Chief Festus Akinrinwa Ebukuyo & Anor. V. Chief Festus Adefioye Obolo & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
ZAINAB A. BULKACHUWA, J.C.A.
The Respondents as plaintiffs before the Okitipupa High Court, Ondo State per a writ of summons dated 13/12/2000 claimed the following reliefs against the Appellants as defendants.
- A declaration that High Chief Petu is the traditional head of all members of Akoko family of Osooro in Okitipupa Local Government and that the next to him is the Yasero.
- A declaration that no Oloja (Oba) ever reigned in Iju-Oke Land which is an Akoko settlement in Okitipupa Local Government.
- A declaration that the 1st defendant is not entitled to be appointed or selected and installed as Oloja of Iju-Oke in Okitipupa Local Government of Ondo State.
- A declaration that if and when there is a need to appoint an Olojo for Iju-Oke all the descendants of Kugbanre who are the inhabitants of Iju-Oke shall decide the procedure for choosing and installing the Olojo.
- A declaration that the 2nd defendant is not entitled to impose, appoint, select or install the 1st defendant or any other person as Oloja of Iju-Oke in Okitipupa Local Government.
- An order of perpetual injunction restraining the 2nd defendant by himself whosoever acts or purports to act for him from selecting, electing, appointing, imposing and/or installing the 1st defendant as Oloja (Oba) of Iju-Oke in Okitipupa Local Government.
- An order of perpetual injunction restraining the 1st defendant from presenting himself to be installed as Oloja (Oba) of Iju-Oke and from parading himself as Oloja (Oba) in Okitipupa Local Government.
Parties thereafter filed and exchanged pleadings.
By a motion on notice filed on the 20/3/2002 the appellants as the defendants before the lower court raised a preliminary objection on the competence of the lower court to determine the matter on the following grounds.
- The condition precedent to the exercise of jurisdiction by this Honourable Court under sections 13(4),(5),(6) of the Chiefs Edict of Ondo State 1984 is not fulfilled by the plaintiff before the institution of this action.
- The Legislature have provided for a procedure to be followed by the plaintiff to exercise the right sought by the plaintiff in this case and he did not follow the procedure before coming to court.
- All the local remedies provided by section 13 of the Ondo State Chiefs Edict 1984 have not been exhausted by the plaintiffs before they brought this action.
After due addresses by learned counsel for the respective parties on the preliminary objection, the learned trial judge in a considered ruling delivered on the 3/10/2002 overruled same and dismissed it holding that it has jurisdiction to determine the matter.
The defendants as appellants being aggrieved have now appealed to this court on the following grounds of appeal vide a notice of appeal filed on the 15/10/2002.
GROUNDS OF APPEAL
(1) GROUND ONE
The learned trial judge erred in law when he failed to decline jurisdiction to adjudicate on this matter when the condition precedent to the exercise of jurisdiction laid down by the Ondo State Chiefs Edict (Law) 1984 (as amended) has not been complied with by the plaintiffs/respondents before he instituted this case.
PARTICULARS OF ERROR
(a) The dispute in this case has not been submitted formerly to the 2nd defendant, who is the prescribed authority over the disputed minor chieftaincies in this case, for a decision by him.
(b) The plaintiffs/respondents had not made representations to the member of the executive council, to whom responsibility for chieftaincy affairs are assigned, that the decision of the prescribed authority to which he expressed dissatisfaction be set aside.
(2) GROUND TWO
The learned trial Judge misdirected himself in law when he held in his judgment that “the plaintiffs/respondents have in my view chosen the best option in instituting this action without resorting to Section 13”.
Parties filed and exchanged briefs of argument which they adopted at the hearing of this appeal.
In the appellants’ brief, no issues were formulated from the 2 grounds of appeal. After stating the facts leading to the appeal, he then proceeded on arguments based most probably on the grounds of appeal, without identifying any issue and relating same to the grounds of appeal.
An issue in an appeal has been defined by the Supreme Court in Shittu Vs. Fashawe (2005) 14 NWLR (Pt. 946) 671 per Musdapher, JSC at 687 as
“an issue for determination is a point so crucial that when decided one way or the other affects the fate of the appeal. It is a point that when decided in favour of a party he is entitled to win the appeal. See Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130; Okoye v. Nigerian Construction and Furniture Co. Limited (1991) 6 NWLR (Pt. 199) 501. In this connection See also Sanusi v. Ayoola (1992) 9 NWLR (Pt. 265) 275; Igogo v. The State (1999) 14 NWLR (Pt. 637) 1.”
See also Chief Imonikhe & Others v. Attorney-General, Bendel State & Others (1992) 6 NWLR (Pt. 248) 396; Ngilari v. Mothercat Ltd. (1993) 8 NWLR (Pt. 311) 370.
From decided authoritation an issue in an appeal is a substantial question of law or fact or both which is based on the grounds of appeal, which then anchored one way or the other will determine the outcome of the appeal.
For a ground of appeal to be relevant an issue must arise from it, similarly an issue must be based on a ground of appeal before it can be relevant. Thus, where a ground of appeal is not covered by a formulated issue, that ground is deemed abandoned. Similarly, an issue for determination not covered by any ground of appeal is incompetent and liable to being struck out.
See Attorney-General Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646; Agu v. Ikewibe (1991) 3 NWLR (Pt.180) 385; Oje v. Babalola (1991) 4 NWLR (Pt. 185) 276; Aniekan v. Aniekan (1999) 12 NWLR (Pt.631) 491; Newswatch Communication vs. Atta (2000) 2 NWLR (Pt.646) 592.
In the instant appeal no issues were formulated from the two grounds filed. Grounds of appeal which have no issue formulated from them are deemed abandoned, the two grounds of appeal are hereby deemed abandoned and struck out. In the circumstances there is no competent appeal before this court.
The respondents did raise an issue from the grounds of appeal which were argued in the respondents’ brief, and also raised and argued a respondents’ notice that the appeal be affirmed on grounds other than those relied on by the learned trial Judge.
Having reached the decision that there is no competent appeal before this court, the respondents’ submission being tied to the grounds of appeal will also become incompetent.
In the circumstances, the two grounds of appeal filed are hereby deemed abandoned and struck out. There being no grounds of appeal, the appeal also become incompetent and is hereby struck out.
Costs of N10,000.00 to the respondents.
Other Citations: (2006)LCN/1890(CA)
