Victor Adegoke Adewumi V. Attorney-general Of Ekiti State (2002)

LAWGLOBAL HUB Lead Judgment Report

A. B. WALI, J.S.C

By paragraph 34 of the statement of claim, the plaintiffs seek for the following reliefs against the defendants:

“WHEREOF the plaintiffs claim against the defendants:

i. DECLARATION that 1st – 4th defendants were aware of the various motions for injunction in HAD/48/84 and other steps taken to conclude the case when the 1st – 4th defendants flagrantly rushed the purported selection of a new Ewi of Ado-Ekiti without due regard to the processes of law.

ii. DECLARATION that only Omo Orites qualified under 1960 Declaration on Ewi of Ado-Ekiti can be lawfully considered for appointment as Ewi of Ado-Ekiti.

iii. DECLARATION that the 5th defendant is not an Omo Orite and does not qualify to become

an Ewi of Ado-Ekiti under the 1960 Declaration.

iv. DECLARATION that the 1984 Declaration on Ewi of Ado-Ekiti under which the 5th defendant was purportedly appointed is invalid, irregular null and void.

v. DECLARATION that the purported appointment of the 5th defendant based on the 1984 Declaration on Ewi of Ado-Ekiti is invalid null and void.

vi. DECLARATION that after the passing away of Oba Aladesanmi from Aroloye Ruling House, it is the turn of Atewogboye Ruling House to present the next Ewi of Ado-Ekiti.

vii. DECLARATION that the 1st-4th defendants were parties to suit No. HAD/48/84 the plaintiff

v. 1st defendant and 17 Ors.

viii. INJUNCTION restraining the 5th defendant from parading himself as the Ewi of Ado-Ekiti and the other defendants from recognising Ewi of Ado-Ekiti.”

After the pleadings had been duly filed and exchanged the 1st defendant the Attorney-General of Ondo State brought an application dated 7th day of April, 1992 in the trial court seeking the following:

“ORDER of this Honourable Court dismissing the claims of the plaintiffs/respondents in its entirety by viltue of the fact that this Court lacks the competence and jurisdiction to pronounce upon, or take cognizance of, and grant reliefs claimed by the plaintiffs/respondents.

Or in alternative:

1. ORDER dismissing the claim in its entirety for failure to disclose any reasonable cause of action or any cause of action at all.
2. ORDER dismissing and or striking out the plaintiffs’ claim in toto for lack of locus standi of the plaintiffs to ask for or be entitled to any of the reliefs claimed.
3. ORDER dismissing the action, as it smacks of an abuse of the process of the court, vexatious

and frivolous.

4. AND for such order or other orders as the Court may deem fit to make in the circumstances. GROUNDS OF THE APPLICATION
5. The Applicant was legally, lawfully and constitutionally appointed the Ewi of Ado-Ekiti by the erstwhile Military Governor of Ondo State.
6. The plaintiffs’ claim is a direct challenge and attack on the power of the Military Governor of Ondo State to enact and promulgate Edict No. 11 of 1984 i.e. Chiefs Edict of 1984.
7. The plaintiffs’ action is also a direct challenge to the power of the Military Governor to enact and promulgate the Chiefs (Amendment) Edict of 1991.
8. The plaintiffs’ action is a challenge to the power of the Military Governor to make a subsidiary legislation to wit Legal Notice No. 11 of 1991. Notification of Appointment of recognized Chief.
9. The combined effect of Decree Nos. 1 and 13 of 1984, take away the power and jurisdiction of the court to entertain the suit.
10. The Plaintiffs lack locus standi to institute the action and ask for the reliefs formulated.
11. The suit is an abuse of the Court’s process and discloses no reasonable cause of action.

TAKE FURTHER NOTICE that the applicant shall at the hearing of this motion reply on all the processes filed so far in the cause.”

The application was vehemently opposed by the plaintiffs/respondents who filed counter-affidavit to that effect. Learned counsel on both sides addressed the court for and against the application. It was adjourned to 16-2-93 for ruling. This was on 8/12/92.

In response to the letter dated 6th April, 1993, by the learned trial Judge and in which he invited learned counsel representing the parties to submit further written submissions on the interpretation of section 11A of the Chiefs Edict No. 11 of 1984 inserted therein by section 7 of the Chiefs (Amendment) Edict, 1991, the request was complied with. The ruling was further adjourned to 2/7/93.

