Chief J. O. Onifade V. Chief Fatodu the Odofin of Okepa Ilawe Ekiti & Anor. (2007)
LawGlobal-Hub Lead Judgment Report
TIJJANI ABDULLAHI, J. C. A.
This is an appeal against the Judgment of A.S. Daramola (J) in suit No. HCR/I AND 18/96 sitting at Ikere-Ekiti High Court delivered on 22nd day of April 2004, following a ruling delivered by the said Judge on a preliminary objection raised by the 1st Defendant/Respondent against the case filed by the plaintiff/Appellant.
By a writ of summons taken out by the Plaintiff/Appellant against the Defendants/Respondents, dated 16th day of January 1996, the Plaintiff/Appellant claimed at the lower Courts as follows:
“(a) A declaration that by history, native law and custom of Ilawe-Ekiti the Onipa of Okepa in Ilawe-Ekiti and not the Odofin of Okepa, Ilawe-Ekiti is the head of Okepa quarter in Ilawe-Ekiti.
(b) An order on the first defendant never to style, parade, call and represent himself as the head of Okpa Quarter, Ilawe-Ekiti.
(c) An order on the second, third and fourth defendants by themselves and their agents, servants and privies from derecognizing plaintiff as head of Okepa Quarter, Ilawe-Ekiti and from recognizing instead the first defendant as the head of Okepa Quarter, Ilawe-Ekiti and further from paying the first defendant any salary, stipend, allowance, perquisites or anything at all as head of Okepa Quarter, Ilawe-Ekiti.
(d) An order on the defendants to pay to the plaintiff his salary, allowances and other perquisites which had been wrongfully, illegally and unconstitutionally stopped from 1st November, 1995 till now and to continue paying the same henceforth.”
Pleadings were ordered, filed and exchanged by the parties but before hearing began, the 1st Defendant/Respondent filed a preliminary objection based on the following ground:
“The cause of action arose in 1973 when the High Court lacks (sic) jurisdiction to entertain chieftaincy matter by virtue of 1963 constitution.”
Needless to say, arguments were taken for and against the preliminary objection and in a well considered ruling, the trial Judge held thus:
“In the light of the foregoing, I hold that the Plaintiff/Respondent’s action is not justiciable on ground that the court lacked jurisdiction to entertain the dispute therein when the cause of action arose. Consequently, the objection of the Defendant/Applicant is well taken and is hereby upheld. The Plaintiff/Respondent’s consolidated Suit No. HCR/18/96 and HCR/1/96 is accordingly struck out. The Plaintiff/Respondent shall pay N2,000.00 costs to the Defendant/Applicant.”
Dissatisfied with the ruling of the lower court, the Plaintiff/Appellant filed a Notice of Appeal which carries three grounds of appeal. Shorn of their particulars they are as follows:
“(1) The lower Court erred in law in holding that the cause of action in the case arose in 1975, and not in 1995.
And this led to a miscarriage of Justice.
(2) The trial court erred in law in holding that the claim of the Appellant is a Chieftaincy matter to which the 1979 does not apply.
And this led to a miscarriage of Justice.
(3) The lower court erred in law in not adverting its mind to the statement of claim even though it conceded that it is the statement of claim in an action that decides the justiciabity or non.
And this led to a miscarriage of Justice.”
In accordance with our Rules, parties filed and exchanged briefs of arguments with the exception of the 2nd Defendant/Respondent. On the 26/04/07 when the appeal came before us for hearing, Learned Counsel for both parties adopted their briefs of arguments.
In a brief settled by A. O. Akanle, SAN, Learned Counsel distilled from the said grounds of appeal four issues for determination as follows:
“A. Whether the cause of action arose in 1975, Ground 1.
B. Whether the claim herein is a chieftaincy matter and hence not justiciable or no – Grounds 2 and 3.
C. Whether or not a recourse to oral evidence was necessary in view of the contradictory affidavits before the trial court – Grounds 4.
D. Whether or not the trial court properly evaluated the evidence before it before coming to a decision.”
For his part, Learned Counsel for the 1st Respondent formulated two issues for determination as stated below:
“1. Whether the trial Court was right in holding that the cause of action arose in 1975 when the Western State government took a final decision and recognized the 1st Respondent as head chief of Okepa.
- Whether the trial Court was right having regard to the Appellant claim, in holding that this suit is a chieftaincy dispute.”
A cursory look at the issues formulated by the parties to this appeal will reveal the fact that the issues formulated by 1st Respondent are more precise and encapsulated all the four issues formulated by the Appellant. I adopt them as the issues calling for determination in this appeal.
