Prince Adewuyi Akintaro V. Mr. J. F. Eegungbohun & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
AMINA ADAMU AUGIE, J.C.A.
The 1st and 2nd Respondents were Plaintiffs in Suit No. HER/6/95 filed at the High Court, Eruwa, Oyo State on the 7th of June 1995, wherein they challenged the appointment and installation of the Appellant as Baale of Aborerin, Eruwa. An earlier Suit No. 1/596/88 for the same purpose had been struck out by Adeyemi, J. in his Ruling dated 8th December 1988, on the ground that the Plaintiffs failed to file their Statement of Claim within time. On appeal, both this Court and the Supreme Court held that the High Court was right to do so. However, the Supreme Court added that this Court was wrong to have raised the issue of locus standi suo motu, and since pleadings had not been filed in the High Court, this Court “was not in a position to determine the standing of the Appellants to bring the action”. The 1st and 2nd Respondents reacted by filing the said Suit No. HER/6/95, and in response the Appellant engaged the services of Chief Ladosu Ladapo SAN, who filed a memorandum of appearance, Statement of Defence and a Preliminary Objection contending that the action was barred by estoppel per rem judicata. After hearing arguments and addresses of counsel, another Judge, Adeniran, J., delivered Ruling on the 9th of January 1996, wherein he held that the earlier Ruling of Adeyemi, J. cannot be regarded as a Judgment on the merits therefore “the said Ruling cannot operate as an estoppel per rem judicata”. An appeal to this Court against the Ruling was dismissed on the 14th of January 1999 and the case was sent back to the High Court for adjudication. At this stage, Chief Ladosu Ladapo SAN withdrew on the ground of ill health, and with leave of Court, the Appellant changed counsel to A. A. Gbolagunte, Esq., who considered it expedient to file another preliminary objection dated 9th of March 1999, which prayed the Court for an “order striking out the action in that the Court has no jurisdiction to entertain the action as it is incompetent and bad in law”. The Grounds of the objection are as follows –
(a) The Plaintiffs lack legal interest “Locus Standi” to maintain this suit.
(b) The Plaintiffs lack the authority to sue on behalf of Andu and Kusade
Sections/Families of Baale of Aborerin Ruling Families.
Particulars
(a) The legal interest of interested persons with “Locus Standi” who can institute this action are exclusively aggrieved members of Adeye branch/section of Baale of Aborerin Ruling families to which the Plaintiffs did not belong.
(b) Plaintiffs failed to seek leave of Court before filing action in representative capacity on behalf of Andu and Kusade sections/families of Baale of Aborerin Ruling families.
The Preliminary Objection was argued before yet another Judge, Lufadeju, J., who held as follows in his Ruling delivered on the 21st of May 1999 –
“In any given case, the points of law to be raised in the course of proceedings must first be raised in the Defendant’s pleadings before the provisions of Order 24 can be invoked. – – – For the reasons given in this Ruling, the Application is incompetent for failure of the 1st Defendant/Applicant to raise the issues of locus standi, want of authority to sue and absence of leave of Court to sue in representative capacity specifically in the Statement of Defence before setting down such points for determination. The Application fails and it is accordingly dismissed. I make no order as to costs”. (Italics mine).
Dissatisfied, the Appellant appealed to this Court with an Amended Notice of Appeal containing five Grounds of Appeal, with Ground 5 as an Additional Ground of Appeal. The 1st & 2nd Respondents and 3rd & 4th Respondents however raised an objection in their respective briefs to the competency of the said Ground 5, and the Issue for determination formulated there-from.
The said Ground 5 of the Appellant’s Grounds of Appeal reads as follows –
“The learned trial Judge erred in law in assuming jurisdiction upon and determined this case when the Plaintiffs/Respondents failed to exhaust their remedies under the provision of Sections 22 (3), 22 (4), 22 (5) & 22 (6) of the Chiefs Law, Volume 1 Cap 21, Laws of Oyo State 1978”.
