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Alh. Hanafi Zubair V. Alh. Abdullahi Atanda Kolawole (2019)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

By a writ of summons filed on 5th April, 1991, the original plaintiff, Alhaji Aileru Jubril (Baale of Ganmo), suing for himself and the family of Baale Sunmonu Okunoye, instituted an action against the respondent in this appeal, Alhaji Abdullahi Atanda Kolawole and Oba Saliu Alebiosu (Olupo of Ajasse – Ipo) as defendants seeking declaratory and injunctive reliefs relating to the Baaleship of Ganmo, a town within Ifelodun Local Government Area of Kwara State.

The original plaintiff died and was substituted by Salami Adisa Olori. By his further Amended Statement of Claim No. 2 filed on 8th May 2005, he sought the following reliefs:

I. That under native law and custom of Ganmo, the position of or the right to become Bale of Ganmo, is the exclusive preserve or right of the plaintiff’s family who are the direct male descendants of the first Bale of Gamo, Bale Sunmonu Okunoye.

ii. That there is no other family other than that of the plaintiff who are entitled to contest for and occupy the stool of Bale of Ganmo under the native law and custom.

iii. That the children, descendant or blood relation of the defendant are not entitled to become the Bale of Ganmo under the native law and custom of Ganmo, they, not being in any way related to the first Bale of Ganmo.

iv. A declaration that the Defendants alleged letter of appointment dated 17th October, 1990 is Illegal, inconsistent with history and official records of the head of Ganmo Community therefore, irregular improper and a nullity.

v. An order setting aside the purported appointment by the Ifelodun Local Government Council of the Defendant as Baale of Ganmo.

vi. An order directing the defendants to cease from interfering with or continue to desecrate the native law and custom of Ganmo as declared by the Court and forthwith cease from parading, presenting, calling or introducing himself to any person or authority as the Bale of Ganmo in Ifelodun Local Government Kwara State.

The defendant joined issues with the plaintiff by his Further Amended Statement of Defence wherein he contended, inter alla, that in fact it was his own great grandfather, named Ganna-Nganku who founded Ganmo and that it is the male line of his own family

that produces the Baale. The plaintiff filed a reply thereto. The matter proceeded to trial. Both sides called witnesses and tendered documents. At the conclusion of the trial and after considering the written addresses of learned counsel, judgment was entered in favour of the plaintiff in the following terms:

“Having considered the evidence adduced by the Plaintiff along with the defendant as well as all the documents admitted by the Court for both parties, I hold that I prefer the evidence of the Plaintiff to that of the defendant. The Plaintiff’s evidence was not controverted while the documents tendered fully support the case for the plaintiff I therefore hold that the Plaintiff’s evidence on the traditional history of the founding of Ganmo is preferred to the evidence of the defendant which in my opinion was merely “made up stories.” I hold the Plaintiff as the rightful person entitled to be called and established as the Baale of Ganmo. I hereby make an order directing the defendant to cease from interfering or continue to describe or parading himself or calling or introducing himself to any person or authority as the Baale of Ganmo in Ifelodun Local

Government of Kwara State no other family other than the Plaintiff is entitled to contest for and occupy the stool of Baale of Ganmo under the Native Law and Custom. I also hold that the children, the descendant or blood relation of the defendant are not entitled to become the Baale of Ganmo as they are not in any way related to the First Baale of Ganmo. I also declare that the defendant’s alleged letter of appointment dated 7th October 1990 is illegal and inconsistent with the history and official record on the head of Ganmo Community and therefore irregular, improper and a nullity. The purported appointment by the Ifelodun Local Government Council of the defendant as Baale of Ganmo is hereby set aside. All other reliefs sought by the Plaintiff are granted as prayed.”

(See page 305 line 11 to 306 lines 1-5 of the record).

The defendant, who is the respondent in this appeal, was dissatisfied with the judgment and filed an appeal before the Court of Appeal, Ilorin Division. In a considered judgment delivered on 18th March 2008, the appeal was allowed and the judgment of the trial Court was set aside. The plaintiff’s (now appellant’s) suit at the

trial Court was accordingly dismissed. Hon. Justice Jummai Sankey, JCA who participated in the appeal, agreed with the lead judgment of Ignatius Igwe Agube, JCA. Curiously, Helen Moronkeji Ogunwumiju, JCA, expressed at the commencement of her contribution that she agreed with the reasoning and conclusion in the lead judgment. However, in concluding the contribution, and from the tenor of the observations made, she found the appeal to be unmeritorious and dismissed same. In effect His Lordship rendered a dissenting opinion. Nonetheless, the majority opinion represents the judgment of the Court.

The appellant is dissatisfied with the judgment of the lower Court and has appealed to this Court vide his notice of appeal filed on 24/4/2008 containing 17 grounds of appeal. The present appellant was substituted for Alhaji Salami Olori, who had since died.

The parties duly filed and exchanged their respective briefs of argument as required by the rules of this Court.

At the hearing of the appeal on 10/12/18, Prince L.O. Fagbemi, SAN, adopted and relied on the Appellant’s brief filed on 15/4/2009 and his Reply Brief filed on 16/3/2010 in urging the Court

to allow the appeal. J.S. Bamigboye, SAN, adopted and relied on the respondent’s brief, which was deemed filed on 16/3/2010 in urging the Court to dismiss the appeal.

