Alh. Maroof Adekunle Magbagbeola & Ors V. Alh. Prince Moroof Oladimeji Akintola & Ors (2018)

LAWGLOBAL HUB Lead Judgment Report

IBRAHIM TANKO MUHAMMAD, J.S.C.

The issues for deliberation in this appeal as set out by the learned counsel for the appellants are as follows:

“1) Whether the Court of Appeal, Akure Division rightly interpret (sic: interpreted) the provisions of Section 20(1) and (2) of the Chiefs Law Cap 25 of Osun State 2003 to mean that “whether the representation is made by an unsuccessful candidate or his ruling house the representation is limited to allegation that the proper order of rotation has not been observed. Ground 1 of the Notice of Appeal.

2) Whether the Court of Appeal is right in holding that the non-compliance with the provisions of Section 20(1) and (2) by the respondent before coming to Court did not rob the Court of the jurisdiction to entertain the matter. (Ground 1).

3) Whether the Justice (sic: Justices) of the Court of Appeal are right in law to save a patently defective grounds of Appeal which complained both error of law and misdirection of facts. Ground 2 Of the Notice of Appeal.

Of the three (3) respondents, it is only the 1st respondent

1

who filed an amended brief on the 5th of October, 2017 (deemed on 17th October, 2017) in which he set out two issues for determination, thus:

1) “Whether the interpretation placed by the Court of Appeal on the provisions of Section 20 of the Chiefs Law of Osun State is sufficient to invalidate the judgment of the Court, particular regard being had to its decision that the provisions of the said Section were inapplicable to the 1st respondent’s case as pleaded in the Statement of Claim Ground 1 of the Notice of Appeal.

2) Whether the Court of Appeal was not correct when it decided to entertain Ground 2 of the Appellant’s Notice of Appeal which complained of error of law and misdirection at the same time and whether by the said decision any miscarriage of justice was occasioned to the appellants herein Ground 2 of the Notice of Appeal.”

The background facts supporting this case as contained in the printed record of appeal placed before this Court are that by an indorsed writ of summons, the 1st respondent herein, as plaintiff/claimant at the Osun State High Court of Justice, holden at Osogbo, (trial Court) made some declaratory and

2

other claims against the appellants (herein) as defendants at the trial Court. The claims as per paragraph 24 of the Statement of Claim read as follows:

“24. WHEREOF the claimants claim against the defendants is as follows:

i. Declaration that the presentation of candidates nominated by Olumoyero Ruling House, whose turn it is to present candidates to fill the vacancy in the Olufon of Ifon-Osun Chieftaincy by the head Of Olufon Ruling Houses to the traditional kingmakers for consideration and consultation of lfa Oracle to determine who has the best portent for the good of Ifon-Osun community is a condition precedent to the selection, appointment and approval of Olufon of Ifon-Osun.

ii. Declaration that the traditional kingmakers are enjoined and obliged to consult Ifa Oracle as to the candidate who has the best portent for the good of Ifon-Osun before selection and appointment of Olufon of Ifon-Osun could be made.

iii. Declaration that the purported selection and appointment of the 1st defendant by the 2nd – 6th defendants acting as warrant kingmakers and the purported approval of the 1st defendant as the Olufon

3

of Ifon-Osun by 13th and 14th defendants are not in accordance with native law and custom of Ifon-Osun, fraudulent, null and void and of no effect whatsoever.

iv. An order setting aside the purported selection, appointment and approval of the 1st Defendant as the Olufon of Ifon-Osun.

v. An order restraining the 1st defendant from parading himself and further parading himself and/or; performing the rights, privileges and functions of Olufon of Ifon-Osun.

vi. An order of Court restraining the 13th – 14th defendants from recognizing or further recognizing the 1st defendant as the Olufon of lfon-Osun.”

At the commencement of proceedings at trial Court, a notice of Preliminary Objection (PO) was filed by the learned counsel for the 1st – 11th defendants challenging the competence of the trial Court to try the suit, praying that Court to dismiss the suit on the grounds that the action was incompetent having not fulfilled the requisite condition (s) for its initiation or commencement and that the trial Court lacked the requisite jurisdiction in law to entertain the action.

4

The preliminary objection was supported by a 19-paragraph affidavit. In opposing the preliminary objection, learned counsel for the plaintiff filed a 13-paragraph counter-affidavit.

