Prince Felix Adebusuyi Ademuyiwa V. Michael Adedoyin Olokunbola & Ors (2008)
LawGlobal-Hub Lead Judgment Report
SAKA ADEYEMI IBIYEYE, OFR J.C.A.
The appellant was the plaintiff at the Oka Akoko Judicial Division of the High Court of Justice in the Ondo State High Court of Justice where he filed a writ of summons specially endorsed jointly and severally against four respondents. Subsequently, he filed a statement of claim in which at its paragraph 26 sought the following reliefs:
“1. Declaration that the appointment and approval of the 1st defendant by the 4th defendant and/or Ondo State Government as Onikun of Ikun, Akoko, Ondo State, is a clear violation of the provisions of 1958 Registered Chieftaincy Declaration, Chiefs Law of Ondo State and all other enabling laws made and subsisting in that behalf and is therefore null and void and unconstitutional.
(b) Declaration that the plaintiff is the person entitled to be appointed and installed as the Onikun of Ikun Akoko, Ondo State under the Native Law, Custom and Tradition already embodied in the 1958 Registered Chieftaincy Declaration, the Chiefs Law of Ondo State and other enabling laws made and Subsisting in that behalf, regulating the Onikun of Ikun Chieftaincy, Ondo State.
(c) Declaration that ADELUSI RULING HOUSE is the only and ONE ruling House (sic) competent and entitled to present candidate for Onikun of Ikun Chieftaincy under the 1958 Registered Chieftaincy Declaration and Chiefs Law of Ondo State Regulating the ONIKUN OF IKUN Chieftaincy, Ondo State.
(d) Declaration that the 1st defendant is not competent and entitled to be appointed and installed as the Onikun of Ikun, Akoko, Ondo State under the 1958 Registered
Chieftaincy Declaration, Chiefs Laws of Ondo State and other enabling laws made and subsisting in that behalf, regulating the ONIKUN of IKUN chieftaincy, Ondo State.
(e) A mandatory order annulling or setting aside the purported appointment of the 1st defendant as Onikun or any letters or instruments purportedly issued by the Ondo State Government, her agents or privies, coffering on, or investing the 1st defendant with the rights, privileges and power of Onikun of Ikun Chieftaincy in Akoko South West Local Government Area, Ondo State.
(f) Perpetual injunction restraining the 1st defendant from holding himself out or parading himself as the Oba and the Onikun of Ikun in Akoko South West Local Government Area of Ondo State.
(g) Perpetual injunction restraining the second to fourth defendants, their agents, servants and/or privies from recognizing the 1st defendant as Oba and Onikun of Ikun or conferring any rights, privileges and power appertaining to Onikun of Ikun Chieftaincy in Akoko South West Government Area of Ondo State.”
The 1st defendant subsequent to his initial Statement of Defence filed an Amended Statement of Defence dated 5th April, 2004 of twenty one paragraphs in which he essentially justified his appointment as the Onikun of Ikun. He particularly averred in paragraphs 11, 12, 14 and 21 as follows:
“11. The 1st defendant specifically denies paragraph 17 of the Plaintiff’s Statement
of Claim and avers that his appointment as the Onikun of Ikun Akoko evidenced by the letter dated the 20th day of May, 2003, was not motivated by any political consideration as he was (and still is) a Federal Civil Servant in the Department of Customs and Excise in the Federal Civil Service. The letter of appointment is herein pleaded.
- The 1st defendant inter alia, avers that he qualifies to be appointed the Onikun of Ikun as of right as all his great ancestors starting from Oba Olo to Ademiyiwa occupied the throne at one point in time or the other particularly Oba Olubobokun and Adigbesi who were great grand fathers to the 1st defendant’s lineage.
- The 1st defendant herein pleads the provisions of Edict NO.3 of 1992 (sic), titled “Appointment of an Oba Presentation of Instrument of Appointment and Staff of Office Edict, 1991 which came into effect on the 23rd day of December, 1991. Since the conditions precedent set out by the said Edict were not fulfilled by the Plaintiff, the said Plaintiff is deemed to have acquiesced and cannot therefore be heard on this Chieftaincy matter.
