Oladele Awoyemi & Ors. V. Ajayi Fasuan (2006)
LawGlobal-Hub Lead Judgment Report
MUNTAKA-COOMASSIE, J.C.A.
The respondent, Ajayi Fasuan, who was the plaintiff in the High Court of Justice Ijero-Ekiti, herein called the lower court, claimed against the appellants in his statement of claim dated 2nd April, 1997 as follows:
“Whereof the plaintiff’s claim is:
- Declaration that after passing away of Chief Ajayi Adunse Ogidiolu, the late Odofin of Erinmoye it is turn of Okuta Elu of Ile-Awe branch of Ibamogun ruling House to present the next Odofin of Erin Mope-Ekiti.
- Declaration that purported selection of the 1st defendant as the next Odofin of Erin Mope-Ekiti is irregular, illegal and/or violation of the customs and tradition of the Odofin family and therefore null and void and of no effect whatsoever.
- An order of injunction restraining the 2nd to 7th defendants, themselves, their servants and/or agents from recognizing, appointing and installing the 1st defendant as Odofin of Erin Mope-Ekiti.
- A further order of injunction restraining the 1st defendant from presenting himself for installation and from acting and/or parading himself as the Odofin of Erin Mope-Ekiti.”
The 1st, 3rd, 4th, 5th and 6th defendants filed a joint statement of defence dated 8/5/97 and filed on the 9/5/97, while the 2nd defendant also filed a statement of defence dated 9/5/1997.
In paragraphs 17 and 18 of the 1st, 3rd, 4th, 5th and 6th of statement of defence, it was averred as follows:
“17. The defendants further averred that the plaintiff had not exhausted all avenue for relief open to him before he rushed to court.
- The relevant provisions of the Chiefs Law are not complied with for which notice of preliminary objection will be raised before or during the hearing.”
This point was not raised at all until the trial Judge gave judgment in the case. The plaintiff testified and called one witness while, DW1, DW2, DW3 and DW4 gave evidence for the defence.
A careful consideration of the dispute leading to this appeal will show that it arose out of succession to a minor chieftaincy, the Odofin of Erin Mope-Ekiti, in Ekiti State. The 1st appellant was chosen to fill the vacant Odofin Chieftaincy (stool) by the 2nd – 6th defendants, and was presented to the 7th defendant, who is the prescribed authority in Erin Mope-Ekiti for approval. Dissatisfied with the way and manner the 1st appellant was selected, the respondent commenced this action at the lower court seeking the reliefs earlier set out above.
The learned trial Judge L. S. Awe on 2/3/99 entered judgment in favour of the plaintiff and granted the plaintiff’s claim and held thus at page 97 of the record of proceedings:
“Since equity is equality, the plaintiff is entitled to all the four reliefs sought. I am therefore perfectly satisfied that he has successfully proved his claims and I hereby enter judgment in his favour and against the defendants in terms of all the reliefs sought.”
On the issue of the incompetency of the action itself raised by the defence, the learned trial Judge held thus:
“For the benefit of doubt and for a proper understanding this is not a case of chieftaincy Review Commission but a proper suit brought by an aggrieved contestant in a chieftaincy matter.”
I refer to page 75 of the record of proceedings.
Aggrieved by the decision of the lower court, the appellants appealed to this court and filed a notice of appeal containing four (4) grounds of appeal together with their respective particulars. They also filed an amended notice of appeal which was deemed filed on 22/4/2004 containing now seven grounds of appeal.
In compliance with the Rules of this court the appellants filed their joint briefs of argument and formulated four (4) issues from the grounds of appeal as follows:
“1. Whether the trial court and/or this Hon. Court lack jurisdiction to adjudicate on this matter. This issue relates to grounds 1 and 2.
- Whether the order of lower court for installation of the plaintiff/respondent is justifiable, maintainable and extant; especially when no such relief is claimed in the writ of summons and statement of claim. This issue relates to ground 3.
- Whether the available evidence before the trial Judge were not or properly evaluated, and whether the granted reliefs or claims in the writ of summons and statement of claim are justified. This issue relates to grounds 4 and 5.
