The Attorney-general Ekiti State V. H.R.H. Oba M. Bamiteko & Anor. (2007)
LawGlobal-Hub Lead Judgment Report
IGNATIUS IGWE AGUBE, J.C.A.
In the High Court of Ekiti State holden at Ido-Ekiti the plaintiffs/Respondents claimed as per their Amended Statement of claim dated the 4th November, 2005 for the following:-
- A declaration that the Onigogo of Igogo is not the sole person who should appoint the Edemo of Igogo-Ekiti.
- A declaration that by the Igogo-Ekiti native Law and Custom, it is the Idemo Community that selects the Edemo and presents him to the Onigogo to be appointed to the Edemo Chieftaincy stool.
- A Declaration that the appointment of Kolawole Adewunmi to the vacant stool of the Edemo of Igogo Chieftaincy stool is unconstitutional, against Igogo native Law and custom, wrongful and: therefore null and void.
- An order of the Court revoking the appointment of Kolawole Adewunmi, the second Defendant to the Edemo Chieftaincy stool of Igogo-Ekiti and that Kolawole Fakunle be appointed and installed the Edemo forthwith.
The 3rd Defendant/Appellant/Applicant was joined as a party by an order of the High Court dated 13th October, 2005 and having observed that the plaintiffs/Respondents did not exhaust the relevant statutory administrative remedies available under the Chiefs Edict No. 11 (as applicable to Ekiti State) before coming to Court, immediately filed a notice of preliminary objection on the following grounds:-
i. That the Lower Court had no original jurisdiction by way of declaration order to adjudicate on disputes relating to nomination, selection and appointment to the Chieftaincy stool of Edemo of Igoro-Ekiti or determine the rightful ruling house to Edemo of Igoro Stool or generally hear for determination Chieftaincy matters which is the first instance jurisdiction of the Executive given under the Chiefs Edict of 1984 (as Amended Applicable to Ekiti State) Except by way of review or supervision of matters done thereunder.
ii. That issues raised on the writs of summons, the pleadings of all parties herein and by the declaration sought are Chieftaincy disputes, the power to hear and resolve which are given to relevant statutory bodies under the said Chiefs Edict as a tribunal of first instance before calling on the Court’s jurisdiction.
iii. That plaintiff has no cause of action.
Upon hearing, the preliminary objection the Learned Honourable Justice M. A. Agbelusi dismissed same as lacking in merit. Dissatisfied with the Ruling of the Lower Court aforesaid, the 3rd Defendant/Applicant filed a notice of Appeal on the 9th of November, 2006 as well as an Application for stay of proceedings on the same date, pending the determination of the appeal.
The Lower Court again refused the application for stay in its Ruling dated 14th December, 2006 on the ground that the 3rd Defendant/Appellant Applicant did not obtain leave of the Lower Court before filing the Notice of Appeal.
This application which is predicated on the refusal of the lower Court to grant the stay of proceedings as prayed, now prays this Court for the following orders:-
(a) an order of this Honourable Court extending time” within which to bring application for a stay of proceedings;
(b) an order for a stay of proceedings of the substantive suit pending the determination of an appeal filed on the 9th of November, 2006 by the 3rd Defendant/Appellant/Applicant herein against the ruling of the Lower Court delivered on the 31st of October, 2006. AND for such further Order or other orders as this Honourable Court may deem fit to make in the circumstances.
In support of the application is an affidavit of twelve paragraphs deposed to by the litigation clerk in the chambers of the Appellant/Applicant’s Counsel – one Tope Ajayi, male, Christian of No. 20 Ijigbo Street, Ado Ekiti.
The relevant paragraphs of the affidavit some of which have been alluded to in the statement of the facts of the case are hereunder reproduced thus:-
“4. That SBJ Bamise Esq Counsel to the Defendant/Appellant/Applicant informed me and I verily believe him as follows:-
(a) That the suit, which this order of stay of proceedings is being sought, is in respect of a minor chieftaincy.
(b) …………………………………………………
(c) …………………………………………………
(i) …………………………………………………
(ii) …………………………………………………
(iii) ………………………………………………
(d) That the Notice of preliminary objection was argued on 10th October, 2006.