In the 1st & 2nd Respondents’ Amended Brief settled by Kola Olawoye, Esq., it was submitted that it should be struck out because it was filed without the leave of this Court, citing Ajide v. Kelani (1985) 3 NWLR (pt. 12) 248 & Mbionwu v. Obi (1997) 2 NWLR (pt. 487) 258. It was conceded that leave was obtained to file additional Grounds, but it is their contention that this does not dispense with the need to obtain leave to raise the issue covered by Ground 5, since it was not raised in the lower Court, citing Jov v. Dom (1999) 9 NWLR (pt. 620) 538, Waniko v. Ade John (1999) 9 NWLR (pt. 619) 401, & Obioha v. Duru (1994) 8 NWLR (pt. 365) 631. Furthermore, that the Issue raised from Ground 5 offends the principle that issues are tried on parties’ pleadings, citing N.I.P.C. v. The Thompson Organization Ltd. (1969) 1 NMLR 99, Metalimpex V. A.G. Leventis & Co. (Nig.) Ltd. (1976) ANLR 79, & Order 25 Rules 6 (2) of the Oyo State High Court (Civil Procedure) Rules; and that is the law that a fresh point will not be entertained by this Court if the trial Court did not make any pronouncement on it, citing Fadairo v. Gbadebo (1978) 1 LRN 97, Kate Ent. Ltd. V. Daewoo (Nig.) Ltd. (1985) 1 NWLR (pt. 5) 116, Osho v. Ape (1998) 6 SC 121, & Oto & 6 Ors v. Adojo & 6 ors (2004) All FWLR (pt. 203) 2151/2176. This Court was therefore urged to strike out the Ground, Issue, and arguments in the Appellant’s brief, which they argued go to the merit of the issue of locus standi that was not considered by the lower Court, citing Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156, Nigeria Arab Bank v. Comex Ltd. (1999) 6 NWLR (pt. 608) 649 & Odubeko V. Fowler (1993) 7 NWLR (pt. 308) 637.
The 3rd & 4th Respondents raised similar arguments in their brief settled by Lasun Sanusi, Esq., wherein it was argued that there is no where in the record that the Appellant raised the issue of non-compliance with the provisions of Section 22 of the Chiefs Law, therefore the Issue based on Ground 5 is incompetent and this Court lacks jurisdiction to entertain same.
It was submitted that this Court can only consider issues already decided by the lower Court except where leave is sought and obtained to argue fresh issue or points of law, and that it is trite law that any fresh point raised at the appeal stage without leave of Court will be struck out as incompetent, citing Kalu v. Odili (1992) 5 NWLR (Pt. 240) 130, & Ajala v. Afolayan (1994) 5 NWLR (Pt. 347) 773, Dada v. Oshikanlu (1995) 5 NWLR (Pt. 398) 765, & Kurfi v. Mohammed (1993) 2 NWLR (Pt. 277) 602. Furthermore, that applying for leave to file an additional Ground of Appeal is different from leave to raise fresh issue, and the one cannot be a substitute for the other as they are governed by different considerations, citing Ajuwon v. Adeoti (1990) 2 NWLR (Pt. 132) 132, Olalekan v. WEMA Bank Plc (2000) 13 NWLR (pt. 683) 57. It was further submitted that the Appellant’s argument that the issue of locus standi is an issue of jurisdiction, which can be raised at any time is misconceived in that, whilst it is true that issue of jurisdiction can be raised at any time, it has to be in compliance with the applicable rules of procedure, citing Kalu v. Odili (supra), & Jov v. Dom (supra). The Appellant is however right. It is true, as the Respondents submitted, that an Appellant will not be allowed to raise on appeal a point or Issue that was not raised or canvassed or argued at the trial or considered by the trial Court, without the leave of this Court. But, as is well known, there are exceptions to every general rule. An exception to the principle in issue here is that where the issue of jurisdiction is involved, it can be raised at any time and even on appeal for the first time, and considering the fundamental nature of jurisdiction, it can be raised at the appeal level without any leave, at the instance of the parties, or by the Court suo motu in order to avoid an exercise in futility – see Bakoshi v. Chief of Naval Staff (2004) 15 NWLR (pt. 896) 268; Gaye v. Paye (2003) 8 NWLR (Pt. 823) 583 SC, & Elugbe v. Omokhafe (2004) 18 NWLR (Pt 905) 319, where the Supreme Court held – “It is generally the law that fresh matters cannot be raised on appeal without leave of the Court. But the issue of jurisdiction has always been considered exceptional. Therefore the Court of Appeal was in error not to have allowed the parties to fully address it on the question of jurisdiction raised before it. (Italics mine).