After considering the affidavit evidence in respect of the preliminary objection the trial Court sustained the preliminary objection and accordingly, dismissed the suit.

Dissatisfied with the trial Court’s decision, plaintiff appealed to the Court of Appeal, Akure (Court below). The appeal was heard and judgment delivered on the 3rd of March, 2011, allowing the appeal.

Dissatisfied, appellants filed a Notice of Appeal to this Court.

Briefs were filed and exchanged by the respective parties. Issues as set out at the beginning of this judgment were incorporated in the said briefs of argument.

My lords, I think the only relevant issue in all the issues formulated by the parties, and upon which both parties are in tandem. is appellants issue No. 2 that is:

“Whether the Court of Appeal is right in holding that the non-compliance with the provision of Section 20(1) and (2) by the respondent before coming to Court did not rob the Court of the jurisdiction to entertain the matter.”

5

Now, Section 20 of the Chiefs Law of Osun State, 2003, provides as follows:

“20(1) Subject to the provision of this Section, the Executive Council may approve or set aside an appointment of a recognised chief.

The Executive Council shall not approve or set aside an appointment within the period of twenty-one days after notification in accordance with Section 19 and during that period.

a) an unsuccessful candidate; or

b) a ruling house in respect of the chieftaincy which alleges that the proper order of rotation has not been observed, may make representatives to the Executive Council in the manner prescribed that the appointment be set aside.

In determining whether to approve or set aside an appointment under this section the Executive Council may have regard to:

a) Whether the provisions of Section 15 and 16 haven(sic) complied with.

b) whether any candidate was qualified or disqualified in accordance with the provisions of Section 14;

c) Whether the Customary law relating to the appointment has been complied with;

d) Whether the kingmakers, in the case of a ruling

6

house Chieftaincy, had due regard to the ability, character or popular support of any candidate or:

e) Whether the appointment was obtained corruptly of by the undue influence of any person; and may, notwithstanding that it appears to it the appointment has been made in accordance with the provisions of this law, set aside an appointment if it is satisfied that it is in the interests of peace, order and good governance to do so.”

In his submissions before this Court, learned counsel for the appellants, stated, inter alia, that the Court below failed to read the entire provisions of the sub-sections of Section 20 of the Chiefs Law together in concluding the way it did in its judgment and more worrisome is the interpretation they ascribed to Section 20, that it is not a condition precedent to instituting an action. The Court below, he argued, did a summersault by holding otherwise, when it limited the application of the restriction to non-observance of order of rotation. The lower Court, learned counsel argued, had no business tinkering with the express provisions of the law by importing into it what is not there or borrowing a delimiting

7

phrase or clause from a Section and engrafting it on another. He submitted further, that the issue of the applicability of Section 20 of the Chiefs Law as to the ground of making representation to the Governor was never canvassed by any of the parties at the lower Court. It was raised suo motu and none of the parties was given opportunity to be heard at the lower Court. Learned counsel cited some cases in support: Ajibona v. Kolawole (1996) 10 NWLR (Pt.476) 22 at 36; A-G Leventist Nig. Plc v. Akpu (2007) All FWLR (Pt.388) 1028; Dakk Nig. Ltd. v. Oil Mineral Producing Areas Dev. Commission (2007) All FWLR (Pt.364) 204.

The 1st respondent in his amended brief of argument, drew attention of this Court, in paragraph 1.02 of page 3 of the brief that:

“1.02 The Court of Appeal in its judgment held amongst others that non-compliance with the provisions of Section 20(2) by a person aggrieved by the appointment of a Chief is not fatal as the said Section does not provide a sanction. The appellants herein have made this finding the main thrust of this appeal. We do not intend to belabor your Lordships on the purport and interpretation of Section 20 (2)

8

of the Chiefs Law of Osun State. We concede that the Court of Appeal was wrong in its interpretation of the law.”

(underlining for emphasis)

However, learned counsel for the 1st respondent went on to argue that the error of interpretation (to which 1st respondent conceded) committed by the Court below is insufficient to invalidate its judgment because, the case of the 1st respondent as pleaded in the Statement of Claim was such as made compliance with Section 20(2) of the Chiefs Law inapplicable or unnecessary such as would require him to exhaust the administrative remedy provided by the law before instituting his action.

