Lasisi Akanji Oluode & Anor V. Mr. Waidi Ishola Abesupinle (2008)
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KUMAI BAYANG AKAAHS, J.C.A.
This is an appeal against the Ruling of Honourable Justice S. A. Akinteye of the Oyo State High Court of Justice, Ibadan, delivered on 8th day of January, 2004 dismissing the appellants’ application challenging the jurisdiction of the court to entertain the plaintiff/respondent’s suit.
In the Writ of Summons and paragraph 12 of the Statement of Claim, the plaintiff sought the following declaratory and injunctive reliefs:-
“1. A declaration that the 1st defendant is not fit and proper person to be appointed and installed as the Baale of Ile Titun Araromi village, Ibadan, by the 2nd defendant.
- Declaration that the appointment and installation of the 1st defendant as the Baale of Ile Titun Araromi village, Ibadan by the 2nd defendant is unlawful, irregular, null and void and of no legal effect whatsoever.
- Perpetual injunction restraining the 1st defendant from parading himself as the Baale of Ile Titun Araromi village, Ibadan and from performing any of the functions of Baale of Ile Titun Araromi Village, Ibadan.”
The facts leading to this appeal may be summarized as follows:-
Sometime in September, 2003, the defendant who hailed from Oluode Village, Ibadan, and lived there presented himself to the 2nd Appellant to be installed as the Baale of Ile-Titun Araromi village, Ibadan. On getting to know about the installation, the Plaintiff now respondent took out a Writ of Summons on 6 November, 2003 in a representative capacity claiming amongst others that the Olubadan in Council wrongly conferred on the 1st appellant the title of Community Baale of Ile-Titun in Iddo Local Government Council Area, Ibadan, Oyo State which was made on 18th August, 2003. In response to the Writ and Statement of Claim, the appellants without filing their Statement of Defence filed a Notice of Preliminary objection challenging the jurisdiction of the court to entertain the suit. In a considered ruling delivered on 8th January, 2004 the objection was overruled and the application was accordingly dismissed. Aggrieved with the Ruling the Appellants filed their Notice of Appeal on 4th July, 2005 and three grounds of appeal were filed with the Amended Notice.
From these three grounds of appeal, the appellants formulated the following three issues for determination:
“1. Whether the trial court was right in law in holding that the issue of jurisdiction cannot be validly raised by the Defence in its application without first of all filing a Statement of Defence.
- Whether the Plaintiff/Respondent complied with the procedural steps stipulated in Section 22 (1-5) of Oyo State Chiefs Law Cap. 21, 1978 before instituting this action as to confer jurisdiction on the trial court to entertain the plaintiffs/respondent’s action?
- Whether the trial court was right in holding that the principle of law enunciated in ABU v ODUGBO (2001) 10 SCM 1 is applicable to this case?
The respondent adopted the issues formulated by the appellants.
On issue NO.1 learned counsel for the appellants argued that the issue of Demurrer is different from that of jurisdiction and relied on the following cases: ARJAY LIMITED & 2 ORS v AIRLINE MANAGEMENT SUPPORT LTD. (2003) 7 NWLR (pt. 820) 577; NIGERIA DEPOSIT INSURANCE CORPORATION v. CENTRAL BANK OF NIGERIA (2002) 7 NWLR (Pt. 766) 272; ALHAJI BANI GAA-BUDO NUHU v ALHAJI ISOLA ARE OGELE (2004) FWLR (Pt. 194) 444 and A-G OF THE FEDERATION v GUARDIAN NEWSPAPERS LTD. (2001) FWLR (Pt. 32) 67.
Learned counsel for the respondent submitted that the appellants cannot validly bring their application without first filing their statement of defence since it amounts to a Demurrer which has been abolished by Order 24 Rules 1, 2 and 3 of the Oyo State Civil Procedure Rules. It was given judicial interpretation in the following cases: LASISI FADARE & ORS. v A-G OF OYO STATE (1982) 4 SC 1; PROVISIONAL COUNCIL OGUN STATE UNIVERSITY & ANOR v IYABODE ALAMU MAKINDE (1991) 2 NWLR (Pt. 175) 613 and DISU v AJILOWURA (2001) 4 NWLR (Pt. 702) 76.
