Legalpedia Citation: (2025-01) Legalpedia 16916 (undefined)

In the Court of Appeal

Holden at Akure

Thu Jan 30, 2025

Suit Number: CA/AK/352/2020

CORAM

Isaiah Olufemi Akeju Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Jane Esienanwan Inyang Justice of the Court of Appeal

PARTIES

1. PRINCE ALH. GANIYU OYENIKE
2. PRINCE RAIMI OYEROKA OYENIKE (For themselves and on behalf of members of Oyenike Ruling House of Onigbaye of Igbaye Chieftaincy)

APPELLANTS

1. OKUNOLA MORONFOYE ONI (For himself and on behalf of Olanipekan Family of Igbaye).
2. CHIEF J. A. AFOLABI (Arogun of Igbaye)
3. CHIEF USAMOT GIWA (Elemosho of Igbaye)
4. PRINCE REMI ADEGOKE (Director of Personnel Management Odo-Otin Local Government Council)
5. SECRETARY Odo-Otin Local Government
6. COMMISSIONER FOR CHIEFTAINCY AFFAIRS, OSUN STATE
7. THE GOVERNOR, OSUN STATE
8. THE ATTORNEY-GENERAL, OSUN STATE
9. H.R.H OBA ABIOYE OYEBODE OLURONKE II OLUKUKU OF OKUKU

RESPONDENTS

AREA(S) OF LAW

CONSTITUTIONAL LAW, ADMINISTRATIVE LAW, CHIEFTAINCY LAW, CUSTOMARY LAW, LIMITATION LAW, APPEAL, PRACTICE AND PROCEDURE, PUBLIC OFFICERS PROTECTION LAW, EVIDENCE

SUMMARY OF FACTS

This case revolves around a dispute concerning the selection, nomination, and appointment to the stool of Onigbaye of Igbaye Chieftaincy. The Appellants, Prince Alh. Ganiyu Oyenike and Prince Raimi Oyeroka Oyenike (for themselves and on behalf of members of Oyenike Ruling House of Onigbaye of Igbaye Chieftaincy), claimed that they represented the Oyenike Ruling House, which was the next ruling house entitled to present a candidate for the vacant stool of Onigbaye of Igbaye.

The dispute arose following the selection process where the 1st Respondent, Okunola Moronfoye Oni (representing the Olanipekan Family of Igbaye), was selected at a meeting held on June 23, 2006. The Appellants contended that this selection was invalid as the Olanipekan family was not part of the Oyenike Ruling House and thus not entitled to present a candidate. They argued that a previous meeting on April 27, 2006, where the 1st Appellant was selected, was the valid selection in accordance with custom.

The Appellants filed a suit at the Osun State High Court seeking declarations that the 1st Respondent’s selection was null and void, that the Olanipekan family was not part of the Oyenike Ruling House, and that they were not entitled to present a candidate. They also sought orders directing the appropriate authorities to approve and appoint the 1st Appellant as the Onigbaye of Igbaye.

The High Court dismissed the Appellants’ case. Dissatisfied, they appealed to the Court of Appeal, raising various grounds of appeal, including challenges to the application of the Public Officers Protection Law and the refusal of the trial court to permit an amendment to their Statement of Claim after the close of their case.

HELD

1. The appeal was struck out due to incomplete Record of Appeal as critical exhibits referred to in the appeal were not transmitted alongside the Records of Appeal.

2. The Court of Appeal held that it lacked jurisdiction to determine an appeal on an incomplete Record of Appeal, as the compilation and transmission of a complete Record of Appeal is a condition precedent to the assumption of jurisdiction by the Appellate Court.

3. The Preliminary Objection raised by the 1st and 2nd Respondents challenging the competence of the appeal was dismissed as unmeritorious since leave of Court was duly sought and granted for leave to appeal against the interlocutory ruling of the lower Court and to further amend the Amended Notice of Appeal.

4. Regarding Issue 1 on the Public Officers Protection Law, the Court held that this issue was incompetent as the Appellants did not raise it in the lower court and did not seek leave to raise it for the first time on appeal.

5. The Court of Appeal did not determine Issues 2 and 3 due to the absence of key exhibits necessary for the just determination of the appeal.

ISSUES

1. Whether from the peculiarities of this case, the facts and evidence led, the Learned Trial Judge was right to have sustained the objection raised against the Appellants’ case based on provisions of the Public Officers Protection Law?