(e) That the lower court dismissed the preliminary objection via its ruling delivered on 31st of October, 2006 and assumed jurisdiction. Attached herewith is the said ruling shown to me and marked as Exhibit A.
(f) That the 3rd Defendant/Appellant/Applicant dissatisfied with the Ruling immediately filed a Notice of Appeal on 9th November 2006 against the said ruling attached herewith is a copy of the said Notice of Appeal shown to me and marked as “Exhibit B”.
(g) That when the lower court dismissed the said preliminary objection and assumed jurisdiction to hear the suit, the 3rd Defendant/Appellant/Applicant quickly filed an application dated 9th November, 2006 asking the lower court for an order staying proceedings in the substantive ‘suit pending Appeal.
(h) That the lower court refused the application for stay of proceedings via its ruling delivered on the 14th of December, 2006 on the ground that the 3rd defendant/appellant/applicant did not obtain: the leave of the lower court before filing the Notice of appeal. Attached herewith is the said ruling shown to me and marked as “Exhibit C”.
(i) That SBJ Bamise Esq of Counsel informed me and I verily believe him that the two grounds of Appeal in the 3rd defendant/appellant/applicant’s notice of Appeal are on questions of law as the first ground touches on non-compliance with the provision of a statute i.e. the Chiefs Edict No.11 of 1984 Laws of Ondo State as applicable to Ekiti State while ground two touches on the question of law that the lower court delved into substantive matter at the interlocutory stage and as such the Defendant/Appellant/Applicant did not seek leave of court before filing appeal in this matter.
(i) That the two grounds of Appeal are genuine grounds of Appeal which one of them touches on the lack of jurisdiction on the part of the lower court to entertain the suit as a court of first instance, therefore granting an order of stay of proceedings of the substantive suit is not only expedient but a must in these circumstances.
“5. That SBJ Bamise Esq of Counsel also informed me and I verily believe him that since the ruling of the lower court dismissing the preliminary objection which was against the jurisdiction of the lower court is a final order, the defendant/appellant/applicant need not obtain leave of court before filing appeal in this respect since the order borders on jurisdiction of the lower court and is a final order.
“6. That SBJ Bamise Esq of Counsel further informed me and I verily believe him that it is necessary in the interest of justice to bring the same application for stay of proceedings before this Honourable Court so that the proceedings in the substantive suit before the lower court can be stayed/pending the Appeal already lodged before the lower court as the Notice of Appeal together with record of Appeal would soon be forwarded to this Honourable Court.
“7. That the delay in bringing this application is not deliberate as the delay was occasioned by several national holidays declared by the Federal Government in respect of Christmas and New Year and Sallah as a result, it was difficult to obtain from the lower court certified true copies of the necessary exhibits to be attached to this application particularly the Ruling of the lower court refusing the stay of proceedings.
“8. That the lower court is determined from all indications to conclude this matter despite that it lacks jurisdiction to hear same except by way of judicial review.
“9. That it is in the interest of justice that this Honourable Court should grant this application by staying the proceedings in the substantive suit pending Appeal.
“10. That the plaintiff/Respondents would in no way be prejudiced if the application is granted.
“11. That the Defendant/Appellant/Applicant is determined to prosecute the appeal without any delay.”
In reaction to the affidavit of the 3rd Defendant/Appellant/Applicant the plaintiffs/Respondents through Alhaji A. Ajibade, Counsel in the chambers of A.O. Akanle SAN and Company the solicitors to the plaintiffs/Respondents deposed to a sixteen paragraphed counter-affidavit the salient paragraphs which are also hereunder reproduced as follows:
“6. That paragraphs 5(a), (c), (d), (e), (f), (g) and (h) are true while paragraphs 4(b), (i), (j), 5, 6, 7, 8, 9, 10 and 11 are untrue and false.
“7. That contrary to the deposition in paragraph 4(b) of the affidavit in support, the respondents have exhausted the relevant statutory administrative remedies available for them before coming to court.
