Joshua Alao V. Gbadamosi Akano (1988)

LawGlobal-Hub Lead Judgment Report

B. CRAIG, J.S.C.

This case involves a dispute as to who was entitled to be appointed the Bale of Oke-Oyi in Kwara State, and the controversy has been through all the Courts of the land on two occasions. This is its third orbit. Unfortunately the parties in this case did not tender all the judgments delivered in those courts and this has made it difficult to fully appreciate the reasons for some of the orders made in the case.

The dispute started when the former Bale died and the Respondent was appointed to succeed him. The Appellant took objection to this, and sued the Respondent to Court. The writ of summons in that case (Suit No.KWS/II/1973) can be found at page 80 of Exhibit 2 and it was for the following claims:-

“The Plaintiffs in this case claim:

(i) a declaration that the title of Bale of Oke Oyi can be lawfully conferred only on members of the Bale Oke and the Bale Isale ruling houses of Oke Oyi town in Kwara State.

(ii) a declaration that the selection, recommendation and approval of the 1st defendant as the Bale of Oke Oyi was not done according to Oke Oyi native law and custom and that it was ultra vires the 2nd, 3rd and 4th defendants to have selected recommended and approved the appointment of the 1st defendant as Bale of Oke-Oyi;

(iii) a declaration that the purported appointment of the 1st defendant as the Bale of Oke-Oyi is “irregular, null and void and of no effect”.

(iv) a declaration that the 1st plaintiff was lawfully nominated and appointed as the Bale of Oke Oyi by the traditional king-makers in accordance with the Oke-Oyi native law and custom and as such that he (1st plaintiff) is the Bale of Oke-Oyi.

and (v) an injunction to restrain the 1st defendant “from acting as the Bale of Oke Oyi and from performing any of the customary functions or receiving and enjoying the customary perquisites attached to the said Bale’s title.”

According to the Respondent’s brief, that case came before Kawu, C. J. (as he then was) and he held that the High Court had no jurisdiction to entertain Chieftaincy matters (the judgment in that case was not exhibited). He therefore struck out the case. The plaintiff in the case appealed to the Supreme Court. (There was no intermediate Court of Appeal then), and in Suit No. SC.280/1974, that court, (per Elias C.J.N.) allowed the appeal, and ruled that:-

1. The High Court had jurisdiction to try the suit.
2. That the case should be sent back for trial before another Judge.

(See the enrolment of the Order of the Supreme Court at page 1 of Exhibit 2)

The retrial came before Ekundayo J. as suit No. KWS/24/75, and after hearing the parties, the learned Judge on 30/11/76, found for the plaintiffs and made the following orders:

“It is hereby declared that:

(a) The customary title of Bale of Oke Oyi cannot, under the Oke Oyi Native Law and Custom, be conferred on any person not a member of the “Bale Oke” or the “Bale Isale” families of Oke Oyi.

(b) The election and/or selection and/or recommendation and approval of the 1st defendant for the Baleship of Oke Oyi were ultra vires the 2nd, 3rd and 4th defendants and are therefore null and void.

(c) The purported appointment of the 1st defendant Mallam Akano as the Bale of Oke Oyi by the 3rd defendant (the Emir of Ilorin) is contrary to the Native Law and Custom of Oke Oyi and therefore totally null and void.

The next and last question which I must decide is whether or not the 1st plaintiff was properly appointed as the Bale of Oke Oyi.

The evidence before me shows that he was. The plaintiffs and their witnesses, all of whom are Mojis and all of whom I believe without any reservations, gave evidence to the effect that he (1st plaintiff) was so appointed.” …………

“I disbelieve the conflicting evidence of the defendants and their witnesses and I find it proved that the 1st plaintiff is the person who has been properly appointed as the Bale of Oke Oyi, in accordance with the native law and custom of the people of Oke Oyi.

It is therefore hereby declared that the 1st plaintiff is the lawful holder of the title “Bale” of Oke Oyi having been so selected by the persons empowered so to do by the native law and custom of Oke Oyi.

