Chief Israel Adebayo Dada V. Oba J. O. Aina & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.C.A.

This is an appeal against the ruling of Hon. Justice M. A. Agbelusi of the Ekiti State High Court sitting at Ido-Ekiti delivered on 26/5/2005. The facts that led to this appeal are as follows:

The Appellant was the Plaintiff in the court below. Pleadings were filed wherein the Appellant as Plaintiff, sought the following reliefs:

“(a) A declaration that the Plaintiff is a Senior Chief in rank to the 2nd Defendant as the 4th in rank to the 1st Defendant while 2nd Defendant is 5th in rank and that the Defendants cannot in collusion usurp the rightful position of the Plaintiff or change the order of seniority of hierarchy (sic) as contained in the Morgan Commission Report and accepted by Government and which position represents the custom and tradition of Erinmope Ekiti from the immemorial (sic).

(b) An order restraining the 1st and 3rd Defendants their agents, (sic) servants and or privies from doing any act of commission or omission to suggest that the 2nd Defendant is a Senior Chief to the Plaintiff or at par with him in respect of his Chieftaincy of Obajemu of Erinmope Ekiti.”

The Appellant joined issues with the Respondent. Trial started on 2nd February, 2005. The Plaintiff testified, called two witnesses and closed his case.

The 1st Defendant gave evidence and was cross-examined. After his evidence, the counsel for the Respondents informed the court that based on the evidence before the court; he would like to apply to the trial court to strike out the action for lack of jurisdiction.

An adjournment was subsequently granted for Respondents’ counsel to file formal application, which he did. The same was argued and in a well considered ruling delivered by the learned trial judge on 26th May, 2005 the Plaintiff’s action was dismissed.

The Appellant has appealed to this Court against that ruling. The grounds of appeal are as set out below:

“1. The lower court erred in law in declining jurisdiction to entertain the Appellant case by inventing a cause of action for the Respondents and not confining itself to the Appellant’s Statement of Claim.

2. The lower court erred in law by dismissing the Appellant’s case on the ground that the Appellant’s case was ousted by 1963 Constitution of the Federal Republic of Nigeria contrary to the averment in Appellant’s Statement of Claim which expressly pleaded the date of the accrual of cause to be 7th September, 1993. Additional ground of appeal will be filed later on receipt of the record of appeal.”

(Page 117 – 118 of the Record of Proceedings)

The Appellant formulated only one issue for determination. That is – “when did the cause of action arise?”

On the other hand, the Respondents’ counsel submitted that the sole issue as couched by the Appellant’s counsel did not arise from ground one of the grounds of appeal. He argued that any ground of appeal not covered by an issue is deemed abandoned and submitted that being abandoned the ground one should be struck out.

I cannot agree with Respondents’ counsel on this point. It must be noted that in spite of filing two separate grounds of appeal, the Appellant identified a sole issue for determination which he presumably derived from the two grounds of appeal. I have to say that even though the language of ground two is not quite direct, it cannot be gainsaid that the sole issue for determination can be derived from it. I will determine this appeal by addressing the two questions posed by the grounds of appeal. The Respondents’ counsel also formed another issue for determination. I will determine this appeal by addressing each of the issues put up by both counsel. I have set them out below in what feel is a clearer form: