Alhaji Prince Moroof Oladimeji Akintola V. Alhaji Moroof Adekunle Magbubeola & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

NWALI SYLVESTER NGWUTA, J.C.A.(Delivering the Leading Judgment)

This appeal is against the ruling delivered by Ogunsola J. (OFR) of the High Court of Osun State, Oshogbo Judicial Division on 30th March, 2009 in Suit No. HOS/26/08.

The facts of the case are apparent on the face of claim endorsed on the writ of summons issued on 28/2/08 and also set out in paragraph 24 of the Statement of Claim dated 28/2/08 and filed on the same date. The claims are hereunder reproduced:

“(i) Declaration that the presentation of candidates nominated by Olumoyere 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 Ifa 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 of lfon-Osun by 13th and 14th Defendants are not in accordance with the 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 lfon-Osun.

(vi) An order of Court restraining the 13th – 14th Defendants from recognising or further recognising the 1st Defendant as the Olufon of Ifon-Osun.” See pages 2 and 5 of the records of the lower court.

The 13th and 14th defendants entered appearance on the 6th of March, 2008, the 12th defendant on 18/3/2008. The 1st to 11th defendants entered a conditional appearance on 23/6/2008 and filed a notice of preliminary objection also on 23/6/08. The preliminary objection was predicated on the following grounds:

“(i) The action is incompetent having not fulfilled the requisite condition precedent for its initiation/commencement.

(ii) This Honourable Court lacks the requisite jurisdiction in law to entertain this action.” See page 18 of the records.

The appellant filed a 19 paragraph affidavit tagged “Affidavit in Support” as well as a written address in respect of the preliminary objection. The 12th Respondent filed a 6 paragraph counter-affidavit and his learned counsel filed a “written address in support of the Counter affidavit . .. .” There is also a 13 paragraph Counter-Affidavit on behalf of the 12th Respondent deposed to by one Olasunkanmi Kujogbola who described himself as a Litigation Clerk in the firm of Soji Oyetuyo & Co of 37 Gbongan Road, Oshogbo Osun State.

Learned Counsel for the parties adopted, and expatiated on their written addresses on 17/2/09 and the trial Court adjourned to 30/3/09 for ruling on the preliminary objection.