Prince James Adeleke Osayomi & Ors V. The Executive Governor Of Ekiti State & Ors (2007)

LawGlobal-Hub Lead Judgment Report

TIJJANI ABDULLAHI, J.C.A.

This is an interlocutory appeal against the ruling of the High Court of Justice, Ekiti State holding at Ado-Ekiti delivered by Han, Justice M. O. Abodunde on the 17th day of March, 2005.

The case as can be gleaned from the Record of Proceedings has a chequered history. It was an action brought in a representative capacity. The case was instituted on July 8, 1993 by the Plaintiffs/Respondents. On the 18th June, 1998 judgment was however given in favour of the Plaintiffs/Respondents without giving the Defendants opportunity to open their defence. The Defendants/Appellants appealed against the said judgment. The case was subsequently re-assigned to Court No. 7 presided over by Hon. Justice M. O. Abodunde. The Plaintiffs/Respondents in their Statement of Claim, claim against the Defendants/Appellants as follows:

1. A declaration that from time immemorial and up till the time of taking this action, the traditional kingmakers for the selection and appointment of Olosan are Chief Obalapa, chief Odofin and Chief

Obaoye of Osan.

2. A declaration that the appointment of the 6th Defendant, Julius Ogunkayo, as a warrant Chief by

the 1st Defendant, whilst the incumbent holder Chief Rotimi Adeoye Obalapa is alive and capable, ready and willing to perform such function, is unwarranted and against the Native Law and custom of Osan-Ekiti.

3. A declaration that the 1st plaintiff has been duly selected by the majority of the Kingmakers as the

Olosan of Osan since 1988 in accordance with the Native law and custom of Osan-Ekiti.

4. A declaration that the purported approval by the 1st ‘E2’80 3rd Defendants of the selection of the 4th

Defendant Yusuf Babatunde Anisu as the Olosan-Ekiti is against the Native Law, tradition and therefore, illegal, null and void.

5. A declaration that the 4th Defendant, Yusuf Babatunde Anisu is not a prince by birth hence he is not eligible to the throne of Olosan of Osan-Ekiti.
6. An injunction restraining the 4th Defendant from parading/holding himself out as or performing the

functions/duties of the Olosan of Osan or wearing the regalia of the said Olosan of Osan Chieftaincy.

7. An injunction restraining the 1st – 3rd Defendant, their Agents Servants or privies from recognizing or dealing with the 4th Defendant as the Olosan of Osan-Ekiti. ”

Having sued in a representative capacity without the consent, authority and blessing of Ijigbe, Iwoye ado and Isalu Ruling Houses, the defendants/appellants challenged the suit in their statement of defence. Refer to paragraphs 5, 6 and 7 of the state-ent of defence of the appellants.

Upon the case coming up before Hon. Justice M. O. Abodunde consequent of order for retrial, the appellants filed a motion dated 18th January, 2005 challenging the jurisdiction of the trial court to adjudicate on the matter.

The lower court heard the application and dismissed same on the 17th of March, 2005. The Ruling is contained on pages 44-51 of the records.

The appellants were dissatisfied with the ruling of the 17th March, 2005. They appealed against it. Their Notice of Appeal was filed on the 29th of March, 2005 within time containing 9 grounds.

From the said grounds on behalf of appellants, six issues were distilled for determination and same reproduced are as follows:

a. Whether on not the Plaintiffs/Respondents have the requisite locus standi to institute this action at the

lower court in a representative capacity without the consent, authority and blessing of the ljigbe, Iwoye Odo and Isalu Ruling Houses and in the face of stiff and substantial opposition to the suit by the three

ruling houses; grounds 1 and 4.

b. Whether or not the lower court was right and had not acted without jurisdiction when it dismissed the defendants/ appellants’ application challenging the jurisdiction of the lower court without resolving the perceived conflicts in the affidavit evidence before it by calling oral evidence – grounds 5 and 7.

c. Whether or not the lower court was right to have substituted and replaced the issues placed before it

by the defendants/appellants and the submissions thereon with its own issues without calling on counsel to address it on same – grounds 2 and 6.

d. Whether or not the order for retrial made by the Court of Appeal automatically clothe the lower court with jurisdiction which it does not have ground 3.

e. Whether or not the lower court had not acted in error which has occasioned a miscarriage of justice

when it neglected and abandoned the submissions of defendants/appellants’ counsel on the incompetence

or otherwise of the counter-affidavit of the plaintiffs/respondents ground 8

f. Whether or not exhibits A, A1, A2, B, B1 and B2 are relevant and admissible in the determination of the

locus of the plaintiffs/respondents to bring the suit in representative capacity on behalf of the three ruling houses in view of the provision of Section 91 (3) of the Evidence Act – ground 9.

For their part, the two sets of respondents did not formulate any issue for determination but adopted the issues formulated by the Appellants as the issues calling for determination in this appeal.

Learned Senior Counsel however submitted orally, under issue 1 that, jurisdiction based on illegality is better proved by viva-voce evidence rather than affidavit evidence. Secondly the motion challenging jurisdiction came 12 years after the case came to court. It travelled to High Court back to the Court of Appeal and back to the High Court. All the exhibits used to support the motion were manufactured on 4th and 5th January, 2005 by the Appellants.

Mr Aluko, Learned Counsel for the Appellants submitted that, counsel’s submission no matter strong cannot take the place of evidence. He urged us to take cognizance of affidavit evidence before the lower court. The grounds of objection is not only on illegality but on misrepresentation, fraud and as well as locus standi. The Court, he went considered all that. He referred to pages 12-13 of the supplementary record. The Appellants in their statement of defence signified their intention to object to the jurisdiction of the court. He referred to paragraphs 5, 6 and 7 of the statement of defence. He referred the court to the case of First Bank of Nigeria Plc -vs- A. B. C. Ltd (2006) 1 NWLR (Part 962) P. 480 at P. 485, Paragraph H.