In the result the plaintiffs are entitled to the injunction sought and it is granted in the following terms:

The 1st defendant is hereby forbidden from acting as the Bale of Oke Oyi and from performing any customary functions attaching to that post.”

That judgment was delivered on the 30th day of November, 1976 and the Respondent who was dissatisfied with it appealed to the Federal Court of Appeal. Whilst that appeal was pending, the 2nd Defendant (Emir of Ilorin) apparently acting on the judgment of Ekundayo, J. invited the Appellant to his Palace and turbaned him as Bale on the 17th day of July, 1977. He also sent a congratulatory letter Exhibit 1 (dated 21/7/77) to him.

In the meantime, the Respondent’s appeal in the Federal Court of Appeal came up for hearing and the appeal was allowed. The Court held that as all the claims which came before the High Court were “Chieftaincy questions” within the meaning of sec.78(6) of the Constitution of Northern Nigeria as well as sec.11(a) of the Chiefs (Appointment and Deposition) Law Cap.20 of 1963, the trial Court had no jurisdiction to try the suit. The Federal Court of Appeal made the following order:-

“We allow this appeal and set aside the declarations made in favour of the Respondent as well as the order of injunction against the Appellant. The suit is struck out for lack of jurisdiction on the part of Kwara State High Court.” (italics mine).

That order was made on 16th December, 1977 and a further appeal to the Supreme Court (Suit No.30/1979) was dismissed on the 29th October, 1979.

After this last judgment, the Emir then recalled the Respondent, reinstalled him (Respondent) as Bale and re-turbaned him on 20th March, 1981.

The Appellant felt aggrieved by this act of the Emir, and again went to Court. This time, he sued the Respondent and the Emir of Ilorin (Suit No.KWS/33/81) for:

“the following declarations:-

1. That the customary title of “Bale” of Oke-Oyi cannot under native law and custom of Oke-Oyi people be conferred upon two people living at the same time in Oke-Oyi.
2. That the purported appointment and the turbaning of the 1st defendant by the 2nd defendant as the Bale of Oke-Oyi on 20th March, 1981 at Ilorin is irregular, null and void and of no effect for the following reasons:-

(a) That the plaintiff was so turbaned by the same 2nd defendant on 17th July, 1977and therefore holds the title “Bale” of Oke-Oyi.

(b) The 1st defendant does not come from the ruling houses, nor were the customary rituals precedent to such appointment performed in respect of his purported appointment.

3. That the plaintiff being lawfully nominated and appointed as the Bale of Oke-Oyi by the Traditional Kingmakers in accordance with the native law and custom of Oke-Oyi and having been so installed by the same 2nd defendant on 17th July, 1977 at Ilorin is the lawful holder of the title of “Bale” of Oke-Oyi.
4. An injunction restraining the first defendant from acting or parading himself as Bale of Oke-Oyi and from performing any of the customary functions or receiving and enjoying the customary

perquisites attached to the said Bale title.”

Pleadings were ordered and filed, and the matter went to trial before Obayan, J. He heard the parties and at the end of the day, he gave judgment for the plaintiff (i.e. the present appellant). Part of the judgment read as follows:-

“Since the 1st Defendant’s (Respondent) appointment was not properly made by the proper authority, the purported appointment of the 1st Defendant as Bale of Oke Oyi is declared null and void and of no effect.”

He therefore gave judgment for the Appellant and restrained the first defendant from performing any functions or enjoying any perquisites relating to the office of the Bale of Oke Oyi.

Earlier in the judgment, the learned trial Judge had had to consider the special defences raised by the Respondent in paragraph 7(3) of the Statement of Defence. These were:

(1) Res judicata -that the Appellant was estopped from relitigating the issue of the appointment of the Bale of Oke Oyi, by virtue of the previous Court decisions on the cases which had been fought between the parties.

