T. O. Owoseni V. Joshua Ibiowotisi Faloye (2005) LLJR-SC

T. O. Owoseni V. Joshua Ibiowotisi Faloye (2005)

LAWGLOBAL HUB Lead Judgment Report

DAHIRU MUSDAPHER, JSC

In the High Court of Justice for Ondo State of Nigeria, in the Akure Judicial Division and in suit No AK/143/90, the appellant herein and one other now deceased on behalf of themselves and the ONISERI family of IJU claimed against the respondents herein as the defendants as follows:-

“1. Declaration that the first defendant is not entitled to be appointed as CHIEF ONISERI of ISERI Quarter of Iju in Akure Local Government of Ondo State;

Declaration that the purported appointment and installation of the said first defendant as the Chief of Iseri Quarter of Iju in Akure Local Government of Ondo State by the second defendant is most irregular, illegal, void and of no legal effect;

Declaration that the second defendant acted ultra vires and was in fundamental breach of his traditional role as the OKITI of IJU by taking active part in the nomination and appointment of the first defendant as the ONISERI of ISERI Quarter of Iju in Akure Local Government of Ondo State;

An Order of perpetual injunction restraining the first defendant from parading himself as Chief Oniseri Chieftaincy of Iju in Akure Local Government of Ondo State.”

After the delivery and the exchange of pleadings, the parties led evidence in support of the positions they took in the matter. After the address of counsel, in his judgment delivered the 16th day of February, 1995, the learned trial judge allowed, the 2nd 3rd and 4th reliefs recited above. The learned trial judge, however dismissed, the first relief. Both parties, the defendants and the plaintiffs felt unhappy with part of the decision of the trial court and respectively appealed and cross-appealed to the Court of Appeal. In its judgment delivered on the 13th day of July, 2000, the Court of Appeal per Ibiyeye JCA who read the lead judgment which was concurred to by Akintan JCA (as he then was) and Akaahs JCA, said at page 299 of the record thus;-

“The main issue for consideration in issue No 1. whether or not the respondent complied with the relevant statute on the resolution of disputes in minor chieftaincy tussles in Ondo State. It is common ground that there was a dispute between the parties on the rightful successor to the vacant stool of Oniseri of Iseri Quarter of Iju. It is the bounden duty of the trial court to resolve the issue in accordance with the prescribed legislation which is the Chiefs’ Edict 1984.”

The learned justice referred to Section 13(4) to (7) of the Chiefs Edict 1984 and after due consideration of the relevant provisions, came to this conclusion at page 303 in the aforesaid records:-

“He, in effect, (the plaintiff) failed to exhaust all the remedies provided by the statute in his attempt to seek redress against the decision of the 2nd appellant. Thus it is crystal clear that he did not make a representation to the Hon. Commissioner for Chieftaincy Affairs in Ondo State, In retrospect, I hold that since Section 1-3 of the Chiefs’ Edict 1984 has prescribed a particular remedy in dealing with minor Chieftaincy disputes, and such remedy has not been exhausted by the respondent, it was hasty on his part to recourse to the High Court to seek declara-tions of which to some extent have been made by the 2nd appellant (the prescribed authority). The action of the respondent in the lower court was premature and it did not give rise to a cognisable cause of action, xxxxxxxxxxxxxxxxxxx”

The Court of Appeal was in the main of the view, that having resolved this issue against the appellant herein, it has comprehensively and completely disposed of all the other issues submitted to the court for the determination of the main appeal. With respect to the cross-appeal, the learned justice at page 304 of the printed record stated:-

“The only issue raised by the cross-appellant in the cross-appeal reads:-

“Whether there are sufficient evidence before the learned trial judge to establish the fact, that defendant/appellant is not a member of Oniseri family of Iseri Quarter Iju in Akure Local Government of Ondo State.”

“It will be recalled that the main appeal was decided on the ground of jurisdiction in the court of trial. It is therefore not necessary to consider and determine the only issue identified by the cross-appellant as that issue concerns the merit of the claim before the lower court”.