My lords, I would not have proceeded to say anything, any more, than “appeal is allowed” by the concession of the 1st respondent as above, as Section 20 of the Chiefs Law of Osun State is the raison detre of this appeal. But, to be more on the side of caution, I will proceed to consider further submissions of the respective parties on issue No.2 by the appellant which is capable of determining the appeal. Permit me to start with the views expressed by the trial Court where it stated as follows:

9

“What is expected to be done in chieftaincy matters are elaborately stated in the Chiefs law (supra). As a follow up to this point, the powers and responsibilities of the 13th & 14th defendants are fundamental. It is enough to say that he can set aside an appointment if it is satisfied that it is in the interest of peace order and good government.

I have set out the submissions of learned counsel for the parties. Learned counsel for the objectors Mr. Kehinde Adesiyan cited a plethora of authorities to persuade the Court in his argument. The plank of his argument should not be lost. Plaintiffs ought to have made representations and in additions there was nothing in the pleadings of the plaintiffs linking the 13th – 14th defendants. In other words, there was no cause of action against them.

In the case of Owoseni v. Faloye (2005) FWLR 220 at 234, Dahiru Musdapher, JSC has this to say when considering a similar provision in Ondo State.

‘Now in my view, the Court of Appeal is perfectly right on the statement of the law to the effect that where a statute prescribes a legal line of action for the determination of an issue be it an administrative

10

matter, chieftaincy matter, such as this or a matter on a taxation, the aggrieved party must exhaust all the remedies in that law before going to Court.’

In similar vein, Oguntade, JSC at p.224 was gracious enough to state the rationale behind the procedure. According to him:

‘In relation to chieftaincy matters, were such laws not in existence, the Courts would be inundated with suits on chieftaincy matters, given the bitterness with which chieftaincy disputes are pursued and the regularity with which such dispute occur.”

The learned trial judge concluded that the chiefs law is not inconsistent with the provisions of the Constitution in so far as it laid down the requirements to be followed in Section 20(2) of the Chief Law (supra).

I am in perfect agreement with the trial Court in its views.

For a better comprehension of this matter, it is pertinent to bring out the facts more clearly. The Olumoyero Ruling House being one of the five ruling houses in respect of Olufon of Ifon-Osun Chieftaincy, is the ruling house next entitled to present candidate to fill the vacancy created by the demise of Oba Olatoye Ilufoye Orisatoyinbo II, late

11

Olufon of Ifon-Osun who passed on the 20th of August, 2007.

The plaintiff and the 1st defendant were subsequently nominated by the Olumoyero Ruling House to fill the vacant stool in line with the dictate of the tradition. The names of the plaintiff and defendant were presented to the kingmakers to enable them perform all customary and traditional rites in making a choice among the two candidates that have the best potency of filling the vacant stool and acceptable to the generality of the people of Ifon-Osun.

In line with the tradition, the 12th defendant who is the Head of Olumoyero family presented the plaintiff and 1st defendant to the traditional kingmakers for their assignment. The Kingmakers assignment involve consulting Ifa oracle to know who among the two is the best candidates for peace and tranquility of Ifon-Osun.

As at the time of presentation to the kingmakers, only two of the kingmakers were readily available hence, they could not form quorum to do the assignment within the time stipulated by law. The 13th and 14th defendants acting on this fact and according to the dictate of the law appointed warrant kingmakers to complement and conclude

12

the process of screening which include consulting Ifa oracle.

The kingmakers concluded their assignment and forwarded the name of the 1st defendant to the appropriate authority which is the 13th and 14th defendant. A notice of this presentation was made known to all ruling houses in Ifon-Osun and on the 18th February, 2008, the name of the 1st respondent was approved and announced on all media both print and electronic as the new Olufon of Ifon-Osun.

The plaintiff, dissatisfied with the approval of the appointment of the 1st defendant instituted Suit No. HOS/26/2008 on the 28th of March, 2008 which is the subject of this appeal.

Upon service of the originating processes on the 1st to 12th defendants, a notice of preliminary objection along with entry of Conditional Appearance were filed challenging the competency of the suit and the Court to entertain it.