In a comprehensive ruling delivered by Aguda, J, he came to the following conclusion:

“In conclusion, I hold that by virtue of section 11A of the Chiefs Edict neither of the two plaintiffs/respondents nor their ruling house (Atewogboye ruling house) has any cause of action to institute or maintain this suit which is therefore hereby dismissed.”

Aggrieved by the decision of the trial court, the plaintiffs/respondents appealed to the Court of Appeal, Benin Division and at the end of the exercise it delivered a judgment in which it concluded (per Nsofor JCA) as follows:

“In the final analysis, the issues as formulated by the appellants in the appellants’ brief of argument, canvassed and agitated in this appeal must ex necessitate be resolved in favour of the respondents and co ipso; against the appellants. The grounds of appeal from which those issues were distilled ought to be, therefore, dismissed. And I do hereby dismiss them accordingly. I affirm the ruling on the 2/7/93 by the learned trial Judge (O.O. Aguda J.) The appeal is devoid of any merits.

It is therefore dismissed by me.”

Both Akpabio and Atintuke Ige JCA agreed with the lead judgment.

Dissatisfied with the judgment of the Court of Appeal, the plaintiffs have further appealed to this court.

The facts of the plaintiffs’ case as presented before the trial court can be stated briefly as follows:

Facts of the plaintiffs case

The chieftaincy of Ewi of Ado-Ekiti became vacant with the demise of the then holder, Oba Aladesanmi, on 7/1/83. By the customary law of Ado-Ekiti the chieftaincy alternates between the two recognised Ruling Houses to wit:

(a) Aroloye Ruling House

(b) Atewogboye Ruling House

The immediate past Ewi, Oba Aladesanmi came from Aroloye Ruling House so it was the turn of the Atewogboye Ruling House to nominate and present a candidate to fill in the vacant stool.

In the selection exercise that followed the demise of Oba Aladesanmi, George Adelabu was selected by the King-makers of Atewogboye Ruling House and presented to fill the vacant stool and was duly appointed under the 1984 Chieftaincy Declaration of Ewi of Ado-Ekiti. He performed the requisite traditional rights and ceremonies and was duly approved as Ewi by the Military Governor.

The present 1st plaintiff in suit No. HAD/48/84: Victor Adegoke Adewunmi A.G. of Ondo Slate & 17 Ors. promptly challenged the appointment of George Adelabu on grounds that:

“1. The customary law relating to the selection of candidates to the office of Ewi of Ado-Ekiti on the death of Gba Aladesanmi in the Declaration made under section 4(2) of the Chieftaincy Law, 1957, on 1/6/60 and approved on 28/10/60.

2. Under the 1960 Declaration only members of ruling house of the male line who are sons of the previous holder of the title, born to him by Olori during his reign can be selected and presented as eligible candidate.
3. Abilagba i.e the 1st son to a ruling Ewi by one of his predecessors Glori is not eligible.
4. Females could be made Ewi provided there is no male issue by the previous Ewi according to the customary law of Ado-Ekiti.
5. The said George Adelabu was not duly appointed as he did not satisfy the prevailing customary law for selection, appointment and succession to the vacant stool of Ewi of Ado- Ekiti.
6. Any purported appointment to the Ewi of Ado-Ekiti stool under any other customary law different from 1960 Declaration would be null and void.”

In the brief of argument filed by the plaintiffs, four issues were formulated for the resolution of this appeal which were equally adopted by the defendants in their brief of argument.

The four issues are as follows

“1. Whether or not the Court of Appeal was right to hold that the case was being prosecuted in a personal capacity and not in a representative capacity

2. Whether or not the second appellant had locus standi
3. Whether or not there were materials upon which the tria] Court could have held that the late George Adelabu was duly appointed as required by section 11A of the Chiefs Edict
4. Whether or not Court of Appeal was right to affirm the judgment of the trial Court that amended and or altered the tense of a word in section 11A of the Chiefs Edict despite the fact that there was no ambiguity in the said section”

When the trial of suit No. HAD/48/84 was pending in the Ondo State High Court before the then late Chief Judge of that State, George Adelabu passed away in October, 1988. The learned Chief Judge delivered his judgment on 30/11/90 after the demise of George Adelabu, declaring that the applicable customary law was the 1960 Declaration and that the latter’s appointment under the 1984 Declaration which he declared null and void, was also declared null and void.