The appellant formulated 3 issues for determination thus:

Whether the plaintiff’s suit is justiciable and whether the Court of Appeal is right in finding in the negative
Whether the defendant proffered any credible evidence of traditional history to warrant the conclusion reached by the Court of Appeal that the traditional history of the defendant is preferable to that of the plaintiff and
Whether in the face of existing documentary evidence, the Court of Appeal was right in giving judgment to the defendant

The respondent also identified 3 issues for determination as follows:

Whether the Appellant’s cause of action is justiciable having regard to the position of the law as at 1978 when the cause of action arose
Whether the Appellant is not bound by the proceedings of the panel in Exhibit D2 and the decision thereon in Exhibit al as to be estoppel from litigating the issues determined by the panel to which jurisdiction the parties willingly

submitted and before which they copiously testified

Whether, having regard to the evidence before the Court, the case of the Appellant was not rightly dismissed by the lower Court

As the issues formulated by the appellant fully cover the scope of his complaint in this appeal, I shall adopt them in determining same.

Issue 1

This issue concerns the justiciability of the appellant’s cause of action at the trial Court. Learned senior counsel for the appellant has challenged the finding of the Court below at pages 438 – 439 of the record, to the effect that the cause of action arose in 1978 and that being a chieftaincy dispute, was not justiciable, having regard to provisions of the 1963 Constitution, which was the applicable law at the time. He submitted that the Court below misapprehended the distinction between the non-justiciability of a cause of action by virtue of a law ousting the Court’s jurisdiction and a situation where an action, though justiciable, can no longer be prosecuted having not been filed within a prescribed time limit.

Relying on the case of A.D.H. Ltd Vs A.T. Ltd (2006) 10 NWLR (Pt. 989) 635 652, he submitted that it is the statement of claim that is considered in determining whether or not the Court has jurisdiction to entertain a cause or matter. He referred to paragraph 23 (iv) of the Further Amended Statement of Claim No. 2, which seeks a declaration that the defendants alleged letter of appointment dated 17/10/1990 is illegal, inconsistent with history and official records on the head of Ganmo Community and therefore irregular, improper and a nullity, and noted that the suit was instituted on the 5th day of April, 1991. He submitted that by the appellant’s pleading, the cause of action arose on the 17th of October 1990, as it was the appointment of the respondent that led to the filing of the suit. He argued that the appellant did not challenge any act that took place in 1978 or pre-1979 and submitted that both the Court and the parties are bound by the pleadings. He referred to: Adeleke Vs Iyanda (2001) 13 NWLR (Pt. 729) 1 @ 21.

He submitted that in reaching the conclusion that the cause of action arose in 1978, the lower Court went outside the scope of the pleadings. He submitted that the trial Court was right when it held that the cause of

action accrued in 1990. He also relied on the contributory opinion of Ogunwumiju, JCA, on the distinction between justiciability and limitation of a cause of action. He submitted that the 1979 Constitution was the applicable law at the time the cause of action arose and that the High Court had jurisdiction to entertain the suit.

Another basis for the decision of the lower Court was that Exhibits D25 and D26, which are judgments of the High Court of Kwara State delivered in 1985 and 1991 respectively, between the predecessors of the parties on the Baaleship of Ganmo, constituted estoppel per rem judicatam as between the parties and therefore the appellant could not re-litigate the issues. He conceded, relying on the cases ofEyifunmi Vs Oshodi (2000) 13 NWLR (Pt. 684) 298 @ 325 and Adedayo Vs Babalola (1995) 7 NWLR (Pt. 408). 383, that where a plea of estoppel is established, it precludes the Court from exercising jurisdiction on the subject matter of the claim before it. He cited the cases of Ezenwa Vs Kareem (1990) 3 NWLR (Pt. 138) 258 and Adedayo Vs Babalola (Supra) for the conditions for the application of the doctrine of issue estoppel or estoppel per rem judicatam.

He submitted that Exhibit D25 was a chieftaincy matter filed by the appellant’s predecessor, which was struck out for lack of jurisdiction having regard to the provisions of the 1963 Constitution. He contended that in the circumstance, the Court did not decide any of the issues submitted to it for adjudication. In respect of Exhibit D26, he noted that the appellant’s family was seeking a declaration that it had the exclusive right to produce the Baale of Ganmo through its male line under native law and custom but it was struck out for non- compliance with Section 15 (1) of the Chiefs (Appointment and Deposition) Amended Edict No. 3 of 1988, on account of the failure to pay a mandatory fee of N10,000 before the filing of the suit. In effect, he submitted that there was no determination of the issue in contention to warrant the application of the doctrine of estoppel.

Learned senior counsel maintained that the cause of action in Exhibit D25 is different from the cause of action in the present suit. With regard to Exhibit D26, he submitted that the decision striking out the suit does not constitute a determination of the rights of the parties.

He noted further that the decision in Exhibit D26 has since been set aside by the Court of Appeal.

Yet another ground upon which the decision of the lower Court was predicated, was the fact that there was a customary arbitration to which the parties subjected themselves for the resolution of the dispute concerning the Baaleship, which is binding on them. Reference was made to the decision of the Igbomina Traditional Council of 1978 evidenced by Exhibits D1 and D2 wherein the council resolved that the respondent’s family is the family entitled to the Baaleship of Ganmo and recognised them accordingly. The Court below found that Alhaji Jimoh Akanbi testified on behalf of the appellant’s family while the present respondent testified on behalf of his family. It also found that the Traditional Council was the body statutorily charged with the responsibility of determining Chieftaincy issues and that it did not appoint the respondent as the Baale but only made a recommendation to the Local Government that he be accorded official recognition as the Baale of Ganmo and tax collector. The Court held that the appellants family did not protest at the

earliest opportunity that they were not bound by the decision of the council. The Court noted that the chairman and secretary who did so on their behalf, were overruled by the majority of the members on the basis of the historical antecedents of the parties. The Court also observed that the secretary and chairman both signed the report.

