Military Administrator [ekiti State] & Ors V Prince Benjamin Adeniyi Aladeyelu (2007)

LAWGLOBAL HUB Lead Judgment Report

DAHIRU MUSDAPHER, JSC 

This is an appeal against the judgment of the Court of Appeal, Ilorin Division delivered on the 29th of November, 2004 whereby the appeal to that court filed by the plaintiffs, the respondents herein, was allowed. The Court of Appeal set aside the ruling of the trial court striking out the case of the plaintiffs by upholding the preliminary objection raised by the defendants, the appellants herein, challenging the competence of the plaintiffs’ action on the ground that it was statute barred. I think it is desirable at this stage in order to appreciate the issues canvassed in this appeal by the parties to look at the facts that gave rise to the dispute between the parties leading to the present litigation. On the 17/1/1958, the Chieftaincy Committee of Ekiti Southern District Council, which was the designated authority, at that time, made a Declaration of Customary Law regulating the nomination and the selection of the ARAJAKA OF IGBARA ODO Chieftaincy. This Declaration was approved by Minister of Local Government, Western Region of Nigeria, on the 22nd day of May, 1958 and was registered on the 28th day of May, 1958. One of the main features of the Declaration was contained in paragraph (i) which declared that “There is only one Ruling House and the identity of the Ruling House is ODUNDUN RULING HOUSE”. The plaintiffs, the respondents herein are members of that Ruling House. PAGE| 2 Following widespread displeasure with the existing chieftaincy declarations in ONDO STATE, the then Military Government appointed a four-man Commission of Inquiry under the Chairmanship of Mr. Justice Adeyinka Morgan, hereinafter simply referred, to as the Morgan Commission or the Commission, to conduct an inquiry into all the recognized chieftaincies in Ondo State including the Arajaka of Igbara-Odo chieftaincy and also to suggest guidelines for effecting the necessary changes in the chieftaincy declarations of the recognized chieftaincies in Ondo State. The Morgan Commission submitted its report on the 5th of June 1980. Specifically concerning the Arajaka of Igbara-Odo, the Commission recommended three Ruling Houses instead of one. The Ruling Houses recommended are ODUNDUN, AGUNGUN and ODIGEDE. In July 1981, the Government published White Paper accepting the recommendations. It also set up the necessary machinery for the eventual registration of the new Chieftaincy Declaration. At the Chieftaincy Committee Meeting of Ekiti South West Local Government held on 20/1/1983 in which OBA ALADEYELU II the incumbent Arajaka, was present as well as representatives from the three Ruling Houses, the White Paper on Morgan Commission was approved and the Chieftaincy Declaration of Arajaka of Igbara-Odo was signed by both the Chairman and Secretary of the Chieftaincy Committee. The forms were sent to State Government for the approval and registration of the Declaration, but some how the forms got missing and the new Declaration was not registered. It was after the death of Oba Aladeyelu II in 1995 that it was discovered that the forms sent to State Government were not returned to the Local Government for registration and when the attention of the government was drawn to this fact another process of ratification of the Declaration began on the 19/9/1995. This was to enable the nomination and the selection of a new Arajaka to fill the vacant stool. The process culminated into the registration of the Declaration on the 3/11/1995. By the promulgation of Edict No. 1 of 1999 entitled “ARAJAKA OF IGBARA-ODO, EKITI [CHIEFTAINCY DECLARATION] the chieftaincy Declaration of 1958 became repealed. Thus by the new Declaration and the law, there are now 3 Ruling Houses in Igbara-Odo Ekiti Chieftaincy. On the meanwhile, when on the 19/9/1995 at the meeting held aforesaid, the plaintiffs’ family denied all knowledge of the Commission, its recommendations and the acceptance of the recommendation as contained in the White Paper, and walked out of the meeting. On the 2/11/1995, the plaintiffs filed this action claiming against the first set of appellants that is the first 4 defendants/appellants as follows:- “1. A Declaration that the recommendation of the Ondo State chieftaincy Review Commission presided over by Honourable Justice Adeyinka Morgan in respect of the Arajaka of Igbara-Odo Ekiti chieftaincy is contrary to the custom and tradition governing the selection of the Arajaka of Igbara-Odo, Ekiti. 2. A Declaration that the Ondo State Government White Paper accepting the recommendation of the Ondo State chieftaincy Review Commission presided over by Honourable Justice Adeyinka Morgan in respect of the Arajaka of Igbara-Odo chieftaincy is contrary to the custom and tradition governing the selection of the Arajaka of Igbara-Odo, Ekiti. 3. A Declaration that the Ondo State Government White Paper accepting the recommendations of the Ondo State Chieftaincy Review Commission presided by Honourable Justice Adeyinka Morgan in PAGE| 3 respect of the Arajaka of Igbara-Odo Ekiti chieftaincy is repugnant to natural justice, equity and good conscience. 4. A Declaration that the 1958 chieftaincy Declaration registered in respect of the Arajaka of Igbara-Odo Ekiti Chieftaincy is in consonance with the custom and tradition governing the selection of the Arajaka of Igbara-Odo Ekiti. 5. A mandatory injunction compelling the defendants to call upon the ODUNDUN Ruling House to present a candidate to fill the vacancy in the Arajaka of Igbara-Odo Ekiti Chieftaincy. 6. An Order restraining the defendants, their agents servants, privies or anybody whatsoever from considering, approving, registering or taking any steps whatsoever to give effect to the draft Declaration contained in the Ondo State Government White Paper accepting the recommendations of the Morgan Chieftaincy Review Commission in respect of the Arajaka of Igbara-Odo, Ekiti chieftaincy. 7. An Order restraining the defendants, their agents, servants, privies or anybody whatsoever from registering any declaration relating to the Arajaka of Igbara-Odo Ekiti chieftaincy.” By leave of court, the claims were amended by, amongst other matters, the addition of three other reliefs:- “8. An Order declaring invalid, null and void the Chieftaincy Declaration dated 3/11/1995 relating to Arajaka of Igbara-Odo Ekiti chieftaincy for contradicting the Native Law and custom of Igbara-Odo Ekiti Chieftaincy and or for being repugnant to natural justice, equity and good conscience. 9. An Order declaring invalid null and void the Chieftaincy Declaration dated 3/11/1995 relating to the Arajaka of Igbara-Odo Ekiti Chieftaincy for contravening the chiefs Edict of Ondo State. 10. An Order restraining the defendants, their servants, agents, privies or anybody whatsoever from registering any Declaration relating to the Arajaka of Igbara-Odo Ekiti chieftaincy.” I think it is important to stress the point that the government felt the dissatisfaction of the people with the then existing declaration, that the government instituted the Morgan Commission of Inquiry to have another look at the various customary Law declarations in relation to chieftaincy matters in 1977. In its White Paper and accepting the recommendation and with reference to Arajaka of Igbara-Odo chieftaincy, the Government stated:- “Government accepts the Commission’s Recommendation as contained at pages 20 – 21 Of volume 1 of its Report. The approved Chieftaincy Declaration for the Arajaka Chieftaincy shall be as set out below:- ARAJAKA OF IGBARA-ODO CHIEFTAINCY DECLARATION A. Number of Ruling Houses – three. PAGE| 4 B. Names of Ruling Houses 1. ODUNDUN 2. AGUNGUN 3. ODIGEDE xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx” It should also be remembered that OBA ADEWUNMI ALADEYELU II when appointed as Arajaka, it was only the Odundun house that was recognized as the Ruling House. When he died on the 3/6/1995, the Government had already accepted the recommendations of the Morgan Commission in July 1981 when the White Paper was published and the attempt to register the new Declaration was somehow not done, it was only after the death of the Oba in 1995, that another attempt was made to register the new Declaration. As mentioned above, that was why the plaintiffs instituted this action challenging the recommendation to amend the Chieftaincy Declaration. In the meanwhile the new Declaration was registered on 3/11/1995. Specifically by Edict No. 1 of 1999, entitled “Arajaka of Igbara-Odo Ekiti (Chieftaincy Declaration), the Ekiti State Government repealed the 1958 Chieftaincy Declaration and the Morgan recommendations had acquired the status of a statute. The number of Ruling Houses Were increased to 3. Also in the meanwhile the 5th – 7th defendants, the 5th – 7th appellants herein were joined in the suit on 1/6/1998 as co-defendants. After series of adjournments, the trial commenced before Daramola J on the 28/2/2001. By separate applications the two sets of defendants filed applications protesting that the claims of the plaintiffs were statute barred. The reasons given by the 5th – 7th defendants to prematurely terminate the proceedings were two (1) that the suit attacked the recommendations of the Morgan Commission which had been accepted by the Government some 14 years prior to the institution of the action, and (2) the suit attacked the acts done by Public Officers more than 3 months prior to the institution of the action. The learned trial judge heard arguments on the applications by the two sets of the defendants. While he rejected the application of the Public Officers protection Law to the facts, he upheld the objection on the competency of the action in that the cause of action arose in 1981 when the Government accepted the Morgan Commission recommendations while the plaintiffs instituted the action in 1995, which was more than the 6 years period after the accrual of the cause of action and therefore the suit was caught by the statute of limitations and the action was accordingly struck out. The plaintiffs felt unhappy with the Ruling and appealed to the Court of Appeal. The Notice of appeal contained 7 grounds of appeal. After consideration of the issues placed before it, the Court of Appeal held in its judgment thus:- PAGE| 5 “The long and short of it all is that this appeal succeeds in its entirety. It is accordingly allowed. The ruling of the learned trial judge striking out the Appellants’ action is set aside. The case is remitted to the Ekiti State High Court for hearing de novo by another judge.” The learned justice who read the lead judgment proceeded to give another “final order.” He made a further order setting aside, the appointment and installation of the 6th defendant as the Arajaka and also set aside the Registration of the new Declaration made on 3/11/1995. Both sets of the defendants felt aggrieved with the decision and have separately now appealed to this court. Now in this judgment the first set of the defendants are referred to as the 1st – 4th appellants while the 2nd set of the defendants are referred to as the 5th to 7th appellants and the plaintiffs are referred to as the respondents. Now in his brief for the 1st to 4th appellants the learned counsel for the appellants has formulated, identified, and submitted the following issues for the determination of the appeal. “1. Whether or not the lower court was not in error when it held that the plaintiffs action was not caught by the statute of limitations. 2. Whether or not the lower court was not in grave error to have held that the plaintiffs’ cause of action accrued on 19/9/1995. 3. Whether or not the lower court was not in grave error to have set aside on its own volition and without jurisdiction the appointment and installation of the 6th defendant, appellant, and for setting aside also Edict No. 1 of 4th of February 1999. 4. Whether or not the lower court was not in error to have overruled the trial court considering the weight of the evidence.” The learned counsel for the 5th to the 7th appellants has submitted almost identical issues formulated by the 1st – 4th appellants. The learned counsel for the respondents has also formulated similar issues for the determination of the appeal. I shall in this judgment deal with the issues as formulated by the 1st to 4th appellants. Issues 1 and 2 and 4 I will deal with issues 1, 2 and 4 together since they are interrelated and it is convenient to deal with them together as the resolution of any of them as formulated would result in the same conclusion. The applicable Limitation Law of Ondo State provides as per section 4(1) (a) thus:- “The following action shall not be brought after the expiration of six years the cause of action accrued, that is to say- (a) actions founded on simple contract or on tort. xxxxxxxxxxxxxxxxxxxxx.” PAGE| 6 As pointed out above, the appellants took a preliminary objection on the competency of the respondent’s suit that, it being in a nature of a tort was caught by the provisions of the Limitation Law recited above. The trial judge upheld the objection. The Court of Appeal per the lead judgment of Ikongbeh J.C.A. of blessed memory held that the claims of the respondent are not in the nature of a tort and therefore, the provisions of the Limitation Law are inapplicable. The learned justice further stated, even if the provisions of the Limitation apply. He held thus:- “After carefully considering the contentions on behalf of the parties, I have come to conclusion that the learned trial judge erred in holding that the plaintiffs’ cause of action arose in 1981. All that happened in 1981 was that Government took a decision in that year, based on the recommendations of the Justice Morgan chieftaincy Review Commission, to amend existing Chieftaincy Declaration by increasing the number of the Ruling Houses in Igbara-Odo from one to three. In view of the express provisions of section 4 of Chiefs Edict 1984 applicable to Ekiti State, the mere taking of such decision by Government does not oblige any body to take the matter to court at the time it is taken. A decision by Government in this regard is totally ineffectual unless and until the provisions of the section are carried out. The section provides:- “4(1) Every declaration of the committee approved by the Executive Council and every declaration made by the Executive Council shall be registered and kept in safe custody by such officer as the Military Governor may direct. (2) No declaration shall come in to effect until it is so registered.” The learned justice proceeded to hold that is was only after the resetting up of the machinery for the registration of the Declaration in 1995, that the cause of action may be said to accrue and not in 1981 when the government accepted the Morgan Commission of Inquiry. Therefore the decision of the learned trial judge was erroneous. Now, the crucial question under these issues is to find first the cause of action of the respondents and secondly when that cause of action accrued. The learned trial judge in his judgment said:- “The pith and substance of the plaintiffs’ action, in my view is a direct challenge to the findings and recommendations of the Morgan chieftaincy Review. It was the approval of the recommendations by the Government which accorded recognition to two additional ruling houses for the Arajaka chieftaincy of Igbara-Odo Ekiti in July, 1981, the recognition so accorded is the crux of this action.” While that may be true of the first 3 prayers of the respondents as contained in their amended Statement of Claim, but clearly in my view, the crux of the claims of the respondents is the challenge to the attempt in 1995 to give effect to the recommendations and the acceptance of the recommendations by the Government. These clearly are the fundamental claims of the respondents as contained in prayers 6 and 7 of the Original claim and more importantly in the Amended Claim as per prayers 8, 9 and 10. This is more particularly apparent having regard to the provisions of section 4(2) of the Chiefs’ Edict of 1984. From the language of subsection (2) a chieftaincy Declaration cannot affect the rights of persons subject to it unless and until it has been registered. As far as the respondents as the plaintiffs were concerned, the first and real time when the recommendations and their acceptance by the Government would adversely affect