The plaintiffs, as a result of the judgment filed the present suit in the High Court of Ondo State sitting at Akure seeking the reliefs stated in the earlier part of this judgment.

Parties filed and exchanged briefs of argument.

Henceforth in this judgment, the plaintiffs and the defendants will be referred to as the appellants and the respondents respectively.

In issues 1 and 2 the appellants argued and contended that the Court of Appeal was wrong to state that there was no legal basis for the appellants to state in their pleading that they were suing in a representative capacity following the trial court’s order granting them leave to do so when they failed to amend the writ of summons to reflect that. The appellants submitted that the statement of claim they filed on 24/10/91 after the grant of the prayer to amend the writ was in line and in compliance with the amendment granted them by the trial court. It was the contention of the appellants under these issues that the Court of Appeal was wrong to affirm the decision by the trial court that the 2nd appellant Alhaji Salami Oluyede had no locus standi in joining the 1st appellant to prosecute the case jointly for and on behalf of Atewogboye ruling house as there was no formal amendment of the writ of summons, when the same trial court had granted the prayers to amend and that same was reflected in the appellant’s pleading as well as the respondent’s statement of defence.

The respondents on their part submitted that although the general principle of law is that an amended statement of claim supersedes the writ of summons and it back-dates to the date the writ was issued, but only when an amendment to the names of the parties suing in a representative capacity and the name of their principal are reflected on the writ will make such an amendment be effective and that failure to do so, renders the process deficient. It is also the contention of the respondents that the mere granting to the 2nd plaintiff/appellant by the trial court, of leave to be joined and sue the case jointly with the 1st plaintiff/appellant in a representative capacity for and on behalf of Atewogboye Ruling House without formal amendment of the Writ of summons to reflect same, is not enough. The fact that the appellants had filed a statement of claim in which they were described suing jointly for and on behalf of Atewogboye Ruling House after the grant of the amendment, coupled with the treatment of the appellants by the respondents as such in their statement of defence filed thereafter was contended to be not enough to make the 2nd appellant a competent party in the proceedings and that it is only when the provision of Order 5 rule 11(1) of the Ondo State High Court Rules is complied with, can the 2nd appellant acquire locus standing in the case.

On 7/10/91 the 2nd appellant as applicant and a party to be joined filed a motion on notice in the trial court on 7/10/91 in which he prayed as follows:

“MOTION ON NOTICE

“TAKE NOTICE that this Honourable Court will be moved on the 18th day of October, 1991 at the hour of 9 0’clock in the forenoon or so soon thereafter as the Counsel on behalf of the applicant can be heard for leave of this Honourable to add the applicant’s name as the co-plaintiff suing jointly with the plaintiff herein in a representative capacity;

Or that such other Order may be made as the Court may deem just.”

The motion on notice is dated 3/10/91. It was supported by an affidavit sworn to by the applicant. He averred thus in the following paragraphs:

“2. That I am from the Atewogboye ruling house, and I have the authority and consent of the Ruling House to bring this application and also to depose to this affidavit.

3. That the writ of summons in this suit was filed on 17th May, 1991.
4. That the plaintiff in this suit is yet to file his statement of claim in respect of this case.
5. That at the meeting of Atewogboye ruling house of 25th August, 1991 where both the present plaintiff and myself were present amongst others it was resolved by the entire ruling house that I should join in the suit HAD/25/91 as a co-plaintiff and jointly with the plaintiff prosecute this case in a representative capacity on behalf of the entire Atewogboye Ruling House (copy of the resolution is hereby attached and marked Exhibit “A”)
6. That Atewogboye Ruling House has an interest in the B subject matter of this suit which is the Ewi of Ado-Ekiti chieftaincy more so in view of the Chiefs (Amendment) Edict, 1991 and will definitely be affected by the outcome of this suit as our Ruling House still believes it is still our turn to present the candidate to the Ewi of Ado-Ekiti stool.
7. That if this application is granted the issues involved will once and for all be determined between the parties and consequently avoid multiplicity of action.”