Learned senior counsel argued that the decision of the Court below was flawed in that the stool of Baale of Ganmo is not a chieftaincy in respect of which the Traditional Council could exercise powers pursuant to Section 78 of the Local Government Law Cap. 92 Laws of Kwara State. He referred to the decision of the Court of Appeal in Odofin Vs Oguntola (1998) 1 NWLR (Pt. 535) 662 668 – 669, where the definition of a chief under the Interpretation Act Cap. 192 LFN 1990 vis a vis the Kwara State Chiefs (Appointment and Deposition) Law was explained and where it was held that the law does not deal with the appointment of a village head or Baale. He submitted that in the circumstance, the decision of the Traditional Council, as contained in Exhibits D1 and D2 was reached without jurisdiction and ought not to

have been relied upon by the lower Court, as any decision reached without jurisdiction is a nullity. He relied on Amuda Vs Adelodun (1997) 5 NWLR (Pt. 506) 480 @ 487.

Learned Senior Counsel further submitted with regard to Exhibit D1, that the objection raised by the chairman to the decision of the council, is proof that not all the parties accepted the decision reached. He also posited that a Traditional Council has no authority to upturn the decision of the colonial administration or the Kwara State Government. He submitted that the plaintiff tendered Exhibits 1 – 49 in proof of the fact that prior to 1978 and the decision in Exhibits D1 and D2, both the colonial administration and the Kwara State Government, through the Igbomina Ekiti Division had always recognised the plaintiff’s family as the family entitled to occupy the position of Baale of Ganmo. He noted that Exhibit 49 is the Gazette of Idofian/Ajassepo District, as published by the colonial masters. He referred to Exhibit 31 wherein the resident of the Igbomina Ekiti Divisional office wrote to the present respondent to desist from parading himself as the Baale.

He submitted that the Traditional Council created pursuant to Section 76(1) of the Local Government Law was only entitled to perform the functions as set out in Section 78 (a) to (i) of the Law.

He submitted that Kwara State, which was created in 1967, inherited all the actions and decisions of the previous administrations, which include positions taken by the colonial administration and that there was no power vested in the council under Section 78 of the Local Government Law to review or overturn any decision reached by the colonial administration. He submitted that since the Baale of Ganmo is not a Chieftaincy, the Traditional Council could not act under Section 78(g) and (h).

Responding to the above submissions, learned senior counsel for the respondent submitted on the issue of jurisdiction, that it is only when the issue is raised in limine, that the statement of claim alone would be considered to determine whether the Court has jurisdiction. He submitted that where the issue of jurisdiction is raised after oral and documentary evidence has been adduced, the Court will take all the available material into consideration to decide on the issue.

He referred to: N.D.I.C Vs C.B.N. (2002) 3 SCNJ 75 @ 88 – 89; Hon. Justice Kalu Anyah & Ors. Vs Dr. Festus Iyayi (1993) 9 SCNJ 53 @ 67; (1993) 7 NWLR (Pt.305) 290 @ 309. He submitted that in the instant case, the issue of lack of jurisdiction was raised in the final address of counsel, after a full hearing. He submitted that the justiciability of a cause of action is not limited to the statement of claim alone.

In order to satisfy this Court that the appellant’s suit relates to a chieftaincy matter, he referred to the case of Olaniyi Vs Aroyehun & 7 Ors (1991) 7 SCNJ 40 @ 51 – 52 & 55. He noted that in that case, this apex Court drew a distinction between a chief under the Interpretation Ordinance and a chief affected by the provisions of the Chiefs (Appointment and Deposition) Law. He submitted that the Chiefs (Appointment and Deposition) Law applicable to Kwara State, which applies only to a chief graded by the Governor is irrelevant to this case. He submitted that what is relevant is whether the Baale/Village head of Ganmo qualifies as a chief under the Interpretation Law of Kwara State which was applicable when the cause of action arose.

He referred to Section 3 of the Interpretation Law, Cap. 52 Laws of Northern Nigeria, 1963 applicable to Kwara State, which defines a “Chief” as:

“Any native whose authority and control is recognised by a native community.”

He submitted that the authority of Baale of Ganmo is recognised by his native community of Ganmo and this therefore makes the cause of action a chieftaincy matter. He submitted that Exhibit D25, which is a valid and subsisting judgment of the High Court, found and held that the dispute is a chieftaincy matter, as conceded by learned counsel in that case. He submitted that even though the year 1978 was suppressed in the appellant’s pleadings, it was evident from a holistic reading of the pleadings that the cause of action did not arise in 1990, as asserted.

He referred to paragraphs 4, 7, and 13 of the Further Amended Statement of Claim No. 2 and contended that the appellant deliberately refused to state the relevant dates. He submitted that the averment in paragraph 7 refers to the respondent’s immediate predecessor in office, Alhaji Karimu Kolawole as evidenced by Exhibit 31 and not the present respondent.

He submitted that the respondent supplied the suppressed dates in paragraphs 6a and 6b of his Further Amended Statement of Defence, oral testimony and exhibits tendered.

Learned senior counsel submitted that the issue of which family had the exclusive right to produce the Baale of Ganmo, strictly from the male line, was settled on 5th May 1978 when the respondent’s predecessor was issued with his letter of appointment. He submitted that the succession of the respondent and the letter of appointment issued to him on 17th October, 1990, was a mere continuation of the family’s enjoyment of their vested right and does not create a new cause of action.