By the provisions of Section 20 of the Chieftaincy Law of Osun State, specially, Subsection (2) thereof, an unsuccessful party, who is aggrieved by the decision of the prescribed authority on a Chieftaincy matter, or a Ruling House, is required to make representation to the Executive

13

Council against such a decision within a period of 21 (twenty one) days.

From the above facts, it is clear that the kingmakers concluded their assignment and forwarded the name of the 1st defendant to the appropriate authority (13th and 14th defendants) notice of the presentation was made known to all Ruling Houses in Ifon-Osun and name of the 1st defendant approved and announced on media on 18th of February, 2008.

The plaintiff/respondent on the 28/3/2008 instituted a suit at the trial Court with suit No. HOS/26/2008. Thus, from the date of presentation and announcement of the appointment of the 1st defendant the plaintiff/respondent went asleep for over one month without having a resort to the provision of Section 20 of the Osun State Chiefs Law. Equity, they say, helps the vigilant and not the indolent.

The spirit of the law in Section 20 of the Chiefs Law (supra) is clear and from the facts revealed in this matter, the respondent being an unsuccessful candidate from the same Ruling House with the 1st appellant, falls within the purview of the persons who can take advantage of Section 20 of the Chiefs law. Equally, the Ruling House whose term

14

it is to present a candidate for appointment as Olufon of Ifon-Osun chieftaincy to make presentation to the Osun State Executive Council for further action. Thus, both the unsuccessful candidate and the Ruling House are bound to comply with the provision of Section 20 (2) of the Chiefs Law as regards making representation to the Executive Council in the manner prescribed that the appointment be set aside. The representation must, by the provision of the said law, be made within 21 days of the notification of such appointment.

It is vividly clear from the facts in this appeal that the respondent jettisoned the procedure as laid down by Section 20 of the said Chiefs law and went straight to Court for remedy. The law is always not in support of such practice. What the law lays is that where there is a condition precedent as in Section 20 of the Chiefs Law herein; a party who complains that he is affected, he has to exhaust such a condition precedent before taking any further action or reaching to a Court of law. It must, for the avoidance of doubt, be clearly understood that, any condition which is described as “precedent” is one which must happen

15

or be performed before some right dependant thereon accrues or some act performed. The administrative remedy provided in Section 20 of the Chiefs Law has not been complied with by the respondent and as rightly held by the trial Court, the suit could not be competently decided by it until the administrative remedy has been exhausted. Musdapher, JSC (as he then was) (rtd.) in the case of Owoseni v. Faloye (2005) FWLR 220 at 234, stated, inter alia:

“In my view, the Court of Appeal is perfectly right on the statement of the law to the effect that where a statute prescribes a legal line of action for the determination of an issue be it an administrative matter, chieftaincy matter, such as this or a matter of taxation. the aggrieved party must exhaust all the remedies in that law before going to Court.”

(underlining supplied)

Oguntade, JSC (Rtd.)in the same case threw more light by continuing on same issue that:

“In relation to Chieftaincy matters, were such laws not in existence, the Courts would be inundated with suits on Chieftaincy matters, given the bitterness with which chieftaincy disputes are pursued and the regularity

16

with which such disputes occur…

Furthermore, where an aggrieved party has not resorted to the remedies statutorily available to him on the infringement of his alleged right by the prescribed authority, such a party has therefore not exhausted the remedies available to him and has in consequence not satisfied the preconditions for access to Court. See: Adesola v. Abidoye (supra) at pages 58. In the instant case, the respondent omitted to comply with the provisions which set out the procedural steps for venting his grievance and he therefore acted prematurely in instating (sic: instituting) his action in the lower Court.”

(underlining supplied for emphasis)

The underlined statements by Oguntade, JSC (rtd.) in Owoseni’s case (supra) depicts clearly the scenario in the present appeal. To this extent, I am in agreement with the learned counsel for the appellants that the provision of Section 20 (2) (a) and (b) of the Chiefs Law of Osun State is not made as a cosmetic nor made only to add aesthetic value to the law, it is made by the law makers to be obeyed by all parties or authority. Therefore, where there is a Chieftaincy dispute, such as the one on hand,

17

failure by a party to exhaust available remedies will oust the jurisdiction of the Court to hear the matter. See: Okomalu v. Akinbode (2006) 9 NLR (Pt.985) 338 at page 343.

