Prince Michael Adewumi Amaka V. The Attorney-general Of Ondo State & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE E. IYIZOBA J.C.A.(Delivering the Leading Judgment)

This is an appeal against the ruling of Fadoju J. sitting at Owo judicial division of Ondo State High Court, delivered on the 23rd day of March, 2005 in Suit No. How/23/2004 upholding the preliminary objection raised against the appellant’s suit by the respondents and thereby striking out the suit for lack of jurisdiction.

This case is a dispute over the Ojomo Oluda Chieftaincy Stool of Ijebu-Owo. On the death of the occupant of the stool in May 2003, the appellant was elected from among other contenders to succeed him. After the usual processes were concluded, his name was ratified by the Kingmakers on 13/11/03 and forwarded to the Secretary Owo Local Government. As a result of complaints from certain quarters, the Ondo State Government in June 2004 wrote a letter to the Secretary Owo Local Government instructing him to start the process of selection de novo. In the new exercise the 2nd respondent emerged as the Ojomo Oluda of Ijebu-Owo in a manner that was unacceptable to the appellant, hence the institution of the suit. By his writ of summons and statement of claim, the appellant claimed as follows:

1. A declaration that the purported selection and presentation of the 2nd defendant by the 3rd defendant to the 4th – 11th defendants as Ojomo Oluda of Ijebu-Owo is against the history, native law and custom of Ijebu-Owo community and hence wrongful, illegal, unconstitutional, null void and of no effect whatsoever.
2. A declaration that the purported ratification of the 2nd defendant as Ojomo Oluda of Ijebu-Owo by the 3rd-11th defendants is illegal wrongful against the native law and custom and tradition of Ijebu-Owo, unconstitutional, null void and of no effect whatsoever.
3. A declaration that the purported selection, nomination, ratification of the 2nd defendant by the 3rd to 11th defendants as the Ojomo Oluda of Ijebu-Owo to the exclusion of all other contestants particularly the plaintiff is against the native law and custom of Ijebu-Owo hence wrongful, illegal, unconstitutional, null void and of no effect whatsoever and it is also against the principle of natural justice.
4. A declaration that the selection, nomination, election ratification and appointment of the plaintiff as Ojomo of Oluda of Ijebu-Owo on the 13th of November, 2003 by Ijebu-Owo Kingmakers is valid.
5. A declaration that the appointment by the Kingmakers of the plaintiff on the 13th of November, 2003 as the new Ojomo Oluda of Ijebu-Owo is valid while the order of the Government of 1st defendant nullifying same is wrongful illegal unconstitutional null, void and of no effect whatsoever.
6. An order nullifying the aforesaid selection nomination or ratification of the 2nd defendant as the Ojomo Oluda of Ijebu-Owo as same is against the history native law and custom of Ijebu-Owo and hence wrongful illegal null void and of no effect whatsoever.
7. An order restraining the 2nd defendant from parading, calling and styling himself as Ojomo Oluda of Ijebu-Owo or Ojomo Oluda of Ijebu-Owo elect or in any manner whatsoever.
8. An order restraining the government of 1st defendant from recognizing the 2nd defendant as the Ojomo Oluda of Ijebu-Owo in any manner whatsoever.

An order on the government of 1st defendant to consider the said appointment of the plaintiff with a view to approving same.

The appellant also filed an application for interlocutory injunction against the respondents. The 1st respondent entered a conditional appearance and filed a statement of defence in which he contended that the action of the plaintiff/appellant was incompetent as the government which has regulatory power over the selection and appointment of recognized chiefs pursuant to the Chiefs Edict 1984 (as amended) had not taken any decision one way or the other on the report presented to it by the 3rd to 12th defendants/respondents vis-Ã -vis the complaint of the plaintiff/appellant before he instituted the action.