In other words, the objections of the two sets of Respondents to Ground 5 of the Appellant’s Ground of Appeal cannot be sustained and is thus overruled. Be that as it may, three Issues for determination were formulated in the Appellant’s brief settled by A. A. Gbolagunte, Esq., and they are as follows –
- Whether the learned trial Judge was right in not determining the issue of jurisdiction to adjudicate based on Plaintiff/Respondents’ locus standi and authority to sue in representative capacity, before dismissing Appellant’s Preliminary Objection dated 9/3/99 filed 16/3/99.
- Whether prior to the institution of this action, the Plaintiffs observed and fulfilled the statutory requirements of section 22 (2), (3) (4) (5) (6) and (7) Chiefs Law, vol. 1, cap 21, Laws Of Oyo State, 1978 after the decision of the Prescribed Authority dated 22nd February, 1988.
- Whether the learned trial Judge was right in failing to consider and apply provisions of Order 35 Rules 5 (1), (2) and (3) and 6 of the High Court of Oyo State (Civil Procedure) Rules 1988 as stated in the Appellant’s application dated 9th March, 1999.
The 1st & 2nd Respondents submitted that the Issues for determination are –
- Whether the learned trial Judge was right in the way he disposed of the preliminary objection on the issue of locus standi and authority to institute this action by considering only the procedure adopted in raising the objection in view of Order 24 Rules (1) to (3) of the High Court Civil Procedure Rules of Oyo State.
- Whether the trial Court was right in assuming jurisdiction to try this case notwithstanding the non-exhaustion by the Plaintiffs of the remedies provided for in Section 22(3) to 22(6) of the Chiefs Law of Oyo State.
The 3rd & 4th Respondents submitted that the Issues that arise are –
i) Whether on the totality of the facts on record the learned trial Judge was wrong in dismissing the Appellant’s preliminary objection for not complying with order 24 of the Oyo State High Court Rules.
ii) Whether the Appellant’s objection can be sustained on the ground that section 22 of the Chiefs Law of Oyo State was not complied with or whether miscarriage of justice was engendered by dismissal of the preliminary objection to warrant reversal of the order of dismissal.
I will adopt the Appellant’s Issues in dealing with this appeal, as they bring out the complaints embedded in his Grounds of Appeal. At any rate, Issue 2 formulated by all the parties are hinged on the Ground 5 earlier objected to.
On the first issue, it is the Appellant’s contention that the issue of locus standi does not have to be in a Statement of Claim before being set down for determination, as the Court can raise it suo motu and invite addresses from counsel, citing Egolum v Obasanjo (1999) 5 SCW 744; that the issue of jurisdiction based on locus standi and fulfillment of a condition precedent i.e. obtaining authority to sue in representative capacity, cannot be subsumed by a rule of Court, citing Akegbejo v Ataga (1998) 1 NWLR (Pt. 534) 459; that the issue raised by the Appellant affects the jurisdiction of the lower court to adjudicate on the matter before it and is unfettered by the rule of demurrer in Order 24 rule 1 of the High Court (Civil Procedure) Rules, citing Ejiwunmi v Costain (W.A) (1998) 12 NWLR (Pt. 576) 149, Irene Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669, Amusa Momoh &. Anor v Jimo Olotu (1970) 1 ALL NLR 117, & Oloriebi v Oyebi (1984) 1 SCNLR 390; that the action is vexatious, and the Respondents are using the court process to annoy, harass and impoverish the Appellant, citing Owonikoko v Arowosaiye (1997) 10 NWLR (Pt. 516) 67,’ and that there is a distinction between a defect in competence of a suit and a defect in procedure – the former contends lack of jurisdiction while the latter indicates irregularity in the procedure for bring the action, citing Unibiz (Nig.) Ltd. v. Commercial Bank Credit Lyonnais (Nig.) Ltd. (2000) 7 NWLR (pt.713) 534.
