High Chief F. A. Obolo & Ors V. High Chief Ilukoyenikan & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of Hon. Justice O. Kumuyi, Chief Judge of the High Court of Justice Ondo State sitting at Akure, delivered on the 1st of August, 2011 striking out the counter claim of the appellants on the ground that the court lacked the jurisdiction to entertain the plaintiffs’ claim. The matter commenced at the High Court of Justice, Okitipupa Judicial Division of Ondo State before it was later completed in Akure Judicial Division upon the elevation of the Chief Judge.

The facts leading to this appeal are that the respondents as plaintiffs at the lower court took out a Writ of Summons dated and issued 26th of April, 2005 against the appellants (therein the defendants). In paragraph 30 of their Statement of Claim the respondents sought the following reliefs against the appellants:

(a) A declaration that the 2nd defendant herein is not entitled to appoint unilaterally an Oloja of his own choice for Omotosho a village founded by Kugbanre the ancestor of the plaintiffs without prior appointment and presentation of a candidate to him by the Kugbanre Akoko family of Iju-Oke.

(b) A declaration that the 1st plaintiff having been appointed and presented by the Kugbanre family in a delegation led by the 1st defendant to the 2nd defendant, the plaintiff is the Oloja elect and the person entitle (sic) to perform the final presentation of staff of office by the 2nd defendant.

(c) A declaration that the 2nd defendant being the incumbent Yasere of Akoko family cannot aspire to or be entitled to be appointed as the Oloja of Omotosho.

(d) An order of perpetual injunction restraining the 2nd defendant either by himself/his servants, agents or otherwise whosoever from imposing, appointing or in any manner whatsoever interfering with the historical and customary right of the Kugbanre Akoko descendants of Iju-Oke from their own choice.

(e) An order of perpetual injunction restraining the defendants either by themselves, their servants, agents or otherwise however from parading the 1st defendant to the 2nd defendant or the members of the public or in any manner whatever from carrying out steps to install the 1st defendant as the Oloja of Omotosho.

Upon the receipt of the statement of claim, the appellants filed their statement of defence and also counter claimed against the respondents as contained in their Statement of Defence and Counter Claim dated 21st of April, 2006 and filed 26th April, 2006.

By paragraph 18 of the said Statement of Defence and Counter Claim they sought the following reliefs against the respondents:

(a) A DECLARATION that having been duly presented by his Kugbanre Odofin family of Morubodo Kingdom, approved and appointed by the 2nd defendant/counter claimant as the prescribed authority over all minor chieftaincies in Morubodo Kingdom, the 1st defendant/counter claimant is the valid, duly presented, approved and appointed Olu-Oso of Omotosho, Morubodo Kingdom in the Okitipupa Local Government Area of Ondo State.

(b) AN ORDER OF PERPETUAL INJUNCTION restraining the 1st plaintiff from parading, ascribing and or arrogating to himself the office of the Olu-Oso or headship of Omotosho town, under whatever guise.

(c) AN ORDER OF PERPETUAL INJUNCTION restraining the defendants, their servants, agents, privies from parading, recognizing, pronouncing and treating the 1st plaintiff as the head of Omotosho Town, under whatever guise or description.

The appellants later amended their Statement of Defence and Counter Claim with the leave of the trial court granted 23rd of June, 2008. The reliefs of the counter claim as enumerated above however remained unchanged, likewise the particulars as shown in paragraphs 19-22. The respondents neither filed any Reply to the Statement of Defence nor a Defence to the Counter Claim.