- On the appointment of the 1st defendant as the Onikun of Ikun, His Excellency, Governor Olusegun Agagu, by his letter dated the 7th day of August, 2003, has formally recognized him as the Onikun of Ikun, Akoko .
………..
………
……..
WHEREOF the 1st defendant will contend at the hearing of this Suit that the plaintiff’s action is dismissed as it is palpably speculative, lacking in merit and a flagrant abuse of Court’s process.”
At the hearing of the case at the trial Court, the plaintiff and two witnesses as well as a fourth witness testified at the instance of the Court for the plaintiff.
On the part of the 1st defendant, two witnesses and himself testified.
It is, however, important to note that no evidence was led in behalf of the 2nd, 3rd and 4th respondents.
On the 23rd of September, 2004 the learned counsel for the 1st respondent opened the address and submitted that the plaintiff’s case should fail and be according dismissed in its entirety.
In reply, the learned counsel for the plaintiff, inter alia, submitted that the plaintiff has proved his case and deserve to be awarded the reliefs sought.
On the 9th of November, 2004 the learned trial Judge in a reserved and considered judgment held, inter alia;
“There is therefore nothing to show that the plaintiff complied with the law as to conditions precedent, as he did not, at any time materials to this case pay the stipulated sum of money. The 1st defendant became an Oba, the Onikun of Ikun on 20/5/2003. The time for compliance with the conditions precedent started to run from that date (20/5/2003). And the substantive suit opened in Court on 23rd March, 2004. If there was neither a protest letter to the Executive Council of the State nor payment of the stipulated mandatory ten thousand Naira between 20th May, 2003 and 23rd March, 2004 in a situation where the law says within seven days, can we rightly call this an act of compliance with the law? The answer in my judgment is NO.
Chief Omonijo for the 1st defendant has cited the two cases of MCFOY V. UAC (supra) and MADUKOLU V. NKEMDILI (supra) on the need to comply with mandatory provisions. I agree with his argument and the superior authorities cited in connection therewith. By the same token, I do not agree with the plaintiffs counsel that the 1st defendant has waived his right to insist on fulfillment of the conditions precedent to the filing of this suit by the plaintiff. It is trite law that where a statute creates a right, and, in a plain language gives a specific remedy or appoints a specific Tribunal for its enforcement, a party seeking to enforce the right must resort to that remedy or that Tribunal and not to other: See WILKINSON V. BARKING CORPORATION (1948) 1 KB 721 at 724 per Asquith, L.J.
Following this rule, I hold that the issue of waiver does not arise in this case. The 1st defendant cannot waive this mandatory provision in any way. For the same reason, the 1st defendant is not stopped from raising the non-fulfillment of the conditions precedent by the plaintiff……….This suit is therefore incompetent having being filed without compliance with the law as to conditions precedent.”
All the issues raised by the plaintiff for the consideration of the case instituted by him were resolved against him.
The plaintiff now appellant was utterly dissatisfied with the judgment of the trial Court and appealed to this Court on seven grounds of appeal.
In strict compliance with Order 17 rules 2, (4) and (5) of the Court of Appeal Rules 2007, the appellant and the 1st respondent filed and exchanged their respective briefs of argument. I shall, however, cursorily remark that the 2nd, 3rd and 4th respondents did not file any brief of argument for the consideration of this appeal in their behalf.
In the appellant’s brief of argument settled by his learned counsel, Segun Ogodo Esq., the following five issues were raised for the determination of this appeal:
“ISSUE NO. 1
Whether the lower Court was right in dismissing the appellant’s case for not complying with the conditions precedent stipulated by the provisions of approval of Appointment of an Oba Presentation of Instruments of Appointment and staff of Office Edict NO.2 of 1991 Edict hereinafter referred to as Edict NO.2 1991 (sic) before initiating this suit when the material facts and particulars constituting the purported condition precedent were neither pleaded nor evidence led thereon by any of the parties (sic) – Grounds 1 and 2.
ISSUE NO.2
Whether on the state of pleadings and evidence before the Court, the lower Court was right in dismissing the appellant’s case on the assumption that appellant’s action was speculative when the issue was not canvassed by any of the respondents for determination at the trial- Ground 3.
ISSUE NO.3
Having rightly invalidated the appointment of the 1st respondent as Onikun of Ikun for non-compliance with the 1958 Registered Chieftaincy Declaration whether the lower Court can still turn around to dismiss the appellant’s case and latter declare the 1st respondent as a legitimate Oba, the Onikun of Ikun even when the 1st respondent did not counter-claim or ask for any or such relief (s) – Grounds 5 and 6.
ISSUE NO.4
Whether or not the lower Court correctly interpreted the provisions of Edict NO.2 of 1991 by holding that the provisions of Sections 1 and 2 thereof applied retrospectively to the facts and circumstances of the appellant’s case already pending in Court before the Executive Council of Ondo State approved the appointment of the 1st respondent as the Onikun of Ikun Akoko, Ondo State – Ground 4.
ISSUE NO.5
Having regard to the evidence on record, whether or not the Lower Court was right in holding that the 1st respondent was not estopped from raising non compliance with the condition precedent contained in Edict NO.2 of 1991, upon the assumption that the provision of the said Edict cannot be waived – Ground 7.”
It is apparent from the 1st respondent’s brief of argument that he did not identify any issues for the determination of the instant appeal. It, however, appears from the wording of paragraph 1.02 on page 1 of his brief of argument that he would argue, in reply, the several issues raised by the appellant. In effect he has not adumbrated any issues for determination. The learned senior counsel for the 1st respondent, in the amplification of the 1st respondent’s brief of argument, lucidly stated that he adopted and relied on the issues raised by the learned counsel for the appellant. The approach by the 1st respondent in not raising any issues for determination is not irregular and I therefore see no basis to discountenance the brief of argument of the 1st respondent as urged on the Court by the learned counsel for appellant. It is enough if he adopted expressly or by implication the issues raised by the appellant. See ATANDA & ORS. V. AJANI & ORS (1989) 3 NWLR (PT. 111) 511 at 543 and 544. It is instructive to state that a respondent has no business, unless he cross appeals or at least serves a respondent’s notice, framing issues outside the grounds of appeal filed by the appellant. See JOHN ONYEBUCHI EZE V. FEDERAL REPUBLIC OF NIGERIA (1987) 1 NWLR (PT. 51) 506 at 521 and 522; IDIKA & ORS. V. ERISI & ORS (1988) 2 NWLR (PT. 79) 563 at 579; DIGUN V. AYINDE (1993) 8 NWLR (PT. 313) 516. I hold, albeit firmly, that the learned senior counsel for the 1st respondent unequivocally adopted and relied on the brief of argument of the appellant for the determination of this appeal.
It is apparent from the available record that the 2nd, 3rd and 4th respondents did not file any brief of argument whether separately or collectively. It is also clear that on the day set down for the hearing of this appeal, the said respondents failed to appear in Court. I am, however, satisfied on the basis of the affidavit of service shown to the Court that they were served with the requisite notice but failed to oblige in Court with their presence. The Court thereby went into the hearing of the appeal on the 23rd day of September, 2008.
I have carefully considered the five issues raised by the learned counsel for the parties for the determination of this appeal and I found that Issues 1, 3 and 4 dealt with similar subject matter which relates to want of compliance with the conditions precedent before the institution of the appellant’s case as stipulated in the provisions of the Appointment of an Oba Presentation of Instrument of Appointment and Staff of Office Edict NO.2 of 1991 (hereinafter referred to as Edict NO.2 of 1991). Issues 2 and 5 for the determination of this appeal respectively deal with whether or not the appellant’s action is speculative and the propriety of the learned trial Judge’s holding that the 1st respondent was not estopped from raising non-compliance with the conditions precedent contained in Edict NO.2 of 1991 upon the assumption that the provisions of the said Edict cannot be waived. In essence, there are only three issues for consideration in the determination of this appeal. I shall accordingly deal with the three issues as adumbrated (supra) by the Court.
