Chief Kehinde Odofin & Ors. V. Chief Raphael Alayande Oguntola & Ors. (1997)
LawGlobal-Hub Lead Judgment Report
MOHAMMED, J.C.A.
By a writ of summons dated 28-6-1993 seven plaintiffs including the five appellants commenced this suit at the High Court of Justice Ilorin Kwara State. The 4th and 5th plaintiffs, namely Chief Jimoh Oloke and Chief Osaleloko Awiye had earlier withdrawn from the action as plaintiffs and their names were accordingly struck out by the lower court leaving only the 5 appellants as plaintiffs. The appellants claim against the respondents who were the defendants according to paragraph 22 of the statement of claim dated 17-8-1993 at page 8 of the record is:-
“22. Whereof the plaintiffs claim against the defendants jointly and on severally as follows:-
(i) A declaration that the proper title of the traditional ruler of Isapa is not Onisapa of Isapa hut Elekan of Isapa.
(ii) A declaration that the plaintiffs are the only king makers of Isapa on whose recommendation the 2nd and 3rd Defendants can act in relation to the appointment of a traditional ruler for Isapa.
(iii) A perpetual injunction restraining the 1st defendant from referring to himself as Onisapa of Isapa qua his traditional rulership of Isapa.”
Pleadings were duly filed and exchanged between the parties at the lower court. However before hearing of the suit could commence before Gbadeyan J., the 1st respondent who was the 1st defendant in the court below, filed a Notice of Preliminary Objection on the competence of the lower court to entertain the suit, the notice reads:-
NOTICE OF INTENTION TO ARGUE A PRELIMINARY OBJECTION
“Take Notice that the 1st defendant/applicant will raise a preliminary objection on the ground that the suit is incompetent and/or the court has no jurisdiction to entertain the suit for non-compliance with mandatory deposit of N10, 000.00 as required by law.
Dated 6-6-1994.”
This preliminary Objection was not heard by the Lower Court until 6-2-1995 when after taking argument from learned counsel on both sides, ruling was adjourned to 29-3-1995. In his ruling delivered on 25-4-1995, the learned trial Judge Gbadeyan J. upheld the preliminary Objection of the 1st defendant and struck out the plaintiff’s suit after holding that his court had no jurisdiction to entertain the suit. The relevant part of the ruling reads:-
“For this action to be competent a N10,000.00 non refundable deposit before filing must have been made to the state’s Accountant General. There is no evidence of any such deposit having been made in this case.
Consequently, on the authorities cited in support of the preliminary objection at to lack of jurisdiction, the objection is sustained and this court must accordingly decline jurisdiction. The action is hereby stuck out.”
The remaining 5 plaintiff’s now appellants who were not happy with this decision had decided to appeal against it. Their notice or appeal dated 12-6-1995 contains the following two grounds of appeal without their particulars:-
“1. The learned (sic) lower court erred in law in striking out the appellants action on the singular ground that they did not deposit N10,000.00 with the Account General of Kwara State in compliance with Chiefs (Appointment and Deposition) (Amendment) Edict 1988 before filing the suit.
- The learned trial judge misdirected himself on the facts when he held that the action of the appellants challenged the appointment of the 1st respondent as Onisapa of Isapa.”
In the brief of argument filed on behalf of the appellants by their learned senior counsel, the following 2 issues were distilled from the 2 grounds of appeal.
“1. Whether the reliefs sought by the appellants are such as to require them deposit a sum of N10,000.00 with the Accountant General of Kwara State as provided by section 15(1) of the Chiefs (Appointment and Deposition) Law (as amended) of Kwara State for their action to be competent.
- Whether the trial lower court misconstrued the Appellants case.”
However, in the brief of argument filed for the 1st respondent, only one issue was identified for the determination of the appeal. It reads:-
“1. Whether the suit constitute a challenge to the approval given to the appointment of 1st respondent as a chief viz.” Onisapa of Isapa” for which a deposit of a nun-refundable fee of N10, 000.00 was required by Edict NO.3 of 1988.”
Second and third respondents who did not participate in the hearing at the lower court did not also show interest in this appeal. Therefore no briefs of argument were filed on behalf of the two respondents.
Taking into consideration that the appellants suit was struck out for their failure to satisfy the precondition of paying N10,000.00 deposit before the lower court could assume jurisdiction, the only issue arising for determination in this appeal is whether having regard to the reliefs sought by the appellants in their suit against the respondents, it was mandatory for them to pay the N 10,000.00 deposit in compliance with section 15(1) of the Chiefs (Appointment and Deposition) law as amended by Edict No.3 of 1988 of Kwara State before the court could assume jurisdiction to try the action. Learned senior counsel for the appellants after referring to the reliefs sought by the appellants in their action, had submitted that the appellants did not challenge the validity of the appointment of a chief to warrant complying with, section 15(1) of the Chiefs (Appointment and Deposition) law before their action could be entertained by the lower court. That as far as the appellants claims are concerned, the lower court had jurisdiction to entertain it. The case of Onitiri v. Ogbeiwi (1992) 4 NWLR (Pt.234) 184 at 195 among others was cited and relied upon in support of this argument. Relying also on a number of cases including Anya v. Iyayi (1993)7 NWLR (Pt. 305) 290, Learned Senior Counsel for the appellants urged this court to interpret section 15(1) of the Chiefs (Appointment and Deposition) law strictly in holding that the lower court infact had jurisdiction to entertain the appellant’s suit.
