Chief Adefioye Adedeji V. Ezekiel Ola Gureje & Anor. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment)

By an amended statement of claim filed on 3/4/95, the Respondent herein (as plaintiff in the court below) sought the following reliefs against the appellant and H.R.H. Oba Gabriel Adekunle Aromolaran II, Obokun of Ijeshaland as 1st and 2nd defendants respectively:-

(i) “Declaration that the Plaintiff is the rightful and proper person to be installed Chief Risawe of Ilesa.

(ii) Declaration that the purported consent given to the candidature of the 1st Defendant by the 2nd Defendant to be installed as Chief Risawe and the subsequent installation are wrongful, illegal, null, void and of no effect.

(iii) Perpetual injunction restraining the 1st Defendant from further parading himself as Chief Risawe of Ilesa and from performing any function connected therewith.

By a motion on notice filed on 3/4/95, the appellant herein sought an order striking out the suit for lack of jurisdiction and abuse of judicial process. In the alternative he sought an order transferring the suit to another Judge, an order striking out the amended statement of claim for being incompetent, and in the further alternative an order for stay of proceedings. After listening to the submissions of the respective counsel, the learned trial Judge, in a considered ruling delivered on 15/6/95 dismissed the application. The appellant was dissatisfied with the ruling and consequently filed a notice of appeal containing five grounds of appeal.

The Appellant and 1st Respondent duly filed and exchanged briefs of argument in compliance with the Rules of this Court. The 2nd respondent, H.R.H Oba Aromolaran opted not to file any brief vide a letter addressed to the Chief Registrar of the Court of Appeal Ibadan dated 5/5/03. Pursuant to a motion on notice dated and filed on 22/1/08 by the Appellant, this court on 29/4/08 granted an order allowing the appeal to be heard on the Appellant and 1st Respondent’s brief alone. The 1st Respondent filed a notice of preliminary objection dated 23/3/07 challenging grounds 1, 4 and 5 of the notice of appeal. At the hearing of the appeal on 26/9/2011, Oluwole Aluko Esq., learned counsel for the respondent sought leave to rely on the preliminary objection as argued in the 1st Respondent’s further amended brief of argument dated 30/4/09 and urged the court to strike out the said grounds of appeal.

He referred to paragraphs 12 and 13 of the appellant’s statement of defence at page 9 of the record and contended that the appellant himself had pleaded that there was litigation in respect of the subject matter of the suit. He submitted that the respondent could not have commenced his action in 1980 while litigation was pending. He submitted further that the threat to his legal right only arose in 1985 when the appellant was installed.

A. Ogunkola, Esq., learned counsel for the appellant adopted and relied on the appellant’s brief dated and filed on 30/11/01 but deemed properly filed on 2/10/02. He also adopted and relied on the appellant’s amended reply brief dated 29/10/08 and filed on 30/10/08 in reaction to the preliminary objection. He stated that the appellant has abandoned grounds 2 and 3 of the notice of appeal. The appellant’s amended reply brief was deemed properly filed and served on 26/9/2011. Mr. Ogunkola submitted that the objection relates to the substantive appeal and urged us to dismiss it. He referred to an additional authority: A.G. Akwa Ibom State Vs Essien (2004) All FWLR (233) 1730 @ 1754 C – E in support of this contention and urged us to allow the appeal.

Mr. Aluko adopted and relied on the aforementioned 1st Respondent brief as his arguments in respect of the main appeal and urged the court to dismiss the appeal.

The appellant formulated a single issue for the determination of this appeal thus:

Whether considering all the facts culminating in the plaintiff’s cause of action, the lower court has jurisdiction to entertain the plaintiff’s claim.

The respondent formulated two issues for determination as follows:

1. Whether the cause of action in the suit accrued in 1985 when there was competing right between the plaintiff/respondent and the 1st defendant/appellant to the stool of Risawe of Ilesa having regard to the undisputed facts in the pleading that the 1st defendant/appellant was not installed as Risawe of Ilesha in 1975 when the past Risawe, Chief Folowsele Adedeji died.
2. Whether by not referring specifically to the decision in Lipede Vs Sonekan (1995) 1 NWLR (374) 668 @ 690 the learned trial Judge has not in his judgment dealt with the issue as to which law applied to the rights of the parties in this suit.

The 1st Respondent has raised a preliminary objection to all the subsisting grounds of appeal. It must therefore be considered before delving into the substantive appeal. The objection to the competence of grounds 1, 4 and 5 of the notice of appeal is that the issues raised therein are not covered by the decision of the Supreme Court in Lipede Vs Sonekan (1995) 1 NWLR (374) 668 being relied upon in support of the said grounds, Learned counsel argued that the issues involved in Lipede’s case relate to which of the two ruling houses is entitled to produce the Ashipa Egba after the demise of the last holder of the title and whether oral evidence is admissible in proof of the customary law relating to the succession of Ashipa Egba where the registered chieftaincy declaration is not exhaustive. He argued further that the issue as to when the cause of action is deemed to accrue in a chieftaincy matter was not one of the issues submitted to the apex court for consideration in that case and that the opinion of Onu, JSC on the issue was an obiter dictum. He argued that in so far as grounds 1, 4 and 5 are based on obiter dicta in the case, they are incompetent and should be struck out.