- Whether the judgment of the lower court given against a dead 6th defendant, amongst other defendants, is vitiated, and therefore, null and void. This issue relates to ground 6.”
While the respondent, formulates three (3) issues for our consideration of the appeal in his respondent’s brief of argument.
They are thus:
“1. Whether the learned trial Judge has the requisite competence/jurisdiction to hear and determine this matter.
- Whether having regard to the entire circumstances of the case, the pleadings and evidence adduced in support thereof, the judgment entered in favour of the plaintiff/respondent by the trial court is justified and proper.
- Whether the death of the 6th defendant among other defendants in the course of hearing the suit vitiate the proceeding and/or renders the judgment of the trial court null and void. (Ground 6.)”
The respondent, also raised and argued preliminary objection in his brief of argument, wherein he challenged the competency of some of the grounds of appeal, numbers 3, 4, 5, 6 and 7 as either speculative or not covered by the issues formulated by the appellants.
My Lords, I deem it necessary to first of all determine this issue of jurisdiction of the lower court to determine this matter before proceeding to determine either the issue of the preliminary objection as raised or the merits of the case. This is so as the learned counsel to the respondent has no complaint about the ground challenging the jurisdiction of the lower court.
The appellants submitted in their brief of argument that the respondent herein has not complied with the condition stipulated in the provisions of section 9(3)(4) and (5) of the Chiefs (Amendment) Edict, 1991 of Ondo State as applicable to Ekiti State before initiating this proceedings. As a result, this action is incompetent. The Odofin still in Erinmope-Ekiti is a minor chieftaincy, and in accordance with the provisions of section 9(4) there was a dispute as to whether the 1st appellant was properly appointed in accordance with the Customary Law as Odofin by the “Ifidegan” rites by the 7th defendant, the prescribed authority amounted to approval.
It was therefore the submission of the appellants’ counsel that under the Chieftaincy Edict, before the respondent could rush to the court he has to, within twenty-one days, petition to Executive Council member assigned to such chieftaincy affairs to set aside the appointment or not. All these steps constitute conditions precedent the respondent must fulfill before resorting to legal action, and having failed to comply, the action as filed is incompetent and the court thus lacks jurisdiction to entertain it. He relied on the cases of: Eguamwense v. Amaghizemwen (1993) 9 NWLR (Pt. 315) 1 at 25; Aina v. Jinadu (1992) 4 NWLR (Pt. 233) 91 at 109.
The respondent in his brief of argument submitted that the applicable law is amended by Edict 4 of 1991. The appellants’ counsel agreed with this submission at the hearing of this appeal. The provision of section 9(4) was by the consent of both counsel hereby abandoned and discarded.
The learned counsel for the respondent Kayode Olatoke, Esq. then submitted that for this section to apply, it must have been established by the defendants/appellants that the Military Governor or the Governor of the State has appointed a person or some persons as the prescribed authority for the appointment of a minor Chief in Erin-mope in accordance with section 13 of the Edict, this the appellants have failed to do.
He further submitted that the 1st appellant’s appointment has not been approved by Oba of Erin-mope to warrant a review, hence Chieftaincy Review Commission will not arise as it was then premature at that time. It is the dispute arising from the appointment by the prescribed authority that must follow the procedure stipulated in section 13(4) and (5) of the law for the review of the appointment by the member of executive to whom responsibility for chieftaincy is assigned.
The respondent made further important submission that section 13(3)(4) and (5) of the Ondo State Chiefs Law as amended by Edict No.4 of 1991 has not removed the powers of the trial court by virtue of section 272 of 1999 Constitution, which is in pari materia with section 236 of the 1979 Constitution as amended, which was the law inforce when this action was instituted. He cited in support the cases of Ikine v. Edjerode (1996) 2 NWLR (Pt. 431) 468/478, and Akibu v. Oduntan (2000) 13 NWLR (Pt. 685) 446 at 467.
My Lords, these were the submissions of both learned counsel on this particular point. It may not be out of place to reproduce section 13(3)(4)(5) and (6) of the Ondo State Chiefs Law amended by Edict No.4 of 1991 thus:
“(3) No one shall hold himself out to be appointed to the office of a minor chief without ensuring that prior written approval of the prescribed authority had been obtained by the person entitled under Customary Law to make the appointment.