Also accompanying the motion in support thereof is the Resolution of the General Meeting authorising the 2nd appellant to be joined in the suit to wit: No. HAD/25/91 “to prosecute the suit in a representation capacity for Atewogboye Ruling House”. The document reads in full as follows:

“THE ATEWOGBOYE RULING HOUSE

26, OGBON ATO STREET,

c/o PRINCE E.O.

OGUNLADE,

P. O. BOX 32 OR

BOX 93,

ADO-EKITl

RESOLUTION OF GENERAL MEETING APPOINTING

ALHAJI SALAMI OLUYELE TO JOIN IN SUIT NO. HAD/25/9I

At the meeting of Atewogboye Ruling House held on the 25th August, 1991 At Prince E.O. Ogunlade’s House, 26 Ogbon Ado Street, Ado-Ekiti, where the issue in Suit No. HAD/25/91 Victor Adegoke Adewusi v. Attorney General Ondo State & Ors. was extensively discussed, the entire Ruling House thereby resolved that Alhaji Salami Oluyede be appointed to join as a co-plaintiff in the two plaintiffs (i.e. Oluyede) to prosecute the suit in a representativ4e capacity for

1. (Sgd.) Prince E. Ogunlade 2. (Sgd) James Akeredolu

Head of Atewogboye Ruling House Secretary

(Chairman)

3. (Sgd) James Olajugbe 4. (Sgd) Adeyemo aje

For Olukoro Branch for Ade Branch

5. (Sgd.) Raji Adewumi 6. (Sgd.) Olayinka Olanipekun

Adewumi Branch for Olanipekun Branch

7. Sgd.) Salamk Oluyede 8. (Sgd) Ben Obenbe

For Oluyede Branch for Obenbe Branch

9. (Sgd.) James Akeredolu 10. (Sgd.) Alhaji Adeyoju

for Aleredolu Branch for Adeyoju Branch

11. (Sgd.) Lasisi Ogunlade 12. (Sgd.) Saliu Aladesuru

For Adelusi Branch for Aladesuru Branch

13. (Sgd.) Alhaji Kunle Adelusi

for Adelusi Branch

The foregoing having been read and explained to all the parties by Akeredolu before affixing their marks/signatures.”

The application for the amendment was granted by the trial court on 18/10/91 in which Aguda J. ordered as follows-

“Order as prayed.

There shall be no order as to cost.”

It was after this order that the appellants after obtaining extension of time to file their statement of claim did so on 24/10/91. The heading of the statement of claim reads:-

“IN THE HIGH COURT OF ONDO STATE OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BETWEEN:

VICTOR ADEGOKE ADEWUM1 SUIT NO. HAD/25/91

ALHAJI SALAMI OLUYEDE

(for themselves and on

behalf of Atewogboye PLAINTIFFS

Ruling House

AND

1. THE ATTORNEY-GENERAL OF ONDO STATE
2. THE SECRETARY, ADO-EKITI LOCAL GOVT. COUNCIL
3. CHIEF T.A. OGUNRINDE
4. CHIEF KOLA FATOYO
5. RUFUS ADEYEMO ADEJUGBE
6. PRINCE KUNLE ALADESANMI
7. AJAY10LORUNFEMI

(for and on behalf of Aroloye Ruling House

The 5th defendant filed a statement of defence and counter-claim which was headed as follow-

“IN THE HIGH COURT OF JUSTICE

ONDO STATE OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BETWEEN SUIT NO. HAD/25/91

VICTOR ADEGOKE ADEWUMI

AND

1. THE ATTORNEY-GENERAL ONDO STATE
2. THE SECRETARY, EKITI CENTRAL DEFENDANTS
3. LOCAL GOVERNMENT
4. CHIEF KOLAFATOYO
5. RUFUSADEYEMOADEJUGBE) DEFENDANTS/COUNTER
6. PRINCE KUNLEALADESANMI) CLAIMANTS

(for and onbehalf ofAroloye)

Ruling House)

7. AJAYI OLORUNFEMI DEFENDANTS”

The 3rd and 4th defendants responded to the statement of claim filed by the appellants.