Learned Senior Counsel contended that the lower Court held that the cause of action in the case herein arose in 1975. It is the further contention of the Learned Senior Counsel that though it is conceded that the Ondo State Military Government said in 1975 that the Onipa and Odofin Seniority dispute had been disposed of the fact remains however that, the Plaintiff/Appellant, the Onipa continued as a Senior to Odofin, first Defendant/Respondent, enjoying the honour, salary, prestige and perquisites attended thereon. The first Defendant/Respondent according to the Learned Senior Counsel did not complain.
Learned Senior Counsel argued that the situation remained so despite the fact that in 1976, the Military Government of Western State reduced all the Chieftaincy titles in Iwe (as well as in other towns in the state) to minor chieftaincies except the Oba in each town. Learned Senior Counsel went to posit that it was only in 1995 when caretaker members were appointed into the said Local Government instead of elected councilors that the caretaker committee members who were supporters of the first Defendant/Respondent transferred the seniority from Plaintiff/Appellant to first Defendant/Respondent and transferred the higher salary to first Defendant/Respondent and the lower to Plaintiff/Appellant.
It is the submission of the learned Senior Counsel that it was in this 1995 when the change was effected that the cause of action in the case herein arose.
Counsel for the 1st Respondent Olu Jayeoba Esq contended that paragraph 12 of the Plaintiff/Appellant amended Statement of Claim conceded that the issue of security and recognition of Head chief of Oke Ipa was determined vide a letter written by the Western Nigeria Government in 1975.
Learned Counsel further contended that the said decision was respected by both parties, Odofin the Respondent was recognized as the Head Chief of Okepa Quarters, Ilawe Ekiti and was given certificate of recognition by the said Western Nigeria Government.
The Respondent, Learned Counsel argued was enjoying all benefits accruing to the office of Head Chief of Okepa Quarters while the Appellant was the 2nd in rank to the Respondent. In 1976, Appellant wrote two petitions to the Ondo State Government on this issue asking the Ondo State Government to reverse the position. However, the Ondo State Government Govern via a letter dated 20/8/76 stated that the Seniority dispute was regarded closed having been judiciously disposed of.
Learned Counsel contended that the Appellant having exhausted all possible means of redress then accepted the verdict and was taking next to the 1st Respondent being second in rank to him. Learned Counsel further contended that the situation remained so till 1993 when suddenly and with no just cause, the Ekiti South West Local Government tried to reverse the position. The Respondent reported the matter to the State Government and the latter asked the Local Government to reverse its decision which it did and reverted back to the decision of the Western Government of 1975. He relied on the case of Adesola v. Abidoye (1999) 14 NWLR (pt. 637) pg. 28 at 65 paras. C – F.
Learned Counsel argued that the trial court evaluated the averments in the Plaintiff/Appellants statement of claim and the depositions in the Affidavits filed by both parties which have all shown that the cause of action arose in 1975. He relied on the cases of Ogbeni vs. Ololo (1993) 7 NWLR (pt. 308) pg. 128 @ 136 paras. E-G.; Skypower Air Ways vs. Olima (2005) 18 NWLR (Pt. 957) pg. 225 @ 252 para. H; MBONU v. NIG. Mining Corp. (2006) 13 NWLR (pt. 998) pg. 659 @ pg. 685 para. H. to b on pg. 686.
Learned Counsel submitted that the cause of action arose in 1975 and urged us to hold so.
Now, in determination of this issue, the first two points to be considered and tackled are what constitutes a cause of action and when did it arise in this case.
A cause of action is defined in Black’s Law Dictionary (7th Edition) thus:
“A group of operatives facts giving rise to one or more bases for suing; a factual situation that entitled one person to obtain remedy in court from another person.”
Again, a leading writer in Legal jurisprudence, Edwin E. Bryant in his works, titled the law of pleading under the codes of civil procedure page 170 (2nd Edition 1899) defines cause of action in the following terms:
“It may be defined generally to be a situation or state of facts that entitles a party to maintain an action in a judicial tribunal. This state of facts may be (a) a primary right of the Plaintiff actually violated by the Defendant or (b) the threatened violation of such right, which violation the Plaintiff is entitled to restrain or prevent, as in case of actions or suits for injunction; or (c) it may be that there are doubts as to some duty or right, or claim which the Plaintiff is entitled to have cleared up, that he may safely perform his duty, or enjoy his property.”
In the light of the combined definitions of what constitutes a cause of action adumbrated above, I must agree with the learned trial Judge when he held thus:
“It is as clear as crystal from the above definitions that a cause of action is in effect a factual situation or an aggregation of facts and/or circumstances enuring a legal or recognized right in a person, the violation or threatened violation of which he is entitled to seek redress in court. Thus, the next line of inquiry is to find out what was the factual situation or aggregation of facts that enured a legal right in the Respondent and when it accrued in his favour.”
It is instructive to state at this juncture that having defined what a cause of action is, the next point to be considered or question to be asked is, when did the cause of action arise in this case? To answer this question recourse had to be made to the processes filed by the parties particularly the statement of claim of the Plaintiff.
In the case of Ogbimi vs. Ololo (1993) 7 NWLR (pt. 3041) page 128, the apex Court held, to determine whether the claim of a Plaintiff discloses a cause of action fit to be tried, the court needs only to have regard to the statement of claim of the Plaintiff which alone determines whether or not the claim brought before the court is justiciable. In the instant case; the first 2 claims of the Plaintiff seek declaratory reliefs whilst the 3rd claim is ancillary to those declaratory reliefs. Such a claim discloses a cause of action (p. 134 -135, paras. F – A.; p. 136, para. B).
In his amended statement of claim, the Plaintiff/Appellant in paragraph 12 of the said Statement of Claim averred thus:
“Some time in 1975 Prince Ayo Adefolalu, then a graduate civil servant under the then Western State Government, caused and influenced a letter to be written in Ibadan saying that Odofin and not the Onipa was head of Okepa, in Ilawe Ekiti.
The letter will be founded upon at the trial. The Odofin compensated Prince Ayo Adefolalu with a large piece of land along Ilawe Ekiti – Igede Road.”
In the Respondent’s Reply to the statement of defence dated 12th June, 1998, he averred as follows:
“3. With reference to paragraphs 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, and 35 of the statement of defence Plaintiff says that:-
(b) The former Governments of Western and Ondo State favoured the Odofin for political reasons.
“5 With regard to paragraphs 51, 52, 53, 54,= and 55 of the statement of defence, Plaintiff says that:-
(b) The Western State Government’s letter of 13th January, 1975 was politically motivated nor do the contents accord with the history, custom an tradition of Okpea, Ilawe-Ekiti.”
The letter referred to in paragraph 12 of the amended statement of claim of the Appellant reads as follows:
“The Divisional Officer
Divisional Office,
Ikere-Ekiti
Olipa (sic) and Odofin of Okepa Security dispute
I am directed by the Honourable Commissioner for Local Government and Chieftaincy Affairs to refer to the series of correspondence on the above-mentioned topic resting with your letter Ref. No. ESD.65/232 of 6th June, 1974 and to inform you that this Ministry has, after giving very careful consideration to all the issues involved in the dispute, upheld the seniority and supremacy of the Odofin of Okepa over the Olipa (sic) of same Quarter in Ilawe-Ekiti.
- I am to inform you further for the avoidance of doubt that the Odofin of Okepa is hereby recognized as the Quarter Head of Okepa Quarter and as Senior in status to the Olipa (sic). All spurious chieftaincies created by the Olipa (sic) acting as the self-appointed head of Okepa Quarter are hereby annulled.
- I should be grateful if you would convey the Ministry’s decisions to all concerned who should regard the matter as closed.
SGD.
(O.O. Dare),
For Permanent Secretary.
Ref. No. CB. 141/39/61/104A
Ministry of Local Government and
Chieftaincy Affairs,
Ibadan.
13 January, 1975.
Copy to:
The Council Manager,
Ekiti Southern Local Government Council,
Ikere-Ekiti.
Above is for your information and necessary action please.
SGD.
(O.O. Dare),
For Permanent Secretary.”
Again, another letter on this lingering dispute was written on the 20th August, 1976 and it reads thus:
CHIEFTAINCY
20th August, 1976
CD/C/97/142
Chief J. O. A. Adebo,
P.O Box 135,
Ado-Ekiti.
Olipa (sic) and Odofin Seniority Dispute
I am directed to acknowledge the receipt of your letter No. JA/3/4/76 of 2nd August, 1976 addressed to His Excellency, the Military Governor and to inform you that the Olipa (sic) and Odofin of Okepa Seniority dispute has since been judiciously disposed of and thereafter regarded as closed.
- I should be grateful if you would inform your client accordingly.
SGD.
(M O. Bamidele).
For: Secretary to the Military Government and Head of Service.”