“8. That contrary to the depositions in paragraph 4(i) and (j) of the applicant’s affidavit, the two grounds of appeal and their particulars are not strictly of questions of law but of mixed law and facts for which the leave of the court is required.
“9. That the genuiness of the two grounds of appeal is just a mere fabrication and figment of the imagination of the applicant.
“10. That contrary to the deposition in paragraph 5 of the affidavit in support, the said ruling of the lower court is an interlocutory one as it does not terminate or dispose of the rights of the parties.
“11. That the interest of justice will only be better served if this application for stay of proceedings is refused as it is just a ploy to unnecessarily delay the hearing of this case which has been in court since the year 2002.
“13. That the grounds of Appeal contained in the purp01ied Notice of appeal can form the basis of a final appeal of the whole case as the res in the case is not a perishable object and both final and interlocutory appeals can go on together.
“14. That this application is brought mala-fides therefore the grant of such will prejudice the Respondents.
“15. That it is not in the interest of justice to grant this application.”
A further And Better Affidavit was deposed to by the Applicant in reaction to the Respondents’ counter-affidavit. However, I will only bother myself with paragraphs 4 (iii), (iv) and (v), 5 and 6 thereof, which aver thus:-
“4 (iii): – That contrary to paragraph 13 of the; plaintiffs/Respondents counter-affidavit the appeal will dispose of the right of the parties, hence it is better a stay of the proceedings of the substantive matter is granted.
(iv) That it would be inexpedient, irregular and time wasting for the parties to go all along with the substantive matter when from all indications the jurisdiction of the lower court is questionable.
(b) That there are substantial issues to be tried in respect of this suit.
“5. That SBJ Bamise Esq of counsel informed me and I verily believe him, that the two grounds in the Notice of Appeal raise issues of substantial point of law which will necessitate this Honourable court in granting the prayer for stay of proceedings pending the final determination of the appeal.
“6. That the said Counsel, whom I verily believe, further told me that if the proceedings of the substantive suit is not stayed pending the determination of the appeal, the whole exercise before the lower court’ would be in futility,”
As the other paragraphs of the further and Better Affidavit are repetitive of the affidavit in support and delve into the substantive issues to be canvassed in the main appeal – a temptation which is common to both the Applicant and Respondents in their respective averments, I am minded to discountenance them.
In view of the contentious nature of the application this court ordered that written addresses be filed by the parties, which they obliged.
The Applicant, in the written Address dated 8th February, 2007 and filed on the 9th day of February, 2007 formulated three issues for determination which are stated below thus:-
- WHETHER OR NOT THE TWO GROUNDS OF APPEAL ARE ON QUESTION of LAW ALONE IN WHICH CASE THERE WOULD BE NO 1 , NEED FOR LEAVE OF THE LOWER COURT TO APPEAL, OR, IN THE ALTERNATIVE WHETHER OR NOT THE APPEAL ALREADY LODGED BEFORE THE LOWER COURT IS COMPETENT TO GRANTING A STAY OF PROCEEDINGS – (Paragraph 4(i) of supporting affidavit refers).
- WHETHER OR NOT GRANTING A STAY OF PROCEEDINGS WHERE THE GROUNDS OF APPEAL ARE GENUINE AND BORDER ON JURISDICTION OF THE LOWER COURT, IS EXPEDIENT AND A MATTER OF MUST NOT DISCRETION – Paragraph 4(i) of the supporting affidavit refers).
- WHETHER OR NOT THE DECISION OF THE LOWER COURT DISMISSING THE PRELIMINARY OBJECTION TO ITS JURISDICTION IS A FINAL ORDER AND NOT INTERLOCUTORY IN WHICH CASE THERE WOULD BE NO NEED FOR LEAVE OF THE LOWER COURT TO APPEAL – (paragraph 5 of the supporting affidavit refers).
On the other hand the learned counsel for the plaintiffs/Respondents Bola Aruleba Esq formulated four issues for determination by the court which are:-
- Whether by merely looking at an issue or a ground of Appeal on the surface or classifying same as a matter of jurisdiction is enough reason for the court to conclude and classify that a question of law alone has been raised. Or whether there are steps the court will consider before concluding and classifying same.