They too filed a Statement of defence headed as follows:

IN THE HIGH COURT OF JUSTICE

ONDO STATE OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BETWEEN: SUIT NO. HAD/25/91

VICTOR ADEGOKE ADEWUMI

ALHAJI SALAMI OLUYEDE

(for themsel ves and on behalf of PLAINTIFFS

Atewogboye Ruling Hosue

AND

1. THE ATTORNEY-GENERAL OF ONDO STATE
2. THE SECRETARY, ADO-EKITI LOCAL

GOVERNMENT COUNCIL

3. CHIEF T. A. OGUNRINDE
4. CHIEF KOLA FATOYO
5. RUFUS ADEYEMO ADEJUGBE DEFENDANTS
6. PRINCE KUNLE ALADESANMI F
7. AJAYIOLORUNFEMI

(for and on behalf of Aroloye Ruling House) The 1st and 2nd respondents who were the 1st and 2nd defendants, did not file statement of defence but the 1st defendant/respondent the Attorney-General of Ondo State brought an application in the trial court dated 7/4/1992 and filed on 8/4/1992 praying for the following reliefs

“ORDER of this Honourable Court dismissing the claims of the plaintiffs/respondents in its entirety by virtue of the fact that this Court lacks the competence and jurisdiction to pronounce upon, or take cognizance of, and grant reliefs claimed by the Plaintiffs/Respondents.

Or in alternative,

1. ORDER dismissing the claim in its entirety for failure to disclose any reasonable cause of action or any cause of action at all.
2. ORDER dismissing and or striking out the plaintiffs’ claim in toto for lack of locus standi of the plaintiffs to ask for or be entitled to any of the reliefs claimed.
3. ORDER dismissing the action, as it smacks of an abuse of the process of the court, vexatious and frivolous.
4. AND for such order or other orders as the Court may deem fit to make in the circumstance.

GROUNDS OF THE APPLICATION

1. The applicant was legally, lawfully and constitutionally appointed the Ewi of Ado-Ekiti by the erstwhile Military Governor of Ondo State.
2. The plaintiffs claim is a direct challenge and attack on the power of the Military Governor of Ondo State to enact and promulgate Edict No. 11 of 1984. i.e. Chiefs Edict of 1984.
3. The Plaintiffs action is also a direct challenge to the power of the Military Governor to enact and promulgate the Chiefs (Amendment) Edict of 1991.
4. The plaintiffs’ action is a challenge to the power of the Military Governor to make a subsidiary legislation to wit Legal Notice No. 11 of 1991. notification of appointments of recognised Chief. 5. The combined effect of Decree Nos. 1 and 13 of 1984, take away the power and jurisdiction of the court to entertain the suit.
5. The plaintiffs lack locus standi to institute the action and ask for the reliefs formulated.
6. The suit is an abuse of the court’s process and discloses no reasonable cause of action.

TAKE FURTHER NOTICE that the applicant shall at the hearing of this motion rely on all the processes filed so far in the cause.”

The application was also headed as follows:-

IN THE HIGH COURT OF JUSTICE

OF ONDO STATE OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDENATAKURE

BETWEEN: SUIT NO. HAD125/91

VICTOR ADEGOKE ADEWUMI

ALHAJI SALAMI OLUYEDE

(for themselves and on behalf of PLAINTIFFS/RESPONDENTS

Atewogboye Ruling House

AND

THE ATTORNEY-GENERAL OF ONDO STATE

THE SECRETARY, ADO-EKITI LOCAL GOVERNMENT COUNCIL

CHIEF T. A. OGUNRINDE

CHIEF KOLA FATOYO DEFENDANTS

RUFUS ADEYEMO ADEJUGBE

PRINCE KUNLE ALADESANMI

AJAYI OLORUNFEMI

(for and on behalf of Aroloye Ruling House)

The principle is that an amendment duly made takes effect from the date of the original document sought to be amended; and this applies to every successive further amendment of which ever nature and at whatever stage it is made. Therefore when a writ of summons is amended, it dates back to the date of the original issue of such writ and consequently the action will continue as if the amendment has been inserted from the beginning. See Sneade v. Watherton (1904) 1 K.B. 295 at 297. The trial court opined on page 112 lines 2 – 14 as follows-