(2) Limitation of action – It was submitted that the action was statute barred since the case against the defendants – who were said to be officers of the Local Government were not instituted within the statutory period laid down in sec. 116 of the Native Authority Law. – (see para. 7(3) of the Amended Statement of Defence at page 22 of the Record.)

In respect of the plea of res judicata, the learned Judge ruled that the Appellant was not estopped from bringing the present suit. And in respect of the 2nd legal objection, whilst the learned Judge seemed to agree that the 1st defendant should have been sued within six years of the cause of action and the 2nd defendant within six months, he nevertheless held that the cause of action did not arise in 1972 when the Respondent was first appointed, but in 1981, when he was returbaned.

As previously stated, the trial Court found for the Appellant on all the claims and gave judgment for him.

The Respondent was dissatisfied with that judgment and he appealed to the Court of Appeal where the appeal was allowed on grounds of law only. The issues of facts were not gone into. The Court of Appeal held as follows:

“The end result is that the appeal succeeds on both the issues of causes of action, jurisdiction and res judicata”.

The Appellant was dissatisfied with that judgment and has appealed to this Court on five original grounds of appeal which were argued together. Those grounds raise interesting points of law and (without the particulars) they are as follows:-

“(1) The Court of Appeal erred and misdirected itself both in fact and in law in holding that the unavoidable effect of both the judgments of the Federal Court of Appeal (FCA/K/63/77) and the Supreme Court (SC.30/1979) is nothing short of affirming that the matter was a chieftaincy one and also of restoring the parties to their status quo before the judgment of the Kwara State High Court in KWS/24/75.

(2) The Court of Appeal erred and misdirected itself in fact and in law in holding that the learned trial Judge was “wrong to say that the cause of action did not arise in 1972………….There was no fresh election/selection of the appellant by the Mojis anytime after 1977 to give rise to any new cause of action …. ”

(3) The learned Justices of the Court of Appeal erred and misdirected themselves in fact and in law in holding that the matter is res judicata and that the trial in KWS/33/81 involving the same parties and their privies in the same issue is a nullity.

(4) The Court of Appeal erred and misdirected itself in fact and in law in holding that the High Court lacked jurisdiction on the ground that the cause of action arose in 1972.

(5) The Court of Appeal erred in law in not striking out the appeal of the Respondent herein (1st defendant at the High Court) when the 2nd defendant was not a party to the appeal before the Court of Appeal.”

In his brief of argument, the Appellant formulated three issues for determination and these are:

“1. What was the effect, if any, of the decisions in FCA/K/63/77 and SC.30/79 which related to the suit in KWS/24/75, on the new suit- Suit No. KWS/33/81 which emanated from the returbaning of the 1st defendant, Gbadamosi Akano by His Royal Highness, the Emir of Ilorin, the 2nd defendant, on 2013/81(Grounds 1, 2 and 3 referred).

2. Did the High Court lack jurisdiction in respect of the returbaning exercise of 20/3/81(Ground 4 referred).
3. Was the appeal properly constituted when the 2nd defendant who purportedly returbaned the 1st defendant who was the appellant at the Court of Appeal was not a party to the appeal.

(Ground 5 referred).”

On the contrary, the Respondent has set out 5 issues which, according to Counsel, fall for a decision and these are:

“1. Did the effect of the judgments of Federal Court of Appeal (FCA/K/63/77) and the Supreme Court (SC.30/1979) which set aside the judgment of the Kwara State High Court in KWS/24/75 restore the parties to their status quo before the judgment in that case (KWS/24/75)

2. When did the cause of action arise in this case
3. What is the subject matter in KWS/24/75 (together with Exhibits 2 and 3) and the new case KWS/33/81 which were between the Appellant and the Respondent If they are the same will the former not have the effect of res judicata or estoppel
4. Can the rights and obligations acquired under Section 11 of the Chiefs (Appointment and Deposition) Law and Section 78(6) of the Constitution of Northern Nigeria, 1963 – (i.e. ouster of jurisdiction) when the cause of action arose in 1972 be taken away by Section 236 of the Constitution of the Federal Republic of Nigeria, 1979
5. Can appeal be rendered incompetent merely because all the defendants have not joined in the appeal when in fact the appellant puts on notice all the parties concerned in the trial court

after hearing Counsel in oral arguments, I think that the principal issues which this Court has to decide are:

1. Whether the Appellant is estopped by all previous judgments between the parties from bringing the present action in 1981 against the Respondent. In short, does the doctrine of res judicata apply to this case
2. When did the cause of action arise, – was it in 1972 when the Respondent was first appointed, or in 1981 when he was “re-turbaned” by the Emir of Ilorin

In regard to the first point, the doctrine of res judicata is very well known as a rule of evidence whereby a party is precluded from disputing in any subsequent proceedings matters which had been adjudicated upon previously by a competent Court between him and his opponent.

M. Oduka v. Kasunmu 1968 NMLR 28.

The principle behind this rule, is that where a competent court has determined an issue, and entered judgment thereon, neither party may relitigate that issue by formulating a fresh action on what has already been decided.

Madukolu v. Nkemdilim (1962) 1 All NLR 587.

But it is important to note that when a plea of a res judicata is made, it is necessary to show not only that the cause of action is the same, but also that the plaintiff has had an opportunity to recover in the first action that which he seeks to recover in the second. Re Hilton ex p. March (1892) 67 L.T. 594. Now to succeed on a plea of res judicata, the defendant must prove:

1. That the parties in all previous cases are the same as in the present suit.
2. That the subject matter is the same and
3. That the decision between the parties is in respect of the same cause of action.

– See Peter Olabiyi v. Sule Abiona (1955-6) WRNLR 126. Let us now quickly find out whether the respondent is estopped per rem judicatam from bringing the present suit.

There are altogether 7 previous suits referred to in this case, and a careful perusal of them clearly shows that the Appellant and the Respondent were the principal parties in all the cases.

In the same way an objective appraisal of the cases shows that the subject matter has always been the same and the decision in all the suits was in respect of the same cause of action. Everyone of the actions filed in Court related to the appointment of the Respondent as the Bale of Oke Oyi, and the attempt to unseat him.

I shall now briefly examine the cases and see what they decided:-

Case No.1 – Suit No.KWS/11/1973: The claim before Kawu C.J., was for a declaration that the purported appointment of the Respondent was null and void. The Court held that it had no jurisdiction to hear the suit.

Case No.2 – SC.280/1974 in Supreme Court – Ruling of Kawu, C.J. was set aside and the case sent back for re-hearing before another Judge.

Case No.3 – Suit No. KWS/24/75 before Ekundayo J. – He declared that the Appellant was entitled to be appointed Bale.

No.4 – Suit No.FCA/K/63/77 The Federal Court of Appeal set aside the judgment in (3) above, and held that the High Court had no jurisdiction.

No.5 – Suit No. SC.30/1979 The Supreme Court upheld the decision in (4) and dismissed the appeal.

It will be seen that in all these five previous cases, the real issue in dispute between the parties was the Baleship of Oke Oyi and the Court’s decision was that it had no jurisdiction. As far as the Courts were concerned the parties remained in the same position as they were before 1973when the first action was taken. In other words, the position is that the Respondent’s appointment which was made in 1972 still stands and will continue to stand until it is lawfully set aside.

We now come to the events of 1981 when the Respondent was re-turbaned and the Appellant sued him to court. I have earlier set out the particulars of the Writ in that case. A close scrutiny of that Writ shows that it is the same in substance as the first Summons before Kawu C. J. – it was taken out for one principal purpose; – and that was to set aside the appointment of the Respondent.

The Appellant contends that the cause of action in that case arose in 1981 when the Respondent was re-turbaned as Bale, but the Respondent submits that the cause of action arose in 1972 when the Respondent was first appointed and turbaned by the Emir of Ilorin. He states that it was the same dispute which the Appellant had first challenged in 1973 that still formed the subject matter of the action in 1981.

In his oral arguments, Mr. Ijaodola, Counsel for the Appellant has put forward a rather clever and ingenious submission. He contends that the Appellant was not really challenging the original appointment of the Respondent in 1972 but the re-appointment and/or re-turbaning in 1981.

That argument, in my view, makes up in ingenuity what it lacks in reality. The undisputed facts of this case show that:

(1) since the Respondent was appointed Bale in 1972 there has been one continuous battle by the Appellant to remove him.

(2) Up to-date, the two parties have been involved in seven (7) different suits in different Courts

(3) The Appellant won some of the suits, whilst the Respondent was victorious in the others; but the end result of those cases has always been that the Court has no jurisdiction to interfere with the appointment of the Respondent as Bale of Oke-Oyi.

(4) On one particular occasion when the Appellant was declared to be the rightful person to be appointed Bale, the Emir in obedience to the order of the Court summoned him to his palace and duly turbaned him.

(5) But sometime later, when that judgment was set aside by the Supreme Court, the Emir recalled the Respondent, and returbaned him. – Again in obedience to the Court. – In short, he restored the Respondent to his former position as Bale.

In my view, the ceremony of re-turbaning was to confirm the Respondent in his post as Bale, and unless there is anything to the contrary, that confirmation would date back to the Respondent’s original appointment in 1972.

I think that it is idle and mischievous to question the re-turbaning only when as at today’s date, the original appointment of the Respondent still stands. As long as the Respondent remains the Bale, it matters not how many times he was turbaned or re-turbaned. It follows therefore that anybody who wants to remove him from that office would have to question the original appointment of 1972 and not a subsequent ceremony of re-turbanning which, in my view does not amount to a fresh appointment.

But the matter is put beyond mere conjecture because the Appellant had, on his Writ questioned the original appointment of the Respondent see paragraph 2(b) of the Summons. What is more, he made it an issue on the pleadings. In paragraph 7 of the Statement of Claim, the Appellant pleaded that:-

“7. The first defendant does not belong to a ruling house in Oke-Oyi and has not been appointed the Oluo by the traditional Kingmakers, the Mojis.”

In reply, the Respondent pleaded as follows:

“3 ………….The 1st Defendant will contend at the trial of this suit that the 1st defendant was re-instated and not appointed by the 2nd defendant as the rightful person under the Oke-Oyi Native Law and Custom, since he had been the Bale of Oke-Oyi before the commencement of any suit.

7. The 1st Defendant denies paragraph 7 of the Statement of Claim and the 1st defendant will prove during the trial of this suit that the 1st defendant was appointed according to the Native Law and Custom of Oke Oyi and the 1st Defendant will put the plaintiff to its strictest proof to the contrary at the trial of this suit.”

It will be seen that the parties had thus joined issues on the appropriateness of the original appointment, and this became clearer when the Appellant gave evidence. When he was cross-examined, he had this to say:

“…..I remember in 1973, I brought an action against Gbadamosi Akano in the High Court of Kwara State. I brought an action to the effect that the Court should declare null and void the appointment of Gbadamosi Akano as the Bale of Oke Oyi then I lost the case. The case was before the C.J. Hon. Saidu Kawu…………….”

The Appellant’s 1 PW. Yesufu Akanbi was similarly cross-examined and he stated:

“We have never appointed Gbadamosi Akano as Bale Oke Oyi at any time. The people never appointed him Bale at any time before 1977. We heard that the Emir of Ilorin appointed someone arbitrarily as Bale of Oke-Oyi……….We brought the case of 1973 against Gbadamosi Akano because he was behaving as Bale of Oke-Oyi. At that time I was aware that the Emir of Borin appointed Gbadamosi Akano as Bale of Oke-Oyi …………………………………………I was alive when Alhaji Yesufu was turbaned. At the time of his appointment the Emir has the last say. By our tradition, the Emir still has the last say.”

There was also evidence from the Respondent asserting his right to the post by virtue of his appointment since 1972. All these extracts go to show that what was really in issue between the parties in 1981 was the 1972 appointment of the Respondent.

It seems quite clear that the Appellant had used the administrative error of the Emir of Ilorin to re-open the 1972 appointment.

In my view, and for the reasons already stated, the cause of action in 1981 is the same as that of 1972 and no amount of legal disguise or whitewash would detract from that fact.

In the result, I hold that the cause of action arose in 1972 and not in 1981 as contended by the Appellant’s counsel. If that fact is established, the law is that the issues in the case would be decided in accordance with the Law which was applicable when the issue first came up. See E. Emenimaya & Ors. v. Okpara Okorji & Anor. (1987) 3 NWLR 6 at 14.

Uwaifo v. Attorney-General, Bendel State (1982) 7 S.C. 124. In 1972 when the issue arose between the parties, it was held that under the 1963 Constitution the Court had no jurisdiction to hear the matter; in my judgment that same ruling will apply to the same issue which was re-opened in 1981.

It was for this reason that the Court of Appeal had ruled that the case was res judicata and I agree with that decision.

It only remains for me to consider ground 5 of the grounds of appeal which in view of my decision above, ceases to be of any real significance. In it, the Appellant complains that the appeal was not properly constituted because the 2nd defendant was not made a party to the appeal. This is not correct. The records show that the 2nd defendant was put on notice although he chose to keep away. See p.120 of the Record. If the Appellant, for any special reasons, had wanted the 2nd Defendant to appear, he ought to have made the proper application. We are told that the Appellant did not make this a ground of appeal in the lower Court, nor did he apply for leave to argue the ground in this Court contrary to Order 6 Rule 5 of the Rules of the Supreme Court.

For this additional reason, this ground of appeal is incompetent, and it fails.

In the result, all the grounds of appeal fail and they are accordingly dismissed.

The judgment of the lower Court is hereby affirmed. It is ordered that the Appellant shall pay costs to the Respondent assessed at N500.00.

A. O. OBASEKI, J.S.C.: I have had the privilege of reading in advance the draft of the judgment just delivered by my learned brother, Craig, J.S.C. I find that his opinion on all the issues for determination accord with mine and accordingly I hereby adopt his judgment as my own and dismiss the appeal for lack of merit.

The short point in this appeal is whether the Court, the High Court has jurisdiction to entertain the claims of the plaintiff which raised chieftaincy questions. These questions were in respect of a chieftaincy created in 1972 when the 1963 Constitution of Northern Nigeria was in force, as the claims were chieftaincy questions within the meaning of section 78(6) of the Constitution of Northern Nigeria and section 11(a) of the Chiefs (Appointment and Deposition) Law Cap.20, Laws of Northern Nigeria, 1963.

Being chieftaincy questions, the claims were not justiciable at the material time and the Court had no jurisdiction to entertain them. In the suit KWS/11/1973 filed by the Appellant in 1973, the High Court (Kawu, C.J.) said so, the Court of Appeal in FCA/K/63/77 said so and the Supreme Court in No. SC.30/1979 said so in respect of the same claims. By so deciding, the Court meant that the appointment of the Respondent in Court cannot be challenged in the Court forum. The appointment of the Respondent therefore remains.

The vested right acquired by the Respondent by the appointment did not become lost to him when in 1979 the Constitution of the Federal Republic which conferred unlimited jurisdiction including jurisdiction to entertain chieftaincy questions on the High Court. When the questions were raised again in Court in 1981 the Court below was justified in holding that Interpretation Act 1964 and the previous decisions created estoppel per rem judicatam in favour of the Respondent See Uwaifo v. Attorney-General Bendel State (1982) 7 SC.124; Emenimaya & Ors. v. Okpara Okoroji & Anor. (1987) 3 NWLR 6 at 14.

For the above reasons and the reasons lucidly set out in the judgment of my learned brother, Craig, J.S.C., I hereby dismiss the appeal and affirm the decision of the Court of Appeal.

The Respondent shall have costs fixed at N500.00.

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SC.143/1986