The 2nd – 11th defendants/respondents filed an application by motion on notice dated 7/7/04 praying for an order dismissing the case in limine on the ground that the conditions precedent to the institution of the action under the Chiefs Law was not met. The motion on notice was supported by a 12 paragraph affidavit. The 12th defendant/respondent filed a notice of preliminary objection challenging the competence of the suit on the ground that the suit was premature as legally prescribed preliminary steps were not exhausted before the suit was filed. The preliminary objection was also supported by a 12 paragraph affidavit. The plaintiff/appellant filed a counter affidavit of 10 paragraphs with three exhibits. Following change of counsel by the 2nd – 11th respondents, the new counsel Mr. Omotosho filed another motion on notice dated 18/10/04 also praying for an order dismissing the suit in limine or alternatively striking it out on the ground inter alia that the conditions precedent to the initiation of the suit under the Chiefs Law was not met. This motion is supported by an affidavit of 14 paragraphs and two exhibits. The plaintiff/appellant did not file any counter affidavit in respect of this motion filed by Omotosho. At the hearing on 29/11/04, the earlier motion on notice filed on behalf of 2nd-11th defendants/respondents was withdrawn and struck out at the instance of Mr. Omotosho who then moved the motion of 18/10/04. Mr. Adako for the 12th defendant/respondent whose motion is dated 21/7/04 aligned himself with the submissions of Mr. Omotosho. Chief Adegoke for the plaintiff/appellant then responded.

After hearing the parties, the learned trial judge granted the prayers of the respondents, declined jurisdiction and struck out the suit. The appellant being dissatisfied with the decision filed a notice of appeal with only one ground of appeal. With the leave of the Court he later filed three additional grounds of appeal, making a total of four grounds. The appellant, 1st respondent, 2nd – 11th respondents duly filed their briefs of argument. The 12th respondent filed a notice of intention to rely on the brief of argument filed by the 2nd – 11th respondents. The appellant filed a reply brief. The appeal was heard on the 18th day of January, 2012, during which all the parties except the 12th respondent who was not represented duly adopted their briefs of argument. The appellant formulated a single issue for determination which was also adopted by the 1st respondent.

It reads as follows:

“Whether the plaintiff/appellant is bound to comply with the provisions of Section 9(5) of the 1991 Chiefs Law (Edict) of Ondo State as condition precedent to bringing his action in respect of the Ojomo Oluda of Ijebu-Owo Chieftaincy which failure robbed the trial lower court of the jurisdiction to entertain the suit on its merit.”

The 2nd-11th respondents formulated the following issue:

“Whether the appellant is required under the chiefs Law of Ondo State 1984 as amended by the Chiefs Law of Ondo State 1991 to exhaust the administrative procedure stipulated in the law before commencing this suit in order to vest the Court with jurisdiction to hear the suit.”

Learned counsel for the appellant in his reply brief criticized the above issue formulated by counsel for the 2nd-11th respondents on the ground that it created room for admission of argument outside of the appellant’s ground of appeal and the judgment of the lower Tribunal. This will be dealt with later in the judgment.

The summary of the argument of learned counsel for the appellant Chief Sola Ebiseni in his brief is that the learned trial Judge erred in holding that Section 9(5) of The Chiefs Law Ondo State was applicable to Ojomo Oluda of Ijebu-Owo Chieftaincy which is a recognized chieftaincy and not a minor chieftaincy to which the law applies.

Learned Counsel submitted that under the Ondo State Chiefs Law 1984 as amended by the Chiefs Law 1991, chieftaincies are grouped into Recognized Chiefs (Part 1) and Minor chiefs. Counsel further submitted that Section 11 of the 1991 Chiefs Law which amended Section 27 of the 1984 Law defined “minor chiefs” as a chief other than an Oba and “recognized chief’ as a chieftaincy to which the provisions of part 1 apply. He argued that Ojomo Oluda of Ijebu-Owo Chieftaincy was declared a recognized chieftaincy under part 1 of the Chiefs Edict, 1984 by the Recognized Chieftaincy order of 1994. Counsel referred to the cases of Adigun v. Osaka (2003) 5 NWLB (Pt.812) 95: Adesola v. Abidoye (1999)14 NWLR (pt. 637) 28 relied on by the learned trial Judge and submitted that they all relate to minor chieftaincies. Counsel cited other cases where the law was held applicable and opined that they were all minor chieftaincies. See the cases of Ojogbede v. Ogundipe (2008) 12 NWLR (Pt. 1101) 585: Owoseni v. Faloye (2005) 14 NWLR (Pt. 946) 719. Relying further on Owoseni v. Faloye (supra). Counsel submitted that assuming without conceding that the plaintiff/appellant was bound to make representations to the Executive Council, he had done all the law requires him to do in line with the decision in Owoseni “to afford the commissioner an opportunity through the normal or appropriate medium to resolve the matter.” Counsel urged us to resolve the issue in favour of the appellant. Counsel then called on us to set aside the ruling of the trial court and pursuant to Section 15 of the Court of appeal Act 2004 to grant all the reliefs he prayed for as set out in paragraph 4 of the amended notice of appeal.