CORAM

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PARTIES

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ATTORNEY GENERAL OF KWARA STATE & ANOR APPELLANTS

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ALHAJI SAKA ADEYEMO & ORS RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

Upon the death of Olofa of Offa, the Kingmakers directed the two ruling houses; Olugbense Ruling House(male line) and the Anilelerin Ruling House (female line) to nominate their candidate for the vacant Olofa Chieftaincy Stool which was complied with by both ruling houses. Alhaji Mofutau Mohammed Gbadamosi Esuwoye from the Anilelerin Ruling House was eventually appointed as the new Olofa of Offa. Aggrieved by this appointment, the  1st , 2nd , and 3rd representatives of the Olugbense Ruling House filed an action in the Ilorin High Court claiming inter alia that the Olofa chieftaincy is rotational between both ruling Houses and that it was the candidate of the Olugbense Ruling House that should be the Olofa of Offa. After considering the evidence before it, the court held that the Olofa Chieftaincy is not rotational and that the 1st -3rd Claimants having failed to establish their claims which are declaratory in the nature, the 8th Respondent was validly appointed and approved as the Olofa of Offa. On appeal, the lower Court upset the trial court’s judgement wherein it held that the ascension to the throne of Olofa is by rotation between the Olugbense and Anilelerin Ruling houses and so the 1st -3rd Respondents who were the Appellants in the lower court are entitled to the reliefs sought in the trial court, hence a further appeal has been lodged before this court.

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HELD

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Appeal Allowed.

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ISSUES

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1. Whether the Claimants/1st – 3rd Respondents complied with the provisions of section 3 (3) of the Chiefs (Appointment And Deposition) Law Of Kwara State before filing their suit which led to this appeal?

2. Whether Section 3(3) of the Chief (Appointment And Deposition) Law is unconstitutional?Whether section 3(3) of the Chiefs (Appointment and Deposition) Law should be pleaded?

 

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RATIONES DECIDENDI

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JURISDICTION

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JURISDICTION – FUNDAMENTAL NATURE OF JURISDICTION
“Jurisdiction is the authority, given to the Court by the Constitution, legislation to decide matters that come before it. Jurisdiction is a threshold issue. So once raised it must be resolved quickly. It is so fundamental in that if a Court hears a case in which it has no jurisdiction, on matter how well the case was conducted and decided, it would be declared a nullity. See; Madukolu V. Nkemdilim (1962) 2 NSCC P. 374; A.G. Lagos State V. Hon. Justice L. J. Dosunmu (1989) 3 NWLR (Pt. III) p. 552; Dangana & Anor V. Usman & 4 Ors. (2012) 2 SC (Pt. III) P. 103; NURTW & Anor V. RTEAN & 5 Ors (2012) 1 SC (PT. II) P. 119.” –

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JURISDICTION

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ISSUE OF JURISDICTION – WHETHER THE ISSUE OF JURISDICTION CAN BE RAISED IN THE APPELLATE COURT FOR THE FIRST TIME
“Jurisdiction is so fundamental and so it may be raised in the trial Court or Court of Appeal or in the Supreme Court for the first time. See; Usman Dan Fodio University V. Kraus Thompson Organization Ltd. (2001) 15 NWLR (Pt. 736) p.305.” –

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JURISDICTION, PRACTICE AND PROCEDURE

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JURISDICTION – DETERMINATION OF JURISDICTION
“In determining jurisdiction it is only the plaintiffs claim that is considered. See; Obiuweubi V. C.B.N. (2011) ALL FWLR (PT. 321) P.208; P.C.H.S.C. Ltd. & 3 Ors. V. Migfo Nig. Ltd. & Anor (2012) 6 SC (PT. III) P. 1; Tukur V. Govt. Of Gongola State (1980) 4 NWLR (PT. 117) P. 17; Adeyemi V. Opeyori (1979) 9-10 SC P.31.” –