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Thus, the appeal was allowed and the cross-appeal was apparently dismissed. Even though the Court of Appeal decided not to consider and determine it on the merit. It is against the decision of the Court of Appeal, that the plaintiff has now appealed to this court. The Notice of Appeal filed with the leave of this court contains three grounds of appeal which read thus:-

“1. The Court of Appeal erred in law in holding that:

“I agree with the learned counsel for the appellants that what the respondent did by seeking for declarations from the trial court is a flagrant disregard of Section 13(5) of the Chiefs Edict 1984”.

PARTICULARS:-

(a) There was no evidence before the court to support this finding.

(b) Exhibits I,J,K and the evidence for PW1 (page 59, lines 26-35 page 60 line 1-2) are ample evidence to the contrary.

(c) The fact that the appellant complied with Section 13(5) of the Chiefs Edict was duly pleaded by the respondent. In paragraphs 34-37 of the Amended Statement of Defence (page 71) which paragraphs constitute an admission against interest.”

The Court of Appeal erred in law in holding that:-

“in the instant case, the respondent omitted to comply with the provisions which set out the procedural steps for venting his grievance and he therefore acted prematurely in instituting his action in the lower court.”

PARTICULARS

“There is no iota of evidence to support this finding”.

“The evidence of PW1 (page 57 – 61) shows that the appellant duly complied with the procedural steps stipulated in the Chiefs’ Edict 1984 by complaining to the Chairman of the Local Government and thereafter to the commissioner in charge of chieftaincy matters”.

The finding clearly over looked facts duly admitted in evidence at the lower court”.

The Court of Appeal erred in law when after holding that:-

“The main appeal was decided on the ground of jurisdiction in the court of trial, it is therefore not necessary to consider and determine the only issue identified by the cross-appellant in the cross-appeal as that issue concerned the merit of the claim before the lower court”.

He proceeded to order that “the cross-appeal lacks merit and it is dismissed.”

The reliefs sought by the appellant from this court is for an order:-

“(i) setting aside the judgment of the court of appeal delivered on the 13/7/2000,

(ii) An order allowing the cross-appeal and entering judgment in favor of the appellant.”

Before the examination and the consideration of the issues submitted to this court for the determination of this appeal, it is convenient at this stage to sketch out the facts of this case. This is another prolonged and protracted chieftaincy dispute. A minor chieftaincy stool of Oniseri of Iseri became vacant in 1978 following the demise of the erstwhile incumbent, late Chief Fagbe-migun. The plaintiffs alleged that only members of the Oniseri chieftaincy family of Iju have the exclusive right to aspire to the stool of the Oniseri. They alleged that the first defendant, as Oniseri elect was not a member of the chieftaincy family and was therefore not qualified to vie for the stool. The military administrator set up a commission of inquiry to investigate the matter. While the investigation was in progress, the Okiti died in the same year 1978. Whereupon the selection and the process of the installation of the Oniseri was set aside to await the appointment to the stool for the prescribed authority, the new Okiti of Iju.

In the meanwhile, the first plaintiff (now deceased) Chief G. O. Falebita declined the offer made to him by the Oniseri family to vie for the stool. The 2nd plaintiff, Y. O. Awoseni (the appellant herein) was nominated by the family to vie for the stool. The 1st defendant all along claimed to be a member of the same family with the appellant and was qualified to vie for the vacant stool, and as mentioned above was nominated by another faction.

In December, 1987 a new Okiti of Iju, Oba Amos A. Farukanmi, the 2nd respondent herein, was appointed and installed as the paramount ruler and the prescribed authority. In its letter dated the 19/3/1990,(Exhibit F) the Ondo State government decided and directed that fresh attempts be made to fill the vacancy of the Oniseri chieftaincy in accordance with the traditions and customs of Iseri Quarter of Iju. In the meanwhile, numerous letters by the people interested, the local government and the 2nd defendant pertaining to the Oniseri chieftaincy were written and

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despatched. It was at this stage that the 2nd respondent like his predecessor the plaintiff alleged, had decided on installing the 1st defendant as the new Oniseri. The plaintiff in a letter of 10th September, 1990 protested to the Commissioner in Charge of Chieftaincy – Affairs about the intention of the 2nd defendant.

The defendants on the other hand alleged that on the 13/9/1990 at a meeting the three branches of the Oniseri chieftaincy family attended and presented candidates for installation as the Oniseri of Iseri. The three branches that participated at the meeting were Akerele who presented the 2nd plaintiff, Faloye, who presented the 1st defendant and the other family branch who presented another candidate. At the end of the deliberations before the prescribed authority, the 1st defendant representing the Faloye branch became victorious and was installed, the Oniseri of Iseri by the 2nd defendant as the paramount ruler and the prescribed authority under the provisions of the Chiefs Edict 1984.