The 1st & 2nd Respondents however argued that the cases of Fadare v. A. G. Oyo State (1982) All NLR 26, & Dada V. Ogunsanya (1992) 3 NWLR (pt. 232) 754, relied on by the lower Court appears to have settled the position of the law on the issue, which is that a Defendant who intends to raise a preliminary point of law on locus standi or jurisdiction should first of all file his defence and raise such point therein, further citing Adesanya v. Olayemi (1999) 2 NWLR (pt. 592) 558, & Akinade v. NASU (1999) 2 NWLR (pt. 592) 582, & Disu v. Ajilowura (2001) 4 NWLR (pt. 702) 76; that the gist of the lower Court’s decision is that the Appellant did not follow the procedure in Order 24 of the Court’s rules; and that none of the authorities he cited deals with the question of procedure for raising a preliminary point of law pursuant to the relevant provision of the rule of Court i.e. Order 24 Rules 1 and 2.
On their own part, the 3rd & 4th Respondents submitted that pleadings had been filed before the preliminary objection, and a careful study of the Appellant’s Statement of Defence will show that none of the issues raised on the preliminary objection was pleaded in conformity with provisions of Order 24 of High Court Civil procedure Rules, which specially outlawed demurer, also citing Adesanya v. Olayemi (supra), Akinade v. NASU (supra), and Ebongo v. Uwemedimo (1995) 8 NWLR (Pt 411) 22 & Otapo v. Sunmonu (1987) 2 NWLR (Pt 58) 587. It is their position that the lower Court was right to dismiss the objection, and the Court was urged to so hold.
Now, Order 24 of the Oyo State High Court Rules reads as follows –
(1) No demurrer shall be allowed.
(2) Any party shall be entitled to raise by his pleading any point of law, and any points so raised shall be disposed of by the Judge who tries the cause at or after the trial. Provided that by consent of the parties, or by order of the Court or a Judge on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.
(3) If in the opinion of the Court or a Judge the decision of such point of law substantially disposes of the whole action, or any distinct cause of action, ground of defence, set off, counterclaim or reply therein, the Court or Judge may thereupon dismiss the action or make such other order – as may be just.
(4) The Court or a Judge may order any pleading to be struck out on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a Judge may order the action to be stayed or dismissed or Judgment to be entered accordingly as may be just.
By the above Order, demurrer is not allowed. The essence of the procedure by way of demurrer is that the party raising it contends that even if all the allegations in the pleadings were true, it still does disclose a cause of action in law for the party to answer to, and where there is a demurrer, the party making the contention would not file his own pleading – see Bambe & Ors v. Aderinola & Ors (1977) NSCC (vol. 11) 1, where Madarikan, JSC observed –
“Before demurrer was abolished, one of the methods of fighting an opponent’s pleading was by demurrer. The party who demurred would not proceed with his pleadings but, having raised a point of law as to whether any case had been made out in his opponent’s pleading for him to answer, awaited the decision on the point’. (Italics mine).
The peculiarity of the procedure by way of demurrer is that the objection must be made before the Statement of Defence is filed; if pleadings have been filed and exchanged by both parties, the case must proceed to trial and the legal point raised by the Defendant would then only be properly taken by the Court after hearing evidence – see Odive v. Obor & Anor (1974) NSCC (vol. 9) 103, where the Supreme Court per Elias, CJN held as follows –
“The learned trial Judge was clearly in the wrong when he decided to uphold the preliminary objection of counsel for the Defendants at the particular stage of the proceedings when the Statement of Defence had already been filed and the issues joined between the parties. – – Another important point in this appeal is that, once issues had been joined between the parties – -, it was wrong to entertain a preliminary objection without any further evidence on the merits.” (Italics mine).