(4) Where there is a dispute as to whether a person has been appointed in accordance with Customary Law to a minor chieftaincy, the prescribed authority may determine the dispute and the person concerned shall be notified of the decision.
(5) Any person who is not satisfied with the decision of the prescribed authority may within twenty-one days from the receipt of the notification, make representations to such member of the Executive Council to whom responsibility for chieftaincy affairs is assigned that the decision be set aside and he may, after considering the representations confirm or set aside the decision.
(6) Before exercising the powers conferred by sub-section (5) of this section, the members of the Executive Council responsible for chieftaincy affairs may cause such inquiries to be held as appear to him necessary or desirable.” (Italics mine for clarity)
My Lords can see that in this case, it is not in dispute that Odofin chieftaincy is a minor chief or minor chieftaincy; hence it falls within the provisions of section 13(3)(4)(5) and (6) of the Ondo State Chiefs Law. The respondent’s argument is that there is no prescribed authority, in Erin-mope, to my mind with tremendous respect, this is untenable. Paragraph 8 of the statement of claim filed by the respondent is clear on this point. It was stated thus:
“8. The 7th defendant is the Oba of Erinmope, the traditional head of the town and the consenting authority in respect of the Odofin of Erinmope chieftaincy”.
I think parties and even court are bound by the pleadings of the parties. Suffice it to say also, that the argument put forward by respondent that 1st appellant has not been appointed by Oba of Erinmope, hence the Chiefs Edict is not applicable. Section 13(3) of the law does not require the prescribed authority to appoint a minor chief, but only to give approval to the person entitled under the Customary Law to make the appointment. In the instant case, the appointment was to be made by the Ibamogun Ruling House. See paragraph 17 of the statement of claim, where it was averred that:
“The plaintiff avers that according to Ibamogu Ruling House tradition, meetings are held after candidates have shown interest in the vacant stool, it is in this meeting that some traditional duties are performed to select a candidate among the contestants …”
I also wish to point out that the argument of the respondent that no dispute has arisen as no one has been appointed as Odofin to warrant the applicability of section 13 of the Chiefs Law is not borne out of the record. In his evidence in chief, the respondent stated:
“I told the 4th and 5th defendants of my intention and interest in the Chieftaincy. I told all the members of the Family. The other contestants are 1st and 2nd defendants.
I raised up my hand at the family meeting. When I was not answered I went to report to the Kabiesi. There is only one Ruling House for the Chieftaincy that is Awe.
I went to the Oba because I was told that the Chieftaincy was going to be conferred on the 1st defendant. The Oba sued for peace and asked us to go and settle at home as we are all sons of the same father. There was no other family meeting, where 1st defendant was elected, it was fraud. No Ifa oracle nor election held before the 1st defendant was purported (sic) chosen.”
It is clear my Lords from this testimony that the 1st defendant had been chosen as Odofin by the Ibamogun Ruling House, whether fraudulently or not is another question/issue altogether. This appointment has led to a dispute which made the respondent to report to the 7th defendant, the Oba of Erinmope-Ekiti. The said Oba has not made his decision before the respondent initiated this action.
The procedure to be followed, with respect, under the provisions of section 13(3)(4)(5) and (6) of the Chiefs Law of Ondo State, in a case involving a dispute relating to a minor chieftaincy, is clear and they are as follows:
- The complainant must take this grievance to the prescribed authority, who may resolve the dispute one way or the other and notify the person concerned.
- Where the prescribed authority refuses to determine the dispute within a reasonable time, the complainant would be right to make representation to the Executive Council member responsible for chieftaincy matters. This is so because section 13(4) of the Ondo State Chieftaincy Law does not make it mandatory for the prescribed authority to determine the dispute, the word may used in the section, in my view, is discretionary.
- Where the prescribed authority decides to determine the dispute, the complainant if not satisfied, may within twenty-one days make representation to Executive Council member responsible for Chieftaincy Affairs, that the prescribed authority’s decision be set aside.