It is important to note that what the trial Court decided was only in respect of the Preliminary Objection raised by the 1st to 11th defendants/appellants. The trial Court did not go into the merit of the main suit before it. That is the right position of the law that where there is a Preliminary point of objection, it is always neater to decide that objection first before delving into the main suit/case/appeal. See:Odiase v. Agho (1972) 1 All NLR (Pt.1) 170; Fadiora v. Gbadebo (1978) 3 SC 219.

My lords, the aim or purpose of a Preliminary Objection against a suit, an application or an appeal, is, if successful, to terminate the hearing of the matter under consideration IN LIMINE either partially or in toto. Accordingly, where competence of the matter is challenged, it is always better to determine same first before embarking to consider the said matter. Where the said matter is found to be

18

incompetent that puts an end to it. See: Odiase v. Agho (supra); Fadiora v. Gbadebo (supra); Oloriode v. Oyebi (1984) 1 SCNLR 390; Ndigwe v. Nwude (1999) 11 NWLR (Pt.626) 314.

The trial Court decided this matter by considering the Preliminary Objection raised by the 1st to 11th defendants/appellants. I quote, herein below, of the concluding part of the learned trial judge’s Ruling:

“The Chiefs Law is not inconsistent with the provisions of the Constitution in so far as it laid down the requirement to be followed in Section 20(2) of the Chiefs Law (supra). I have carefully examined the entire application and of the firm view that the preliminary objection is sustained and the suit is accordingly dismissed.”

It is to be noted that the learned trial judge did not make any attempt in his Ruling to interpret ithe provisions of Section 20 of Osun State’s Chiefs Law. That of course, is a determination IN LIMINE. Blacks Law Dictionary 5th edition, defines IN LIMINE as, “on or at the threshold, at the very beginning; preliminarily.” Thus, if a matter is determined IN LIMINE, it means that it is determined preliminarily, or

19

at its very beginning or inception without further ado. A suit or appeal is determined IN LIMINE without the necessity of going through its merit or de-merit. The judge handling it thus has formed prima facie opinion that the matter is not worth pursuing before him due to some debilitating factors such as lack of jurisdiction of the Court before which the matter is pending, voidity of the subject matter; RES JUDICATA or the same matter is before another Court (abuse of Court process). It is thus, surprising, how the Court below allowed itself to be drawn into an unnecessary argument on the interpretation of Section 20 of the Osun State’s Chiefs Law.

Granted that what the Court below did was right, yet the learned counsel for the 1st respondent, as I stated earlier, conceded that the Court below committed an error of interpretation of Section 20 (2) of the Chiefs Law of Osun State. Learned counsel stated further:

“As stated earlier, we concede the above stated points. We agree as canvassed by the appellants that the representation envisaged by Section 20(2) of the Chiefs Law in respect of an unsuccessful candidate is not

20

limited to the issue of whether the proper order of rotation amongst ruling families has been observed or not. Such a restriction is only applicable to a ruling family which desires to make a representation to the Executive Council.

We also agree that non-compliance with the procedure in Section 20(2) of the Chiefs Law or non-exhaustion of the administrative remedies contained in the said law is fatal to a suit which is filed without compliance with the said provision. Indeed, the holding of the Court of Appeal in this case runs contrary to several judicial authorities on this point.

We refer to Okomalu v. Akinbode (2006) 9 NWLR (Pt.985) 358; Awoyemi v. Fasuan (2006) 13 NWLR (Pt.996) 86.”

Ordinarily, “to concede to something” means to admit that something is true or correct, to admit defeat, although the conceder may wish it were not true or it were otherwise. Thus, to my mind, arguments on the interpretation of Section 20 (including any part thereof), is a non-starter. The learned trial judge dismissed the suit, apparently because the 1st respondent did not exhaust the legal line of action the Osun State Chiefs Law prescribed, i.e. for the 1st

21

respondent and or a Ruling House to make a representation to the Executive Council after the election of the appellant within 21 days. This was not done by either of the two. I repeat it, that it is the law to the effect that where a statute prescribes a legal line of action for the determination of an issue be it an administrative matter, Chieftaincy matter or a matter on taxation, the unsuccessful party must exhaust all the remedies in that law before heading to a Court of law. I repeat the same citations as relied upon and quoted earlier. As the 1st respondent failed or neglected to follow the stipulation of the chiefs law of Osun State, he has no legal capacity to institute the proceedings in the trial Court as the suit is constituted. Any Court that may be approached for a remedy by the 1st respondent can easily and conveniently decline jurisdiction as done by the trial Court.