On the 1st issue for determination, which is whether or not the Plaintiffs/Respondents have the requisite locus standi to institute this action at the lower court in a representative capacity without the consent, authority and blessing of the ljigbe, lwoye Odo and Isalu Ruling Houses and in the face of stiff and substantial opposition to the suit by the three ruling houses, in a brief settled by Tayo Aluko Esq, Learned Counsel submitted that, the grouse and complaints of the Plaintiffs/Respondents in their writs of summons and statement of claim is that there was a violation and breach of the traditional and custom of Osun Ekiti in the appointment and selection of the 4th Defendants/ Appellants as the Olosan of Osan Ekiti. Learned Counsel quoted copiously from the statement of claim on pages 14 – 24 of the supplementary record and contended that, the facts therein relate to the representative and corporate interest of the ljigbe Ruling house in particular and that of the other two ruling houses in general. It is not in respect of the personal interest of the Plaintiffs/Respondents.

Learned Counsel submitted that, when an action has been instituted as in this case in a representative capacity of a family or a ruling house in respect of chieftaincy matters and facts are pleaded and reliefs are claimed showing that it is in representative or corporate interest as the subject matter, the real plaintiff is the family or ruling house and not the individuals who have sued in a representative capacity. Therefore in this case, the real plaintiffs are the three ruling houses and not the plaintiffs as shown in the statement of claim, Learned Counsel submitted that, having regard to the averments and the allegation therein contained in the statement of claim, ljigbe ruling house is the greater stakeholder whose corporate right and interest was alleged to have been brutally violated. The pertinent question here is, who should be the proper plaintiff with whom the locus standi to challenge these alleged multi various violations and breaches reside?

He further submitted that the proper plaintiff with real locus standi to challenge alleged violation, of tradition, custom and norms of selecting the Olosan of Osan Ekiti is the ljigbe ruling house in particular (whose turn it is to present the new Olosan) and the Iwoye Odo and Isalu ruling house in general (as stakeholders in filling Olosan stool).

It is the submission of the Learned Counsel that in chieftaincy matters, it is the family whose interest is at state that can competently take out an action through their accredited representatives. It is the totality of the family or the ruling house that has the locus standi because what is in issue is a matter that directly affects the interest of the family or the ruling house to show their collective interests. The issue is it is the civil right of the family or ruling house that has been breached or Violated. See the case of Ladejobi -vs- Oguntayo (2004) 18 NWLR (Pt. 904) Page 149 at Pp. 176- 177.

Learned Counsel submitted that by the reliefs of the Plaintiffs/Respondents, the action is a representative action brought by persons without locus standi. The question then is; are the plaintiffs/respondents the proper and legitimate representatives of Ijigbe, Iwoye Odo and Isalu ruling houses as far as this case is concerned? Do they have the consent, authority and blessing of Ijigbe, Iwoye Odo and Isalu ruling houses to bring this action. Learned Counsel contended that the Defendants/Appellants averred to the facts that the Plaintiffs/ Respondents had no authority and locus standi to institute this action at the lower court in their statement of defence. He referred to paragraphs 5, 6 and 7 of the Defendants/Appellants’ Statement of Defence.

By the averment above, the Defendants/Appellants gave notice at the lower court that the plaintiffs had no authority and locus standi to bring t he action at the lower court in a representa-tive capacity. The defendants /appellants by their motion dated 18th January, 2005 challenged the plaintiffs locus to bring this suit and asked the lower court to strike out or dismiss the suit for absence of jurisdiction.

Exhibits A, A1, A2, B, B1 and B2 attached to the motion are copies of notice of meeting held by the ruling houses respectively. The meeting held by the three respective ruling houses were held in Yoruba Language. Exhibits B, B1 and B2 are English Language translations of the meetings under oath.

By Exhibit A, Ai, A2, B, B1 and B2. The ruling houses demonstrated their opposition against the suit. They made their position known to the effect that the plaintiffs do not have their authority, consent and blessing to bring the action.

Having been authorized by the entire members of the three ruling house, the secretaries to these ruling houses conscientiously deposed to three sets of further affidavits in support of the motion dated 18th January, 2005. By the totality of their respective depositions, the secretaries of the three ruling houses show substantial opposition to the case. Learned Counsel submitted that In view of the depositions in support of the motion dated 8th January, 2006, Exhibits A, A1, A2, B, B1 and B2 attached, depositions of Adeleke Samuel Kunle (Secretary to Ijigbe ruling house), that of Honourable Raphael Jolayemi (Secretary to Isalu ruling house) and that of Johnson – there is a substantial and stiff opposition to the suit of the plaintiffs/respondents by the three ruling houses. The proper parties who ought to bring the action are the three ruling houses through their representatives. The Supreme Court in the case of Ladejobi -vs- Oguntayo (supra) per Uwaifo, JSC:

“It is right to say that when action has been instituted representatives of a family or a ruling house, either in land matters or chieftaincy matters as appropriate and facts are pleaded and reliefs are claimed indicating that it is subject matter, then the real plaintiff or plaintiffs should be seen as the family or ruling house and not the individuals who have sued in a representative capacity.

Learned Counsel further submitted that the Plaintiffs have no locus standi to bring the action. He referred to the case of Ladejobi -vs- Ogontayo (supra) per Musdapher JSC. He went to submit that with the stiff and substantial opposition launched against the action, the Plaintiffs do not have the requisite locus standi to bring this action.

Learned Counsel is of the view that if the lower court had considered the stiff and substantial opposition against the representation of the plaintiffs/respondents! If the lower court had looked at and examined the opposition contained in Exhibits A, A1, A2, B, B1 and B2 attached to the motion dated 18th January,2006. If the lower court had considered the stiff and substantial opposition mounted against the representation of the plaintiffs by the three houses through the three sets of further affidavits sworn to by the secretaries of the ruling houses, the trial court ought to have acceded to the prayers of the Defendants/Appellants by striking out or dismissing the suit of the plaintiffs/respondents. Learned Counsel urged us to so hold, and strike out or dismiss the suit of the Plaintiffs /Respondents.

On the other hand, in a brief settled by A. O, Akanle, SAN, Learned Senior Counsel agreed with the submission of the Learned Counsel for the Defendants/Appellants that locus standi is determined by the statement of claim of the Plaintiffs and he also agreed with the authority cited in support of that proposition. That is Ladejobi-vs-Oguntayo (supra). Learned Counsel agreed also that the Plaintiffs/Respondents instituted the action on behalf of the three Ruling Houses and that the Defendants/Appellants can challenge the locus of the Plaintiffs/Respondents to bring the action on behalf of the Ruling Houses. The challenge must, however be substantial and strong. Learned Senior Counsel submitted that in case at hand, the opposition is very weak frivolous and unconvincing. Learned Senior Counsel contended that the objection to the locus of Plaintiffs/respondents was never raised in the Ijero-Ekiti High Court where the case was between 1993 and 1998 nor was it mentioned during the appeal of Defendants/Appellants before the Court of Appeal, ilorin. It is the contention of the Learned Senior Counsel that the material used, Exhibits A, A1, A2 B, B1 and B2 were procured in January, 2005 twelve years after the case came to court. Both the Affidavit and the accompanying documents were made to serve personal and selfish purposes he further contended. He relied on Section 91(3) of the Evidence Act and the case of Sasano -vs- Sol. P. Ltd (2000) 4 NWLR (Part 651) 60 at 68, Paragraphs C-D.

Learned Senior Counsel further submitted that it is the law that no amendment can be made to add to the pleadings in a case facts that happened after the case came to court. He relied on the cases of Gowon -vs- Okongwu (2003) 6 NWLR (Part 815) P. 38 at 49, Paragraph B – C and World Gate Limited -vs- Sebayo, (2000) 4 NWLR (Part 654) 669 at 679, Paragraphs D – G.

Learned Senior Counsel submitted that the application of the Defendants/Appellants is feeble weak and unsubstantial. Moreover the lower quite rightly held in his view that false and fraudulent misrepresentation is better proved by viva voce rather than by affidavit. The very weak application of Defendants/Appellants could not have divested the trial court of its jurisdiction. He relied on the case of Adenle -vs- Olude (2002) 18 NWLR (part 799) 413 at 428 – 429 Paragraphs F – B. Learned Senior Counsel urged us to resolve issue No. 1 in favour of the Plaintiffs /Respondents.

In a brief settled by Gboyega Oyewole Esq. Hon. Attorney- General and Commission for Justice, Ekiti State, on behalf of the 4th – 6th Defendants/Respondents, Learned Counsel aligned themselves with the submissions of the Defendants/Appellants. And further submitted that the Supreme Court had in Okukuje -vs- Akwido (2001) 5 NSCQR pg. 204 at 215 defined a representative as person AUTHORISED to act or speak for another or others. The apex court went further to add that by this definition, it would appear that there must be some kind of authorization” given by the person or persons to be represented. The Plaintiffs/Respondents in their statement of claim asserted that they instituted this suit on behalf of the three ruling houses of Osan Ekiti.

Learned Counsel argued that the 1st – 3rd Defendants/Appellants in their statement of defence filed since the inception of this case had drawn attention to the issues of lack of locus of the Plaintiffs/Respondents to institute this suit. He therefore respectfully submitted that it is not correct contrary to the submission of the learned counsel to the Plaintiffs/Respondents that the issue of locus of the Plaintiffs/Respondents was never mentioned in the Ijero Ekiti High court. It is further submitted that had the Defendants/Appellants being given opportunity to be heard by the Ijero Ekiti High Court, the issue of locus as then contained in the statement of defence of the defendants would have been resolved at the hearing one way or the other.

Learned Counsel submitted that there can be no stronger proof of lack of locus or authorization to act when the person (as in instant case, the three ruling houses) purported to be represented by the Plaintiffs/Respondents sworn on Oath denouncing the representative capacity of the Plaintiffs/Respondents to institute this suit Learned Counsel further submitted therefore that the objection to the locus of the Plaintiffs/Respondents is not only strong but eminently substantial, Exhibits A, A1, A2, B, B1 and 83 which are copies of the notice of meeting held by the three ruling houses are corroborative of paragraphs 5, 6 and 7 of the statement of defence of the Defendants/Appellants wherein the locus of the Plaintiffs/Respondents was then first mentioned.

Learned Counsel submitted that the Learned Senior Counsel had failed to show the interest of the three ruling houses in this case. All that the three ruling houses seek to establish and lay bare to the whole world in this case is the fact that the Plaintiffs/ Respondents are on frolic of their own and not their representatives, he further submitted.

It is the submission of the Learned Counsel that, what is pivotally involved here is the issue of competency of the action of the Plaintiffs/Respondents arising from their lack locus. This issue being jurisdictional in nature can be raised at any time. He relied on the case of U. B. A. Plc. -vs- Ayinke (2000) 7 NWLR (Pt. 663) Pg. 83 at Pg. 89.

