Zaeed a. Ajayi & Ors. V. Attorney General, Ogun State & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

M. D. MUHAMMAD, J.C.A.

The ease that brought about this appeal had a chequered history.

Originally, the suit was commenced by the Plaintiffs, the Appellants herein, against five defendants namely: Oba T. T. Dada. the Olota of Otta, Chief Lasisi Akinremi, the Ajana of Otta, Chief Momoh Ogunrnuyiwa, the Olukolun of Olla, Chief Lawani Kosebinu, the Akogun of Otta and Chief J. Akinbiyi Ojo. On the death of the 1st and 2nd Defendants, Oba I. F. Dada, the Olota of Otta and Chief Lasisi Akinremi, the Ajana of Otta, a regency-in-council comprising three persons, to wit, Chief Akin Dosunmu, the Oluwa of Otta, Chief S.A. Adesanya, the Balogun of Otta and Chief H. A. Ojo the Scriki of Otta, was substituted particularly for the 1st Defendant being the prescribed authority. The Regency-in-Council that had a three months lifespan was, on application, subsequently substituted by the Ogun state Attorney General. The 2nd, 3rd and 4th Defendants remain the original Defendants on record and are Chief Momoh Ogunmuyiwa, the Olukolun of Otta, Chief Lawani Kosebinu, the Akoguin of Otta and Chief J. Akinbiyi Ojo respectively. It was Chief J. Akinbiyi Ojo’s appointment and installation as the Baale of Sango-Otta the Plaintiffs, to wit, Za’eed Ayinla Ajayi, Nurudeen Ajayi, Modinat Yode and Adeeye Ajoje, challenged for themselves and on behalf of the Oojabi family at the Ogun State High Court in Suit NO.HCT/20/88.

Plaintiffs’ claim against the defendants, by the former’s Amended Writ of Summons, is for:-

“1. A declaration that the 1st Plaintiff is the Bale elect of Sango-Otta in Ifo-Otta Local Government Area.

2. A declaration that the appointment installation approval of the 5th defendant is unlawful, most irregular against the custom of Sango-Otta respecting the selection of Bale of Sango-Otta, null and void and of no effect.
3. An order of injunction restraining the 1st to 4th defendants from approving the candidature of installing, causing to be installed or recognizing the 5th Defendant as the Bale of Sango Otta.
4. An order or injunction restraining the 1st to 4th (sic) defendant from parading himself as the Bale of Sango Otta.”

Pleadings were filed and exchanged. Plaintiffs’ case from their further amended statement of claim, briefly, is that the original 7th Defendant, Chief Akinbiyi Ojo, was never the head of their family, the Oojabi family, being not a member of the said family and could not have, for that reason, been lawfully appointed the Saale of Sango-Otta, a vacant chieftaincy title the Oojabi family was entitled to fill. The appointment and installation of the 7th Defendant, as the Ba’ale of Sango-Otta, therefore, are null, void and of no effect being in breach of the native law and custom of the Otta people governing the Chieftaincy. By the custom, a Baale of Sango-Otta must be selected by the Oojabi family, whose turn it then was, and presented to the Ajana through the Erika family and to the Olota of Otta, the prescribed authority. Oba T. T. Dada was the Olota of Otta, 1st Plaintiff had been selected and his name sent to the Olota through the Erika and Ajana families for approval and installation by Olota as the Saale of Sango-Otta. Instead, the 7th defendant was approved and installed by the Olota as the Baale of Sango-Otta. It is the Plaintiffs further case that the 1st Defendant was present at the Oojabi family meeting where the 1st Plaintiff was selected and a decision taken to send his name as the family candidate for the vacant Baale of Sango-Otta’s Chieftaincy title. 7th Defendant inspite of the protests against his presence in the family meeting even prayed for the 1st Plaintiff after the latter’s selection.