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JURISDICTION,

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JURISDICTION – TYPES OF JURISDICTION
“Jurisdiction is a question of law. There are two types of jurisdiction:
1. Jurisdiction as a matter of procedural Law
2. Jurisdiction as matter of substantive Law.
A litigant may waive the former. For example a litigant may submit to a procedural jurisdiction of the Court where a writ of Summons has been served outside jurisdiction without leave or where a litigant (the defendant) waives compliance by the claimant of pre-action notice. No litigant can confer jurisdiction on the Court where the Constitution or Statute says that the Court does not have jurisdiction.” –

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ACTION, COURT

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PRE-ACTION NOTICE – PURPOSE OF PRE-ACTION NOTICE
“The purpose of a pre-action notice is to give the defendant, usually an agency of Government enough time to negotiate and reach settlement with the claimant, or decide whether it makes sense to submit to jurisdiction and go through a full bloom trial at great expense to resolve the issue in controversy.” –

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STATUTE

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WAIVER – WHETHER A PARTY MAY WAIVE HIS BENEFIT IN A STATUTE SO AS TO CONFER JURISDICTION ON THE COURT
“The position of the law is that where a statute gives a party a benefit he may waive it, thereby conferring jurisdiction on the Court to hear the matter. Put in another way, conditions contained in a statute for the benefit of a person or class of persons can be waived by the person/s to benefit from it. See; Adegoke Motors Ltd V. Adesanya (1989) 3 NWLR (PT. 109) P. 255, Ezomo V. Oyakhire (1981) 1 SC P. 6, Nwabueze V. Okoye (1985) 1 NWLR (PT. 2) P. 195.” –

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STATUTE

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WAIVER – WHETHER A RIGHT INVOLVING AN ELEMENT OF PUBLIC POLICY CAN BE WAIVED BY A PARTY
“On the other hand where the right conferred by the Constitution or Statute involves an element of public policy, i.e. of interest to the public, such a right cannot be waived. SeeAriori V. Elemo (1983) 14 NSCC p. 1.” –

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APPEAL, JURISDICTION, PRACTICE AND PROCEDURE

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FRESH ISSUES ON APPEAL– WHETHER THE ISSUE OF JURISDICTION CAN BE RAISED ON APPEAL FOR THE FIRST TIME WITHOUT THE REQUIREMENT OF LEAVE
“The long settled position of the law is that a fresh issue can only be raised on appeal after leave (i.e. permission) is asked for and obtained, but there is an exception to this position of the law. Due to the fundamental nature of jurisdiction, once the issue is on jurisdiction, leave is not required before it is raised in this Court. See; Opobiyi & Anor V. Muniru (2011) 12 S (Pt. III) P. 83; Obiakor V. State (2002) 6 SC (PT. II) P. 33; Gaji V. Paye (2003) 5 SC P. 53.” –

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STATUTE, COURT, PRACTICE AND PROCEDURE

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NON-COMPLIANCE WITH THE PROVISION OF A STATUTE – DUTY OF COURT WHERE A PARTY COMPLAINS THAT THERE WAS NON COMPLIANCE WITH THE PROVISION OF A STATUTE
“Where a party in a suit complains that there was non-compliance with provision of a Statute, in this case Section 3(3) of the Chiefs (Appointment and Deposition) Law, the interpretation of the provision becomes an issue and it is the duty of the Court to examine relevant evidence to see if there was compliance or non-compliance.” –

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INTERPRETATION OF STATUTE

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INTERPRETATION OF STATUTE – MODE OF CONSTRUING CLEAR AND UNAMBIGUOUS WORDS IN A STATUTE
“It is long settled that words, provisions in a statute that are clear and free from ambiguity should be construed as they are and given their ordinary meaning without any embellishments. See Mobil V. FBIR (1977) 3SC P. 53; Toriola V. Williams (1982) 7 SC P. 27;.” –

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STATUTE, PRACTICE AND PROCEDURE, COURT

