Oladele Awoyemi & Ors. V. Ajayi Fasuan (2006)

LawGlobal-Hub Lead Judgment Report

MUNTAKA-COOMASSIE, J.C.A.

The respondent, Ajayi Fasuan, who was the plaintiff in the High Court of Justice Ijero-Ekiti, herein called the lower court, claimed against the appellants in his statement of claim dated 2nd April, 1997 as follows:

“Whereof the plaintiff’s claim is:

1. Declaration that after passing away of Chief Ajayi Adunse Ogidiolu, the late Odofin of Erinmoye it is turn of Okuta Elu of Ile-Awe branch of Ibamogun ruling House to present the next Odofin of Erin Mope-Ekiti.
2. Declaration that purported selection of the 1st defendant as the next Odofin of Erin Mope-Ekiti is irregular, illegal and/or violation of the customs and tradition of the Odofin family and therefore null and void and of no effect whatsoever.
3. An order of injunction restraining the 2nd to 7th defendants, themselves, their servants and/or agents from recognizing, appointing and installing the 1st defendant as Odofin of Erin Mope-Ekiti.
4. A further order of injunction restraining the 1st defendant from presenting himself for installation and from acting and/or parading himself as the Odofin of Erin Mope-Ekiti.”

The 1st, 3rd, 4th, 5th and 6th defendants filed a joint statement of defence dated 8/5/97 and filed on the 9/5/97, while the 2nd defendant also filed a statement of defence dated 9/5/1997.

In paragraphs 17 and 18 of the 1st, 3rd, 4th, 5th and 6th of statement of defence, it was averred as follows:

“17. The defendants further averred that the plaintiff had not exhausted all avenue for relief open to him before he rushed to court.

18. The relevant provisions of the Chiefs Law are not complied with for which notice of preliminary objection will be raised before or during the hearing.”

This point was not raised at all until the trial Judge gave judgment in the case. The plaintiff testified and called one witness while, DW1, DW2, DW3 and DW4 gave evidence for the defence.

A careful consideration of the dispute leading to this appeal will show that it arose out of succession to a minor chieftaincy, the Odofin of Erin Mope-Ekiti, in Ekiti State. The 1st appellant was chosen to fill the vacant Odofin Chieftaincy (stool) by the 2nd – 6th defendants, and was presented to the 7th defendant, who is the prescribed authority in Erin Mope-Ekiti for approval. Dissatisfied with the way and manner the 1st appellant was selected, the respondent commenced this action at the lower court seeking the reliefs earlier set out above.

The learned trial Judge L. S. Awe on 2/3/99 entered judgment in favour of the plaintiff and granted the plaintiff’s claim and held thus at page 97 of the record of proceedings:

“Since equity is equality, the plaintiff is entitled to all the four reliefs sought. I am therefore perfectly satisfied that he has successfully proved his claims and I hereby enter judgment in his favour and against the defendants in terms of all the reliefs sought.”

On the issue of the incompetency of the action itself raised by the defence, the learned trial Judge held thus:

“For the benefit of doubt and for a proper understanding this is not a case of chieftaincy Review Commission but a proper suit brought by an aggrieved contestant in a chieftaincy matter.”

I refer to page 75 of the record of proceedings.

Aggrieved by the decision of the lower court, the appellants appealed to this court and filed a notice of appeal containing four (4) grounds of appeal together with their respective particulars. They also filed an amended notice of appeal which was deemed filed on 22/4/2004 containing now seven grounds of appeal.