Solomon Adesoji Gbadehan V. Victor Adesimbo Kiladejo & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO, KEKERE-EKUN, JCA, (Delivering the Leading Judgment)

By a writ of summons dated 15/9/06, the appellant herein sought various reliefs against the respondents. Pursuant to an order of court, the appellant filed an amended writ of summons and statement of claim on the 14th day of June, 2007. In paragraph 40 of the Amended Statement of Claim he sought the following reliefs:

1. “A declaration that the selection and nomination of the 1st defendant by the 2nd to the 7th defendants as Osemawe of Ondo land is wrongful, null and void as same is contrary to the tradition and custom of Ondo land pertaining to the selection and appointment of Osemawe of Ondo land.
2. A declaration that the nomination and selection of the 1st defendant by the 2nd to the 7th defendants as Osemawe of Ondo land is in violation of the 1991 Chieftaincy Declaration pertaining to the nomination, selection and appointment of Osemawe of Ondo land.
3. A declaration that the purported approval of the 1st defendant as the Osemawe of Ondo land by the 8th and 9th defendants is wrongful, null and void as the selection of the 1st defendant as the Osemawe of Ondo land by the 2nd to the 7th defendants is not in accordance with the tradition and custom of Ondo land and the provision of the Chiefs Law 1984 and as amended by the 1991 Chiefs Law as well as the 1991 Chieftaincy Declaration appertaining to the nomination and appointment of Osemawe of Ondo land.
4. An order setting aside the nomination, selection and appointment of the 1st defendant made by the 2nd to the 7th defendants.
5. An order setting aside and or nullifying the approval of the 1st defendant as the Osemawe of Ondo land by the 8th and 9th defendants.
6. Perpetual injunction restraining the 8th and 9th defendants from presenting the 1st defendant with the staff of office as Osemawe of Ondo land and from according the 1st defendant any recognition whatsoever as Osemawe of Ondo land.
7. Perpetual injunction restraining the 1st defendant from parading himself or further parading himself, holding himself out or further holding himself out or presenting himself as the Osemawe of Ondo land.”

The Respondents filed their respective statements of defence and raised the issue that the action was statute barred having not been filed within the 7 days stipulated by Section 1 of the Appointment of an Oba and Presentation of Instrument of Appointment and Staff of Office, Edict No. 2 of 1992. It was the contention of the Respondents that the cause of action arose on the 6th September 2006 when the letter of approval was given to the 1st Respondent by the Ondo State Government and made public on the 7th September 2006.

The Appellant in his reply to the respective statements of defence of the Respondents denied that the cause of action arose on the 6th of September 2006 and maintained that the cause of action arose on 14th September 2006. The Respondents thereafter respectively filed applications to dismiss the action on the ground that it was statute barred. The learned trial Judge after hearing arguments of counsel on the application of the 3rd – 7th Respondents dismissed the action on 7/4/09 and held as follows:

“I agree in toto with the submission of all the defence counsel that the cause of action in this case arose on the 6th September, 2006 following the approval by the State Exco and the announcement of the approval of the 1st Defendant in the Ondo State Radio and Television Stations,

The next question to answer now is whether or not the Plaintiff has instituted the suit pending in the court within the stipulated seven days? From the foregoing analysis, the correct and effective date of appointment of the 1st Defendant and the accrual of the cause of action by “an aggrieved party” under Section 1 of Edict No. 2 of 1912, I have no difficulty in coming undeviatingly to the conclusion that the Plaintiff in this case, Prince Solomon Adesoji Gbadehan has failed to bring his action challenging appointment of the 1st Respondent, Oba Victor Adesumbo Kiladejo as the Osemawe of Ondo land within stipulated time.

The effect of the plaintiff’s failure to comply with the provision of the Edict as regards the time to bring this action in court as aforesaid is that the substantive suit No. HOD/96/2006 is statute-bared … I hereby dismiss it accordingly.”

The Appellant was dissatisfied with the ruling and filed a notice of appeal dated 17/4/08 containing four grounds of appeal. The parties duly filed and exchanged briefs of argument in compliance with the rules of this court. The appellant’s brief dated and filed on 10/3/09 was deemed properly filed on 6/7/2010. He filed a reply brief to the 1st – 7th respondents’ brief dated 8/12/2010 and filed on 9/12/2010 but deemed properly filed on 8/3/2011. He also filed a reply to the 8th and 9th respondents’ brief dated and filed on 8/3/2011. The 1st – 7th respondents’ brief dated 16/8/2010 and filed on 27/8/2010 was deemed properly filed on 8/3/2011. The 8th and 9th respondents’ brief dated 26/11/2010 and filed on 10/12/2010 was deemed property filed on 8/3/2011. Also on 8/3/2011 the name of the 3rd Respondent who had died during the pendency of the appeal was struck out. The 1st – 7th Respondents are accordingly 1st – 6th Respondents while the 8th and 9th Respondents are now 7th and 8th Respondents.

The appellant formulated two issues for determination thus:

1. Whether the learned trial Judge was right in law to have proceeded to determine contestable issues of fact upon which parties in their respective pleadings and affidavit evidence, have joined issues, without taking oral evidence and held that the cause of action arose on 6th September, 2006 hence it is statute bared.

GROUNDS 1 & 4

2. Whether the learned trial Judge was right to have held that the cause of action in the suit arose on the 6th September, 2006 via letter dated 6th September, 2006 written solely to the 1st Respondent by the Ondo State Government notifying him of his appointment.

GROUNDS 2 & 3.

The 1st – 6th respondents appear to have adopted the issues formulated by the appellant. The 7th and 8th respondents also formulated two issues for determination thus:

1. Whether having regard to the provisions of S.1 of the Approval of Appointment of an Oba and Presentation of Staff of Office Edict No. 2 of 1992, the plaintiff/appellant (sic) suit is not incompetent, having been filed outside the seven days statutory period.
2. Whether the plaintiff/appellant’s suit was rightly dismissed by the learned trial Judge,

At the hearing of the appeal on 17/10/2011, OLUWASESAN DADA ESQ., adopted all the briefs filed by the appellant. He made a slight amendment to one of the authorities cited at page 10 paragraph 4.25 of the appellant’s brief and urged the court to allow the appeal.

MR. TAYO OYETIBO, SAN adopted and relied on the 1st – 6th respondents’ brief and made some additional submissions in support of the argument at paragraph 3.06 thereof. He cited the following additional authorities: National Inland Waterways Authority Vs Standard Trust Bank Plc. (2008) 2 NWLR (1072) 483 @ 500 and Umeh Vs Iwu (2008) 8 NWLR (1089) 225 @ 247 – 248. He submitted that the learned trial Judge was entitled to look at the evidence produced by the defendant once the defendant had raised the issue of abuse of process. He submitted that the court was right to look at the letter of appointment since the appellant did not refer to it. He referred to paragraphs 3.09 to 4.06. He referred to the case of Adedolapo vs Military Administrator of Ondo State (2005) 17 NWLR (955) 48 relied upon by learned counsel for the appellant and submitted that the case is distinguishable from the facts of the instant case because there was no evidence of the date of appointment being made known. He noted that the appellant stated when he learnt of the announcement but did not state the date of the announcement. He referred to pages 501 – 502 of Adedolapo’s case. He urged the court to rely on the case of Akinnoye Vs Military Administrator of Ondo State (1997) 1 NWLR (483) 564 and Eboigbe vs. NNPC (1994) 5 NWLR (347) 649 @ 633. He submitted that the Supreme Court decision in Akinnoye’s case was not brought to the court’s attention in Adedolapo’s case. He urged the court to dismiss the appeal.