The case for the 1st-4th Defendants is that they are not necessary, desirable or proper parties and Plaintiffs’ case amounts to abuse of the process of the court. The 2nd-4th Defendants in particular, averred that their appointment as the Regency-in-Council after the death of the then Olota of Otta on 15th January, 1992 was for a period of three month. They were never further reconstituted. All the same, they denied Plaintiffs’ claim.

The case for the 5th-7th Defendants is that the 7th Defendant is throughout the material time, a member, indeed the Head of the Oojabi family since 1972. 7th Defendant’s headship of the family is evidenced by a Judgment of the lower court in suit No.HCL/44/80 wherein he featured as 1st plaintiff representing the Oojabi family. The judgment has confirmed 7th Defendant the head of the Oojabi family. It is their further case that 7th Defendant’s name was selected at the Oojabi family meeting of February 6th, 1988 and forwarded to the Ilupoju Ijana Development Council representing the whole Awori indigenes. 7th Defendant’s name was sent by Chief L. A. Akinremi the Ajana of Otta vide a letter dated 15th February, 1988 to the Olota of Otta, the prescribed authority, who on approval installed the 7th Defendant the Baale of Sango-Otta on 20th February, 1988. The Olota of Otta also issued the 7th Defendant a testimonial, Exhibit ‘F’, dated 20/2/88 signifying his approval and the installation of the 7th Defendant.

After Counsel addresses, the lower court found that Plaintiffs had failed to prove their case and dismissed same with costs. Being dissatisfied, Plaintiffs have appealed against the court’s judgment dated 3rd March, 1998 on a notice dated 25/5/98 but filed on 1/6/98 containing seventeen grounds of appeal.

It is important to state that after the delivery of the judgment herein appealed against, the 7th Defendant, Chief J. Akinbiyi, died. On Appellants’ application, Chief J. Akinbiyi Ojo was substituted by Chief Ebenezer Akanbi Akilo who, on the death of the former, was installed the new Baale. The Attorney General, Ogun State, the 1st Defendant substituted for the Regency-in-Council at the lower court had before the hearing of this appeal, notified this court and other parties to the appeal of his wish not to be present either in person or to be represented by Counsel at the hearing of the appeal. From the record, therefore, the Attorney General is a substitute for the late Oba T. T. Dada, the prescribed authority. He neither filed nor was any brief of argument filed on his behalf.

Learned Counsel for Respondents on record other than the Attorney General had filed two notices of motion, one on a preliminary objection challenging the competence of the appeal and the other contending that the judgment being appealed against be affirmed on other grounds. Arguments in respect of both notices are contained in the amended brief of the three Respondents settled by O. T. Akinbiyi of Counsel.

Parties to the appeal have filed and exchanged their respective briefs of arguments including the Appellants’ Reply Brief which is substantially in answer to the arguments on the two notices in the Respondents brief. Since the notice of preliminary objection touches on the jurisdiction of this court to even hear the appeal, same shall be addressed instantly to forestall the futile exercise of entertaining the appeal in the absence of jurisdiction so to do and waste of the court’s as well as the parties’ time should the preliminary objection prove meritorious.

THE PRELIMINARY OBJECTION

Arguing the preliminary objection in their brief, Learned Respondents’ Counsel contended that 3rd Respondent was only substituted in this court as successor-in-title to the 7th Defendant. The suit against the 7th Defendant was neither instituted nor defended in representative capacity. 3rd Respondent had not been shown to be representative of interest to the 7th Defendant. The 3rd Respondent had neither been shown to be aware of the suit at the lower court nor to be a member of the Oojabi family on which platform the 7th Defendant became the Baale and 1st Appellant contested for the Chieftaincy against the former. Counsel cited and relied on: YUSUF Vs. AKINDIPE (2000) 5 SCNJ 128; GENERAL HASSAN v. YAKUBU (RTD) Vs. GOVERNOR KOGI STATE & ORS (1995) 9 SCNJ 122; GREEN Vs. GREEN (1987) N.S.C.C.) (Pt. 2) 115; UNION BEVERAGES LTD Vs. PEPSI COLA INTERNATIONAL LTD. (1994) 2 SCNJ 157 At 174.