Chief F. A. Bamisile V. Francis Ojo Osasuyi & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

OGUNWUMIJU, J.C.A.

: This is an appeal against the ruling of the Ekiti State High Court sitting at Ado Ekiti in suit HAD/23/2000 delivered by Hon. Justice E. O. Kowe on 12th December, 2005 dismissing the appellant’s suit for lack of jurisdiction.

The appellant herein was the plaintiff at the lower court and the defendants at the lower court are the present respondents. The facts which led to this appeal are stated as follows:

By paragraph 30 of the statement of claim the appellant claimed at the lower court the following reliefs:

“a. A declaration that first defendant is not a member or head of the Aledi Ruling House to the Onire of Ire Ekiti Chieftaincy, and so has no right to attend, or preside over, any meeting of the said Aledi Ruling House or do anything whatsoever towards the filling of the Onire of Ire Ekiti vacant title.

b. A declaration that second defendant is not a member of the Aledi Ruling House to the Onire of Ire Ekiti Chieftaincy and consequently has no right to contest for the vacant title of Onire of Ire Ekiti.

c. An injunctive order restraining the third, fourth, fifth and sixth defendants from having anything whatsoever to do with first and second defendants in connection with the filling of the vacant title of Onire of Ire Ekiti.

d. An injunctive order restraining first and second defendants from attending any meeting of the Aledi Ruling House especially for the purpose of filling the vacant Onire of Ire Ekiti title.”

Pleadings were exchanged, issues joined and necessary amendments made. Trial commenced, but following the transfer of the former trial Judge to another judicial division, the trial of the case was adjourned to start de novo. The plaintiff then died in August, 2004 and a motion for substitution was then filed by appellant’s counsel.

Meanwhile, the firm of Abiola Ayimonche & Co. came in as counsel for the 1st and 2nd respondents because of the death of their original counsel. However, before trial could commence de novo, the 1st and 2nd respondents through their counsel filed a preliminary objection dated the 8th of June, 2005, challenging the jurisdiction of the court to hear the appellant’s suit based among other things on lack of jurisdiction of the trial court, due to non-fulfillment of a condition precedent, lack of locus standi of the appellant and that the result of the death of the appellant was that the action had abated since it was a personal action.

The appellant’s counsel filed a counter-affidavit on 1/9/2005 to the 1st & 2nd respondents’ motion for preliminary objection. The motion was fixed for definite hearing on the 24th day of October, 2005.

On the adjourned date for the said motion to be argued, the appellant’s counsel, Chief A. O. Akanle, SAN informed the court of an earlier application for the substitution of the appellant who died sometime in 2004, and insisted that same be heard first.

The 1st & 2nd respondents’ counsel, C. A. Chinaka, Esq. pointed out to the court that the preliminary objection that was set for argument challenged the jurisdiction of the court and as such should be heard first, since its outcome could mean the end of the case one way or another.

The respondents’ counsel had argued that by joining issues and filing a counter-affidavit to the preliminary objection the appellant’s counsel cannot turn around to say they should take a step back.