The Ruling being appealed against is in respect of the motion challenging the jurisdiction of the court to entertain the plaintiff’s claim or grant the reliefs sought in Suit No. 1/774/2003. It is dated 21st October, 2003. It preceded the filing of the Statement of Claim on 6th November, 2003. The endorsement on the writ is as contained in paragraph 12 of the Statement of Claim already reproduced. In NIGERIA DEPOSIT INSURANCE CORPORATION v CENTRAL BANK OF NIGERIA & ANOR (2002) 7 NWLR (Pt. 766) 272, the observation of Opene, JCA that by virtue of Order 31 rule 1 Federal High Court Civil Procedure Rules, it is mandatory that in all suits in the Federal High Court written pleadings shall be ordered by the trial Judge and since the judge failed to order pleadings in the matter, the preliminary objection raising the jurisdiction of the court was premature and it could only be raised after the appellant has filed his statement of claim was rejected by the Supreme Court. In the leading judgment Uwaifo, JSC, adopted and applied the observation of Oputa, JSC, in WESTERN STEEL WORKS LTD. v IRON & STEEL WORKERS UNION (1986) 3 NWLR (Pt. 30) 617 when he stated at pages 294 – 295:-
“I am afraid I cannot quite agree with these observations. It is now beyond argument that the issue of jurisdiction can be raised at any stage of the proceedings even on appeal. As observed by Oputa, JSC in WESTERN STEEL WORKS LTD. v IRON & STEEL WORKERS UNION (1986) 3 NWLR (Pt. 30) 617 (1986) 2 NSCC (Vol. 17) 786 at 798; “A court has to be competent in the sense that It has jurisdiction before it can undertake to probe and decide the rights of the parties.”
He went further to state at pages 296 – 297 thus:-
“The tendency to equate demurrer with objection to jurisdiction could be misleading. It is a standing principle that in demurrer, the plaintiff must plead and it is upon that pleading that the defendant will then accept all the facts pleaded to be true, the plaintiff has no cause of action, or, where appropriate, no locus standi: See FEDERAL CAPITAL DEVELOPMENT AUTHORITY v NAIBI (1990) 3 NWLR (Pt. 138) 270; WILLIAMS v WILLIAMS (1995) 2 NWLR (Pt. 375) 1; AKPAN v UTIN (1996) 7 NWLR (Pt. 463) 634; BRAWAL SHIPPING (NIG) LTD v F. I. ONWADIKE CO. LTD. (2000)11 NWLR (Pt. 678) 387. But as already shown, the issue of jurisdiction is not a matter for demurrer proceedings. It is much more fundamental than that and does not entirely depend as such on what a plaintiff may plead as facts to prove the reliefs he seeks. What it involves is what will enable the plaintiff to seek a hearing in court over his grievance, and get it resolved because he is able to show that the court is empowered to entertain the subject-matter. It does not always follow that he must plead first in order to raise the issue of jurisdiction.”
In ARJAY LTD. v AIRLINE MANAGEMENT SUPPORT LTD. (2003) 7 NWLR (Pt. 820) 577, Onu JSC took the same position when he held at page 601:
“I agree with the appellants’ submission that there is a difference between an objection to the jurisdiction and a demurrer. I also agree with them that an abjection to the jurisdiction of the court can be raised at any time, even when there are no pleadings filed and that a party raising such an objection need not bring the application under any rule of court and that it can be brought under the inherent jurisdiction of the court. Thus, for this reason, once the objection to the jurisdiction of the court is raised, the court has inherent power to consider the application even if the only process of court that has been filed is the writ of summons and affidavits in support of an interlocutory application, as in the case in hand.”
Since the motion was questioning the court’s jurisdiction to entertain the claim, it is not a case of demurrer requiring the defendant to first of all file the Statement of Defence before raising the issue. The decisions in LASISI FADARE v A-G OF OYO STATE; PROVISIONAL COUNCIL, OGUN STATE UNIVERSITY v MAKINDE; DISU v AJILOWURA (supra) cited by learned counsel for the respondent dealing with demurrer proceedings do not apply in this case.
Having disposed of issue 1, it is not necessary to deal with issues 2 and 3 since they are concerned with demurrer.
The appeal has merit and it is accordingly allowed. The case is remitted back to the Chief Judge of the Oyo State High Court to assign same to another Judge for determination of the issue of jurisdiction by the High Court to entertain the claim.
I assess costs of N30,000.00 in favour of the appellants against the respondent.
Other Citations: (2008)LCN/2747(CA)