Now, the 2nd plaintiff shall hereinafter be referred to as the appellant and the defendants as the 1st and 2nd respon-dents as the case may be. Distilled from the three grounds of appeal recited above, the appellant has formulated and submitted to this court, in the appellant’s brief, two issues for the determination of the appeal. The issues are:-

“1. Did the appellant comply with the procedural steps stipulated in the Chiefs Edict 1984 of Ondo State before instituting action at the trial court?.

Was the Court of Appeal right to dismiss the cross-appeal, when it did not find it necessary to consider and determine the only issue identified by the cross-appellant in the cross appeal”.

The learned counsel for the respondents in the respondents’ brief has adopted the issues the appellant has formulated and submitted for the determination of the appeal.

Issue One

The question for consideration under this issue is whether the appellant had complied with the provisions of the relevant statutory provisions on the resolution of disputes in minor chieftaincy tussles before he embarked on the legal battle in the courts. Now Section 13 (4) – (7) of the Chiefs’ Edict 1984 of Ondo State provide:-

“13 (4) Where there is a dispute as to whether a person has been appointed in accordance with customary law to a minor chieftaincy the prescribed authority may determine the dispute and the person concerned shall be notified of the decision.

(5) Any person who is not satisfied with decision of the prescribed authority may within twenty-one days from the receipt of the notification make representation to such member of the Executive Council to whom responsibility for Chieftaincy Affairs assigned that the decision be set aside and he may after consideration of the representation confirm or set aside the decision.

(6) Before exercising the powers conferred by subsection (5) of this section, the member of the Executive Council responsible for Chieftaincy Affairs may make inquiries to be held as appear to him to be nece-ssary or desirable.

(7) Where the member of the Executive Council responsible for Chieftaincy Affairs in his determination under subsection (6) of this section sets aside an appointment to a chieftaincy, he shall require the persons responsible under customary law for the appointment of the person to fill the vacancy in that chieftaincy in accordance with the customary law within such time as he may specify”.

In its interpretation of these provisions, the Court of Appeal held that:-

“It is apparent from the foregoing provisions that they have set out the procedural steps to be taken by an aggrieved contestant in respect of disputes arising from the decision of the prescribed authority which is the 2nd respondent in this case. These provisions do not make provision for access to court in respect of the said disputes”.

In its consideration of the evidence adduced, the Court of Appeal opined that the appellant had failed to comply with the statutory provisions referred to above and therefore the action of the appellant was premature and that the decision arrived at by the trial court was done without jurisdiction. Now, did the appellant comply with the provisions of the statute referred to and recited above?

The appellant counsel argued forcefully in his brief that

(1) On finding that the Okiti had approved the appointment of the first respondent as the Oniseri of Iseri, the appellant forwarded a complaint to the chairman of the Alcure Local Government and thereafter to the Commissioner for Special Duties in the Military Administrator’s Office in Charge of Chieftaincy Matters. Evidence of PW 1 (page 59 -60) and DW 2 (page 152).

(2)Learned Council also referred to Exhibits J and K as evidence of the fact that after the purported appointment of the 1st respondent as the Oniseri of Iseri, the appellant took the matter to the Commissioner in Charge of Chieftaincy Matters. Thus the appellant had complied with the provisions of section 13(5) of the Chiefs’ Edit 1984.

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3)It is again argued that the lower court was in error to have ignored these facts vide ADESOYE vs. OLAG-UNJU (1998) 6 NWLR (pt 552) 65 at 69, PAN AFRICAN BANK LTD vs. EDE (1998) 7 NWLR (pt 558) 422 at 432. IVIENAGBOR vs. BAZUAYE (1999) 9 NWLR (Pt 620) 552.