On Issue 1, Segun Ogodo, Esq., the learned counsel for the appellant, referred the Court to paragraph 14 of the 1st respondent’s Amended Statement of Claim wherein he (the 1st respondent) pleaded Edict NO.2 of 1991 without pleading the material facts or articulating the particulars constituting the alleged conditions precedent before the learned trial Judge held that the appellant did not file the suit within the stipulated seven days or pay the mandatory N10,000.00 security fees and thereby declared the appellant’s action incompetent and dismissed it. The learned trial Judge in dismissing the appellant’s action occasioned grave miscarriage of justice. The learned counsel for the appellant submitted that the lower Court predicated his judgment on obscure pleadings which is at variance with the time honoured principle of pleading that only material fact need be pleaded and not law or conclusion of law and cited in aid the cases of ANDREW N. OKONKWO V. COOPERATIVE & COMMERCE BANK PLC & 2 ORS. (2003) 4 SCM 76 at 87; LIADI GIWA V. BISIRIYU ERIMILOKUN (1961) ALL NLR 294; RE: VERDERVELL’S TRUSTS NO.2 (1974) 3 ALL ER 205; AYOOLA & ORS. V. FOLAWIYO & ORS. (1942) 8 WACA 39. He further submitted that evidence given on matters not pleaded goes to no issue and should be disregarded.
The learned counsel for the appellant referred to the judgment of the trial Court where the learned trial Judge made copious findings of facts and law in favour of the appellant at page 164 of the records and after invoking the provisions of Section 4(2) of the Ondo State Chief Edict No. 11 of 1984 held at pages 165 and 166 of the records that no declaration shall come into effect until it is registered and went on to say that he had no hesitation in coming to the conclusion that the unregistered declaration made pursuant to the Morgan Report/White Paper has no legal validity whatsoever and thus not the Customary Law regulating the selection, nomination and appointment of Onikun of Ikun Akoko Chieftaincy. The learned trial Judge instead agreed with the submission of the learned counsel for the plaintiff that the subsisting law regulating the appointment of Onikun of Ikun Akoko still remains the registered 1958 Chieftaincy Declaration. He argued that in view of the foregoing, the learned trial Judge ought to have made the unavoidable consequential order of upholding the appellant’s claims by granting the relief sought and set aside the appointment of the 1st respondent as the Onikun of Ikun which was made in violation of the 1958 Registered Chieftaincy Declaration and the provisions of the Ondo State Chief Edict No. 11 of 1984. The learned counsel argued that the learned trial Judge veered off the track of justice and wrongfully dismissed the appellant’s case as well as wrongfully declaring the 1st respondent as the legitimate Oba Onikun of Ikun being an opinion based on the wrong assumption that the appellant had not complied with the conditions precedent in terms of the provisions of Sections 1 and 2 of Edict NO.2 of 1991. He submitted that the said Edict No. 2 of 1991 (supra) is not applicable to the facts and circumstances of the appellant’s case. He finally submitted that the judgment of the trial Court is not only perverse, vulnerable but it is palpably lacking the very essence of any judgment. He urged the Court to invoke Section 16 of the Court of Appeal Act and make the appropriate consequential orders by allowing the appeal and setting aside the void appointment of the 1st respondent.
In the appellant’s reply brief of argument, the learned counsel for the appellant noted with emphasis that in the brief of argument of the 1st respondent he (the 1st respondent) neither formulated any issues for determination of the instant appeal nor specifically adopted the issues raised by the appellant and relied on the case of OTU URUNNE V. PETER AGORO (2002) FWLR (PT. 110) 1930 at 1944. He therefore submitted that the arguments in the brief of argument of the 1st respondent “are hanging in the sky” as they were not predicated on any issues identified by the appellant. He urged the Court to hold that those arguments are incurably bad, incompetent and valueless in the determination of this appeal. I have already dealt with the observation of the learned counsel for the appellant and I held that the learned counsel for the 1st respondent adopted the issues for determination adumbrated by the appellant. I see nothing irregular in the approach to the issue formulated by the appellant and adopted by the 1st respondent.
In reply to the consolidated Issue No. 1, the learned counsel for the 1st respondent contended that three of the fives issues identified for the determination of this appeal fully focused on “conditions precedent” that is to say non-compliance with the provisions of Edict No.2 of 1991 with particular reference to its Sections 1 and 2. This is in tune with my recourse in combining the said three issues on non-compliance as an issue (supra).
The learned counsel for the 1st respondent stated that the law is clear that pieces of evidence in a case are never pleaded but that only the facts and the exhibits intended for tendering at the hearing arc pleaded. He submitted on this score that the 1st defendant/respondent effectively pleaded the said conditions precedent in paragraph 14 of the Amended Statement of Defence while the plaintiff/appellant reacted thereto in paragraph 15 of his Reply to the 1st defendant’s Amended Statement of Defence as contained on page 79 of the record of proceedings. Furthermore the plaintiff/appellant admitted under cross-examination at page 108 of the record of proceedings that he did not deposit any sum of money with the authority before he instituted the action in Court. He therefore submitted, based on the answer under cross examination (above), that the plaintiff/appellant did not comply with the legal provisions of Sections 1 and 2 of Edict No.2 of the Ondo State of Nigeria, 1991. The learned counsel for the 1st respondent argued that even if the Ondo State White Paper Two as contained on page 27 of the Morgan Chieftaincy recommendations was not registered, the registered Declaration (exhibit C) on the Onikun of Ikun Chieftaincy made in 1958 has not in any way invalidated the provisions of Edict NO.2 of 1991, that is to say Approval of Appointment of an Oba, Presentation of Instrument of Appointment and Staff of Office Edict. That Edict, he added, clearly affirms that anybody who protests the appointment of an Oba in Ondo State must comply strictly with all the conditions precedent before such a person can successfully challenge such an appointment. He contended that non-compliance will tantamount to not being legally empowered to institute an action before a Court of competent jurisdiction or not having the legal status (locus standi) for an effective take off. He submitted that the law is settled that you cannot put something on nothing and expect it to stay there. It will collapse and he cited in aid the cases of BENJAMIN LEONARD MCFOY V. UNITED AFRICA CO. LIMITED (1962) A.C. 152 at 160 and MADUKOLU V. NKEMDILIM (1962) ANLR (Reprint Edition) 581 at 590.
Learned counsel for the 1st respondent further submitted that a close study of exhibit C (the 1958 Chieftaincy Declaration customary law regulating the selection of Onikun of Ikun on which the plaintiff/appellant heavily relied upon to sustain his appeal) only shows that at the time of the said nomination exercise by the kingmakers, the plaintiff/appellant did not in any way receive the consent of the whole people of Ikun Akoko as required by paragraph (v) of exhibit C (the 1958 Declaration). He instead submitted that there was no adverse reaction to the loss of the appellant to the throne as Onikun of Ikun and referred to exhibits D, M to M4 which are letters of felicitations by progressive unions inside and outside Ikun in support of the nomination of the 1st respondent as the Onikun of Ikun.
I am of opinion that what is of the moment in the several arguments and submissions hereinbefore made by the learned counsel in behalf of the appellant and the 1st respondent is whether the 1st respondent specifically stated the issue of conditions precedent in his Statement of Defence/Amended Statement of Claim coupled with whether the appellant complied with the conditions precedent as stipulated for in Sections 1 and 2 of Edict NO.2 of 1991.