“The application was argued and the leave granted on October 18, 1991. However, an amended writ of G summons was not filed showing that there were now two plaintiffs or that they brought this suit in a representative capacity. What followed next was that a statement of claim was filed on October, 24, 1991 in the 2nd paragraph of which Adewumi and Oluyede, as plaintiffs, aver that they are suing” in a representative capacity on behalf of Atewogboye Ruling House.” The failure to file and serve an Amended Writ of summons, it would seem, means that Alhaji Salami Oluyede is not yet a party to this suit. The Ondo State Rules of the High Court does not specifically provide that an Amended writ of summons should be filed and served showing the name of a new plaintiff added to an existing suit by the leave of court.”

and also on page 113 lines 5 – 12 further as follows

“In view of the plaintiffs’ failure to comply with this requirement which, in my view, is mandatory, I hold that this suit has not been properly brought in a representative capacity. This means that although Atewogboye Ruling House or its representatives has the locus standi to sue for, and in respect of, the reliefs claimed in this suit, this suit has not been properly instituted in its name directly or in a representative capacity. The Ruling House itself has not been named as a party to this suit.”

The learned trial Judge in the excerpts of his judgment (supra) agreed that he granted the prayers for joinder and leave to prosecute the case in a representative capacity for and on behalf of Atewogboye Ruling House. He even went further to comment on the effectiveness of order 5 rule (11)(1) of the Ondo State High Court Rules in lines 11 – 14 on page 112 as follows:

“The Ondo State Rules of the High Court do not specifically provide that an amended writ of summons should be filed and served showing the name of a new plaintiff added to an existing suit by the leave of the court.”

In all civil litigations, it is the duty of the court to aim at, and to do, substantial justice and allow formal amendments as are necessary for the ultimate achievement of justice and the end of litigation. While recognising that Rules of court should be observed and followed, it should also be emphasised that ‘Justice is not a fencing game in which parties engage each other in a whirling of technicalities “. See Joseph Afolabi & Ors. v. John Adekunle & Anor, (1983) 2 SCNLR 141; (1983) 8 SC 98 at 117 – 119, per Aniagolu JSC.

It is evident from the motion filed by appellant for joinder and prosecuting the case in a representative capacity on behalf of Atewogboye Ruling House and the supporting documents particularly the resolution of Atewogboye Ruling House reproduced in this judgment, the statement of claim filed, the statements of defence and the Reply thereto and even the motion on notice filed by 1st defendant/respondent, the purpose of the amendment as granted was to allow the 22nd appellant be joined to the suit and to prosecute the same for and on behalf of Atewogboye Ruling House which no doubt had a stake in the case. The respondents were appreciative of that when they filed their respective statements of defence in the form and manner they did and it is my firm view that they were not misled. It is sufficient for a plaintiff wishing to amend his writ of summons to give briefly in a general form, the particulars of his amendment which will give the defendant reasonably sufficient information as to the details thereof. It is my view that the details of the amendments in this case were sufficiently provided in the statement of claim filed subsequent to the amendment and to which the respondents responded. To avert the injustice that could manifest in a situation like this, the courts are empowered to grant to a party leave to amend his writ of summons and pleadings; and where it becomes absolutely necessary, the court can make the amendment. The important thing is that such an amendment will foster the course of justice as between the parties as is necessary for the purpose of determining the real issue in dispute between them. The 2nd appellant was clothed with the authority by the Atewogboye Ruling House to join in the suit and prosecute same on its behalf. The decisions cited and relied on are not apposite.

In view of the principle and the authorities as regards amendment already referred to, I hold that the Court of Appeal was wrong in affirming the decision of the trial court that the 2nd appellant had no locus standi in the case and that the suit had not been brought in a representative capacity and that the reliefs claimed in the suit had not been properly instituted in the name of Atewogboye Ruling House directly or in a representative capacity.

I therefore resolve issues 1 and 2 in favour of the appellants.

I shall next consider issues 3 and 4 together as they are inter-related.

Under Issue 3 it was the submission of learned counsel for the appellants that since the appointment of George Adelabu was challenged and was a live issue in the present case having regard to paragraph 13 of the statement of claim, the respondents could not take advantage of Section 11A of the Chiefs Amendment Edict and ask for the dismissal of the action. It was the contention of the appellants that before that order could be made evidence must be called to prove or disprove the averments in paragraph 13 of the statement of claim.