Learned Counsel urged us to resolve this issue in favour of the Plaintiffs/Respondents in view of the substantiality of opposition to their acclaimed representative capacity to institute the action.

In reply to the submission of Counsel for the Plaintiffs/Respondents, Learned Counsel for the Defendants/Appellants submitted that in the case of Ladejobi -vs- Oguntayo (Supra) the Supreme Court said in page 177, Paragraphs A – 8 as follows:

“A party may in his statement of claim and evidence show that the right that is being asserted is that of his family by reason of say their hereditary interests. In such a case, it is the family usually through their representatives who can bring the action on the premises that it is the civil right of the family that has been breached”

The case of Ladejobi -vs- Oguntoye is therefore unhelpful to the Plaintiffs/Respondents’ case because the three ruling houses mounted stiff and substantial opposition against the suit maintaining that the Plaintiffs/Respondents are not their representatives refer to pages 2 – 17 of the main record.

Issue No 2 is whether or not the lower court was right and had not acted without jurisdiction when it dismissed the defendants/appellants’ application challenging the jurisdiction of the lower court without resolving the perceived conflicts in the affidavit evidence before it by calling oral evidence. This issue is covered by grounds 5 and 7 of the ground of appeal.

The motion filed by the Defendants/Appellants dated 18th January, 2005 was supported by a 13 paragraphed affidavit and attached to the affidavit are six exhibits, i.e. A, A1, A2, B, B1 and B2 (Pages 2 – 11 main record). Three sets of further affidavits were equally sworn to by the secretaries of the ruling houses on behalf and on the authority of the ruling houses (see pages 26 – 34 of the main record). In the said affidavits, principal members and the head and secretaries of the ruling houses and over hundred other members mounted opposition against the suit.

By way of response to the motion, the Plaintiffs/Respondents filed a counter-affidavit on the 25th day of January, 2005 in which they denied the depositions in the 13 paragraphed affidavits, Learned Counsel submitted that the lower Court acted without jurisdiction when it dismissed the Appellants’ motion without calling for oral testimony to resolve the conflict in the affidavit evidence before it. He relied on the cases of General and Aviation Services Ltd -vs- Thahal (2004) 10 NWLR (Pt. 880) P. 50 at P. 90 Paragraphs D – E Per Ejiwunmi JSC; Mark -vs- Eke (2005) 5 NWLR (pt. 865) P. 54 at P. 81 and Kabiru -vs- Ibrahim (2004) 2 NWLR (Pt. 857) P. 326 at 3498 Per Adamu JCA.

Learned Counsel submitted that failure to call for oral evidence to resolve the conflicts in the affidavits and the counter-Affidavits deposed to by the Deponents occasioned a miscarriage of justice and he urged us to so hold and resolve this issue in their favour.

Learned Senior Counsel for the Plaintiffs/Respondents contended that there is always a resort to oral evidence when there is a conflict between affidavits but it is not always that this is so because before doing so, the court must look at the controversy in the case before it for the conflict must be material to the case, the fact must be admissible or non-flimsy or irrelevant or not alien to the matter. He relied on the cases of Lagos State Development and property corporationvs Adold (Supra) and Sodipo -vs- Oy (1992) 8 NWLR (Part 258) at 224, Paragraphs D-E.

Learned Senior Counsel Contended that Exhibits A, A1, A2, B, B1 and B2 are in admissible for the following reasons.

(i) They were made during the pendency of the case and by persons much interested in the case as

purported members of the Ruling Houses in Osan.

(ii) They were made 12 years after the case came to the court whereas the law is that events occurring after the case had come to court cannot be brought into the case by amendment or otherwise:

See cases of:

a. Gowon -vs- Okonguer (supra)

b. World Gate Ltd -vs- Shebanji (supra)

In the case herein the affidavit and exhibits accompanying the motion are self – defeating, incompetent, unhelpful and irrelevant that even a counter-affidavit is unnecessary not to talk of resort to oral evidence.

But even then, the trial judge did not foreclose oral evidence, what the court said is that since defendants/appellants accused plaintiffs/respondents of false misrepresentation, such a charge is better proved by VIVA-VOCE evidence and not by affidavit. See the cases of Sodipo -vs- Oy, 1992 8 NWLR (Part 258) 229 at 244, para C. Learned Senior Counsel urged us to resolve this issue in their favour.

Learned Counsel for the 4th – 6th Defendants/Respondents conceded the point that the law is quite settled in relation to the duty on court when issues are joined in affidavit evidence in a suit before it as in the case under consideration. In such an instance, the court is duty bound to call for oral evidence in resolving the identified conflicts before arriving at a verdict on the issue as the court cannot pick and choose or believe one and reject the other except by resorting to oral evidence. See: First Bank Plc -vs- May Med & Diagnostic (2001) 6 SCM Pg. 63 at 69. The Chairman NPC -vs- The Chairman Ikere Local Government & Ors (2001) 11 SCM Pg. 164 at 171 – 177; Falola -vs- Union Bank of Nigeria Plc (2005) 3 S. C. M. Pg. 50 at 59.

Learned Counsel however submitted that it is not all cases where there is conflict in affidavit evidence that oral evidence is resorted to for resolution. Such resolution may be done by documentary evidence which supports one of the affidavit in conflict with another. See The Chairman Ikere Local Government & Ors (2001) 11 SCM Pg. 164 at 171- 177. Learned Counsel submitted that oral evidence may also be dispensed with in resolving conflict in affidavit evidence where the conflicts in the affidavits do not touch the material substance of the matter before the court. See: First Bank Plc -vs- May Med & Diagnostic (2001) 6 SCM Pg. 63 at 69.

