Mallam Saka Agbodemu & Ors V. MR Azeez Agboola & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A. (Delivering The Leading Judgment)

The appeal is against the judgment of the High Court of Kwara State presided over by M. A. Abdulgafar, J. delivered on the 14th day of November, 2012 wherein the action was struck out. The appellants who were the plaintiffs in the Lower Court were dissatisfied with the said judgment, consequent upon which they filed a notice of appeal containing six (6) grounds of appeal, pages 500 – 507 of the printed records of appeal.

The Appellants who sued in a representative capacity took out their writ of summons on the 30th day of January, 2006 against Mr. Azeez Agboola, Ifelodun Local Government, Moses Oguntola and Salawu Agbede Oguntola claiming among other things a declaration that the appointment and recognition of the 1st Defendant/Respondent as Oba of Agbeku by the Governor and Traditional Council was a violation of tradition and custom of Agbeku which recognized rotation among the ruling houses in Agbeku and a nullification of such appointment.

The 1st Respondent filed a motion on notice challenging the jurisdiction of the Court to hear and determine the suit on 3/5/06. The appellants as respondents opposed the application and the Lower Court ruled in favour of the appellants, consequent upon which the 1st respondent appealed to this Court on 21/5/07. By its judgment delivered on 10/12/08, this Court dismissed the appeal.

The matter went to trial, during which by their motion for amendment of their claim joined Ifetodun Local Government Traditional council and Attorney General of the state as co-defendants.

At the trial, the Appellants’ witnesses gave evidence, the 1st Respondent gave evidence and called a witness and closed his case while the 2nd Respondent gave evidence for himself and 3rd Respondent while the 4th and 5th Respondents called a witness and closed their case, pages 429 – 452 of the records.

The 1st Respondent made out that the Appellants’ case was premature thus depriving the trial court of jurisdiction, making out that by virtue of Section 3(3) of the Chiefs Law of Kwara State, there must be evidence by the Appellants that the Governor of Kwara State had interuened before the matter came to court. The 1st Respondent had argued that failure to adduce this evidence robbed the court of jurisdiction which made the case of the Appellants liable to be dismissed. The Appellants responded on points of law. In its considered judgment, the trial Court struck out the Appellants’ claims on 4/11/12.

From their six (6) grounds of appeal, the appellants distilled two (2) issues for the determination of the appeal. They are:-

(1) “Whether the ratio in the cases of AWOYEMI VS. FASUAN (2006) 13 NWLR (PT.996) 86 and AMAKA VS. A. G. ONDO (2012) NWLR (PT.1313) 44 applies to this case having regards to Appellants’ amended statement of claim, evidence led and exhibit D3 tendered as well as Section 15(1) of Chiefs (Appointment and Deposition) Law of Kwara State (Grounds 1, 3, 4 and 5).

(2) Whether the learned trial Judge was right to have drawn conclusions as he did in this case when he said that he was not impressed by the distinctions made by the claimants’ Counsel in respect of the words “selection” and “appointment” without proffering reason(s) and whether such conclusion had not led to a miscarriage of justice (Ground 2).”

No issue was raised from ground six (6) of the notice of appeal, the appellants discarded same, which is hereby struck out.

The 1st respondent on his part also formulated two issues as follows:

1. “Whether the ratio in the case of AWOYEMI vs. FASUAN (2006) 13 NWLR (PT.1996) 86 and AMAKA VS. A. G. ONDO (2012) 12 NWLR (PT.1313) 44 apply to this case having regards to appellants’ amended statement of claim evidence led and EXHIBIT D3 tendered as well as section 15(1) of Chiefs (Appointment and Deposition) Law of Kwara State.
2. Whether the learned trial Judge was right to have drawn conclusions as he did in this case when he said that he was not impressed by the distinctions made by the claimants’ Counsel in respect of the words ‘selection’ and ‘appointment’ without proffering any reason(s) and whether such conclusion had not led to a miscarriage of justice.”

While the 4th and 5th Respondents on their part also formulated their two issues as follows:

1. “Whether the ratio in the case of AWOYEMI VS. FASUAN (2006) NWLR (PT.1996) 86 and AMAKA V. A.G. ONDO (2012) 12 NWLR (PT.1313) 44 apply to this case having regards to the appellants’ amended statement of claim, evidence led and Exhibit D3 tendered as well as section 15(1) of Chiefs (Appointment and Deposition) Laws of Kwara State.
2. Whether the learned trial Judge was right to have drawn conclusions as he did in this case when he said that he was not impressed by the distinction made by the claimants counsel in respect of the words “selection” and “appointment” without preferring any reason(s) whether such conclusions had not led to a miscarriage of justice”‘

The 2nd and 3rd respondents did not file any brief of argument and had nothing to urge the Court.