It is again submitted that the respondents in their pleadings admitted that the appellant took the matter to the Local Government and to Commissioner for Chieftaincy Matters. What is admitted needed not be proved. See KAMALU vs. UMUNA (1997) 5 NWLR (pt 505) 321. It is further submitted that since the Commissioner for Chieftaincy Matters advised parties to go court, there was no basis for the complaint that the procedure statutorily laid down was not followed. Learned Council referred to ADESOLA vs. ABIDOYE (1999) 14 NWLR (pt 637) 28, OBALAJO vs. ETIKAN (1998) 6 NWLR (pt 553) 320. The respondents are also bound by their pleadings where they categorically admitted that the appellant complained to the government vide EKPEZU vs. NDEM (1991) 6 NWLR (pt 196) 229, JIAZA vs. BAMGBOSE (1999) 7 NWLR (pt 610) 182.

It is again submitted that by upholding the appeal, the respondents were allowed to put up a different case from their pleadings. See paragraphs 34 and 35 of the respondents’ statement of defence where the respondents admitted that the appellant complained and protested to the Commissioner in Charge of Chieftaincy Affairs. See B.O.N. LTD vs. AKINTOYE (1999) 12 NWLR (pt 631) 592 EDEBIRI vs. EDEBIRI (1997) 4 NWLR (pt 498) 165. GODWIN vs. C.A.C. (1998) 13 NWLR (pt 584) 162.

It is further submitted that the issue of non-compliance with Section 13(5) of the Chiefs’ Edict 1984 was not raised or canvassed at the trial court. The respondents raised the issue for the first time at the Court of Appeal and no leave was sought or obtained before raising this new issue. Learned counsel submitted finally that the judgment of the Court of Appeal based on this fresh issue raised without leave is incompetent. Learned council referred to GODWIN vs. C.A.C. Supra and OBAT-OYINBO vs. ASHATOBA (1996) 5 SCNJ 1 at 21.

For the respondents, the learned council representing them submitted that the appellant did not formally comply with the provisions of the Chiefs’ Edict 1984 and therefore the Court of Appeal was right to have set aside the decision of the trial court. It is again argued that no part of the pleadings nor the evidence tendered by the appellant showed any representation made to the Commi-ssioner in Charge of Chieftaincy Affairs to set aside the decision of the 2nd respondent in respect of the appointment of the 1st respondent as the Oniseri of Iseri. Exhibits J and K did not also show such representation. It is again argued that Exhibit K written on the 13/9/1990 the same day the 1st respondent was installed as the Oniseri of Iseri could not be said to be issued in protest against the installation of the 1st respondent on the same 13/9/1990. And Exhibit J was dated 12/9/1990 a day earlier before the 2nd respondent installed the 1st respondent as the Oniseri of Iseri. It is submitted that though there were a lot of agitation before the prescribed authority, the 2nd respondent, who determined and resolved the dispute, the appellant did not thereafter formally protest or complain to the Commissioner for Chieftaincy Affairs under section 13(5) of the Chiefs’ Edict 1984.

It is again argued, that even if the -appellant had properly protested to the Commissioner in Charge of Chieftaincy Affairs, declaratory relief, the appellant sought from the High Court, was inappropriate, in the circumstances. The proper action would have been for a judicial review of the Commissioner’s decision. Learned counsel referred to EGUAMWENSE vs. AMAGHI-ZENWEN (1993) II SCNJ 27; ABIDOYE vs. BABALOLA (1999) 14 NWLR (Pt 637) 28.

It is again argued that the trial court found as a fact that the appellant did not formally complain to the Commi-ssioner in Charge of Chieftaincy Matters in accordance with section 13 (5) of the Chiefs Edict 1984 because “the plaintiffs were xxxx deprived xxxx (of) the opportunity of exploring the avenue open to them for ventilating their objection to selection of the first defendant as provided under section 13(5) of the Chiefs Edict xxxx.” It is submitted that the Court of Appeal also confirmed this see page 303 of the record.

