sent a reply through their solicitor to challenge the kingmaker’s competence to summon a meeting of the Ruling House.
20. On 24th March, 2000, through a letter reference number OYLG/PM/66/149 inviting plaintiff to a meeting fixed for 27th March, 2000 whereat the Chairman again tried to force the candidature of second defendant on plaintiff’s Ruling House.”

By the affidavit in support of the application to dismiss the suit at the lower court, exh. A written to the Aledi Ruling House was not written to the appellant by name. However, exhibits B, B1, C, D, D1, E and J1, J2, K and K 1 attached to applicant’s better and further affidavit (in the preliminary objection at the lower court) show that the appellant was recognized as an authoritative figure in the Aledi Ruling House with whom they communicated copiously as the ‘Head’. The respondents, particularly the 4th – 6th respondents cannot now turn around to say that he was not the Head of the Ruling House or they did not recognize him as such. I concede the fact that his writ did not specifically disclose that he was suing “for and on behalf of the family” that is not to say that he was not representing a faction at least of the ruling House. He sued as ‘Head’ of the Ruling House and it was so endorsed on the writ of summons and statement of claim. I am of the view that it would be splitting hairs to say that because he did not put the words “for and on behalf” of the family that means he was not representing at least a faction of the family.

The only stipulation of Or. 5 r. 11(1)(a) of the Rules is that a statement of the capacity in which the appellant sues or the defendant defends should be put on the writ. There is no stipulation as to the exact words in which to indicate this capacity even though the phrase ‘for and on behalf of’ has become fashionable and consequently accepted.

An aspect of the law on representative action is that the persons who are to be represented and the persons representing them must have the same interest. In other words, both must have a common interest and a common grievance. The appellant was the Head of the family. S. 8 of the Chiefs Law gives special recognition to the ‘Head’ of the Ruling House in a Ruling House Chieftaincy. There are special roles assigned to the head of the Ruling House to perform. Thus the Chiefs Law recognizes the head of the Ruling House as fulfilling an important legal role as a representative of the Ruling House. As said earlier, the appellant was so recognized by all constituted authority in that role.

I hold firmly to the view that the implication of the facts as shown on the statement of claim in this case is that the appellant in his lifetime acted as head of his family and he was recognized as such by all constituted authority. This suit was filed by him as the duly recognized head of the family in support and in defence of the vested right of the appellant’s family in the Onire stool. More particularly the suit was brought according to the statement of claim to prevent a non-member from acquiring rights to the Chieftaincy which is exclusively vested in the family. Thus both himself as dominus litis and members of his family not specifically named on the writ are parties to this suit and are bound by the outcome of the suit. See Ibigbami v. Mil. Gov., Ekiti (2004) 4 NWLR (Pt. 863) pg. 243. Even where the writ or claim is defective, the court should order amendment where necessary to do substantial justice. See A.G., Kwara State v. HRH Ariwajoye 1(2001) 5 NWLR (Pt. 707) pg. 525. The Supreme Court put a seal on this issue in Kyari v. Alkali (2001) FWLR (Pt. 60) pg. 1481; (2001) 11 NWLR (Pt.724) 412 wherein it was held that where an action is brought in a representative capacity, failure to express that fact on the writ of summons does not ipso facto invalidate the proceeding and the court is enjoined to do substantial justice by amending the process and giving judgment in the capacity wherein party’s cases was fought. In the case in hand, there is copious averment in the pleadings to show that the appellant initiated this case in a representative capacity. To hold otherwise would make an ass of the law. The cause of action which is the vested right of members of the Aledi Ruling House in the Onire of Ire Chieftaincy did not die on the death of the appellant but survived him and is still subsisting Odeniyi v. Akinpelu (1992) 3 NWLR (Pt. 227) pg. 25.

Consequently, the action did not abate on his death and it survived him. It would have been otherwise if the appellant had sued simply in his personal capacity as a contestant to the Onire stool. See Oyeyemi v. Comm. for Local Government (1992) 2 NWLR (Pt. 226) pg. 661 at 675. The fourth issue is resolved in favour of the appellant.

The next issue for determination is whether or not the appellant had locus standi to institute the action in the first instance.

Learned appellant’s counsel argued that the appellant took the action as head of the Aledi Ruling House trying to protect his family property in respect of the Onire of Ire Ekiti title. He was claiming against the 1st & 2nd defendants who are not members of his family thus protecting his family from invasion by none members. He submitted that both a contestant and each member of the family have locus in a chieftaincy matter. He had sued the 3rd to 6th defendants in order to prevent them from foisting a stranger on the family. He cited the following cases: Eleso v. Government of Ogun State (1990) 2 NWLR (Pt. 133) pg. 420 at pg. 444; Odeneye v. Efunuga (1990) 7 NWLR (Pt. 164) pg. 618 at pg. 623.