Learned Counsel after conceding that the trial judge erred in law by not resolving the conflicts in the affidavit evidence submitted that, it is not every error of law that is committed by a trial court that justifies the reversal of its judgment. However, where such error of law goes to the root of the case and occasioned a substantial miscarriage of justice, a need of reversal would have arisen. He relied on the following cases; Adewumi and Anor -vs- A. G. Ekiti State & 6 others (2000) 2SCM Page 1 at 23, Oyefolu & Ors -vs- Durosinmi ( 2001) 1 0 S. C. M. Page 106 at 112 and Amadi – vs- NNPC (2000) 2 SCNQR Page 990 at 1029 – 1020.

Learned Counsel submitted that, assuming the lower court had taken oral evidence especially from the three ruling houses (the makers of Exhibits A, A1, A2, B, B1, 82) in resolving the conflicts in the affidavit evidence before it, it would have come toa different decision on the issue of locus of the Plaintiffs/respondents to institute this action.

It is the contention of the Learned Counsel that in view of all the above among other relevant consideration, it is manifest that the Defendants cannot be said to have had a fair hearing before the court below hence it is respectfully urged that this issue be resolved against the Plaintiffs/Respondents. See Onwe Oke -vs- Nwaogbuinya (2001) 5 NSCQR Page 93 at 110 – 111 and 118.

In his reply brief, Learned Counsel for the Defendants/Appellants submitted that the entire submission of the Plaintiffs/Respon-dents is of no consequence as regards the issue being delt with. The issue here bothers on the failure of the trial court to resolve the perceived conflicts in the affidavit evidence before it by calling oral evidence.

Issue No.3 is whether or not the lower court was right to have substituted and replaced the issues placed before it by the Defendants/Appellants and the submissions thereon with its own, issues without calling on counsel to address it on same. This issue is covered by grounds 2 and 6 of the grounds of appeal. Learned Counsel contended that the issue before the lower court was whether the plaintiffs/respondents have the requisite locus standi to institute the action on behalf of the three ruling houses in view of the stiff and substantial opposition from the same ruling houses against the action of the plaintiffs/respondents. It was submitted on behalf of the Defendants/Appellants at the lower court that the Plaintiffs/Respondents have no locus standi to bring the action in a representative capacity thereby affecting the jurisdiction of the lower court.

Learned Counsel contended that the lower court substituted the issue before it with its own. It was beclouded by its own issues formulated by itself and swayed from the issues before it and this prevented itself from determining the issues before it on the merit. He relied on the cases of Kraus Thompson Org Ltd -vs- Unical (2004) 9 NWLR (Pt. 879) P. 631 at P. 656 Paragraphs D – F, Ososana -vs- Ajayi (2004) 14 NWLR (Pt. 894) P. 527 at P. 549 Paragraphs E – F and Adebayo -vs- Oja-Iya C. B. (Nig) Ltd (2004) 11 NWLR (Pt. 885) P. 573 at 588.

The effect of all this, is that the trial court was informed by extraneous and irrelevant factors whilst it abandoned the issue placed before it by the parties and went on the wilderness of uncertainty and voyage of discovery thereby occasioning a miscarriage of justice. Learned Counsel urged us to resolve this issue in their favour.

Learned Senior Counsel for his part, contended that it is grossly unfair to the lower court to say that it substituted its own issues for those submitted by defendants/appellants in the case, what the court said is this:

“It would have been a difference (sic) matter entirely if for instance defendants/applicant’s counsel hinged his submission on the lack of jurisdiction by the court he submitted that the legal issues involved as portrayed in the statement of claim of the plaintiff has been ousted by statutory or constitutional provision … ”

It is clear that the court was only comparing and controverting objection to jurisdiction on point of law which is straight forward and objection based on facts which need proof and strict proof if there is an allegation of false and/or fraudulent misrepresentation as is in the case herein. None of the cases referred to by the defendants/appellants is relevant to the issue herein. Plaintiffs/Respondents ask that this issue be resolved in their favour.

Learned Counsel for the 4th – 6th Defendants/Respondents submitted that despite the fact that there was no application before t he lower court by the Plaintiffs/Respondents praying for any amendment of any sort, the lower court obviously allowed itself to be swayed by the possibility of the Plaintiffs/Respondents bringing such an application in future and gave its ruling in favour of the plaintiffs/respondents. Thus, evidently the ruling of the court was rooted in speculation or anticipation of an application for amendment which is unacceptable in law as a court is not permitted to act on speculation. See: Ivien-Agbor-vs- Bazuaye (1999) 9 NWLR (Pt. 620) Page 552 at 561 paras E – F. Learned Counsel humbly urged that this issue be resolved against the Plaintiffs/Respondents for the lower court explicitly took into cognizance the extraneous issue of possible future amendment by defendants/appellants’ application challenging its jurisdiction.

Issue No. 4 is whether or not the order for retrial made by the Court of Appeal automatically clothe the lower court with jurisdiction which it does not have. This issue is covered by ground 3 of the grounds of appeal.

Learned Counsel contended that the appeal which culminated in the Judgment of the Court of Appeal, Ilorin delivered on 5th day of July, 2004 was as a result of the complaint of the Defendants/Appellants in appeal No. CN/L/18/2002 against the Judgment of the Hon. Justice Sir, S. L. Awe of High Court of Ijero Ekiti, Ekiti State delivered on 18th of June, 1998. Learned Counsel further contended that, the learned trial Judge misconstrued the position of the law when she held that:

“Besides in my view, I want to believe that the appellate court which ordered a retrial had taken into consideration the issue of jurisdiction before ordering a retrial at the court of first instance.”