He contended that it was this vested right that was challenged vide Exhibit D25 wherein the Court held that the cause of action having accrued in 1978, the suit was not justiciable and it lacked jurisdiction to entertain it. He submitted that there was no appeal against Exhibit D25 and it therefore remains valid, subsisting and binding on all the parties. He cited: Akinfolarin & Ors. Vs Akinola (1994) 4 SOD 30 @ 46 – 48

He submitted that the cause of action in Exhibit D25 is the same as the cause of action in

the present suit and therefore not justiciable. He submitted that a cause of action is governed by the existing law at the time it arose and that a change in the law will not affect accrued rights and obligations, unless the law is made retroactive. He referred to:Owata & Ors Vs Uchanchi Anyigor & Ors (1993) 2 SCNJ 1; Rossek & Ors. Vs A.C.B. Ltd (1993) 10 SCN] 20. He contended that the distinction drawn by learned senior counsel for the appellant between a suit that is not justiciable and one that is statute barred is merely academic, as the resultant effect is the same, as in each case the Court lacks the vires to entertain the claim. He submitted that the non-justiciability of the suit was sufficiently pleaded in paragraphs 6a, 6b,27, 28 and 28b of the Further Amended Statement of Defence at pages 102 – 107 of the record.

I observe that the submissions of learned senior counsel for the appellant on this issue in his reply brief, are merely a rehash of the arguments in the main brief. They do not address any new issue in the respondent’s brief, which is the function of a reply brief. The submissions are accordingly discountenanced.<br< p=””

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Two crucial questions arise for consideration here. The first is when did the cause of action arise The second is the status of the Baale of Ganmo and whether he is a chief within the meaning of the applicable laws.

It is a settled principle of law that the law applicable to a cause of action is the law in force at the time the cause of action arose and not the law existing at the time the jurisdiction of the Court is invoked. See: Adah Vs NYSC (2004) 13 NWLR (Pt. 891) 639; Akibu Vs Oduntan (2000) 7 SC (Pt. Il) 106; Olutola Vs University of Ilorin (2004) 18 NWLR Pt 905,416.

A cause of action has been defined as consisting of “every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. See: Adimora Vs Ajufo (1988) 3 NWLR (PT. 80) 1. It has also been defined as the fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person a right judicial relief.” See: Egbe Vs Adefarasin (1987) 1 NWLR (Pt. 47) 1 @ 20; Adekoya Vs F.H.A. (2008) 11 NWLR (Pt.1099) 539; Oshoboja Vs Amuda (1992) 6 NWLR (Pt.250) 690.

In Adekoya Vs F.H.A. (supra), it was held that a cause of

action arises the moment a wrong is done to the plaintiff by the defendant and the wrong, which is the basis of a dispute represents a factual situation which entitles the plaintiff to seek a remedy in a Court of law by way of enforcement.

Now, in paragraphs 20, 21, 21 (i) and 21 (ii) of the Further Amended Statement of Claim No. 2 and paragraphs 27 and 28 (b) of the Further Amended Statement of Defence, the parties pleaded as follows:

“FURTHER AMENDED STATEMENT OF CLAIM NO.2:

20, The plaintiff avers that the defendant’s predecessor in title when he threatened disruption of the palace of Ganmo by arrogating, calling, parading and putting himself out as Baale (the Community Head) of Ganmo the matter was fully investigated and a decision was taken whereby the plaintiffs predecessor was affirmed as the Baale while the defendants predecessor was declared to be an impostor and he was warned in writing.

The plaintiff avers that the defendants did not challenge the decision which prohibited his predecessor from parading, calling, introducing or representing himself as head of Ganmo, all the latter day contrived and produced traditional council report are influenced and not genuine.

21 (i) The plaintiff avers that sometime in October 1990, the defendant, in total disregard and desecration of the history, native law and custom of Ganmo and in disregard for the order and directive of Igbomina/Ekiti Local Authority, Omuaran, purported to be appointed successor to one Karimu Kolawole, as Baale of Ganmo by Ifelodun Local Government Council.

21 (ii) The plaintiff further states that the claim of the defendant to the Authority of the Ifelodun Local Government, as his appointing body, was the first and only in the history of Ganmo. Plaintiff will lead evidence to show that the appointment was procured in negation of history and deliberate disregard for or in suppression of official records in so far as they relate to the plaintiffs’ predecessors long occupation of the office of head of the Ganmo for about 100 years.”

“FURTHER AMENDED STATEMENT OF DEFENCE:

The defendant avers and will lead evidence that the suit as presently constituted is incompetent, an abuse of Court process and liable to be dismissed. The defendant pleads writs, statement of claim and previous proceedings between

the plaintiff, his privies against the defendant and his privies. The defendant will contend that the suit is statute barred, caught by estoppel, proper parties to this suit are not before the Court and the Court lacks the necessary jurisdiction.

28 (b) In response to paragraphs 21 (I) and 21 (ii) of the further amended statement of claim no. 2, the defendant avers that he was appointed under native law and custom by the kingmakers who in turn sent his name to the appropriate Kwara State Government Agencies involved in chieftaincy matters before the Ifelodun LGA formally issued letter of appointment and the letter of appointment was not a negation of history or a disregard or suppression of official record. The plaintiffs family never challenged the decision of the Traditional Council in 1978 when the Defendant’s family was recognized as the family entitled to the chieftaincy after a thorough hearing.”