For the 1st respondent however, it was contended that having regard to the definition of the word ‘chief’ in the Interpretation law cap 52 of the laws of Northern Nigeria applicable in Kwara State which was adopted and applied in the case of Olaniyi V. Aroyehun & Ors (1991) 5 NWLR (pt. 194) 652; (1991)7 SCNJ (Pt. 1) 40 at 52 among others, the action instituted by the appellants at the lower court was indeed an action challenging the appointment of a chief. That for that reasons, the appellants having failed to pay the compulsory N10, 000.00 deposit prior to the filing of the action, their action was incompetent and the lower court was right in striking it out. Learned counsel for the 1st respondent supported this submission by the cases of Madukolu & Ors v. Nkemdilim & Ors (1962); 1962 2 SCNLR 341, 1 All NLR 587 at 595 and Obaba v. Military Governor of Kwara State (1994) 4 NWLR (Pt. 336) 26.
The crux of the dispute between the parties in this appeal having regard to the reliefs claimed by the appellants against the respondents at the lower court is that while the appellants do not oppose the appointment of the 1st respondent as the Community Leader or the Ward Head of his community of Isapa, it is the use of the title of Onipasa of Isapa that they oppose. All the appellants wanted was for the 1st respondent to continue to use the title of “Elekan” of Isapa rather than the new title of “Onisapa” of Isapa. In other words the status of the 1st respondent whether as Onisapa of Isapa or as Elekan of Isapa remains the same Ward Head of his Community and not a graded Chief appointable under the Chiefs (Appointment and Deposition) Law as amended by Edict No.3 of 1988 of Kwara State. This court has held in a number of its decisions on the application of section 15(1) of the Chiefs (Appointment and Deposition) Law as amended of Kwara State that the section does not apply where the dispute relates only to the appointment of a Ward Head, a village Head or even a District Head. See the case of Jubril v. Kolawole (1996) 5 NWLR (Pt. 446) 34 at 44-45 where I said as follows:-
“Indeed learned counsel to the respondent did put up a strong argument that by virtue of the definition of a ‘Chief’ under the interpretation Act, the respondent is a chief warranting anyone challenging his appointment in court to first deposit the sum of N10,000.00 as required by the law. Learned counsel referred to S.3 of the Interpretation Act which according to him defined a chief as –
“any native whose authority and control is recognised by a native community.”
With due respect to the learned counsel, this definition is no longer in force in the current Interpretation Act Cap 192 of the Laws of the Federation of Nigeria 1990. The word ‘chief’ is now defined under S.18 of the Act as –
“a person who, in accordance with the law in force in any part of Nigeria, is accorded the dignity of a chief by reference to that part or to a community established in that part.”
It is therefore clear from this definition that a person is only a chief if he is recognised as such under an existing law. The existing law in this respect having regard to the present appeal is of course the Kwara State Chiefs (Appointment & Deposition) Law. S.15 (1) of which provisions are under consideration. In S.2 of that law as modified by the Modification of Laws (Kwara State), Order No. 1 of 1983, the word ‘chief’ or head chief is defined as-
“any person for the time being recognised by the Governor as a chief or head chief and includes an Emir.”
Therefore from this definition there is no doubt that the word ‘chief’ referred to in S.15 (1) of the Chiefs (Appointment & Deposition) Laws of Kwara State is a person recognised as such by the Governor, Military Governor or Military Administrator of Kwara State as the case may be under that law. Obviously that law deals exclusively with the appointment, grading and deposition of chiefs, head chiefs and emirs duly recognised by the Kwara State
Government as such. In other words the law does not deal with the appointment of village head or Bale which is the status of the respondent. Consequently, I have come to the conclusion that a Bale or village head in Kwara State although a recognised leader in his own community, is however not a chief under the chiefs (Appointment & Deposition) Law of Kwara State.
With the result it is not difficult to see that since the appellant in his action filed at the lower court was not challenging the appointment or deposition of a chief as defined in the Chiefs (Appointment & Deposition) Law, he was not required to comply with S.15 (1) of that law by paying a non refundable deposit of N10, 000.00 before his action could be prosecuted. Thus the learned trial Judge was therefore in error in striking out the appellant’s suit which was otherwise competent.”
Applying this decision to the present case, it is quite plain that the learned trial Judge was in error in striking out the appellant’s suit on the ground that the lower court had no jurisdiction to entertain it. Indeed the appellant’s suit which relates to the appointment of a ward head is quite competent and for this reason the lower court has jurisdiction to adjudicate and determine the dispute between the parties without complying with section 15(1) of the Chiefs (Appointment and Deposition) Law as amended of Kwara State.
In the result this appeal succeeds and it is hereby allowed. The order of the lower court of 25-4-1995 striking out the appellant’s suit is hereby set aside. The case is remitted to the lower court for hearing on the merit by another Judge.
There shall be N1, 500.00 costs to the appellants.
Other Citations: (1997)LCN/0275(CA)