In the light of the documentary evidence adduced by the parties as outlined (supra) I am of the opinion that the cause of action arose in this case in 1975 when Exhibit A was written. Learned Senior Counsel for the Appellant submitted that the cause of action arose only in 1995 when caretaker members were appointed into the said Local Government who transferred the higher salary to the first/respondent and the lower to the Plaintiff/Appellant. Learned Senior Counsel cited a couple of authorities to support his submission including an additional authority of Samson Owie vs. Solomon Ighiwi (2005) 5 NWLR (part 917) 184 at 214, paras E – G. With tremendous respect to the Learned Senior Counsel, the contents of Exhibits A and B reproduced above are explicit as well as self-explanatory. In view of what constitutes a cause of action as adumbrated else where in this judgment, there can be no doubt that the cause of action arose in 1975. The cases relied on by the Learned Senior Counsel are not apposite to the facts of the case we have at hand. This issue is resolved in favour of the Respondent and against the Appellant.
On whether the matter is a Chieftaincy matter, Learned Senior Counsel argued that the 1963 constitution defines Chieftaincy as one touching on the selection, appointment, recognition, installation, grading, deposition or abdiction of a Chief. The only one applicable to the present case according to the trial Court is grading. This finding, the Learned Senior Counsel contended is erroneous because the question of grading does not arise in this matter as both are minor Chiefs of the same grade. Learned Counsel submitted that the question of Seniority has never been a Chieftaincy matter not Justiciable before the 1979 Constitution. He relied on the following cases to support his submission on this point. Gbokoyi vs. Minister of Chieftaincy Affairs Western Region (1965) NWLR 2 at 8; Alese v. Aladetuyi, (1995) 6 NWLR (part 403) 527 at p. 543 and Ikine v. Edjerode, (2001) 18 NWLR (part 745) 446 at 487, paras A-C.
On his part, Counsel for the respondent submitted that the lower court held rightly that the matter before the lower court was a chieftaincy dispute. He referred to some of the averments of statement of claim of the Plaintiff/Appellant and submitted that it is the law that the claim of the Plaintiff determines the jurisdiction of the Court.
Learned Counsel argued that the 1963 Constitution of Western Nigeria, section 80 (6) defines Chieftaincy as one touching appointment, approval of appointment, recognition, installation, grading, deposition or abdication of any Chief. As the reliefs sought by the Appellant before the lower court is to nullify the recognition of the Respondent as the Head Chief of Okepa, the Matter before the court is about recognition and grading of Chiefs which comes within the definition of Chieftaincy dispute in the 1963 Constitution of Nigeria, Learned Counsel further argued. He urged us to hold that the lower Court was right in holding that this case is a Chieftaincy matter.
It is now trite that it is the claim of the Plaintiff that determines the jurisdiction of a court ditto the classification of the same. The Appellant in his claim before the lower Court claimed among others for:
“(a) Declaration that by history, native law and custom of Ilawe Ekiti, the Onipa of Okepa in Ilawe Ekiti and not the Odofin of Okepa, Ilawe Ekiti is the head of Okepa quarters in Ilawe.”
(c) An order restraining the defendants by themselves, and their agents, servant and privies from derecognizing Plaintiff as head of Okepa Quarters, Ikere Ekiti and from recognizing instead the first defendant as the head of Okepa quarters.”
It is instructive to state at this juncture that from the statement of claim of the Appellant reproduced above, the affidavits and the counter-affidavits of the parties the dispute between the parties is a Chieftaincy dispute and I so hold.
Needless to say, I have already held that the cause of action arose in 1975 before the coming into effect of the 1979 constitution of the Federal Republic of Nigeria. The question to be asked at this stage is, whether the trial court has jurisdiction to hear and determine the case of the Appellant.
In the case of Ikine and 3 others vs. Chief Olori Edjerode and 5 others (supra) before the apex court three issues had been raised for determination. They are framed more or less along the lines of the grounds upon which the suit was dismissed at the trial, and are:
- Whether this action is not statute barred
- Whether the trial court has jurisdiction to entertain the relief endorsed on the writ of summons.
- Whether the action is not an abuse of judicial process.
The apex court held that the 1963 Constitution prohibited litigation in Chieftaincy matters. The executive had the final say.
Consistent with the decision stated (supra) I hold that the trial court lacked jurisdiction to entertain the case of the Appellant. This is because the law applicable to an action is the law in force when the cause of action arose; therefore the lower court was right in using the position of the law in 1963 Constitution of Federation and Western Nigeria to determine the jurisdiction of the court.
This issue, like the previous issue is resolved in favour of the respondent and against the Appellant.
Learned senior Counsel for the appellant submitted that there is no doubt that the affidavit of the Plaintiff/Appellant and that of the Defendant/Respondent are sharply in conflict. The greatest conflict is as regards the relative history behind the Onipa title of the Plaintiff/Appellant and the Odofin title of the first Defendant/Respondent. It is the contention of the Learned Counsel that failure to resolve the conflict has led to a miscarriage of Justice and that the decision of the trial court cannot stand. He relied on the cases of Olu Ibukun vs. Olu Ibukun, (1974) NWLR p. 280 at p. 284; Adkins V. Aladeto Yinbo, (1875) 7 NWLR (part 409) 526 at p. 534 paras. E – H and Rabi’u vs. Summons (2001) 4 NWLR (part 704) 439 at 446, paras. C – G.
On the other hand, Counsel for the Respondent submitted that the lower Court delivered its ruling being appealed against based on the arguments proffered on the preliminary objection raised challenging the jurisdiction of the lower court. It is the submission of the Learned Counsel that in a case such as the one we have at hand, the court was not obliged to call for oral evidence to resolve any conflict in the affidavits of the parties. The averments in the statement of claim were enough to determine when the cause of action arose vis-a-vis the determination of jurisdiction. Mboru V. Nig. Mining Corp. (2006) 12 NWLR (Pt. 998) pg. 659 at pg. 685 paras. H to B on pg. 686.
Now in the case of Rabi’u V. Sunmonu (supra) where the issue for determination before the appellate court was whether the trial court was right in resolving the conflict in the affidavits in support of the Appellant’s application and the 1st Respondent Counter-Affidavit without calling oral evidence, this court, per Galadima, JCA held thus:
“Where a matter is being tried on affidavit evidence and the court is confronted with conflicting or contradictory evidence relied on by the parties on material issues before the court, the court cannot resolve such conflict by evaluating the conflicting evidence but is obliged to call for oral evidence in order to achieve a resolution of the conflict.”
May I say at this stage that the facts of that case are not apposite to the facts of the one at hand. It was made very clear in his Lordship’s Judgment that where a matter is being tried on affidavit evidence but the matter we have at hand was not solely tried on affidavit evidence but statement of claim of the appellant as well. With due respect to the Learned Senior Counsel, this case cannot be called in aid of the Appellant and I so hold. The case of Adkins V. Aladeto and Olu-ibukun V. Olu Ibukun (supra) cannot be called in aid of the Appellant because both deal with a situation where the only evidence before the court was affidavit evidence.
In the light of the decisions in the cases outlined above, I am of the opinion that there was no need to resort to oral evidence as the averments in the statement of claim was sufficient and the trial court based its decision on the same. This issue too is resolved in favour of the Respondent and against the Appellant.
Learned Senior Counsel submitted that all the pieces of evidence adduced by the Appellant were not reviewed or evaluated by the trial court and this according to the Learned Senior Counsel prevented it from doing Justice in the matter. He posited that an Appellate Court can evaluate if the trial court failed to do so. He urged us to do so in this case. He relied on the cases of Fabumiyi V. Obaji (1968) NMLR, 242 at 247 and Atanda VS. Ajani (1989) 3 NWLR (Part 111) p. 511 at p. 536, para. A.
Learned Counsel for the respondent, on the other hand submitted that the lower Court properly evaluated the facts contained in the affidavit and exhibits annexed as well as relevant averments in the Plaintiff’s statement of claiming before arriving at the conclusion that the lower court lacked jurisdiction.
In the case of Atanda vs. Ajani (Supra) relied by the Learned Senior Counsel, appeal was allowed by the apex Court because the trial Judge had failed to make a vital decision on the conflicting evidence before him. He had failed to take full advantage of having seen and heard the witnesses. In such event apex Court held that it can justly interfere with the findings of the trial Court. With due respect to the Learned Senior Counsel, the facts of that case are distinguishable with the ones we have in this case. This case under reference cannot be called in aid of the Appellant.
I am of the opinion that the averments in parties’ pleadings are not evidence that can be relied upon by Court, since no oral evidence was given before the lower court as to the averments in the pleadings, there was noting before the lower Court to evaluate apart from the depositions in the affidavits of both parties and the statement of claim which were filed in support of the preliminary objection. I am of the further opinion that the trial Judge meticulously evaluated all that had been presented before him before arriving at the decision appealed against by the Appellant. This issue is also resolved in favour of the Respondent and against the Appellant.
On the whole, in the light of all that I said, this appeal is completely devoid of any merit and same must be and it is hereby dismissed with N10,000 costs in favour of the Respondent and against the Appellant.
Other Citations: (2007)LCN/2453(CA)