From the pleadings of the parties reproduced above, it is clear that on the appellant’s side, there is an allegation that the respondent’s predecessor in title had put himself out as Baale of Ganmo for which he was issued a warning in writing.

On the respondent’s side, it is also contended that there was a decision rendered by the Traditional Council in 1978, after a thorough hearing, recognizing the respondent’s family as the family entitled to the Baaleship. In addition, the respondent indicated his intention to rely on the following as part of his defence:

a. previous proceedings between the parties and their privies;

b. statute bar;

c. estoppel;

d. absence of proper parties; and

e. lack of jurisdiction.

It is important to note that, as shown in the pleadings of both parties, the contention is which of the two families, the appellant’s Sunmonu Okunoye family or the respondents Kolawole family, is entitled to produce the Baale of Ganmo through its male line by virtue of being the founder of Ganmo. The defences raised by the respondent were not taken in limine. They were considered along with all the evidence led by both parties in the suit.

Ordinarily, it is only the writ of summons and statement of claim that are considered by the Court to determine whether it has jurisdiction to entertain a cause of action or not. The fundamental nature of jurisdiction means

that it can be raised at any stage of the proceedings and even for the first time on appeal before the apex Court. The stage at which the issue is raised may depend on the materials available. It was held in the case of Anyah Vs Iyayi (1993) 7 NWLR (Pt. 305) 290 309 F – G, per Karibi-Whyte, JSC, that apart from the statement of claim, the jurisdiction of the Court can be determined by other considerations in the absence of which there can be no jurisdiction. In certain circumstances, it may be raised on the basis of evidence received. In other words, it may not be possible to determine the issue until after evidence has been given. See:N.D.I.C. Vs C.B.N. (2002) 7 NWLR Pt.766) 272; Barclays Bank of Nig. Ltd. Vs C.B.N. (1976) 1 ANLR 326. A summary of the defences referred to above is that the suit before the trial Court was incompetent.

It is settled law that a Court is competent when:

(i) It is properly constituted as regards numbers and qualifications of the members of the Bench and no member is disqualified for one reason or the other;

(ii) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction;

(iii) the case comes before the Court initiated by due process of the law and upon the fulfilment of any condition precedent to the exercise of jurisdiction.

See: Madukolu Vs Nkemdilim (1962) 2 SCNLR 341; WAEC Vs Adeyanju (2008) 9 NWLR (Pt. 1092) 270; Skenconsult (Nig) Ltd. Vs Ukey (1981) 1 SC 6.

Item (ii) above is the condition relevant to this appeal. It is necessary at this stage to review some of the documentary evidence tendered by the parties.

While the appellant tendered Exhibit 31 in support of the pleading in paragraph 20 of his further amended statement of claim no. 2, the respondent relied on Exhibits D1 and D2 and Exhibits D25 and D26 in support of paragraphs 27 and 28 (b) of his further amended statement of defence.

Exhibit 31 is a letter dated 6th November, 1975 addressed to Alhaji Karimu Kolawole Akanbi (the respondent’s immediate predecessor) c/o The Magaji of Gama by the Resident of the Igbomina/Ekiti Divisional office, which states, inter alia:

“My attention has been drawn to a photograph in the Nigerian Herald of Thursday August 7th, 1975 in which

it was published that you have been turbaned as the Bale of Gama by the Chief Imam of Gama. I am to make it abundantly clear to you that this office does not recognise any title in Gama Village other than that of the Magaji of Gama who is the Village Head and tax collector for Gama Village area.

In order to avoid dual authority and to refrain (sic) you from any act or omission which might not be conducive to the unity of the populace in Gama Village you are hereby warned, in your own interest, to desist henceforth from parading yourself as the Bale of Gama since there cannot be Bale and Magaji of Gama at the same time.”

Exhibit D2 is titled: Comprehensive Report of Chieftaincy Wrangling at Gama Conducted by Ifelodun/Irepodun Traditional Council at Ajasse-Ipo on 12/7/78. Therein, it is reported that Alhaji Jimoh Akanbi spoke in support of Alhaji Zubairu Noibi (Magaji of Gama/tax collector) while the respondent’s immediate predecessor, Alhaji Karimu Kolawole testified for himself and on behalf of the Kolawole family. The panel conducted investigations in three neighbouring towns, Amayo, Idofian and Olorunjare, and concluded that Alhaji Kolawole’s

family was the first family to settle at Gama and that Alhaji Kolawole should continue as Baa and traditional Village Head of Gama.

Exhibit D1 is the minutes of the Ifelodun Traditional Council dated 27th July, 1978 wherein the report in Exhibit D2 was considered. The following conclusions were reached: (i) that Alhaji Karimu Kolawole be officially recognised as Bale of Ganmo as well as Tax Collector; (ii) that the position of Mallam Suberu Noibi was a mere revenue collector, imposed on the people by the defunct Ilorin Native Authority; (iii) that he had been relieved of his post as tax collector and should stop parading himself as Magaji of Gama. Although the Secretary and Chairman raised objections to the findings, they were overruled and they eventually signed the minutes.

The alleged removal of the appellant’s predecessor is contained in a letter dated 15/2/1978 tendered in evidence as Exhibit 30. The respondent pleaded the fact of suberu Noibi’s removal in paragraph 20 of his further amended statement of defence.