- In the consideration of the representation, the Executive Council member may set aside the decision or confirm it. In the process the Executive Council member may cause such enquiries to be held as appear to him necessary or desirous.
- In the overall interest of justice, I must add that where the Executive Council members unnecessarily delays the consideration of the representation made to him by the complaint, it is my view that the complaint may then be right to seek redress in the court of law.”
In the instant case, my Lords, the respondent only reported to the Oba of Erinmope-Ekiti, the 7th defendant without more. No further representation was made to the Executive Council member responsible for chieftaincy matters as required by the Chiefs Law before this action was instituted.
I agree entirely with the learned counsel to the appellants that the respondent failed to exhaust all the local remedies available to him under the Chiefs Law before he commenced this action. It is a well settled law that where a law requires something to be done before a particular act or action is to be done or to be done first then non-compliance of that pre-condition, as in this case, will definitely be fatal to the respondent. In the case of Sunday Eguamwense v. James Amaghizenwen supra the Supreme Court per Belgore, JSC held on page 25 as follows:
“Where a statute prescribes a legal line of action for determination of an issue be that issue an administrative matter, chieftaincy matter or a matter of taxation, the aggrieved party must exhaust all the remedies in that law before going to court. The provisions of section 21 and section 22(1) – 6 of Traditional Rulers and Chiefs Edict (No. 16) 1979 (Bendel State) are clear as to steps to take. The plaintiff seemed to have jumped the stile as he avoided all avenues that availed him and went to the High Court. I am of the view that he did a wrong thing indeed. This court is not asked nor were the lower courts fully adverted to S. 22(4)(a) and (b) (supra) and I shall not pronounce per incuriam on that subsection; but suffice to say here that provisions of S. 22(5) and (6) have amply provided for redress which the plaintiff failed to seize advantage of.
The provisions of S. 236 of 1979 Constitution is not an open gate for all High Courts to assume jurisdiction in all subjects. All the local remedies in the statute on every subject must be exhausted before embarking on actual litigation in court.
In instant case the clear provisions of S. 22(3) that says ‘where there is a dispute as to whether a traditional chieftaincy title has been conferred on a person in accordance with Customary Law or as to whether a traditional chieftaincy title has been conferred on the right person, the prescribed authority or the Executive Council as the case may be, may determine the dispute.”
In the recent decision of the Supreme Court over a similar matter in Aribisala & Anor. v. Ogunyemi & Ors. (2005) 2 SCNJ 18, (2005) 6 NWLR (Pt. 921) 212 the above view of His Lordship Belgore, JSC was re-affirmed, at p. 31, the Supreme Court per Oguntade, JSC held as follows:
“The position of the law therefore, is that in a chieftaincy dispute as this, an aggrieved person who brings a suit must show that he brought his suit only after he had exhausted the remedies proved or followed the procedure prescribed under the applicable law. Why did not the plaintiffs in this case first take their grievance to the prescribed authority and later to the Commissioner in charge of chieftaincy matters as laid down in section 22(3) and (5) of the Chiefs Law of Ondo State, Cap. 207.”
My Lords, these authorities have completely settled this matter. The plaintiff only reported to the prescribed authority whose decision was not known. He stopped at that without further making representation to the Commissioner for Chieftaincy affairs as provided by section 13(4)(5) and (6) of the Chiefs Law. His act of rushing to court without complying with the provisions of the law is indeed bad. This, if I may repeat, lack of compliance has rendered the suit incompetent and consequently robbed the lower and this court the jurisdiction to entertain it. Having, held that this court also lacks jurisdiction to entertain the matter for the reasons stated earlier on, it would become unnecessary to delve into other issues raised in this appeal.
In the final conclusion, this appeal succeeds. The decision of the lower court dated 2/3/99 cannot stand. Same is hereby set aside. The plaintiff’s case before the trial court is hereby dismissed as conditions precedent were not met before the action was instituted. There shall be no order as to costs. Parties are one and the same having common grand parents looking for the same stool.
Appeal is allowed.
Other Citations: (2006)LCN/1900(CA)
