Alhaji Aileru Jubril V. Alhaji Abdullahi Atanda Kolawole & Anor (1996)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A. 

This is an interlocutory appeal against the ruling of Gbadeyen J. of the then Omu- Aran High Court of Justice of Kwara State delivered on 18/6/92 striking out suit No. KWS/OM/5/91 filed in that court by the appellant who was the plaintiff against the respondents.

The claims of the appellant as contained in the writ of summons are for the following declarations and an injunction.

“1 That under native law and custom of Ganmo the position of or the right to become Bale of Ganmo is the exclusive preserve of the plaintiff’s family who are the direct male descendants of the first Bale of Ganmo Bale Sunmonu Okunloye.

2. That there is no other family other than that of the plaintiff who are entitled to contest for and occupy the stool of Bale of Ganmo under the native law and custom.
3. That the children, descendants or blood relation of Junadu Kolawole are not entitled to become the Bale of Ganmo under the native law and custom of Ganmo they not being in any way related to the first Bale of Ganmo.
4. That the Bale of Ganmo under native law and custom is not a sub-chief under the Olupo of Ajasse-Ipo chieftaincy and the 2nd defendant was (sic) no power to install, turban or conduct coronation of any Bale of Ganmo.

AN ORDER restraining the defendants from interfering with or desecrate the native law and custom of Ganmo as declared by the Court.”

The 1st respondent on being served with the writ of summons together with the appellant’s statement of claim filed a motion on notice for an order striking out the appellant’s suit. The reliefs claimed on the motion paper dated 31/5/91 reads:-

“1. An Order striking out the plaintiff/respondent’s suit No KWS/OM/5/91 on the ground that the plaintiff has failed to deposit the sum of TEN THOUSAND NAIRA (N10,000.00) prior to instituting the suit as required by Section 15(1) of the Chiefs (Appointment and Deposition (Amendment) Edict No.3 of 1989.

2. AND for such further order /orders as this Honourable Court may deem fit to make in the circumstances.”

The respondent took this step in filing the motion without first filing his statement of defence. After taking arguments from counsel on both sides, the learned trial Judge in a reserved ruling delivered on 18/6/92 held that the suit of the appellant was incompetent for the appellant’s failure to comply with the condition precedent of paying the mandatory deposit of the sum of N10,000.00 before filing the suit and accordingly struck out the suit. Part of the ruling containing the reasons for striking out the suit at page 39 of the record reads:-

“I find most relevant to this case the decision in Gambari v. Gambari (supra) to the effect that the condition precedent to instituting a competent action has not been met. It is futile, therefore, putting anything further on a nullity. See Skenconsult v. Ukey (supra).

Because the Ifelodun Local Government, the Ifelodun/Irepodun Traditional Council, and the State Government are deliberately left out, in this action, I agree that not all the essential proper parties are joined and that makes the action all the more irregular. (See Onwunalu & 2 Ors v Osademe (1971) 1 All NLR 14, Oloriode & Ors v. Oyebi & Ors. (1984) 5 Sc. 1 at 17; (1984) 1 SCNLR 390; Olawuyi v. Adeyemi (1990) 4 NWLR (Pt. 147) at 746; and Okoye v. Nigerian Construction & Furniture Co. Ltd. (1991) 6 NWLR (Pt.199) 501 S.C (1991) 7 SC. (Pt. 11) 365.

Consequently, the proper thing here is to strike out the action and accordingly, the suit is, hereby, struck out.”

The appellant who was not satisfied with this ruling has now appealed to this Court. The notice of appeal filed with the leave of this Court contains 6 ground of appeal. The grounds of appeal without the particulars are as follows:-

“1. The learned trial Judge erred in law by striking out the suit of the appellant on the ground that the appellant did not fulfill a condition precedent.

2. The learned trial Judge erred in law when he held that the failure of the appellant to deposit a non-refundable fees of N10,000.00 vitiated the action by virtue of Section 15(1) of Edict No.3 of 1988.
3. The learned trial judge erred in law and exceeded his jurisdiction by granting prayers that were not sought nor prayed for by the respondent thus denying the appellant his right to fair hearing.
4. The learned trial judge erred in law by his failure to consider all the arguments of law and authorities of higher courts referred to in argument more especially the Supreme Court decision in Utih v. Onoyivwe (1991) 1 NWLR (Pt. 166) 166 at 222 – 223 and this occasioned grave miscarriage of justice on the appellant.
5. The learned trial judge has no jurisdiction to grant the application since the applicant has no locus standing to ask for the reliefs and the court was addressed on the point.
6. The learned trial judge erred in law when he granted the prayers of the applicant when the applicant’s application was filed in contravention of the mandatory provisions of the rules of the court and this denied the court jurisdiction to hear and adjudicate on the application.”

Arising from these grounds of appeal, 4 issues for determination have been identified in the appellant’s brief of argument filed in compliance with the rules of this Court on 19/1/93. The 4 issues identified are:-