Exhibit D25 is a ruling delivered on 12th June, 1985 by T.A. Oyeyipo, Chief Judge in suit no. KWS/121/80 between (1) Mallam Suberu

Noibi (substituted by Mallam Aileru Mogaji); (2) Alhaji Salami Olori; (3) Alhaji Jimoh Akanbi AND (1) Alhaji Karimu Kolawole Ifelodun Local Government, in respect of a preliminary objection raised by Alhaji Karimu Kolawole (1st defendant and predecessor of present respondent) on the ground that the Court lacked jurisdiction to entertain it, being a chieftaincy dispute, having regard to Sections 161 and 165 of the 1963 Constitution and that the plaintiffs lacked the locus standi to institute same.

Section 161 (3) and 165 of the 1963 Constitution of the Federation provides:

161 (3) Notwithstanding anything in any other provision of this Constitution (including in particular Sections 32 and 53 of this Constitution but without prejudice to the proviso to Subsection (1) of Section 22 and Subsection (4) of Section 27 of this Constitution, no chieftaincy question shall be entertained in any Court of law in Nigeria….. (underlining mine)

165 (1) in this Constitution, unless it is otherwise expressly provided or required by the con -“chieftaincy question” means any question as to the validity of the selection, appointment, approval of appointment, recognition, installation, grading, deposition or abdication of a chief.”

The Court overruled the objection on locus standi but held as follows on the issue of jurisdiction:

“With regard to the question of jurisdiction, it is manifest from the pleadings of the parties herein that this suit raises an issue as to Chieftaincy question. Indeed Mallam Salman, learned counsel for the plaintiffs has conceded this point. He has however argued that Section 236 of the 1979 Constitution, which is the applicable law at the time this action was filed, gives the Court jurisdiction to entertain this action. It is common ground from the pleadings of parties that the cause of action in this matter arose in 1978 and the relevant applicable laws to Chieftaincy matters in Kwara State at the material time were the 1963 Constitution of the Federation of Nigeria, 1963 Constitution of Northern Nigeria and the Chiefs (Appointment and Deposition) Law Cap.20 of the Laws of Northern Nigeria applicable in Kwara State. In my view, the weight of authority has crystallized in the principle that the law to apply in the trying of an action is the law in force at the time the cause of action arose….

In light of the foregoing, I am satisfied that the provisions of the 1979 Constitution are not applicable to this case where the cause of action accrued before the 1979 Constitution came into force on October 1, 1979. The provisions of our 1979 Constitution are prospective and not retrospective.

Now, Section 11 of the Chiefs (Appointment and Deposition) Law, 78 (6) of the 1963 Constitution of Nigeria and 161 (3) of the 1963 Constitution of the Federation of Nigeria have identical wordings. Each of these sections of the appropriate law expressly ousts the jurisdiction of Court in all Chieftaincy matters….

Going through the pleadings of the parties in this case, it is clear as daylight that this suit relates to a chieftaincy matter to wit: the appointment of Bale or Mogaji of Ganmo. It is in my view a matter in respect of which the jurisdiction of this Court is ousted by virtue of the relevant provisions of the 1963 Constitution and the Chiefs (Appointment and Deposition) Lam.” (Underlining mine).

The Court consequently struck out the suit for lack of jurisdiction. It is most instructive that there was no appeal against this decision.

Exhibit D26 is a ruling delivered by Hon. Justice J.A. Fabiyi, as he then was, in suit no. KWS/OM/30/90 between Alhaji Aileru Jubril (Bale of Ganma, suing for himself and on behalf of Bale Sunmonu Okunoye) AND (1) Alhaji Abdullahi Atanda (for himself and on behalf of Jinadu and Raji Kolawole); (2) Ifelodun Local Government Council, delivered on 4th April, 1991. The plaintiff’s claim as endorsed on the writ of summons filed on 26th October 1990, was as follows:

“DECLARATION that the office/position of Bale of Ganma under the native law and custom of Ganma is the exclusive right of male descendant only of Bale Sunmonu Okunoye the first Bale of Ganma.

ORDER restraining the 1st defendant from parading or further parading, calling, introducing or presenting himself to any person howsoever, as Bale of Ganma.

ORDER restraining the 1st defendant from performing or continuing to perform the function of Bale of Ganma and in particular continue to hold himself out at public functions or in all official matter[s] as Bale of Ganma to the 2nd defendant or any person or authority howsoever.

AN ORDER of injunction restraining the 2nd defendant from dealing, and/or continue to deal with, recognise, accept, address, designate or put forward the 1st defendant as the Bale of Ganma.”

The 1st defendant therein filed a motion seeking an order striking out the suit on the ground that being a chieftaincy matter, the plaintiff had failed to deposit the sum of N10,000.00 prior to instituting the suit, as prescribed by Section 15 (1) of the Chiefs (Appointment and Deposition) Amendment Edict No. 3 of 1988. It is significant to note that in paragraph 4 of the further affidavit deposed to by the present respondent, it was averred:

“4. That by a letter dated 17h day of October, 1990 from Ifelodun Local Government, my appointment as the Bale of Ganma was approved, Photostat copy of the letter appointing me as the Bale of Ganma attached hereto and marked Exhibit A.”

Exhibit A referred to is Exhibit D9 in the instant proceedings. The Court held:

“The 1st defendant is a chief to wit – Bale of Ganmo, whose appointment has been approved by the said Department of Local Government and Chieftaincy Matters. The payment of N10,000.00 as a non-refundable deposit with the

Accountant General is a condition precedent that must be complied with. Refer to MADUKOLUS case supra. Failure by the plaintiff to comply renders the action incompetent.”