Counsel submitted that the view of the Learned trial Judge was misconceived and ran foul against the settled position of the law that the issue of jurisdiction is so fundamental and can be raised at any time, even on appeal for the first time. The issue of locus standi and jurisdiction of the trial court was not raised in Appeal No. CA/lL/18/2002 when retrial order was made and so the Court of Appeal did not make any pronouncement or decision in respect of it. He relied on the cases of Ebhodagbe-vs-Okoye (2004) 18 NWLR (Pt. 905) P. 427 at P. 487, Paragraphs F-G; Olutola -vs- Unilorin (2004) 18 NWLR (Pt. 905) P. 416 at P. 446 Paragraphs B – G.

Learned Counsel contended that the trial judge was obviously informed and influenced by other extraneous factors, situations and circumstances other than the issues, submissions and materials placed and contained in the application before her. He submitted that this is fatal to the entire proceedings culminating in the said ruling. He urged us to resolve the issue in favour of the Defendants/Appellants and hold that the issue of jurisdiction was competently raised.

Learned Senior Counsel for the Plaintiffs/Respondents started his argument on this issue by quoting the judgment of the lower court wherein the court held thus:

“On whether it can be said that this preliminary hearing is also part of a retrial, with respect I beg to disagree with learned counsel to the defendants/applicants … ”

Learned Senior Counsel contended that it should be remembered that there was no objection to the hearing of the substantive case before the High Court, Ijero-Ekiti neither was there any before the Court of Appeal, ilorin, so the Court of Appeal could not have contemplated any motion, nor was the court of retrial envisage one.

And when one came twelve (12) years after the substantive case came to court and documents made in 2005 were brought forward to support the application the lower court was, he thinks, was right, to say that could not be a part of the envisaged retrial. After all the stand of the lower court is that the objection on locus and jurisdiction based on false or fraudulent misrepresentation should be proved by oral evidence and not by affidavit.

Learned Senior Counsel submitted that a court at a retrial may hear an objection to jurisdiction such objection must not be frivolous, illegal, unconstitutional and lacking in good faith. All the authorities cited on this issue by t he Defendants/Appellants are not relevant as the cases are not on all fours as the present one. He urged us to resolve this issue in favour of the Plaintiffs/Respondents.

On the other hand, Learned Counsel for the 4th – 6th Defendants/ Respondents submitted with respect contrary to the submission of the Learned Senior Counsel that the issue of jurisdiction was not mentioned at the hearing of the substantive case before the High Court of Ijero-Ekiti and that neither was it raised before the Court of Appeal, ilorin; that it is trite law that the issue of jurisdiction being threshold issue affecting the competence of the court to adjudicate can be raised at anytime in the proceedings of the court. It can even be raised for the first time at the Supreme Court before judgment is given, See: Owie -vs- Ighiwi (2005) 2 S. C. M. Page 149 at 169, Keric -vs- Union Bank (2001) 1 S. C. M. 77 at 81, Isaiah -vs- SPDC (2001) 7 S. C. M. 143 at 146.

Learned Counsel further submitted that the Court of Appeal had acted rightly by not delving into issue not placed before it as the law frowns against adjudication on issues not validly placed before the court. See Abass -vs- Mogaji (2001) 11 S. C. M. Page 1 at 14. He therefore respectfully urge that this issue be resolved against the plaintiffs /respondents.

The fifth issue for determination is whether or not the trial court had not acted in error which has occasioned a miscarriage of justice when it neglected and abandoned the submissions of the defendants/appellants’ counsel on the incompetence of the plaintiffs/respondents. The issue is covered by ground 8 of the ground of appeal.

The Defendants/Appellants challenged the jurisdiction of the lower court on the ground that the Plaintiffs /Respondents do not have locus standi to institute the action and filed the motion dated 18th January, 2005 Exhibit A, A1, A2, B, B1, B2 were attached to the motion. Three sets of further affidavits were also filed in support of the application. Learned Counsel submitted that paragraph 5,6,7,13,14,15,16,20,21 and 22 of the counter affidavit contain extraneous depositions which have no bearing with the issues before the court in breach of the provision of Section 87 of the Evidence Act.

Learned Counsel submitted that failure of the lower court to determine the issue of competence or otherswise of the counter affidavit is grossly fatal and tremendously affect the propriety of the proceedings and the ruling of the lower court delivered on the 17th March, 2005. He relied on the cases of General & Aviation Service Ltd -vs- Thahal (2004) 10 NWLR (Pt. 880) p. 50 AT Pp. 89 -90; Edu -vs- Commissioner for Agriculture (2000) 12 NWLR (Pt. 681) P. 316 at P. 334 Paragraph G – Hand Ogolovs-Ogolo (2003) 18 NWLR (Pt. 852) P. 494 at P. 521 Paragraphs D – E. Learned Counsel urged us to resolve this issue in their favour.

Learned Senior Counsel for the Plaintiffs/Respondents, on this issue contended that, the relevant counter-affidavit to which reference is made in this issue is that of Banjo Aiyenakin, a legal petitioner in the chambers of A. O. Akanle, solicitor to plaintiffs/respondents, the counter-affidavit is on pages 20 and 21 of the record, a look at the affidavit shows that almost all the facts he deposed to are facts known to him or which he got from the record of the case, and so Section 86, 87 of the Evidence Act are not breached.

Learned Counsel submitted that by reason of the illegality and inadmissibility of Exhibits A, A1, A2, B, B1 and B2 as argued supra and as the lower court was of the view that oral evidence be rather led instead of affidavit evidence to prove false and fraudulent misrepresentation, everything about affidavits and counter-affidavit pales into insignificance, plaintiffs/respondents pray that the issue herein be resolve in their favour.