It is again further argued that the respondents did not admit that the appellant made a complaint in terms of section 13(5) aforesaid, but only admitted writing to the Local Government. On the issue of the respondents putting up a case different from their pleadings at the trial was not an issue before the Court of Appeal and there is no ground of appeal covering the point argued. The issue of the non-compliance being a fresh issue before the Court of Appeal, was not raised at the time and there was no ground of appeal covering the complaint in the appeal before the Supreme Court. Learned counsel for the respondents for these propositions relies on the following cases. IGBOHO vs. BOUNDARY SETTLEMENT COMMISSION (1998) 1 NWLR (pt 69) 198; A.G.OYO V. FAIRLAKES HOTEL LTD (1988) 5 NWLR (pt 92) 1 at 58: AKILU V. FAWE-HINMI (NO 2 1989) 2 NWLR (pt 102) 122. BIARIKO V. EDEH-OGWUILE (2001) 12 NWLR (pt 726) 235, (2001) 7 SCM, 65

Now, in my view, the Court of Appeal is perfectly right in the statement of the law to the effect that where a statute prescribes a legal line of action for the determination of an issue, be it an administrative matter, chieftaincy matter, such as this, or a matter for taxation, the aggrieved party must exhaust all the remedies in that law before going to court. The provisions of section 13(4), (5), (6) and (7) of Chiefs Edict 1984 of Ondo State are clear as to the steps to take. The provisions amply provide redress for the plaintiff appellant, herein. He should follow the steps rather than embark on going to court. See the recent case of ARIBISALA vs. OGUN-YEMI (2005) 6 NWLR (pt 921) 212, (2005) 2 SCM, 32.

The first issue to consider is whether by the pleadings and the evidence, the appellant as the plaintiff had complied with the provisions of the Chiefs’ Edict aforesaid before embarking on the

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legal battle in court. Now there is no doubt that the Okiti of Iju, the 2nd respondent herein is the prescribed authority within the meaning of the Chiefs’ Edict. Now from the evidence of PW 1, the appellant herein, there was no doubt that since 1978 when the stool became vacant, there had been protracted controversy in filling the stool. When Chief Ajana purported to install the 1st respondent as the Oniseri, the action led to protest to the Government of Ondo State which set up a commission of inquiry to investigate the matter. It was while the inquiry was in progress that the then Okiti of Iju passed away. The govern-ment wrote that all actions in the matter be stayed until a new Okiti of Iju is appointed. The 2nd respondent was appointed as the Okiti of Iju in December, 1987. The appellant caused a number of letters to be written to the 2nd respondent as the prescribed authority for the appointment of the Oniseri. After due inquiry made by the new Okiti, the 2nd respondent herein, approved the appointment of the 1st respondent. In my view, there is no dispute whatever, that the appellant had clearly complied with the provisions of the Chiefs’ Edict. The second respon-dent was aware of the controversy and the protests of the appellant and particularly the late 2nd plaintiff, who wrote to the 2nd respondent. It was after the approval given by the 2nd respondent to appoint the 1st respondent, that the appellant complained to the Commi-ssioner for Chieftaincy Affairs by a letter dated 12/9/1990 (Exhibit J) that the 2nd respondent was bent on installing the 1st respondent to the vacant stool. It is patently clear that the appellant had done all what was required of him to do under the Chiefs Edict. The law does not prescribe the mode of the complaint and it is clearly common ground that the earlier approval of the appointment of the 1st respondent was cancelled due to the protest of the plaintiffs now represented by the appellant. The Court of Appeal was clearly in error to have held that the appellant did not comply with the provisions of the Chiefs’ Edict. In-deed, the trial court had found as a fact that the appellant had complied with the provisions of the Chiefs’ Edict aforesaid.

Another point worthy of consideration is the fact that it was the Commissioner for Chieftaincy Affairs that advised the plaintiffs to file the action. The commi-ssioner became aware of the circum-stances of the matter and his failure to resolve the dispute one way or the other could not be attributed to the appellant.

The other point, I wish to address my mind to is that in an action of this nature, the precondition of access to the court in respect of the dispute arising from the determination of a minor dispute by the prescribed authority in Ondo State are:-

(a) The prescribed authority must have made a determination:

(b) The aggrieved party make a representation to the Commi-ssioner for Chieftaincy Matters within 21 days of the giving of the decision; and

(c) The Commissioner for Chieftaincy Affairs should determine the dispute after due inquiry.

These steps exhaust the remedy available to persons aggrieved under the exercise of the powers vested in the prescribed authority. In the instant case the appellant had satisfied the above steps. It is not his fault that both the prescribed authority the 2nd respondent herein, and the Commissioner in Charge of Chieftaincy Matters did not do what was required of them. The appellant had no option but to go court. See ADE-SOLA vs. ABIDOYE (1999) 14 NWLR (pt 637) 28. EGUAM-WENSE Vs. AMAGHIZEMWM supra; ARIORI vs. ELEMO (1983) 2 SCNLR 1; (2003) 4 SCM, 187; Vol. 1 ACLC, 26 SHITTA – BEY vs. A.G. FEDERATION (1998) 10 NWLR (pt 570) 392.