On the state of the record, it is only apt to look at the wording of the pleadings of the 1st respondent to know whether or not he pleaded conditions precedent on protest against the enthronement of the Oba Onikun of Ikun. A close study of the two sets of the 1st respondent’s Statement of Defence and Amended Statement of Defence showed that paragraph 14 of the Amended Statement of Defence is pertinent and it is reproduced thus:
“14. The 1st defendant herein pleads the provisions of Edict NO.3 of 1992 (sic) titled “Appointment of an Oba, Presentation of Instrument of Appointment and Staff of Office 1991 which came into effect on the 23rd day of December, 1991. Since the conditions precedent as set out by the said Edict were not fulfilled by the
Plaintiff, the said plaintiff is deemed to have acquiesced and cannot, therefore be heard on the Chieftaincy matter.”
(Underlining mine for emphasis).
It is clear from the wording of paragraph 14 of the Amended Statement of Defence that the 1st respondent did not only plead the law as stated therein but also the aspects of the said law dealing with conditions precedent. In effect reference to the Edict NO.2 of 1991 is not at will as it is tied to the provisions specifically provided for in its Sections 1 and 2. The argument of the appellant’s learned counsel that the material facts and particulars constituting the purported conditions precedent were neither pleaded nor evidence led thereon is, with due regard, without basis and will be discountenanced. Another contention of the learned counsel for the appellant is that the 1st respondent equally failed to lead any evidence on the issues of payment of N10, 000.00 or filling the suit within seven days of the appointment of the 1st respondent by the Executive Council of Ondo State. This assertion is equally without basis as evinced under cross examination by the learned counsel for the 1st respondent where the appellant answered, albeit in lucid language, thus:
“Again witness is shown Exhibit D. He says he can see it. Counsel asks him to read the last paragraph of exhibit D. Asked by counsel to the 1st defendant whether plaintiff wrote any petition to the authority before the institution of this action, plaintiff said “No”. I also did not pay any sum of money at all with any authority before I instituted this action.”
(Underlining for emphasis)
It is clear from the foregoing extracts culled from page 108 of the record of proceedings that the appellants did not comply with Sections 1 and 2 of Edict NO.2 of 1991. It is pertinent to reproduce the said sections. They read:
“1. Any person who is aggrieved by the appointment of another person as an Oba shall within seven days of the date of such appointment institute an action in the High Court challenge the appointment.
2(1) any person who intended to institute an action or challenge such appointment shall give security for
(a) …………..
……………….
(not applicable because Ikun Akoko is not the headquarters of a Local Government)
(b) a sum often thousand Naira in respect of such action instituted against appointment in towns other than Local Government Headquarters.”
I agree with the submission of the learned counsel for the 1st respondent that the issues are very clear from the above provisions of the law particularly from the mandatory word “shall” thereby according to those provisions the status of “Conditions precedent” before Oka Judicial Division sitting at Oka Akoko could assume jurisdiction over the appellant’s case. It is equally clear from the evidence of the appellant as reproduced earlier on that he did not comply with the conditions precedent before instituting the action which led to this appeal. What then is the effect of non-compliance with conditions precedent in any litigation? The answer that readily comes to mind is that non compliance will tantamount to a person not being legally empowered to institute an action before a Court of competent jurisdiction or not having the legal status (locus standi) for an effective off. I have already held that the appellant did not comply with the conditions precedent to the institution of his case in the trial Court.
For a Court to be competent, the following factors must co-exist.
(i) It is properly constituted as regards numbers and qualifications of the member of the bench and no member is disqualified for one reason and another, and
(ii) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising jurisdiction and
(iii) The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal for the proceedings are a nullity, however, well conducted and decided, the defect is extrinsic to adjudication.”
See MADUKOLU & ORS V. NKEMDILIM & ORS. (Supra) at 595.