Perhaps what needs to be clarified is whether it was the right consequential order, i.e. dismissal of the suit, made by the trial Court. This, the Court below, held was wrong. Instead of dismissal order of the suit, it would have been a striking out

22

order. I think the Court below is correct on this point. Where a party lacks a right of action due to non- compliance with some procedural conditions precedent, it goes to the root of the jurisdiction of the trial Court. Where a plaintiff has no locus standi, a Court is obliged to strike out his case without going into the merits of the suit. See:Senator Abraham Adesanya v. President of the Federal Republic of Nigeria and Another (1981) 5 SC 112 at pp. 128 – 129; Ogunsanya v. Dada (1992) 4 SCNJ 162 at p.168; Buraimoh Olowole & Ors v. Simeon Oyebi & Ors (1984) 5 SC 1.

The reason for the striking out of the suit and not dismissal is that the action has not been tried. See: Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587. This Court, in the case of RTEAN V. NURTW (1992) 2 NWLR (Pt.224) 381 at 391, per Babalakin, JSC (Rtd.) stated the reason in preference of a striking out order instead of a dismissal order:

“When a Court holds that a plaintiff has no locus standi in respect of a claim, the consequential order to be made is striking out of such claim and not a dismissal of the claim. The rationale is that holding that a plaintiff has no locus standi goes to the

23

jurisdiction of the Court before which such an action is brought. When the question that a plaintiff has no locus standi to institute an action arises, all that is being said in effect is that the Court before which such an action is brought cannot entertain the adjudication of such an action. The Court cannot dismiss a claim, the merit of which it is not competent to inquire into.

A dismissal presumes that the Court has looked into the claim and found it wanting in merits. But it can only so look into the claim if that claim falls within the Court’s jurisdiction. A dismissal postulates that the action was properly constituted.”

See further: Nigeria Airways v. Lapite (1990) 7 NWLR (Pt.163) 392; Oloriode v. Oyebi (supra). In Adesokan v. Adetunji (1994) 6 SCNJ (Pt.1) 123 at page 146, where this Court reiterated the position of the law that:

“It is immaterial that pleadings have been completed and full trial conducted. At whatever stage the finding is made that the plaintiff lacks locus standi to maintain the action, the jurisdiction of the Court to entertain the action is affected and the course of action open is to

24

put an end to it by striking it out… If the Court has no jurisdiction to adjudicate, it cannot dismiss the action.”

The suit giving rise to this appeal was on Chieftaincy matter. Ordinarily, by the provision of the Constitution of the Federal Republic of Nigeria, Section 272(1) (as amended), a State High Court, such as the trial Court, has jurisdiction to entertain any complaint therein. But where a person denies himself the capacity to sue, by refusing or neglecting to comply with a statutory stipulation such as that provided by Section 20(2) of the Osun State Chiefs Law, he lacks capacity to initiate an action before a Court of law. Thus, he has no locus standi to sue. If he does, and an objection is taken by the other side, or the incapacity is raised suo motu by the trial Court, the suit/action has to be struck out. This is what happened in this appeal.

One thing that remains is, although the Court below noted that the trial Court ought to have struck out the suit and not dismissal of it, the Court below did not correct that error. Be that as it may, this Court, under its general powers has the right to amend that order of dismissal made by the trial Court

25

to one of striking out the suit. See: Ovenseri v. Osagede (1998) 7 SCNJ 188 at page 195. Accordingly, this appeal is hereby allowed. I set aside the judgment of the Court below except that portion which struck out the appeal. I restore the Ruling of the trial Court delivered on the 30th day of March, 2009, with the amendment to the consequential order to now read:

“I have carefully examined the entire application and of the firm view that the preliminary objection is sustained and the suit is accordingly struck out.”

I do not find it necessary to delve into the remaining issues formulated by the parties as this issue (No.2) now considered, has in my view, settled finally, all the issues in contention.

This is my judgment.

SC.275/2011