On issue 4 it was contended by the appellants that Section 11A of the Chiefs Edict was wrongly interpreted by the trial court and that the Court of Appeal was equally wrong in affirming that interpretation. It was submitted that the wording of Section 11A of the Edict is ambiguous and the trial court in interpreting it made some alteration to arrive at its conclusion that the section is clear and unambiguous and that the Court of Appeal was wrong to have justified the amendment effected to the existing law by inserting Section 11A.

In reply to the appellants’ argument on Issue 3, the respondents submitted that Section 11A was validly made by the then Military Governor of the State and that its promulgation put to rest the appellants’ claim as they could not successfully challenge its promulgation.

On Issue 4 learned counsel did not say much in reply to the appellants’ arguments and submissions, but stated that the purport and intendment of Section 11A of the Edict was to legalise any selection and appointment that is duly made in accordance with Sections 8 and 11 of the Chief’s Edict but which appointment was subsequently annulled by the court. He submitted that the trial court was right in the way and manner it interpreted Section 11A and that it did not amend it.

Where an interpretation of a statutory provision and a challenge to the jurisdiction of the court are involved, the court can proceed to consider the issue based on the pleadings filed without calling any further evidence unless doing so becomes inevitable. In the present case, both the pleadings, the judgment that declared the appointment of George Adelabu as Ewi of Ado Ekiti null and void and the Chiefs Edict as subsequently amended, were both before the Court. In my view the trial court was right when it proceeded to interpret the Chiefs H Edict as amended based on the documents before it. It did not require to call any further evidence to do so.

The amendment to Section 11 of the Chiefs Edict as Section 11A reads as follows:

“11A. Where a ruling house whose turn it is to present a candidate to fill a vacancy in accordance with provisions of section 8 of the Edict had been so called and had presented a candidate who having undergone the process of selection prescribed under that section and section 8A and was duly appointed to fill the vacancy and performed functions of such chief before his candidacy for whatever reason was subsequently annulled, that person so appointed shall be deemed to have reigned and it shall be the turn of the next ruling house to present a candidate to fill the vacancy, and where there is only one ruling house, that chief whose candidature has been annulled shall be deemed to have reigned and shall not be qualified to be considered again,”

The learned trial Judge, after adjourning the case for a ruling said he experienced some difficulty in construing and interpreting the provision of Section 11A of the Chiefs Edict, 1984. As a result, he invited learned counsel on both sides to further submit written submissions on the issue and to which they positively responded. He finally resolved the issue in favour of the respondents, stating his reasons as follows:

“(1) There is no ambiguity, as far as I can see, in the provision under consideration;

(2) neither of the two interpretations open to me [as shown above] will produce ambiguity, and (3) the provision does not contain irrelevant or meaningless words.”

…………………………………

“the marginal notes make it clear that the intention of the lawmaker was to validate an appointment that had been annulled.”

Having expressed the views above, the learned trial Judge went on to consider the rule of “Exceptional construction” on page 228 of Maxwell on the Interpretation of Statutes, 12th Edition, under the heading – “Modification of the Language to meet the Intention.”

Therein it is stated as follows

“Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence.”

Guided by the principle above, the learned trial judge made a slight reconstruction of Section 11A above grammatically, without adding or deleting any material word or phrase in that section, and

concluded:

“1 hold that by virtue of section 11A of the Chiefs Edict neither of the two plaintiffs/respondents nor their Ruling House [Atewogboye Ruling House] has any cause of action to institute or maintain this suit which is therefore here dismissed.”

The learned trial Judge after considering the oral and written submissions on the construction and interpretation of Section 11A (supra) came to the following conclusions:-

1. There is no ambiguity, as far as I can see, in the provision now under consideration:

neither of the interpretations open to me [as shown above] will produce an absurdity; and

3. the provision does not contain irrelevant or meaningless words.”

The learned trial Judge having made the findings above, his remaining duty would be, in my opinion, for him to apply the law to the facts as ascertained by him earlier, but not to embark on speculative voyage to criticise and fault the drafting and grammatical construction of Section 11A (supra).