The Supreme Court however rejected its decision in Odive v. Obor (supra) in the cases of Fadare & ors v. A.G. Oyo State (supra), (1982) NSCC (vol. 13) 5 2, (relied on by the lower Court), & Onibudo & Ors v. Akibu & Ors (1982) NSCC (vol. 13) 199, where Aniagolu, JSC observed as follows @ 203 –
“The misconception held by some, based on Odive v. Obor (1974) 2 SC 21 @ 31, that once pleadings have been filed by the Plaintiff and the Defendant, the Court is obliged to hear evidence and can only dispose of the case upon a determination of the evidence so heard, was recently rejected by this Court in SC.29/1981 Lasisi Fadare & Ors v. A.G. of Oyo State, part of what this Court held in the case was that –
” …the preliminary point of law can be taken after the receipt of the statement of claim and before any defence is filed. The party in such a case relies on point of law even if the issues of fact in the Statement of Claim are conceded. If he fails, an order would be made by the Court ordering the filing of a Statement of Defence and the suit would proceed to trial”.
In the instant appeal, the lower Court also relied on Dada v. Ogunsanya (supra), where the Supreme Court per Omo, JSC stated as follows –
“Order 22 has five limbs. The first abolished demurrer, the second and third provide for points of law to be raised by pleadings and disposed of by the Judge if successful. Under Rules 2 and 3 therefore an issue of locus standi or jurisdiction may be so raised and disposed of – – – – — -In other words, the issue of locus standi being a point of law to be disposed of before trial was not before the trial Judge”.
And Adesanya v. Olayemi (supra), where this Court observed as follows –
“That Order 24 above disallows demurrer in this case is not ambiguous for it is clearly stated. Rule 2 supra also specifically provides the requirement to be met in raising any point of law, and there is no gainsaying that Rules of Court are not made for fun but are made to be obeyed” (Italics mine).
In Adesanya v. Olayemi (supra), as in this case, the preliminary objection had not been raised in the Appellant’s pleadings. In this case, in dismissing the Appellant’s preliminary objection, the lower Court stated as follows –
“In any given case, the points of law to be raised in the course of proceedings must first be raised in the Defendants’ pleadings before the provisions of Order 24 can be invoked. The issue of locus standi, want of authority to sue and absence of leave of Court to sue in a representative capacity specifically are valid points of law, which ought to be specifically pleaded before they can be raised or set down for preliminary trial. In the case on hand, both parties have filed their respective pleadings and there is no point of law raised in the 1st Defendant/Applicant’s Statement of Defence”. (Italics mine).
It is against this decision that the Appellant has come to this Court, and his position is that contrary to what the lower Court decided; the issue he raised affects the jurisdiction of the lower court and is therefore unfettered by the rule of demurrer in the said Order 24. He referred the Court to Ejiwunmi v. Costain (W.A) Plc (supra), where the Supreme Court held as follows-
“Once the locus standi of the Plaintiff is challenged by the Defendant, as in the instant case, the issue of locus standi must be taken, considered, given a priority and pride of place before considering any other issue. This rule of law is also a rule of common sense as locus standi is intertwined and interlocked with jurisdiction.” (Italics mine).
He also cited Akegbejo v. Ataga (supra), wherein it was stated as follows –
” – – It is therefore the duty of the Judge where there are sufficient facts on the face of the records establishing a want of jurisdiction or competence in the Court to raise the issue suo motu if the parties fail to draw the attention of the Court to it. – – Thus the issue being radical and at the foundation of adjudication cannot be defeated by the provisions of Order 24, Bendel State High Court (Civil Procedure) Rules, 1988 as applicable to Edo State being raised and relied upon by the Appellant in this appeal. On the face of the record of this appeal, I am of the firm view that the issue of jurisdiction was correctly raised by the learned senior counsel for the Respondents and rightly determined by the learned trial Judge”. (Italics mine). And Unibiz (Nig.) Ltd. v. CBCL Nig. Ltd. (supra), where this Court held – “Rules of Court are an adjunct to the course of justice, the violation of which may not often be fatal to the case itself. There is a quite a distinction between a defect in competence of a suit and a defect in procedure. The former contends lack of jurisdiction while the latter indicates irregularity in the procedure for bring the action.”
The two sets of Respondents also came armed with their own authorities that support their position that the lower Court was right to dismiss the objection.