- Whether it is all cases where the issue of jurisdiction is raised that the court will grant a stay.
- Whether the Ruling of the lower court being appealed against is final and interlocutory.
- Whether by mere observation of the court, which does not touch on the reliefs of the parties in the substantive suit before the court, the court had delved into the substantive suit.
Before delving into the arguments proffered in the addresses of counsel I must remark from the onset that apart from issues Number 2 of each of the parties none of the issues formulated relates to the application in question before this court. The rest of the issues formulated relate substantially to the main appeal and it would be premature for this court at this interlocutory stage to consider the issue of competence of the Grounds of Appeal or whether they are on questions of law alone or mixed law and facts such that leave ought to be sought from the lower court before the Appeal was filed.
All the arguments proffered on Issue Numbers 1 and 3 of the Applicant and Numbers 1, 3 and 4 of the Respondents shall therefore be discountenanced as I refuse to be lured into delving into substantive issues that ought to be raised on the appeal now pending before this court.
For now, the application before this court is simply one for extension of time within which to bring an application for stay of proceedings and an order for stay of proceedings pending the determination of the Appeal filed on 9th November, 2006 by the Appellant/Applicant.
Order 3 Rule 4(1) of the court of Appeal Rules provi0es that: “The Court may enlarge the time provided by these Rules for the doing of any thing to which these Rules apply”.
On the other hand Rule 3(3) and (4) of Order 3 of the Rules provide thus:-
“3(3) Where an application has been refused by the court below, an application for a similar purpose may be made to the court within fifteen days after the date of the ‘refusal.
(4). Where ever under these rules an application may be made either to the court below or to the court it shall not be made; in the first instance to the court except where there are special circumstances which make it impossible or impracticable to apply to the court below.”
From the foregoing provisions of the Rules, it is clear that the Appellant/Applicant who had brought the application for stay of proceedings in the lower court ought to re-present the said application before this court within fifteen days after the lower court had refused same on the 14th day of December 2006. However, it was not until the 31st day of January, 2007 that this motion dated the same day, was filed out of time.
Accordingly in line with order 3 Rule 4(1) of the Court of Appeal Rules, 2002 the Appellant/Applicant seeks enlargement of time with which to bring the application.
From a plethora of judicial authorities, applications of this nature are not granted just for the asking. The applicant must furnish the court with sufficient, cogent and compelling reasons why the application was not brought timeously.
In this application although learned Counsel for the appellant/applicant has not adumbrated in his argument any reason why the Applicant delayed in the making of this application, it would appear that the content of paragraph 7 of the affidavit in support of the motion, wherein the applicant through his Counsel deposed to the fact that the delay in bringing the application was not deliberate; that it was occasioned by several National Holidays declared by the Federal Government in respect of Christmas, New Year and Sallah which inhibited their ability to obtain certified true copies of the necessary exhibits to be attached to the application is good and substantial reason why time should be extended for the appellant/Applicant to bring this application. Accordingly, and in line with the dictum of Uwais Ag. C.J.N. (as the then was) in the case of OKAFOR VS. BENDEL NEWS PAPER CORPORATION (1991) 7 NWLR (part 206) 651 at 662-663 wherein he said:-
“Order 3 rule 4(1) does not prescribe any condition in which an application for an extension of time simpliciter should be granted:. It is left to the court to use its discretion as it deems fit. This implies that in’ considering an application under Order 3 rule 4(1) the Justices of the Court of Appeal are obliged to exercise their discretion judicially”, and upon a careful Perusal of the affidavit of the Appellant/Applicant and considering the length of delay and the explanation proffered, I am satisfied that the delay in bringing this application was not inordinate and accordingly I am bound to exercise my discretion in favour of the Applicant. See AGBEYEGBE VS. IKOMI (1949) 12 WACA 383 at 385-386.