The Court struck out the suit for incompetence. On appeal to the Court of Appeal by Alhaji Aileru Jubril, the decision of Fabiyi, J. was set aside on the ground that a Bale or Village Head in Kwara State is not a chief under the Chiefs (Appointment and Deposition) Law of Kwara State and that since the plaintiff in that suit was not challenging the appointment or deposition of a chief as defined in the said law, he was not required to comply with Section 15 (1) of the law, which required the payment of N10,000.00 non-refundable deposit before instituting the action. The decision of the Court of Appeal is reported in: Jubril Vs Kolawole (1996) 5 NWLR (Pt. 446) 34 @ 45 C – E.

Learned Senior Counsel for the appellant has argued strongly that the cause of action in this suit arose on 17th October, 1990 when the present respondent was issued his letter of appointment and therefore the applicable law is the 1979 Constitution, which did not oust the Court’s jurisdiction in chieftaincy matters.

He urged the Court to confine its enquiry to the further amended statement of claim no. 2 alone. It is argued on behalf of the respondent that the Court is entitled to consider all the materials before it in determining the issue, which include the decision in Exhibit D25, which has not been appealed against. As I had observed earlier, where evidence has been led in the suit, the Court is entitled to consider all the relevant materials before it in determining whether or not it has jurisdiction to entertain the suit.

In the instant case, although the appellant made reference in paragraph 20 of his pleading to the fact that the respondents predecessor had previously threatened the peace by holding himself out as the Bale of Ganmo, he did not provide any dates. The evidence led in the case showed that the present respondent was appointed Bale upon the death of his immediate predecessor, Alhaji Karimu Kolawole. The appellant tendered Exhibit 31 dated 6th November, 1975, which ordered Alhaji Karimu Kolawole to desist from parading himself as Baale. I agree with the learned senior counsel for the respondent that the succession of the

respondent to the position held by Alhaji Karimu Kolawole, did not create a new cause of action. Exhibits D1, D2 and D25 are clear evidence that the cause of action arose in 1978, as rightly held by the lower Court.

There were two crucial findings in Exhibit D25: that the cause of action arose in 1978 and that the cause of action was a chieftaincy matter and therefore the jurisdiction of the Court was ousted by virtue of the provisions of the 1963 Constitution of the Federation and the 1963 Constitution of Northern Nigeria. The suit was instituted in 1980 and learned counsel for the plaintiff sought to rely on the 1979 Constitution. His Lordship, Oyeyipo, CJ held at page 8 of Exhibit D25:

“In the unreported case of Sir Olateru Olagbegi Vs A.G. Ondo State & Anor. Appeal No. FCA/B/69/82 delivered on 17th January, 1983, His Lordship, Nasir P., delivering the judgment of the Court said thus: –

“I am also satisfied that the 1979 Constitution has not revived any cause of action which came into existence before the Constitution came into force nor has the Constitution opened any gates of the Courts to allow such non-justiciable action to enter.”<br< p=””

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In the light of the foregoing, I am satisfied that the provisions of the 1979 Constitution are not applicable to this case where the cause of action accrued before the 1979 Constitution came into force on October 1, 1979. The provisions of our 1979 Constitution are prospective and not retrospective.”

It is apposite to reiterate here that the substantive law applicable to a cause or matter is the law in existence at the time the cause of action arose. Statutes are generally construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect is clearly intended. See: Ojokolobo Vs Alamu (1987) 3 NWLR (Pt. 61) 377; Adah Vs NYSC (2004) 13 NWLR (Pt.891) 639 @ 648 A – E. It must however be noted that the presumption against retrospective construction has no application to enactments which only affect the procedure and practice of the Courts. See: Ojokolobo Vs Alamu (supra) @ 394 E. His Lordship Nasir, P. in the unreported decision referred to by Oyeyipo, CJ was right when he held that the 1979 Constitution did not revive any cause of action, which came into existence before the said Constitution came into force.

There is no appeal against the decision in Exhibit D25 regarding when the cause of action arose and the fact that being a chieftaincy matter, the Court lacked the jurisdiction to entertain the suit. The non-justiciability of the suit could not have been revived merely by filing a fresh suit in 1990 before Fabiyi, J., as he then was.

The Court below at pages 437 – 439 of the record, analysed Exhibits D1 and D2, which arose as a result of the respondent’s protest upon being served with Exhibit 31, alongside Exhibit D25, and held rightly, in my view, that the learned trial Judge was wrong when he held that the plaintiffs action was based solely on the unprecedented appointment of the respondent as Baale of Ganmo in 1990. I agree with the Court below when it held at pages 438 – 439 of the record as follows:

“Thus, even if we go by the statement of claim of the plaintiff and some of the paragraphs highlighted, the claim of the plaintiff is statute barred from the reliefs sought in paragraphs 23 – (ii) thereof as it was the predecessor-in-title to the defendant whom the plaintiff himself has

acknowledged “purported to be appointed successor to one Karimu Kolawole as Baale of Ganmo by Ifelodun Local Government Council.”

There was therefore precedence of appointment and recognition of the defendant’s predecessor Alhaji Karimu Kolawole in 1978 and the defendant is merely succeeding the said Kolawole as Baale. See paragraph 21 (I) and paragraph 17 of the plaintiff’s statement of claim that he ascended the office of Head of Ganmo in 1983 after his predecessor had passed on.”

