Efunwape Okulate & Ors Vs Gbadamosi Awosanya & Ors (2000)

LAWGLOBAL HUB Lead Judgment Report

UWAIFO, J.S.C.

This appeal is from a judgment of the Court of Appeal, Ibadan Division, given on 20 May, 1992. Judgment had been given in favour of the plaintiffs by the High Court, Ijebu-Ode, Ogun State. The defendants then contested it on appeal on three issues but in the main that the claim, in substance, involved the determination of family status and therefore the High Court did nor have original jurisdiction to entertain it. The reliefs sought by the plaintiffs were-

As against the 1st and 2nd defendants, a declaration that they or any member of their respective families are not entitled to be nominated, approved and/or appointed to the chieftaincy post of Olisa of Makun, Sagamu, as they are not members of Oresolu Family.

As against the 3rd, 4th and 5th defendants, perpetual injunction restraining them from ever recognising, approving, appointing and/or gazetting either of the 1st and 2nd defendants or anyone from their families as the Olisa of Makun, Sagamu.

On further appeal to this court, the same issues canvassed in the Court of Appeal were raised for determination. I set them out as follows:

1. Whether the court below was not in error when it held that the claim of the plaintiffs/respondents was not in the main and in substance one for the determination or an issue of family status.
2. Whether the court below was not in error when it held that in the circumstances of this case, the High Court has original jurisdiction to entertain the suit.
3. Whether the court below was not in error when it held in effect that the judgment of the trial court was not unreasonable having regard to the evidence led in the case.

Perhaps it is pertinent to remark here that the issue of jurisdiction, though pleaded, was not taken in limine at the trial court. The case was fought in full before counsel for either party addressed the issue. Consequently, the learned trial Judge (Delano J.) resolved the issue of jurisdiction along with the merits of the case. So did the court below, including the findings of fact made by the trial court.

The defendants (hereinafter referred to as the appellants) would appear to want this court to take the same course upon the issues raised. I shall accordingly consider and resolve seriatim the three issues raised for determination in the appellants’ brief. I have adopted this approach even although I am aware that had I taken first the second issue and resolved it in the negative, the first issue would have been rendered rather unnecessary. But it must not be forgotten that it was indeed the first issue that necessitated having a full court to hear the appeal. Both counsel dealt with it exhaustively in their respective briefs of argument as a live matter in the proceedings. I felt that to parry the issue in the circumstances, even purely on the rule of judicial expediency, would appear unsatisfactory.

First lssue:

On the first issue, learned counsel for the appellants, Chief (Mrs) Aremu, argued that the claim before the trial High Court was concerned with family status, From that premise, the contention is that the High Court of Ogun State did not have original jurisdiction to entertain the suit by virtue of section 10(1) [erroneously stated in the brief as s. 9( 1)] of the High Court Law, Cap.44 of the Laws of Ogun State, 1978, wherein original jurisdiction is denied to the High Court over matters relating to “marriage, family status, guardianship of children and inheritance or disposition of property on death”. Instead, that provision proceeds to confer jurisdiction in such matters on a Customary Court. For the purposes of issue 1, I shall look at the claim to ascertain what relief was in essence sought therein, The first relief seeks a declaration that the 1st and 2nd defendants or any members of their respective families are not members of Oresolu Family and consequently are not entitled to be nominated, approved and/or appointed to the chieftaincy post of Olisa of Makun, Sagamu. The statement of claim traces the family tree or genealogy of Olisa Family of Makun, Sagamu, identifying the lineage of the plaintiffs with it. It excludes the 1st and 2nd defendants. The purpose of relief 1 is to establish that only members of the said Olisa Family qualify to be appointed to the Olisa of Makun chieftainship. The 1st and 2nd defendants also set out in their Statement of defence the genealogical tree of Olisa Family of Makun different from that of the plaintiffs, and identifying themselves therewith through Demike and Ogundipe family branches. What was therefore joined on the pleadings in regard to relief 1 is whether or not the 1st and 2nd defendants can be said to be members of Olisa Family of Makun.

The said defendants as appellants contest in this court, as they did in the two courts below, that relief calls for a determination of the “family status” of the 1st and 2nd defendants.

They argue in their brief inter alia:

“It is the term ‘family status’ within this contest [of s.10 (1) of the High Court Law of Ogun State] that has called for interpretation. With great respect to this Honourable Court, what it has done so far is to interpret ‘family status’ as ‘status within the family’. It is respectfully submitted, however, that ‘family status’ does not necessarily mean ‘status within the family’. Being a member of a family is a ‘status’ by itself. In a strict legal sense, ‘Status’ is the sum total of an individual’s rights, obligations and disabilities conferred or imposed upon him irrespective of his own volition.”

With due respect, although this may be an interesting argument, it does not take account of widely accepted definitions of ‘family’ and ‘status’ in many standard reference books. For example, The Shorter Oxford English Dictionary Vol. 1, 3rd edition, page 723 defines ‘family’ as “The body of persons who live in one house or under one head, including parents, children, servants, etc .. The group consisting of parents and their children, whether living together or not; in wider sense, all those who are nearly connected by blood or affinity … Those descended or claiming descent from a common ancestor; a house, kindred, lineage.” And in vol. II page 2115, ‘status’ as used in Law is defined as “The legal standing or position of a person as determined by his membership of some class of persons legally enjoying certain rights or subject to certain limitations …. Position or standing in society, profession, and the like.” It means that from a combination of both definitions, the term ‘family status’ must be the standing or position of a person within a class of persons constituting a family. Membership of a family cannot be properly regarded the same as the family status of a person because it is not. In my opinion, family membership is no more than family affinity or consanguinity or lineage – see The Shorter Oxford English Dictionary vol.1 (supra) pages 33, 402 and 1217 – as distinguished from the status held by a member within his family. It would seem to follow that one cannot talk of the family status of a person without first ascertaining which family he belongs to. That was the position taken by this court in Adeyemi v. Opeyori (1976) 10 NSCC 455; (1076) 9-10 SC 31. In that case, in order to consider the definition of “family status’ reference was made to Ford v. Ford (1946-47) C.L.R. 524 where Lathan C.J. said at page 529: “A person may be said to have a status in law when he belongs to a class of persons who, by reason only of their membership of the class, have rights or duties, capacities or incapacities, specified by law which do not exist in the case of persons not included in the class and which in most cases atleast could not be created by an agreement of such persons …. These consequences follow as a matter or law from the fact of membership of a particular class of persons.” Relying on this observation, this court said at page 466 per Idigbe JSC:

“It follows therefore that no question as to a person’s status in any panicular family can arise until it be first established that he is a member of that family.”