On the prayer for stay of proceedings the Learned Counsel for the Applicant has argued on Issue Number 2 of his written address and submitted that the Grounds of Appeal contained in the Notice marked Exhibit A to the motion paper are genuine and not frivolous and in particular that Ground 1 touches on the jurisdiction of the lower court to entertain the substantive suit. Placing reliance on the cases of EZE VS. OKOLONJI (1997) NWLR (pt. 513) 515 at 529-530 paras. H-A; OWENA BANK (NIG.) PLC. VS. OLATUNJI, (1999) 13 NWLR (pt.634) 218 at 230 PARA A; JADESIMI VS. OKOTIE EBOH (1986) 1 NWLR (PT.16) 264 and AKILU VS. FAWEHINMI (INO.2) (1989) 2 NWLR (PT.102) PARA-A; the learned Applicant’s counsel further submitted that jurisdiction is very important to the adjudicatory process and since the ground of Appeal attacks the jurisdiction of the lower court to hear the substantive matter, this court must necessary grant a stay.
On the part of the Respondents’ Counsel it is submitted per contra that it is not in all cases where the issue of jurisdiction is raised that the court will grant a stay of proceedings of the substantive suit more so if the issue ca~ still wait and be determined at the final appeal of the substantive suit. He has cited SAIPEM SPA VS. FEFA (2002) 16 NWLR (PT. 793) 410 at 430 paras A-D ARAKA VS. EGBUE (2003) 17 NWLR (PT. 848) page I at 22-23 para. F; OBA E. O. AYENI & ORS VS. PRINCE R. A.A. ELEDO & 3 ORS (2005) 12 NWLR (PT.939) at 368, to buttress the above submission.
Learned Counsel for the Respondent has also pointed out that the courts have held in a plethora of cases that an order of stay of proceedings where sought by a party to an action is not granted as a matter of course. It is made, according to him, subject to a judicious and judicial exercise of the discretion of the court having regard to all the materials placed before it and in the interest of justice. EZE VS. OKOLONJI (1997) NWLR (pt.513) 515 at 529-530 paras. H-A supra cited by Counsel for the Applicant, referred to and also ALAMIEYESIGHA VS. THE FED. REP. OF NIGERIA & 7 ORS (2006) 16 NWLR 1 (Pt.1004) 1 at 116-117
PARAS G-B; C.A.
It has been contended further by learned Respondents’ Counsel that this Hon. Court has in OBA AYENI & 2 ORS VS. PRINCE ELEDO & 3 ORS Supra dismissed an application of this nature founded on jurisdi6tion and that on the authority of AROSOYE VS. UBA (1986) 2 NWLR (PT.20) 101 at 112 Paras G-H; where the interlocutory order made by the trial court does not dispose of the case, the court will not grant a stay of proceedings.
He further submits that the genuiness of the grounds of appeal as contended by the Applicant is a mere fabrication and figment of the imagination of the Applicant as all the remedies available to the plaintiffs/Respondents as provided by section 13(5) (6) of the Chiefs law or Edict No. 11 1984 (as amended) Laws of Ondo State were exhausted before they commenced the action in the lower court.
According to Counsel for the Respondents, the only grouse of the Applicants is that they (the Respondents) did not await the out come of the panel of inquiry set up pursuant to subsection 6 of Section 13 of the Chiefs Edict. It was therefore their submission that throughout the length and breadth of section 13 of the Edict there is no where it says that an aggrieved party, after making representation to the Executive Council member charged with Chieftaincy Affairs, should await the out come of the inquiry not withstanding the fact that the authority is prevaricating and dilly-dallying on the issue.
Learned Counsel for the Respondents then went on to recount the genesis of the dispute culminating in their protests against the conduct bf the Panel and in particular the participation of the 1st Defendant who hosted and feasted the panel but that the authority did not set up an independent panel but urged the Respondents to await the outcome of the inquiry before going to court.
Citing again the case of UNIVERSITY OF ILORIN & ANOR VS. OLUWADARE (2003) 3 NWLR (PT.808) page 557 at 580-583 paras D-F and OWOSENI VS. FALOYE (2005) 14 NWLR (PT.946), 719 AT 757 PARAS B-C and E-H he maintained that this court had held that section 6(6) (b) of the 1999 constitution guarantees uninhibited right to every person to go to court to seek a determination of any question as to his civil rights and obligations – as he was not obliged to wait for the outcome thereof to be able to file an ‘action in court.
Finally, the Learned Counsel for the Respondents posited that the Respondents had averred in their counter-affidavit that the grant of this application will not be in the interest of justice as the application is a mere ploy to’ unnecessarily delay the hearing of the case which they filed five years ago.
The grounds of Appeal he urged can be taken together with the substantive appeal if the judgment goes either way OBA AYENI & ORS VS. PRINCE ELEDO & ORS supra was relied upon to urge the court to refuse the application.
There is no doubt as the learned Counsel for the Respondents has argued citing the authority of EZE VS. OKOLONJI supra, which was mutually, relied upon by the respective Counsel for the parties that application for stay of proceedings is not granted as a matter of course.
The position taken by this Court in CHIEF B.S. ALAMIEYE SIGHA VS. FEDERAL REPUBLIC OF NIGERIA SUPRA and the plethora of other authorities cited are also in line with settled principles of law that an order of stay of proceeding is a very serious, grave and extraordinary truncation of judicial process and an exception to rule that a party should be allowed to prosecute his case in accordance with constitutionally guaranteed right of access to court to ventilate his grievances timeously and without let or hindrance. Thus in order for such an order to be made the Applicant must place before the court cogent and compelling reasons one of which is that it would be unjust and inequitable not to stay the proceedings.
In this wise the courts have laid down a number of criteria to be considered before a court can exercise its undoubted judicial and judicious discretion to grant such an order of stay. The onus therefore lies squarely on an applicant such as this to establish to the satisfaction of the court that he merits the grant of the order he seeks by meeting the said criteria in view of the position of the law that an Appeal does not operate as a stay of proceedings. See KIGO (NIGERIA LTD VS. HOLMAN BROS. NIGERIA) LTD & ANOR (1980) 5-7 S.C. 60.
In the recent case of P.D.P. VS. ABUBAKAR (2007) 2 NWLR (pt.1018) 303 at 314-315 the Court of Appeal Abuja Division per Adekeye J.C.A. held that “The exercise of discretion to grant a stay of proceedings will be prompted by the peculiar circumstance of each case in which all factors for and against the grant of stay of proceedings must be carefully and meticulously weighed (AYENI VS. ELEDEO (2005) 12 NWLR (pt.939).”
Furthermore the Learned Justice emphasized the need for a stay of proceedings to be granted only upon the disclosure of special and exceptional circumstances by the applicant particularly a genuine issue of jurisdiction raised in the pending Appeal. However, my Lord cautioned rightly in my view, that the issue of jurisdiction should not be used as a camouflage; neither should it be seen as a magic wand to conjure a stay of proceeding Re-echoing the dicta in KIGO (NIG) LTD VS. HOLMAN BROS. (NIG). LTD Supra, AREJOYE VS. U.B.A. (1986) 2 NWLR (pt.20) 101; OKEM ENTERPRISES LTD VS. NDIC (2003) 5 NWLR (pt.814) 492; EZE VS. OKOLONJI Supra at 515; JADESIMI VS. OKOTIE EBOH (1986) 1 NWLR (PT.16) 264, OWENA BANK (NIG.) PLC VS. OLATUNJI (1991) 13 NWLR (pt.634) 218 most of the cases which have been cited by the Applicant’s Counsel, she further held that the Court will grant a stay of proceedings where the issue of jurisdiction will have the effect of , terminating the case after an Appeal is heard and determined.
In our instant case the Applicant has averred in paragraphs iv(i) and iv(j) that the Appellant/Applicant’s GROUNDS of Appeal are on questions of law as the first ground touches on non-compliance with the provision of a statute i.e. the Chiefs Edict No. 11 of 1984 Laws of Ondo State (as Applicable to Ekiti State) while ground two touches on questions of law that the lower Court delved into substantive matter at the interlocutory stage.
A look at Exhibit B which is the Notice of Appeal annexed to the affidavit in support of the application would reveal that Ground 1 complains of error in Law and specifically states without its particulars thus:-
“GROUND 1
ERROR IN LAW
“The Learned trial Judge erred in law and thereby occasioned a miscarriage of Justice by dismissing the application of the 3rd defendant/appellant and assuming jurisdiction to entertain the Suit when the plaintiffs have not exhausted all administrative and statutory remedies available to them before coming to Court.”