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STATUTORY PROVISION – DUTY OF A PARTY TO EXHAUST ALL REMEDIES IN LAW BEFORE GOING TO COURT WHERE A STATUTE PROVIDES FOR THE DETERMINATION OF AN ADMINISTRATIVE OR CHIEFTAINCY MATTER
“Where a statute provides a legal line of action for determination of an issue, be that issue an administrative matter or chieftaincy matter, the aggrieved party must exhaust all remedies in that law before going to Court. See; Eguamwense V. Amaghizenwem (1993) 9 NWLR (PT. 315) P. 1; Chief Israel Aribisala & Ors Talabi Ogunyemi & 2 Ors (2005) ALL FWLR (PT. 252) P. 451; Owoawni V. Faloye (2005) 14 NWLR (PT. 946) P. 719.” –

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INTERPRETATION OF STATUTE

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INTERPRETATION OF STATUTE – OBJECT OF INTERPRETATION OF STATUTE
“The main object of interpretation is to find out the intention of the law makers, and this is done by diligently examining the language used. Once the meaning is clear, a judge has no alternative but to give effect to it. Sections of the legislation should on no account be interpreted in isolation, rather sections of the legislation should be interpreted in a way that one section would not defeat the intent and purpose of another section and this is easily achieved by a careful examination of the whole legislation. It must be always borne in mind that the words of the statute speak the intention of the legislature.” –

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JURISDICTION, COURT, CHIEFTAINCY MATTERS

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CHIEFTAINCY DISPUTE – WHETHER SECTION 3(3) OF THE CHIEFS (APPOINTMENT AND DEPOSITION) LAW OF KWARA STATE OUST THE JURISDICTION OF COURT IN CHIEFTAINCY DISPUTES
“It must be abundantly clear that if the guideline for interpretation of legislation above is followed, it is clear that Section 3 (3) supra is geared towards reducing chieftaincy disputes by providing for settlement of disputes by the Governor, and a still dissatisfied person can go to Court (Section 15 supra). By no stretch of imagination can it be said that Section 3(3) supra oust the jurisdiction of the Court. In all chieftaincy disputed, before an aggrieved person files a suit in Court he must show that he had exhausted the remedies or followed the procedure under the applicable law. In this case, the Chiefs (Appointment and Deposition) Law of Kwara State”.

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COURT, JURISDICTION, CHIEFTAINCY MATTERS

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CHIEFTANCY DISPUTES – WHETHER A COURT HAS JURISDICTION TO DETERMINE DISPUTE ARISING FROM CHIEFTAINCY APPOINTMENT
“A Court has jurisdiction to hear and determine chieftaincy appointments only after the Governor fails in his effort to resolve the dispute. The Chiefs law (supra) is an important issue on jurisdiction.” –

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COURT, JURISDICTION, PRACTICE AND PROCEDURE

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JURISDICTION OF COURT – WHEN CAN AN ISSUE OF JURISDICTION BE RAISED?
“It is long settled that jurisdiction of a Court to hear a matter can be raised in the trial Court or in the Supreme Court for the first time. See Dangana & Anor V. Usman & 4 Ors (2012) 2 SC (PT. III) P. 103; Society Bic S.A. & 2 Ors V. Charzin Ind Ltd (2014) 2 SC (PT. II) P. 57.” –

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JURISDICTION, STATUTE

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ISSUE OF JURISDICTION – WHETHER RAISING THE ISSUE OF JURISDICTION UNDER THE CHIEF (APPOINTMENT AND DEPOSITION) LAW MUST BE PLEADED WITH THE LEAVE OF COURT FIRST SOUGHT
“The Chief (Appointment and Deposition) Law, like any other legislation that raises the issue of jurisdiction may or may not be pleaded and it may be raised without leave. All that is required is that a process is filed wherein the issue is raised so that the adverse party is not taken by surprise.” –

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ACTION, CHIEFTANCY MATTERS

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SELECTION OF A CHIEF– CONDITION PRECEDENT FOR THE INSTITUTION OF AN ACTION IN COURT ON THE SELECTION OF A CHIEF UNDER THE CHIEF (APPOINTMENT AND DEPOSITION) LAW
“The Governors “final say as to whether the appointment of any chief has been made in accordance with customary law and practice” is a condition precedent to the institution of an action in Court by any person aggrieved in the selection of a chief under the Chiefs Law (supra). There are other pre-conditions that must be satisfied before an action can be brought under the Chiefs Law.” –