For his part, Learned Counsel for the 4th to 6th Defendants/Respondents adopted the submission of the counsel to the defendant/appellants on this issue and in addition further submitted that, where as in the instant case a court grossly shirks away from its judicial responsibility of considering and decisively pronouncing on a material issues of law as the one under reference here and which failure ultimately occasions a miscarriage of justice as it did here, any decision eventually reached by the court in the circumstance cannot but be perverse and ought not to allowed to stand. Learned Counsel urged us to resolve the issue against the Plaintiffs/Respondents.

Last but not the least issue for determination is issue No. 6 which reads thus:

“whether or not Exhibits A, A1, A2, B, B1 and B2 are relevant and admissible in the determination of the

locus standi of the plaintiffs/respondents in bringing the suit in a representative capacity on behalf of the three ruling houses in view of the provision of Section 91 (3) of the Evidence Act. This issue is covered by ground 9 of the grounds of appeal.

The Plaintiffs/Respondents’ counsel urged the lower court to discountenance Exhibits 1 – B2 for offending the provision of Section 91 (3) of the Evidence Act. The trial Judge held in favour of the Plaintiffs/Respondents’ Counsel and discountenanced the Exhibits.

Learned Counsel for the Defendants/Appellants contended that the trial court misconstrued the provision of Section 91(3) of the Evidence Act which provides thus:

“91 (3) Nothing in this section shall render admissible as evidence any statement made by a person

interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement tend to establish. He also relied on the cases of Apena Aiyetobi (1989) 1 NWLR (Pt. 95) P. 85 at 94, Gbadamosi -vs- Kabo Travels Ltd (2000) 8 NWLR (Pt. 608) P. 243 at P. 278. Learned Counsel submitted that the lower court wrongly rejected the Exhibits which are the credible evidence of the opposition of the ruling houses

against the suit of the Plaintiffs/Respondents. He urged us to resolve this issue in their favour.

Learned Senior Counsel for the Plaintiffs/Respondents, contended that it is curious and baffling that the three ruling houses which could not meet on the court case from 1993 to 2004 suddenly woke up and held three meetings on two successive days (3rd and 4th January, 2005. This shows that the meetings are conspiratorial everything was done to discredit plaintiffs/respondents and the case they brought to court and to espouse the cause of fourth (4th ) defendant/appellant. Surely all those who purportedly attended the meetings are not only interested in the matter before, they are deeply involved in the matter. He relied on cases of Anyaebosi -vs- R. T. Briscoe, 1987, 3 NWLR (Part 59) 84 at 98-99, Paragraphs F – A. He urged us to resolve this issue in their favour.

Learned Counsel for the 4th – 6th Defendants/Appellants submitted that the fact that the argument by the

Plaintiffs/Respondents’ Counsel that the Exhibits A, A1, A2, B, B1 and B2 are being made twelve (12) years after the case came to court does not render the said Exhibits inadmissible in law. And neither does the provision of section 91(3) of the Evidence Act avail the Plaintiffs/Respondents as the makers of the said Exhibits have no proved interest in the outcome of this case and that all they did through the Exhibits was to denounce the representative capacity of the Plaintiffs/Respondents without more.

Learned Counsel urged us to allow the appeal of the Defendants/Appellants and the Plaintiffs/Respondents suit be dismissed with heavy cost.

Now, as I have earlier stated in this judgment, only the Appellants formulated issues for determination which the other parties adopted. That being the case, I intend to treat all the issues together and at once.

The bone of contention is whether or not the Learned trial Judge was right in dismissing the Defendants/Appellants motion without calling for oral evidence to resolve the conflicting affidavit evidence she had noticed and identified in her ruling thus:

“in my view these are no mean allegations they are serious and ought to be so treated and resolved in the interest of justice by calling witnesses to lead evidence to assist the court to do what is right in the prevailing circumstances. ”

In the case of General and Aviation Service Ltd -vs- Thahal (2004) 10 NWLR (Pt. 880) P. 50 at P. 90 Para D – E, the apex court per Ejiwunmi JSC held as follows:

“Again, I must observe with the utmost respect that had the court below considered carefully the affidavit evidence of the parties before it, it would have refrained from upholding the ruling of the trial court. This is because the court below would have concluded that as the evidence of the appellants sufficiently challenged the basis of the affidavit petition, such evidence cannot be the basis of exercising properly the discretion of the court without taking oral evidence to resolve the opposing evidence made available by their affidavit”. (Underling supplied for emphasis).

Again, in the case of Mark -vs- Eke (2004) 5 NWLR (Pt 865) P. 54 at 81, Paras C – E, Musdapher JSC held thus:

“The lower court was also in error to have held that there were sufficient facts upon which the court could come to the conclusion that the appellant were served, when the lower court failed to mention the other pieces of evidence. Such a finding is perverse since it is not supported by any evidence on the printed record. I am of the view that there was no material available to enable the lower court resolves the differences as contained in the two affidavits, recourse must be made to calling oral evidence to arrive at the truth whether the appellants were served with the originating process or not.” (Underling supplied for emphasis).

This court in the case of Kabiru -vs- Ibrahim (2004) 2 NWLR (Pt. 857) p. 326 at 348, per Adamu JCA held as follows:

“It is trite that where there is or are a conflicts or conflicts in the two affidavits filed respectively by both parties before the trial court, the court should resolve such conflict(s) by calling oral evidence. Once the two affidavits shown an irreconcilable issue there should be a full trial in order to resolve the conflict. The rational for the need to hear oral and other evidence in resolving the conflict is because the issue to be determined and on which there is a conflict can only be determined by the evidence of the parties themselves rather than by the opinion of the court. Thus conflicts in the proceedings can only be resolved by the testimony of the parties or other evidence or witnesses called by them and it is not the function of the trial court to supply or rely on other written documents of one of the parties in the resolution of such conflict(s) as this selective backing or support of one of the parties can or will reduce the said trial judge as a participant in the proceeding and is capable of weakening the onus of proof of one of the parties.” (Underling supplied for emphasis).