When a Judge is faced with construction, interpretation and application of a statutory provision to the facts ascertained by him in a case, he must –

(a) read the statute to ascertain whether and how its meaning relates to the case in controversy;

(b) if the language, i.e the words or meaning ascertained from that language resolve the controversy, the inquiry terminates there;

(c) but if the language or meaning does not resolve the controversy then the Judge must adjust and apply an appropriate judicial rule to decide and resolve the case or the issue in controversy.

In the case of Mobil Oil [Nigeria] Limited v. Federal Board of Inland Revenue [1977] 3 SC 53, particularly at page 74, Bello JSC [as he then was] re-stated the rule governing the interpretation of a statutory provision while considering Section 30A of the Companies Income Tax Act, as follows

“The general rule for construing a statute has been stated by this court in a number of cases. The rule is: where the words of a statute are clear the court shall give effect to their literal meaning. It is only when the literal meaning may result in ambiguity or injustice that the court may seek internal aid within the body of the statute itself or external aid from statutes in pari materia in order to resolve the ambiguity or avoid doing injustice: Olalere Obadare & Others v. The President Naadan West District Customary Court [1964] 1 All N.L.R. and claude Nabhan v. George Nabhan (1967) 5 P”

The literal meaning of Section 11A of the Chiefs Edict is neither ambiguous nor misleading and its application to the facts as ascertained by the learned trial Judge could not have resulted in any injustice having regard to the mischief which it was intended to remedy.

As the Court of Appeal stated in its judgment, the duty of the learned trial Judge was to ascertain the law and apply it to the facts, when it is clear and unambiguous, but not to amend or reconstruct it.

In cases of statutory construction the court’s authority is limited.

Where the statutory language and legislative intent are clear and plain, the judicial inquiry terminates there. Under our jurisprudence, the presumption is that ill-considered or unwise legislation will be corrected through democratic process. A court is not permitted to distort a statute’s meaning in order to make it conform with the Judge’s own views of sound social policy. See TVA v. Hill, 43 U.S. 153 [1978].

Section 11 (A) of the Chiefs Edict was enacted to remedy the mischief brought about by the judgment in suit No. HAD/48/84 which annulled the reign of Oba George Adelabu as the Ewi of

Ado-Ekiti. The Court of Appeal in its lead judgment rightly stated it thus as per Nsofor, JCA:

“that the makers of the Chiefs [Amendment] Edict No. 4 of 1991 had the foresight or foresaw the manifold sets of facts or situations that would be called into existence in the possible event of the High Court judgment in Suit No. HAD/48/84 going the way it did go. In my humble opinion that was the mischief the law giver intended to evade and avoid in promulgating the Chiefs [Amendment] Edict.”

I have no difficulty in agreeing with the judgment of the Court of Appeal wherein Nsofor, JCA further stated that:

“By the application of the Chiefs (Amendment) Edict No.4 of 1991, Prince George Adelabu from the Atewogboye Ruling House had reigned from 1984 – 1988 as an Oba or Ewi of Ado-Ekiti, the judgment by the High Court notwithstanding. On the death of Oba George Adelabu from the Atewogboye Ruling House, it became the turn of the Aroloye Ruling House to produce the next Oba or Ewi of Ado-Ekiti. And the 5th respondent was produced by the Aroloye Ruling House.”

And upon proper consideration and interpretation of Section 11A of the Chiefs (Amendment) Edict No.4 of 1991 and the reasons stated already in this judgment, I agree with the conclusion correctly arrived at by the trial court and which was subsequently affirmed by E the Court of Appeal that:

“By virtue of Section 11A of the Chiefs Edict, neither of the two plaintiffs/respondents nor their Ruling House (Atewogboye Ruling House) has any cause of action to institute or maintain this suit which is therefore dismissed.”

This issue is also resolved against the appellants. The appeal partially succeeds on the procedural issue of joinder of the 2nd appellant to the suit and to prosecute it jointly for and on behalf of Atewogboye Ruling House; other than that, it is hereby dismissed.

The Ruling of the trial Judge which was subsequently affirmed unanimously by the Court of Appeal is hereby confirmed.

Each party shall bear its own costs in this appeal.

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SC. 138/1996