Prince Adewuyi Akintaro V. Mr. J. F. Eegungbohun & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

AMINA ADAMU AUGIE, J.C.A.

The 1st and 2nd Respondents were Plaintiffs in Suit No. HER/6/95 filed at the High Court, Eruwa, Oyo State on the 7th of June 1995, wherein they challenged the appointment and installation of the Appellant as Baale of Aborerin, Eruwa. An earlier Suit No. 1/596/88 for the same purpose had been struck out by Adeyemi, J. in his Ruling dated 8th December 1988, on the ground that the Plaintiffs failed to file their Statement of Claim within time. On appeal, both this Court and the Supreme Court held that the High Court was right to do so. However, the Supreme Court added that this Court was wrong to have raised the issue of locus standi suo motu, and since pleadings had not been filed in the High Court, this Court “was not in a position to determine the standing of the Appellants to bring the action”. The 1st and 2nd Respondents reacted by filing the said Suit No. HER/6/95, and in response the Appellant engaged the services of Chief Ladosu Ladapo SAN, who filed a memorandum of appearance, Statement of Defence and a Preliminary Objection contending that the action was barred by estoppel per rem judicata. After hearing arguments and addresses of counsel, another Judge, Adeniran, J., delivered Ruling on the 9th of January 1996, wherein he held that the earlier Ruling of Adeyemi, J. cannot be regarded as a Judgment on the merits therefore “the said Ruling cannot operate as an estoppel per rem judicata”. An appeal to this Court against the Ruling was dismissed on the 14th of January 1999 and the case was sent back to the High Court for adjudication. At this stage, Chief Ladosu Ladapo SAN withdrew on the ground of ill health, and with leave of Court, the Appellant changed counsel to A. A. Gbolagunte, Esq., who considered it expedient to file another preliminary objection dated 9th of March 1999, which prayed the Court for an “order striking out the action in that the Court has no jurisdiction to entertain the action as it is incompetent and bad in law”. The Grounds of the objection are as follows –

(a) The Plaintiffs lack legal interest “Locus Standi” to maintain this suit.

(b) The Plaintiffs lack the authority to sue on behalf of Andu and Kusade

Sections/Families of Baale of Aborerin Ruling Families.

Particulars

(a) The legal interest of interested persons with “Locus Standi” who can institute this action are exclusively aggrieved members of Adeye branch/section of Baale of Aborerin Ruling families to which the Plaintiffs did not belong.

(b) Plaintiffs failed to seek leave of Court before filing action in representative capacity on behalf of Andu and Kusade sections/families of Baale of Aborerin Ruling families.

The Preliminary Objection was argued before yet another Judge, Lufadeju, J., who held as follows in his Ruling delivered on the 21st of May 1999 –

“In any given case, the points of law to be raised in the course of proceedings must first be raised in the Defendant’s pleadings before the provisions of Order 24 can be invoked. – – – For the reasons given in this Ruling, the Application is incompetent for failure of the 1st Defendant/Applicant to raise the issues of locus standi, want of authority to sue and absence of leave of Court to sue in representative capacity specifically in the Statement of Defence before setting down such points for determination. The Application fails and it is accordingly dismissed. I make no order as to costs”. (Italics mine).

Dissatisfied, the Appellant appealed to this Court with an Amended Notice of Appeal containing five Grounds of Appeal, with Ground 5 as an Additional Ground of Appeal. The 1st & 2nd Respondents and 3rd & 4th Respondents however raised an objection in their respective briefs to the competency of the said Ground 5, and the Issue for determination formulated there-from.

The said Ground 5 of the Appellant’s Grounds of Appeal reads as follows –

“The learned trial Judge erred in law in assuming jurisdiction upon and determined this case when the Plaintiffs/Respondents failed to exhaust their remedies under the provision of Sections 22 (3), 22 (4), 22 (5) & 22 (6) of the Chiefs Law, Volume 1 Cap 21, Laws of Oyo State 1978”.

In the 1st & 2nd Respondents’ Amended Brief settled by Kola Olawoye, Esq., it was submitted that it should be struck out because it was filed without the leave of this Court, citing Ajide v. Kelani (1985) 3 NWLR (pt. 12) 248 & Mbionwu v. Obi (1997) 2 NWLR (pt. 487) 258. It was conceded that leave was obtained to file additional Grounds, but it is their contention that this does not dispense with the need to obtain leave to raise the issue covered by Ground 5, since it was not raised in the lower Court, citing Jov v. Dom (1999) 9 NWLR (pt. 620) 538, Waniko v. Ade John (1999) 9 NWLR (pt. 619) 401, & Obioha v. Duru (1994) 8 NWLR (pt. 365) 631. Furthermore, that the Issue raised from Ground 5 offends the principle that issues are tried on parties’ pleadings, citing N.I.P.C. v. The Thompson Organization Ltd. (1969) 1 NMLR 99, Metalimpex V. A.G. Leventis & Co. (Nig.) Ltd. (1976) ANLR 79, & Order 25 Rules 6 (2) of the Oyo State High Court (Civil Procedure) Rules; and that is the law that a fresh point will not be entertained by this Court if the trial Court did not make any pronouncement on it, citing Fadairo v. Gbadebo (1978) 1 LRN 97, Kate Ent. Ltd. V. Daewoo (Nig.) Ltd. (1985) 1 NWLR (pt. 5) 116, Osho v. Ape (1998) 6 SC 121, & Oto & 6 Ors v. Adojo & 6 ors (2004) All FWLR (pt. 203) 2151/2176. This Court was therefore urged to strike out the Ground, Issue, and arguments in the Appellant’s brief, which they argued go to the merit of the issue of locus standi that was not considered by the lower Court, citing Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156, Nigeria Arab Bank v. Comex Ltd. (1999) 6 NWLR (pt. 608) 649 & Odubeko V. Fowler (1993) 7 NWLR (pt. 308) 637.