Whether the Learned Trial Judge was right in his decision that provisions of Section 20 of the Osun State Chiefs Law is applicable to the case of the Appellants?

2. Whether the Learned Trial Judge was right in refusing the Appellants’ application for amendment after the close of the party’s case given the nature of the amendment sought?

3. Whether the Learned Trial Judge was right in validating the nomination exercise from where the 1st Respondent emerged in the face of the facts and evidence in this case?

4. Whether the Learned Trial Judge was right when he refused to set aside the appointment of the 1st Respondent carried out during the pendency of the suit and when issues had been joined by all the parties to the suit?

Whether the Learned Trial Judge was justified in awarding punitive costs against the Appellants in the circumstances of this suit?

5. Whether the Learned Trial Judge was right in deciding that the 1st Respondent’s family belonged to the Oyenike Ruling House, based on the nature of the documentary evidence tendered by the Respondents at the trial Court?

RATIONES DECIDENDI

COMPETENCE OF APPEAL — REQUIREMENTS FOR GRANTING LEAVE TO APPEAL AGAINST INTERLOCUTORY RULING

Upon examination of the records and
as borne out thereon, the Appellants filed an Application on 19th January,
2021, for, inter alia, leave of Court to appeal against the interlocutory
ruling of the Lower Court delivered on 6th July, 2020 in Suit Number:
HIK/34/2006 and to amend the original Notice of Appeal by incorporating fifteen
additional grounds of appeal. The Application was granted on 22nd November,
2021. – Per JANE ESIENANWAN INYANG, J.C.A.

COURT’S ENTITLEMENT TO CONSULT RECORDS — NECESSITY TO EXAMINE RECORDS TO ARRIVE AT JUST DECISION

It is trite that the Court is
entitled to look at the record in its possession to arrive at a just decision.
See MOHAMMED v NDIC OLADAPO v STATE (2020) 7 NWLR (PT. 1723) 238, SHARING CROSS
E.S. LTD v U.A. ENTERPRISES LIMITED (2020) 10 NWLR (PT. 1733) 561 at 589.– Per JANE ESIENANWAN INYANG, J.C.A.

APPEAL AGAINST AWARD OF COSTS — REQUIREMENT FOR LEAVE OF COURT

Issue 6 relates to costs. It is
clear from the record that leave of Court was neither sought nor granted the
Appellants at either the lower Court or this Court to appeal against the award
of costs, punitive or otherwise. This issue is incompetent and is accordingly
struck out. See Section 241 (2)(c) of the 1999 Constitution (as altered). – Per JANE ESIENANWAN INYANG, J.C.A.

DETERMINATION OF STATUTE BARRED ACTION — PROCEDURE FOR ASCERTAINING WHETHER AN ACTION IS STATUTE BARRED

Now, it is important to determine if
an action is statute barred, recourse shall be made to the originating process
to ascertain when the suit was initiated and the pleadings to ascertain what
the cause of action is and when it arose, this will be juxtaposed with the
Limitation Law, where applicable. See KARSHI & ORS v GWAGWA (2022) LPELR –
57544 (SC), INEC v OGBADIBO LOCAL GOVERNMENT & ORS(2015) LPELR – 24839
(SC), SHAUKAT AND RAZA (PTY) LTD v GOVET OF GOMBE STATE & ANOR (2021)
LPELR-55265 (CA), UDEZE & ORS v GOVERNOR OF IMO STATE & ORS (2024)
LPELR – 62829 (CA).– Per JANE ESIENANWAN INYANG, J.C.A.

EFFECT OF AMENDED STATEMENT OF CLAIM — RETROACTIVE EFFECT OF AMENDMENTS

It is trite that the Writ of Summons
and not the Statement of Claim ignites the suit and the amended Statement of
Claim will have retroactive effect. See OBIALOR & ANOR v UCHENDU &
ORS(2013) LPELR 22048 (CA). – Per JANE ESIENANWAN INYANG, J.C.A.

DEFINITION OF CAUSE OF ACTION — WHAT CONSTITUTES A CAUSE OF ACTION

The cause of action is the
aggregation of facts which consist of the wrongful act(s) of the Defendant(s)
which give(s) the Claimant/Plaintiff the right to seek legal redress. See
CHEVRON NIGERIA LIMITED v LONE-STAR DRILLING NIGERIA LIMITED (2007) 16 NWLR
(PT. 1059) 168.– Per JANE ESIENANWAN INYANG, J.C.A.