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STATUTE, ACTION

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STATUTORY PRE-CONDITIONS –STATUTORY PRE-CONDITIONS FOR COMMENCEMENT OF SUIT ON THE SELECTION OF A CHIEF UNDER THE CHIEF (APPOINTMENT AND DEPOSITION) LAW
Section 15(1) and (2) are hereunder reproduced:
“S.15 (1) Where the Governor or the appointing authority has approved the appointment of a person as a chief, any person who intends to challenge the validity of such appointment shall first deposit with the State Accountant-General a non-refundable sum of ten thousand naira.
(2) Where the Governor or the appointing authority has not approved any appointment to a vacant chieftaincy stool, any aggrieved person who institutes any Court action in connection with a vacant chieftaincy stool and joins the State Government or any of its agencies as a party to any such Court action shall first deposit with the State Accountant General a non-refundable fee of ten thousand naira.”
Above are “pre-action” requirements in the same class as pre-action notices which have been declared not unconstitutional. See Anambra State Government & Ors v. Marcel & Ors (1996) 9 NWLR (Pt. 213) 115. The aim of statutory pre-conditions for commencement of suit is to provide opportunity for settlement out of Court.” –

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JURISDICTION

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LACK OF JURISDICTION – WHETHER THERE CAN BE EXERCISE OF JUSTICE WHERE JURISDICTION DOES NOT EXIST
“Also, there can be no exercise of justice delivery within the frame work of jurisdiction that does not exist. This is glaring in this instance where a condition precedent had not be fulfilled or met. Stated differently, a wrong exercise of jurisdiction demystifies the elegance or beauty of a judgment which comes to nought and of no use being the result of a futile act.” –

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STATUTE

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COMPLIANCE WITH STATUTORY PROVISION – DUTY TO COMPLY WITH STATUTORY PROVISIONS IN PERFORMING A DUTY
“Thus, a condition precedent is thrown up before the adjudicatory powers of the trial Court could be sought otherwise it would be taken to be a jumping of the gun by seeking the remedy in the Court. See Atiku Abubakar V. A.G. Federation & Ors (2008) All FWLR (Pt. 441) 870 at 908 in which the Supreme Court stated that where a statute as in this instance Section 3(3) of the Chiefs (Appointment and Deposition) Law of Kwara State has prescribed for a particular method of performing a duty regulated by it, such method and no other must be adopted.” –

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JURISDICTION, COURT

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LACK OF JURISDICTION – EFFECT OF A COURT’S LACK OF JURISDICTION ON A CASE
“Jurisdiction is the pillar under which the entire case stands. Once it is shown that the Court lacks jurisdiction, the foundation of the case is not only shaken but it is entirely broken. The case crumbles and in effect, there is no case before the Court for adjudication.” –

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WORDS AND PHRASES

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CONDITION PRECEDENT – MEANING OF ‘CONDITION PRECEDENT’
“For a fuller picture, the Supreme Court has properly elucidated the expression “condition precedent” the case of J.S. Atolagbe & Ors v. Alhaji Muhammadu Awuni & Ors (1997) 9 NWLR (Pt. 522) 537 at 565 per Uwais CJN thus:-
‘Condition is a provision which makes the existence of a right dependent on the happening of an event, the right is then additional as opposed to an absolute right. A true condition where the event on which the existence of the right depends is in the future uncertain. A ‘condition precedent’ is one that delays the vesting of a right until the happening of an event.’
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CASES CITED

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STATUTES REFERRED TO

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1. Chiefs (Appointment and Deposition) Law Cap C9, Laws of Kwara State, 2006.

2. Constitution of the Federal Republic of Nigeria, 1999(as amended)

3. High Court (Civil Procedure) Rules 2005 of Kwara State

4. Sheriffs Civil Process law

 

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