In addition to Fadare v. A. G. Oyo State (supra), Dada v. Ogunsanya (supra), & Adesanya v. Olayemi (supra), the Court was also referred to Akinade v. NASU (supra), where Okunola, JCA reviewed the conflicting decisions of the Supreme Court on this issue in the cases of Bambe & ors v. Aderinola & ors (supra), Madu V. Onunoju (1986) 3 NWLR (pt, 26) 23, Fadare v. A.G. Oyo State (supra), & Provincial Council, Ogun State University v. Makinde (1991) 2 NWLR (Pt. 175) 613, and said as follows-
“From the above reviewed Supreme Court Judgments it is clear that the ratio in Bambe’s case (supra), is opposite those in the latter Supreme Court cases. The latter Judgments firmly laid down the principle that preliminary point of law could be raised only after pleadings have been filed and exchanged between the parties. With these two divergent set of Judgments from the apex Court it is necessary to consider which one should be followed. Bambe was decided in 1977, Fadare was decided in 1982, Onanoju was decided in 1986 while Ogun State University was decided in 1991″,
Deciding to follow the decision in Fadare’s case (supra) etc., he held that –
‘The bottom line is that no matter the situation, the applicable rule of Court must be observed… Consequently, since the Defendant had not filed a Statement of Defence in the Court below, by Order 22 rule 2 of the High Court (Civil Procedure) Rules a preliminary point of law (or objection) could not be raised by them. In the circumstance I hold that the learned trial Judge erred in his Ruling when he held that the defence needed not file a Statement of Defence to raise objection to the jurisdictional competence of the Court. The Court lacked jurisdiction to entertain the preliminary objection of the Defendants since the Defendants had not filed the Statement of Defence”.
Now, the above case of Akinade v. NASU (supra), was decided in December 1998, and was relied on by this Court in Disu v. Ajilowura (supra), which was decided in November 2000, but the case-law has since changed again. By March 2002, the Supreme Court was singing another tune in the case of NDIC v. CBN (2002) 7 NWLR (Pt. 766) 272, where Uwaifo, JSC stated that –
“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 contend that accepting all the facts pleaded to be true, the Plaintiff has no cause of action, or where appropriate, no locus standi: … 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 relief he seeks. .. It does not always follow that he must plead first in order to raise the issue of jurisdiction’. (Italics mine).
The Supreme Court, relying on its decision in NDIC V. CBN (supra), arrived at the same conclusion in Arjay Ltd. V. A.M.S. Ltd. (2003) 7 NWLR (pt. 820) 571, where the Appellants who were served with only the writ of summons and motion for interlocutory injunction objected to the jurisdiction of the Court on the ground that Nigerian Courts have no jurisdiction to hear the matter. See also Usman V. Baba (2005) 5 NWLR (pt. 917) 113, where this Court, relying on the decision in NDIC V. CBN (supra), held as follows –
“An Application or preliminary objection, as in this case, seeking an order to strike out a suit for being incompetent on the ground of absence of jurisdiction is not a demurrer and therefore can be filed and taken before the Defendants files his Statement of Defence or without the Defendant filing a Statement of Defence. This is because the issue of jurisdiction can be raised at any time. It is crystal clear that jurisdiction and demurrer are different”. (Italics mine).
In this case, I hesitate to say that the learned trial Judge “erred” as his decision in May 1999 when he delivered his Ruling was the case-law then. But we leave in a world where the law changes to meet the dynamics of time. Today, the main thrust of case-law is not only to ensure substantial justice, but also to save valuable time and money for litigants in pursuit of justice. Sadly, this case is a far cry from that ideal, as it has been up to the Supreme Court and back to the lower Court, and this is it’s third journey to this Court. However, the Appellant’s Application was wrongly dismissed by the lower Court and this being an appeal Court, it will have to be sent back again to the lower Court for hearing on its merits. It will not be necessary therefore to consider the other Issues. The end result is that the appeal succeeds and is allowed. The Ruling delivered on the 21st of May 1999 is hereby set aside, and the Appellant’s Application dated 9th March 1999 is hereby remitted to the lower Court for hearing before another Judge. No order as to costs.
Other Citations: (2007)LCN/2213(CA)