Going by decided authorities, in order to determine whether an issue of jurisdiction is genuinely raised, the Court ought to meticulously and microscopically examine the Grounds of Appeal and the entire proceedings. See P.D.P. vs. ABUBAKAR supra at page 315 paragraphs G-H.
On a careful perusal of the Grounds of Appeal above highlighted it is clear that it raises the issue of jurisdiction. However, the genuiness of the issue is another question, which will determine the fate of this application. ‘
Counsel for the Appellant/Applicant has referred to section 13(5), (6) and (7) of the Chiefs Edict No.11 of 1984 Laws of Ondo State (as applicable to Ekiti State) which provides as follows:-
“13(5) Any person who is not satisfied with the decision of the prescribed authority may within twenty-one days from the receipt of the notification make representations to such member of the Executive Council to whom responsibility for Chieftaincy Affairs is assigned that the decision be set aside and he may, after considering the representations confirm or set aside the decision.
Before exercising the powers conferred by subse6tion (5) of the section, the member of the Executive Council responsible for Chieftaincy affairs may cause such inquiries to be held as appear desirable.
Where this member of the Executive Council responsible for Chieftaincy Affairs in his determination under Subsection 6 of this Section sets aside an appointment to a Chieftaincy he shall require the persons responsible under Customary Law for the appointment of the person to fill the vacancy in that Chieftaincy to appoint another person in accordance with the Customary Law within such time as he may specify.
From the foregoing it is clear that the Chiefs Edict prescribes a condition precedent to be fulfilled where a party, is not satisfied or is aggrieved by the decision of a prescribed Authority to appoint a person to the Minor Chieftaincy stool, to make representations to a member of Executive Council in charge of Chieftaincy Affairs to set aside the decision and after due consideration of the representations such a member shall either confirm or set aside the decision.
However, before exercising the power of review of the decision of the prescribed Authority, he may cause an enquiry to be held as maybe desirable. It has been disclosed in paragraph 4(ii) of the Further And Better Affidavit that the plaintiffs/Respondents never exhausted the statutory and administrative remedies before approaching the Court for adjudication as the Commissioner in charge of Chieftaincy Affairs who set up an inquiry was not allowed to come out with his findings before the plaintiffs/Respondents rushed to Court.
Earlier on the Respondents had averred in paragraph 7 of their counter-affidavit that contrary to the deposition of the Applicant, they had exhausted the relevant statutory administrative remedies available before coming to Court.
In the locus classicus of MADUKOLU & ORS. VS. NKEMDILIM (1962) 1 ALL NLR 587 at 504 Bairamian F.J. (as he then was) stated the principles of law as far as jurisdiction is concerned, which have been accepted to successive cases in this country thus:-
“A Court is competent when:-
(1) It is properly constituted as regards numbers and qualifications of the members of the bench
(2) The subject matter is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(3) 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.” See SKENCONSULT (NIG.) LTD. & ANOR. VS. GODWIN SEKONDY UKEY (1981) 1 S.C. 6 at 26; SALATI VS. SHEHU (1986) 1 S.C. 332 at 374 Per Karibi-Whyte J.S.C.
In our instant case Ground 1 of the Grounds of Appeal seems to be complaining that as at the time the Lower Court heard the case it was not seised of the relevant jurisdictional competence to entertain same in that the subject-matter of the case was not within the original jurisdiction of the said court.
Secondly, there was a feature, in the case (the non-exhaustion of the statutory remedies available to the plaintiffs/Respondents before proceeding to Court), which prevented the court from exercising jurisdiction.
Thirdly, the case was not initiated by due process in that the condition precedent (that is waiting for the outcome of the Commission of inquiry set up by the Commissioner for Chieftaincy Affairs Ekiti State to consider the representations made by the plaintiffs); was not fulfilled before the plaintiffs/Respondents rushed to Court.
Other Citations: (2007)LCN/2359(CA)