Since the three factors set out above are conjunctive in their operation, the absence of one or more of them (the factors) will adversely affect the power of the respective Court to assume jurisdiction over the matter before it. From the state of the record and the submissions of the learned counsel for the parties and particularly those of the 1st respondent, the third ingredient is patently lacking because the conditions precedent stipulated in the Edict NO.2 of 1991 were not satisfied within seven days of the approval by the Executive Council of the appointment of the 1st respondent as the Onikun of Ikun as well as non-payment of N10, 000.00 stipulated by the law (Edict NO.2 of 1991). These circumstances, in my opinion, amount to noncompliance with the mandatory statutory provisions of Edict NO.2 of 1991. It is trite law that where a statute creates a right, and, in a plain language, gives a specific remedy or appoints a specific Tribunal for its enforcement, a party seeking to enforce the right must resort to that remedy or that Tribunal and not to the other. See WILKINSON V. BARKING CORPORATION (1948) 1 KB 721 at 724.
In view of the want of compliance with the conditions precedent by the appellant before instituting his action at the trial Court, that Court was devoid of jurisdiction and any deliberation over that case is a nullity and that case will be visited with striking out. The law is clear that you cannot put something on nothing and expect it to stay there. It will certainly collapse. Such is the lot of this case instituted in the trial Court. See MCFOY V. UAC LIMITED (supra) at 160. There is accordingly no merit in Issue No. 1. It is accordingly resolved in favour of the 1st respondent.
Issue NO.2 is on whether the state of pleadings and evidence before the Court, the lower Court was right in dismissing the appellant’s case on the assumption that the appellant’s action was speculative when the issue was not canvassed by any of the respondents for determination at the trial.
The learned counsel for both the appellant and the 1st respondent made copious submissions on this issue. The issue of speculation stands out. I have carefully studied ground 3 of the Notice and Grounds of Appeal from which Issue 2 is identified and I wholly agree with the submissions of the learned counsel for the 1st respondent where he, inter alia, observed that Ground 3 of the Grounds of Appeal complains of misdirection by the trial Judge while Issue NO.2 predicated thereon complains of facts that certain pieces of evidence were not canvassed before the trial Court thereby occasioning a conflict which should not be. The law is trite that issues for the determination of an appeal must emanate from the grounds of appeal. Where the contrary is the case, that is to say a conflict between the ground of appeal and the issue raised from the ground of appeal, the issue raised shall respectively be incompetent and struck out and the arguments based on the issue be discountenanced. See NWOSU V. UDEAJA (1990) 1 NWLR (PT. 125) 188 and OGBUANYIYA V. OKUDO NO.2 (1990) 4 NWLR (PT. 169) 608. Since there is conflict between Ground 3 and Issue 2 raised therefrom, I hold that they are incompetent and respectively strike it out and discountenance it. Issue No. 2 is accordingly not subject to any resolution.
Issue NO.5 is whether a void act which arose from non-compliance with a condition precedent can be estopped.
I have considered the submissions of the learned counsel for the parties. Estoppel and/or waiver are equitable reliefs. It has already been held that the appellant was in default of the conditions precedent to the institution of the case at the trial Court. It was also held that the institution of that case is a nullity. Since the appellant is seeking equitable remedies of estoppel and/or waiver, he cannot be granted any of them. It is settled law that where an act is void, waiver or estopped does not come in for consideration as the parties cannot consent or waive such irregularity. See ODUA INVESTMENT CO. LTD. V. JOSEPH TAIWO TALABI (1997) 10 NWLR (PT. 523) 1 at 4; AJOMALE V. YADUAT (1991) 5 NWLR (PT. 191) 266 at 277-279; OKAFOR V. NNAIFE (1987) 4 NWLR (PT. 64) 129 at 137. I accordingly hold that the 1st respondent in the prevailing circumstances of this appeal could not have waived the provisions of Sections 1 and 2 of the Ondo State Edict NO.2 of 1991 which appertain to conditions precedent. Ground 7 of the Grounds of Appeal from which Issue 5 emanated lacks merit and it is dismissed.
In the final analysis, there is no merit in the appeal and it is dismissed. I accordingly affirm the judgment of the trial Court. I make no order as to costs.
Other Citations: (2008)LCN/3022(CA)