RAISING NEW ISSUES ON APPEAL — PROHIBITION AGAINST RAISING NEW ISSUES WITHOUT LEAVE

It is trite that issues cannot be
raised for the first time on appeal without leave of Court and by extrapolation
any issue not distilled from any ground of appeal goes to no issue. See OSINUPEBI
v SAIBU (1982) 7 SC 104, ETA v DADZIE (2013) 9 NWLR (PT. 1359) 248 at 262
paragraph E – F.– Per JANE ESIENANWAN INYANG, J.C.A.

INCOMPLETE RECORD OF APPEAL — EFFECT ON COURT’S JURISDICTION

It is trite that the Court lacks
jurisdiction to determine an appeal on an incomplete Record of Appeal as the
compilation and transmission of a complete Record of Appeal is a condition
precedent to the assumption of jurisdiction by the Appellate Court. A complete
Record of Appeal consists of the processes filed, the exhibits admitted in
evidence and the record of proceedings before the lower Court. See ACCESS BANK
v MR. A. N. ONWULIRI (2021) LEGALPEDIA (SC) 38582 (SC), ISAAC GAVOH & ORS v
JOHNSON AKWAI (2019) LPELR – 46441 (CA). – Per JANE ESIENANWAN INYANG,
J.C.A.

PURPOSE OF REPLY BRIEF — LIMITATION ON SCOPE OF REPLY BRIEF

The purpose of a Reply Brief is to
respond to new issues of law which arise in the Respondent’s Brief of Argument,
it is not an avenue to take a second bite at the cherry by improving on the
arguments in the Appellant’s brief. The replies to the arguments of the 1st and
2nd and 6th – 8th Respondents are hereby discountenanced. – Per JANE
ESIENANWAN INYANG, J.C.A.

DISMISSAL OF PRELIMINARY OBJECTION — BASIS FOR DISMISSING UNMERITORIOUS OBJECTION

In the light of the foregoing, it is
clear that the Preliminary Objection is unmeritorious as leave of Court was
duly sought and granted for leave to appeal against the interlocutory ruling of
the lower Court and to further amend the Amended Notice of Appeal which
incorporated Grounds 4 and 5 which attacked the interlocutory ruling. The
Preliminary Objection is accordingly dismissed. – Per JANE ESIENANWAN
INYANG, J.C.A.

CONCURRENCE WITH LEAD JUDGMENT — EXPRESSION OF AGREEMENT WITH REASONING AND CONCLUSION

I have read the judgment of my
learned brother, Jane Esienanwan Inyang, JCA and I agree with the reasoning and
conclusion that the appeal be strike out. I abide by the consequential
order.– Per ISAIAH OLUFEMI AKEJU, J.C.A.

CONCURRENCE WITH LEAD JUDGMENT — EXPRESSION OF COMPLETE AGREEMENT WITH REASONING AND CONCLUSION

I have had the privilege of reading
in draft the judgment delivered by my learned brother, J. E. Inyang, JCA, I am
in complete agreement with the reasoning and conclusion reached therein that
the appeal is unmeritorious and ought to be struck out. I too strike out the
appeal and abide by all other consequential orders contained in the lead
Judgment. – Per ABUBAKAR MUAZU LAMIDO, J.C.A.

STATUTORY ROLE OF LOCAL GOVERNMENT OFFICIALS — RESPONSIBILITIES IN CHIEFTAINCY SELECTION PROCESS

Section 15(1)(a) of the Chiefs Law
provides: ‘the secretary of the competent council shall not later than fourteen
days after the occurrence of the vacancy announce the name of the ruling house
entitled according to customary law to provide a candidate or candidates, ass
the case may be, to fill that vacancy.’ Section 15(2) provides that: ‘For the
purposes of paragraph (a) of Subsection (1) of this section an announcement
shall be made- a) i. by delivering a notice in writing to the ruling house
concerned..– Per JANE ESIENANWAN INYANG, J.C.A.

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as altered)

2. Public Officers Protection Law of Osun State

3. Chiefs Law of Osun State Cap 25

4. Court of Appeal Act, 2004 (as amended)

5. Evidence Act, 2011 (as amended)

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