Learned counsel for the 1st-3rd respondents argued that apart from the fact of suing in a personal capacity and failure to specify his interests in the suit, the appellant’s claim of being the Head of the house is not enough to accord him legal standing. The lack of locus standi on the part of the plaintiff to institute the action robs the trial court of jurisdiction. He cited the following cases: Okomalu v. Akinbode (2006) All NLR (Pt.314) 211 SC 227-230; Aribisala v. Ogunyemi (2005) All FWLR (Pt.252) 451 SC 465-466; (2005) NWLR (Pt.921) 213; Adenuga v. Odumeru (2003) All FWLR (Pt.158) 1288 SC 1303-1304; Ladejobi v. Oguntayo (2004) All FWLR (Pt.231) 1209 SC 1224-1232; (2004) 18 NWLR (Pt.904) 135; Daramola v. A.-G., Ondo State (2000) FWLR (Pt.6)997 CA 1027; (2000) 7 NWLR (Pt.665) 440; Emezi v. Osuagwu (2005) All FWLR (Pt.259) 1891 SC 1903-1904; (2005) 12 NWLR (Pt.939) 340; Akanni v. Odejide (2004) All FWLR (Pt.218) 827 CA 844-845; (2004) 9 NWLR (Pt.879)575; and finally Owodunni v. Reg. Trustees, Celestial Church (2000) FWLR (Pt.9) 1455 SC 1480; (2000) 10 NWLR (Pt.675) 315.

Counsel for the 4th – 6th respondents in his own arguments submitted that for an appellant to have standing to sue, it is not enough to show that his claim falls within the class of persons for whose general interest a statute was passed, he must of necessity proceed to demonstrate that he has some personal interest that has been or is most likely to be affected by the action complained of. He cited Damisha & Ors. v. The Speaker, Benue State House of Assembly & Ors. (1983) 4 NCLR pg. 625; Albion Construction Co. Ltd. v. RAO Investment & Properties Ltd. & Anor, (1992) 1 NWLR (Pt. 219) at pg. 583; A.-G. of Anambra State & Ors. v. Chief M. N. Eboh (1992) 1 NWLR (Pt. 218) pg. 491; Olufosoye v. Thomas (1986) 1 NWLR (Pt. 18) pg. 669; (1986) 1 NWLR (Pt. 18) 669.

He submitted that the appellant’s claim to be the head of the Ruling House does not vest locus on him. The writ of summons and statement of claim did not show that the appellant was a contestant to the stool nor has the claim shown that he was taking the action behalf of the family as a representative of the family or the Ruling House.

On this issue, the learned trial Judge held as follows:

“Considering the writ of summons and the amended statement of claim of the plaintiff, I come to the irresistible conclusion that the plaintiff only pleaded headship/membership of the Aledi Ruling House of Onire of Ire stool. This is not enough to confer locus standi on him. He did not state what personal interest he has in the disputed Chieftaincy and how that interest arose. He did not state how his interest has been adversely affected, nor disclose dispute between him and the 1st and 2nd defendants. He did not sue as a representative of Aledi Ruling House. He sued in his personal capacity. The right to complain against the 1st & 2nd defendants belongs to the whole Aledi Ruling House and the unsuccessful contestant not to the plaintiff who purported himself as head of the Aledi Ruling House.”

It is apparent from the submission of learned appellant’s counsel that the thrust of his argument is that a party may derive locus in a chieftaincy matter on either of two bases namely as a contestant and as a Chieftaincy family. Generally, this is the correct portion of the law.

The statement of claim is to be considered in determining whether or not a plaintiff has standing to sue. See Adesokan v. Adegorolu (1997) 3 NWLR (Pt. 493) pg. 261 or (1993) 3 SCNJ pg. 1 at pg. 15. In a chieftaincy matter, the plaintiff must establish not only that he belongs to one of the disputant family, he must state his interest in the chieftaincy and how it arose. See Obala v. Adesina (1999) 2 NWLR (Pt. 590) pg. 163. Where the interest belongs to the family as claimed in this case in hand, the family as a whole has the legal standing to defend their right to nominate a candidate to the chieftaincy. A member can sue to represent the whole family. See Adefulu v. Oyesile (1989) 5 NWLR (Pt. 122) pg. 377; Prince Ladejobi v. Otunba Oguntayo (2005) 7 WRN 22 at pg. 44 – 45; (2004) 18 NWLR (Pt.904) 135.

Even though the appellant was not a contestant to the Onire or Ire-Ekiti stool, I am of the view that he qualified and had sufficient interest and locus to sue in a chieftaincy matter being a member of a chieftaincy or ruling family since I have held earlier that the appellant had legally shown that he instituted the action on behalf of the Aledi Ruling house or at least his own faction of the said ruling house. The issue of locus standi may arise in chieftaincy matters in two different ways. This was highlighted by Nnaemeka-Agu, JSC in Eleso v. Gov. of Ekiti State (1990) 2 NWLR (Pt. 133) pg. 420 at pg. 444. My Lord held that the plaintiff can sue in a chieftaincy matter and show in his statement of claim that he is asserting the right of his family by reason of their hereditary interest. In such a case, the family through their head or representative can sue more so as it is the right of the family that has been pleaded.

The appellant may also assert his personal right as a bona fide and qualified candidate who contested for the chieftaincy title. I am of the opinion that the appellant in this case rightly qualified under the first leg. The fifth issue is thus resolved in favour of the appellant. The sixth issue for determination to my mind is superfluous since the first five issues have thoroughly encapsulated all the germaine issues for determination in this appeal. The 3rd issue for determination having been resolved against the appellant, the implication is that this appeal against the decision of the lower trial court in that regard is unmeritorious. On that leg, the lower court had dismissed the appellant claim however, where the court lacks jurisdiction, the proper order to make is an order of striking out. The order of dismissal given without hearing the merits of a case is in effect an order of striking out. The appellant being in dialogue with the executive arm of government should have explored the administrative remedies provided under the Chiefs Law of Ekiti State before rushing to court. As said earlier, his attack by judicial process was pre-emptive. In the circumstances, this appeal is dismissed.

I award N10,000.00 costs for the respondents against the appellant.

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Other Citations: (2007)LCN/2217(CA)