Chief Kehinde Odofin & Ors. V. Chief Raphael Alayande Oguntola & Ors. (1997)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A. 

By a writ of summons dated 28-6-1993 seven plaintiffs including the five appellants commenced this suit at the High Court of Justice Ilorin Kwara State. The 4th and 5th plaintiffs, namely Chief Jimoh Oloke and Chief Osaleloko Awiye had earlier withdrawn from the action as plaintiffs and their names were accordingly struck out by the lower court leaving only the 5 appellants as plaintiffs. The appellants claim against the respondents who were the defendants according to paragraph 22 of the statement of claim dated 17-8-1993 at page 8 of the record is:-

“22. Whereof the plaintiffs claim against the defendants jointly and on severally as follows:-

(i) A declaration that the proper title of the traditional ruler of Isapa is not Onisapa of Isapa hut Elekan of Isapa.

(ii) A declaration that the plaintiffs are the only king makers of Isapa on whose recommendation the 2nd and 3rd Defendants can act in relation to the appointment of a traditional ruler for Isapa.

(iii) A perpetual injunction restraining the 1st defendant from referring to himself as Onisapa of Isapa qua his traditional rulership of Isapa.”

Pleadings were duly filed and exchanged between the parties at the lower court. However before hearing of the suit could commence before Gbadeyan J., the 1st respondent who was the 1st defendant in the court below, filed a Notice of Preliminary Objection on the competence of the lower court to entertain the suit, the notice reads:-

NOTICE OF INTENTION TO ARGUE A PRELIMINARY OBJECTION

“Take Notice that the 1st defendant/applicant will raise a preliminary objection on the ground that the suit is incompetent and/or the court has no jurisdiction to entertain the suit for non-compliance with mandatory deposit of N10, 000.00 as required by law.

Dated 6-6-1994.”

This preliminary Objection was not heard by the Lower Court until 6-2-1995 when after taking argument from learned counsel on both sides, ruling was adjourned to 29-3-1995. In his ruling delivered on 25-4-1995, the learned trial Judge Gbadeyan J. upheld the preliminary Objection of the 1st defendant and struck out the plaintiff’s suit after holding that his court had no jurisdiction to entertain the suit. The relevant part of the ruling reads:-

“For this action to be competent a N10,000.00 non refundable deposit before filing must have been made to the state’s Accountant General. There is no evidence of any such deposit having been made in this case.

Consequently, on the authorities cited in support of the preliminary objection at to lack of jurisdiction, the objection is sustained and this court must accordingly decline jurisdiction. The action is hereby stuck out.”

The remaining 5 plaintiff’s now appellants who were not happy with this decision had decided to appeal against it. Their notice or appeal dated 12-6-1995 contains the following two grounds of appeal without their particulars:-