I am of the considered view that from the circumstances of this case and going by the settled position of the law as enunciated and endorsed by the Supreme Court and the Court of Appeal in the above cited cases, the trial court was wrong and acted in error and without jurisdiction when it dismissed the Appellants’ motion without calling for oral evidence to resolve the conflicts it perceived and noticed in the affidavit evidence before it.

Learned Senior Counsel for t he Plaintiffs/Respondents has made heavy weather out of section 91 (3) of the Evidence Act. He urged the lower court to discountenance Exhibits A – B2 for offending the said section. The said Exhibits, were made, according to the Learned Senior Counsel by persons interested at a time when proceedings were pending.

For a better understanding of the argument canvassed supra, Section 91 (3) of the Evidence Act, is hereby reproduced. The section provides thus:

“91 (3) Nothing in this section shall render admissible as evidence any statement made by a person

interested at a time when proceedings were pending or anticipated in involving a dispute as to any fact which the statement tend to establish” (Underling supplied for emphasis).

The key phrase as underlined (supra) is person interested at a time when proceedings were pending or anticipated. The question to be asked is whether those who made the Exhibits in question (Exhibits A – B2) are persons personally interested in the case filed by the Plaintiffs/Respondents?

In the case of Sasona Pharm Co. vs Sol Pharm Ltd (Supra) heavily relied by the Learned Senior Counsel, this court per Sanusi JCA on page 68, Paragraphs D – F held as follows:

“As general principle, document made by a persons interested when proceedings are pending or is anticipated is not admissible. This provision in my humble view excludes document made in anticipation of litigation by a person who is not personally interested in the outcome of the litigation. In other words, the disqualification of a person as (person interested) relates only to a situation where such a person has personal interest in the matter and not where he merely has interest in an official capacity. Thus where the interest of the maker of the document is purely official or as a servant or employee having no direct personal interest these provisions do not apply to him and as such is admissible.”

I am of the opinion that members of the three ruling houses who if actually signed Exhibits A, A1 and A2 are not persons personally interested in the case filed by the Plaintiffs/Respondents. They have no temptation to depart from the truth as they stand to gain or suffer nothing in whichever way the outcome of the case goes.

Again Learned Senior Counsel with respect made heavy weather of the fact that the Appellants had not raised the issue of locus standi for the past 12 years of the commencement of the proceedings in this matter. With due respect to the Learned Senior Counsel; it is not correct to say that they (Defendants/Appellants) did not raise the issue of locus standi at the inception of this case. The 1st – 3rd Defendants/Appellants in their state-ment of Defence filed since the inception of the case had drawn attention to issue of lack of locus of the Plaintiffs/Respondents to institute this suit. See paragraphs 5, 6 and 7 of the Supplementary record.

That aside, the issue of locus standi being a jurisdictional issue can be raised at any time even on appeal for the first time.

In the case of Ebhodagbe -vs- Okoye (2004) 18 NWLR (Pt 905) P. 472 at P. 487, Paras, F – G, it was held thus:

“It is not in dispute both Learned Counsel for the parties agreed with the general principle that jurisdiction is a central issue to any case before any court and once it is challenged, the court concerned is duty bound to determine whether it has jurisdiction first before proceeding to entertain the case.”

Again in the case of NDIC-vs- C. B. N. (2002) 7 NWLR (Pt. 766) P. 272 at P. 269, Paras B – E, Uwaifo JSC held as follows:

“To say, therefore, as did the court below and canvassed by the plaintiffs/respondents before us in its brief of argument that objection to jurisdiction should only be taken after the statement of claim has been filed is a misconception. It depends on what matters are available. It could be taken on the basis of the statement of claim… It could be taken on the basis of the evidence received…or by a motion supported by affidavit giving the facts upon which reliance is placed. But certainly it could be taken on the face of the writ of summons where appropriate … as to the capacity in which an action was being brought or against whose action is brought.”

See also the following cases:

(i) Adeyemi -vs- Opeyori (1976) 9 – 10 S. C.31.

(ii) National Bank (Nig) Ltd. -vs- Shoyeye (1977) 5 S. C. 181;

(iii) Jeric (Nig) Ltd. -vs- U. B. N. Plc. (2000) 15 NWLR (Pt. 691) 447;

(iv) Odofin -vs- Agu (1992) 3 NWLR (Pt. 229) 350;

(v) Ajayi -vs- Mil. Adm. Ondo State (1997) 5 NWLR (Pt. 504) 237.

In the light of all that I said, the Learned trial judge was wrong not to have resolved the seeming conflicts in the Affidavits filed by the litigants by taking oral evidence before dismissing the application of the Appellants. This appeal is pregnant with a lot of merit and same must be and it is hereby allowed. The Ruling of the lower court is hereby set aside.

In accordance with powers of this Court spelt out under Section 16 of the Court of Appeal Act, I order as follows:

1. That the Chief Judge of Ekiti State re-assigns this suit to another Judge other than Hon. Justice M. O. Abodunde for re-hearing.
2. That the application of the Defendants/Appellants dated and filed on 18th day of January, 2005

and the substantive action be heard de- novo

3. There shall be no order as to costs, each party should bear its own cost of the appeal.

Appeal allowed.

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Other Citations: (2007)LCN/2309(CA)