Before I part with this issue, it is also necessary to discuss the point whether a claim of declarations can be made in the High Court after decision of the prescribed authority and the determi-nation after due inquiry by the Commi-ssioner in Charge of Chieftaincy Matters. The law is that, where a particular statute has prescribed a particular remedy, an aggrieved party must exhaust the remedy provided and the jurisdiction of the courts to grant declaration is generally ousted See EGUAMWENSE case supra. ONU JSC said at page 41:-

“It is in this regard that the dicta of Omololu Thomas JCA in case No. CA/1/154/84 (another chieftaincy appeal decided on the 5th December, 1985, in relation to Chiefs’ law, 1978 cap 21, applicable in Oyo State provisions of which are in pari material with those of Bendel State Edict (ibid) and quoted with approval by this court in ADIGUN AND OTHERS vs. A.G. OYO (1987) 1 NWLR (pt 53) 678 at 694 remedies itself apposite and relevant to the effect that:-

“It is not the business of the court to make declarations of custo-mary law relating to the selection of chiefs under that law. The exercise of such functions is not directly related to the general jurisdiction of the courts under S. 236 of the Federal Constitution of 1979. So long as the powers exercised under the law is within its four corners and is exercised in good faith as being a power lawfully conferred by the legislature (CALTONA LTD vs. COMMISSIONER OF WORKS (1943) 1 ALL ER 560 at 564 per Lord Green, MR.) In the exercise of the court’s judicial function under section 236 of the constitution, orders declaratory of the function or power under the law can be made, for example with a view to determine the validity or otherwise of the existence of a particular custom, in contradiction from making of “Declaration” as a form of sub-legislation under the law”.

In other words, the form of the court action to take is not a claim for declara-tory relief but are the prerogative writs for judicial review. But in the instant case, the prescribed authority, the 2nd respondent clearly made no determi-nation nor did the Commissioner in Charge of the Chieftaincy Matters “confirmed or rejected” the “determi-nation” made by the 2nd respondent. That is why both the trial court and the Court of Appeal wrongly came to the conclusion that the appellant was precluded from making representation. The appellant had done all what was required of him to protest and make representation. It was only the 2nd respondent and the Commissioner who failed to make “determination” and “confirm” or “set aside” the determi-nation respectively. See ELESO

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GOVERNOR OF OGUN STATE (1990) 21 NSCC (Pt 2) 11.

In my view, the appellant was entitled to sue and seek the declarations as he did since the prescribed authority and the Commissioner in Charge of the Chieftaincy Matters had neglected or refused to exercise the power. Indeed, it was the Commissioner who advised the appellant to sue. I accordingly resolve issue No 1 in favour of the appellant. The Court of Appeal was clearly in error to have allowed the appeal of the respondents.

Issue Two

This is concerned with the decision of the Court of Appeal to dismiss the cross-appeal when it did not even consider it on the merits on the ground that the trial of the matter was premature and accordingly without jurisdiction. The Court of Appeal was clearly in error to have dismissed the cross-appeal without considering it on the merits. I resolve this issue also against the respondents in favour of the appellant.

In the Court of Appeal, issues 2-6 were submitted by the respondents but were not properly considered on the grounds as aforesaid, that the appellant as one of the plaintiffs, did not fully exhaust the remedy provided by the Chiefs’ Edict. As shown above, the appellant had done all what was required of him under the statute. The fact that the Commissioner for Chieftaincy Affairs failed to do his duties should not be counted against the appellant. In the circumstances, I allow the appeal and set aside the decision of the Court of Appeal when it decided that the suit filed by the appellant was premature and that the trial court lacked the jurisdiction to entertain the matter. In place of it, I remit the case back to the Court of Appeal for the court to properly deal with issues 2-6 as contained in the brief of respondents herein, as the appellants in that court. The court should also consider and determine the cross-appeal on its merits. I award the appellant herein costs assessed at N10,000.00 against the respondents.

SC 15/2001