The contention of learned senior counsel for the appellant, that the Court below went outside the pleadings to determine when the cause of action arose, is not correct. All the pleadings, facts and evidence relied upon were before the trial Court. Indeed, the learned trial Judge considered Exhibits D25 and D26 in determining whether the Court had jurisdiction to entertain the suit. His Lordship, at pages 295 – 296 of the record, agreed that the parties in the two suits were more or less the same as the parties in the suit before him, being privies of the parties in the earlier suits. He held that the main issues in the suits were whether the suits were

chieftaincy matters, which ought to comply with the existing laws of Kwara State before being instituted. He held that even if the cause of action in the various suits were the same, neither Exhibit D25 nor D26 finally determined the rights of the parties, having been struck out for incompetence.

Estoppel per rem judicatam or res judicata arises where an issue of fact has been judicially determined in a final manner between the parties or their privies by a Court or Tribunal having jurisdiction in the matter and the same issue comes directly in question in subsequent proceedings between the parties and their privies. The principle operates where the subject matter and the question raised in the second matter are the same as the subject matter and question raised and decided in the first matter. Where successfully raised, it ousts the jurisdiction of the Court to determine the matter. See: Coker Vs Sanyaolu (1976) LPELR-877 (SC) @ 20 D – E; Ajiboye Vs Ishola (2006) 13 NWLR (Pt. 998) 628; Igbeke Vs Okadigbo (2013) 12 NWLR (Pt.1368) 225 0 254 D; Oleksandr & Ors. Vs Lonestar Drilling Co. Ltd. & Anor. (2015) LPELR-24614 (SC) 50 A – B.<br< p=””

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There are two types of estoppel: cause of action estoppel and issue estoppel. Cause of action estoppel arises where the same cause of action has been held to lie (or not to lie) in a final judgment between the same parties, or their privies, who are litigating in the same capacity (and on the same subject matter). Issue estoppel, on the other hand, arises where an issue has earlier on been adjudicated upon by a Court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties or their privies. See: Fadiora Vs Gbadebo (1978) 3 SC 219 @ 228 & 229; Oshodi Vs Eyifunmi (2000) 7 SC (Pt.II) 145.

The applicable estoppel in this case is cause of action estoppel. There were specific findings by a Court of competent jurisdiction (the Kwara State High Court per Exhibit D25), that the cause of action arose in 1978, that it was a chieftaincy matter and that the Court lacked jurisdiction to entertain it. The findings are binding and subsisting between the parties in the absence of an appeal. See: Durbar Hotel Plc. Vs Ityough & Ors (2016) LPELR – 42560 (SC) @ 7 8 – F- A;

Uwazurike Vs Nwachukwu (2013) 3 NWLR (Pt. 1342) 503; Adedayo Vs Babalola (1995) LPELR – 85 (SC) 40 A – C.

In Adedayo Vs Babalola (Supra) reference was made to an earlier decision of this Court in Odjevwedje Vs Echanokpe (1987) 3 SC 47 @ 72; (1987) 1 NWLR (Pt. 52) 633, per Eso, JSC, to wit:

“A decision of a Court of competent jurisdiction not appealed against or which appealed against has not been set aside, exists forever between the parties.”

It is evident from the finding of the learned trial Judge that His Lordship only adverted his mind to issue estoppel.

The Court below at pages 441 – 443 of the record per Ignatius Igwe Agube, JCA, held inter alia:

I shall round up this issue of estoppel by referring to the lead judgment of Mukhtar, JSC at page 368 in the said Abubakar Vs B.O. & A.P. Ltd. (supra) [(2007) 18 NWL R (Pt.1066) 319] when she posited that once a matter is struck out for want of jurisdiction, as was done on June 12th 1985 by Oyeyipo emeritus CJ, the only option opened to the Plaintiff/Respondent and his family as an aggrieved party was to proceed on appeal rather than reopen the case as they did before Fabiyi,

(as he then was) in 1990. The judgment of the Court of Appeal that set aside that of Fabiyi, J., has not enhanced their status in this case.”

Indeed, the present suit is a replica of suit no. KWS/121/80 that was struck out by Oyeyipo, CJ for want of jurisdiction. All the ingredients of a successful plea of Estoppel per rem judicatam exist mutatis mutandis…

With the greatest respect, by the decision of the Supreme Court earlier cited, it has been settled that by striking out the first suit for want of jurisdiction, which decision has not been appealed against, the status quo ante still subsists. Moreover, since the claim of the Plaintiff is statute barred it is stale, dead and buried, never to be revived. The rights of the parties have been settled for good and by the Latin maxim “interest rei publica ut sit finis- litium” it is for the common good that there should be an end to litigation.”

I am unable to fault the sound reasoning above. It was the proceedings in Exhibits D1 and D2 that gave rise to the suit and the judgment of Oyeyipo, CJ in Exhibit D25. The parties, their privies and the cause of action in all three were the same as in

the suit before the learned trial Judge. In the absence of any appeal against the decision in Exhibit D25, the trial Court was estopped from entertaining the suit. The decision of Oyeyipo, CJ that the Court lacked jurisdiction to entertain the suit because the cause of action was not justiciable is valid and subsisting. The learned trial Judge ought to have struck out the suit.

The first issue is accordingly resolved against the appellant. Having resolved the first issue against the appellant, there is no useful purpose to be served by delving into the remaining issues, which are now otiose.

In conclusion, I hold that the appeal lacks merit. It is hereby dismissed. The judgment of the lower Court setting aside the judgment of the trial Court and dismissing the appellant’s claim is hereby affirmed. Costs are assessed at N500,000.00 against the appellant and in favour of the respondent.

SC.345/2008

Alh. Hanafi Zubair V. Alh. Abdullahi Atanda Kolawole (2019)

Alh. Hanafi Zubair V. Alh. Abdullahi Atanda Kolawole (2019)

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