them was in 1995, when the Government attempted to register the new declaration. All along from 1981, when the recommendations were accepted, the Government merely formed the intention of amending the particular Declaration of 1958. It set up the necessary machinery, but unfortunately for no apparent reason, the registration was not effected and nothing was done. It was only when a new Arajaka was to be appointed, it was discovered that the accepted recommendations were not registered and fresh arrangement were initiated in 1995 to effect the registration and that in my view is the main complaints of the plaintiffs/respondents. The main case of the respondents was clearly not based on the challenge to the recommendations of the Review Commission or the acceptance of the recommendations by the Government in its White Paper in 1981, which as shown would not adversely, affect the rights of the respondents, but their crucial claims were based on the attempt to register the new Declaration in 1995. So without much ado, the issue of the application of the limitation law, even if it affected prayers 1, 2 and 3, the other crucial and fundamental prayers all arose in 1995 and therefore not subject to the limitation law when the action was filed. That, in my view is sufficient to sustain the fundamental and crucial claims of the respondents. It is of no moment even if reliefs Nos. 1, 2 and 3 as recited above were caught by the limitation law. I am accordingly of the view that all the arguments of counsel are hardly relevant to the main claims of the respondents which clearly accrue only when the Government commenced to register the amended Declaration in 1995. Accordingly I do not see the need to discuss all the arguments of counsel on issues 1, 2 and 4 suffice it for me only to resolve them against the appellants. I affirm that the crucial claims and prayers of the respondents were not caught by the limitation law as adjudged by the court below. Issue No. 3 Now, in its consideration of this interlocutory appeal, to wit: Whether the trial court was right or wrong in striking out the claims of the respondents for being statute barred, the Court of Appeal after holding that the trial court acted erroneously in holding that the limitation law applied to bar the claims of the respondents, the court below after sending the case back to the trial court for determination on the merits yet proceeded to set aside the appointment and installation of the 6th defendant 6th appellant herein as the Arajaka of Igbara-Odo, and also to set aside the Chieftaincy Declaration registered in 1995. It should be mentioned that the registered Declaration has been embodied as a statute in Edict No. 1 of 1999. It is a curious situation, the Court of Appeal ordered the remitting of the case to the trial court for trial on the merits, it is apparent that the matter went to the Court of Appeal only as interlocutory matter, whether the claims of the plaintiffs were statute barred or not, and the court held the claims were not statute barred and sent the case back to the trial court for trial on the merits. I agree with the appellants’ counsel, that the Court of Appeal has no business whatsoever of deciding the issues that rose in the main trial, in claims 6, 7, 8, 9 and 10, by setting aside the appointment of 6 appellant and also by setting aside the Declaration registered in 1995. These issues should wait the decision of the trial court when it considers all the claims on the basis of the evidence to be called by the parties. As mentioned above, the issue before the Court of Appeal was an interlocutory appeal and the matter was not heard or decided on the merits. There was no order of the trial court concerning the appointment of the 6 appellant nor was there any decision in respect of the new Declaration for the Court of Appeal to assume jurisdiction to intervene. There was also no prayer nor application placed before the trial court for the setting aside of either the appointment of the 6th appellant or the setting aside of the new Declaration which has since been embodied in a law Edict No. of 1999. In any event there were no prayers before the trial High Court grounding the orders made by the Court of Appeal. The jurisdiction of the Court of Appeal is appellate and in the circumstances of this case, the Court of Appeal has no original jurisdiction to make the orders it made. As a matter of fact, the orders cannot be legitimate in the face of Edict No. 1 of 1999 titled “ARAJAKA OF IGBARA-ODO EKITI (CHIEFTAINCY DECLARATION) ORDER 1998” which clearly the legality of which was not the subject of the case and upon which the 6th appellant was appointed. For the various reasons stated above, I agree with all the learned counsel appearing in this matter, that the Court of Appeal was in error to have made the orders of setting aside (1) the appointment and the installation of the 6th appellant as the Arajaka of Igbara-Odo Ekiti, and (2) the new Declaration as embodied under the Edict of 1999. I accordingly resolve issue 3 in favour of the appellants I set aside the orders made by the Court below. In the result this appeal partially succeeds, I affirm the order of the Court below remitting the case back to the trial court for the determination of the various issues on the merit. I, however set aside the so called “final orders” of the court below. I make no order as to costs. Case remitted to the trial court for trial de novo before another judge.

SC. 8/2006