AKINSANYA & ORS v. SHONEYE & ORS
CITATION: (2016) LPELR-41939(CA)
In the Court of AppealIn the Ibadan Judicial Division
Holden at Ibadan
ON FRIDAY, 9TH DECEMBER, 2016Suit No: CA/IB/248/2012
Before Their Lordships:
MODUPE FASANMI Justice, Court of AppealCHINWE EUGENIA IYIZOBA Justice, Court of AppealHARUNA SIMON TSAMMANI Justice, Court of Appeal
Between1. OBA TIMOTHY OYESOLA AKINSANYA(The Ewusi of Makun)2. CHIEF S. A. ODUWAIYE(The Lisa of Makun)3. CHIEF TAYO OGUNTADE(The Losi of Makun)4. CHIEF ELDER OLU MAYUNGBO(The Aro of Makun)5. CHIEF O. S. OREMADE(The Oluwo of Makun)6. CHIEF OBAFEMI ASIMOLOWO ODUGUWA(The Apena of Makun)7. CHIEF OLUSEGUN OGUNJIMI(The Balogun of Makun)8. CHIEF SALAMI IDOWU(The Akoje of Makun)
- Appellant(s)
And
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1. MICHAEL OWOLABI SHONEYE(For himself and on behalf of ORUNGBA Branch ofMULERUNA-ORUNGBA RULING HOUSE)2. PRINCE SOLOMON ADEKUNLE SHONEYE3. THE SECRETARY, SAGAMU LOCALGOVERNMENT4. THE EXECUTIVE COUNCIL OF OGUN STATE5. THE ATTORNEY-GENERAL OF OGUN STATE6. CHIEF (ENGR) YEMI ADENIYI(The Olootu Omo Oba of Makun)7. ALHAJI OLOYEDE DADA FAYEMI
- Respondent(s)
RATIO DECIDENDI1. ACTION - LOCUS STANDI: Meaning of locus standi; What a party must show to establish locus
standi"Generally in law, the concept of locus standi relates to the issue of justiciability. The term locusstandi therefore denotes the legal capacity to institute an action and be heardin a Court of law. It also means title to sue, and also the right of a party to appear and be heard ona question before any Court or Tribunal. The law is that, to have locus standi, the Claimant orPlaintiff must show that he has sufficient legal interest in the subject matter. To establish that hehas sufficient legal interest, the Plaintiff must be able to show:(a) Whether he could have been joined as a party, either as a Plaintiff or a Defendant in the suit;or(b) Whether he will suffer some injury or hardship arising from the litigation.Once the party seeking the redress or remedy is able to satisfy the Court that he has sufficientlegal interest, he must be heard, because in such a circumstance, he is entitled to be heard. SeeOjukwu v. Ojukwu (2008) 4 NWLR (pt.1078) p.435; Inakoju v. Adeleke (2007) 4 NWLR (pt.1025)p.423; Dr. Tosin Ajayi v. Princes (Mrs) Olajumoke Adebiyi & Ors (2012) LPELR - 7811 (SC); andIsaac Jitte & Anor v. Dickson Okpulor (2015) LPELR - 25983 (SC). See also Pam v. Mohammed(2008) 16 NWLR (pt.1112) p.1."Per TSAMMANI, J.C.A. (Pp. 19-20, Paras. F-F) - read in context
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2. ACTION - LOCUS STANDI: How to establish locus standi in chieftancy matters"In Chieftaincy matters, as in the instant case, it is not enough for the Plaintiff to plead that he is amember of the family; but he must state that he has an interest in the Chieftaincy title and mustalso show how his interest in the Chieftaincy Stool arose. It therefore means that, membership ofa Chieftaincy family is not enough because not all members of Chieftaincy family are eligible forthe Chieftaincy. See Daniyan v. Iyagin (2002) 7 NWLR (pt. 766) p. 346 at 376; Daramola v. A.G.Ondo State (2000) 7 NWLR (pt. 665) p. 440 at 476 per Onnoghen, JCA (as he then was). Thus, inthe case of Arowolo v. Olowookere (2011) 18 NWLR (pt. 1278) p. 280 at pp.310 - 311 ParagraphsG - A, Muhammad, JSC stated the law as follows:"In a legal tussle where the claim of the Plaintiff is on Chieftaincy matter, the law is well settledthat it is not enough for the Plaintiff to state that he is a member of the family; he has to statefurther that he has an interest in the Chieftaincy title, and furthermore, he should state in hisStatement of Claim how his interest in the Chieftaincy title arose. See Momoh v. Olotu (1970) 1 AllN.L.R. 121 at 127. It is thus, the legal duty of the Plaintiff to show to the Court, through hispleadings and evidence, that he has the standing (locus standi) to institute the action either forhimself or as a representative of his family, whose civil rights and obligations have been, or are indanger of being violated or infringed. He also has to show that he or the family he represents havea justiciable dispute with the Defendant."From the above stated statement of the law as clearly stated by the Supreme Court, it would beseen that a Plaintiff in a Chieftaincy dispute or action may disclose his locus to institute the actionin any of two ways stated by the Supreme Court in the case of Emezi v. Osuagwu (2005) 12 NWLR(pt.939) p.340 at 359 Paragraphs G - H. He may do that by:(a) Showing in his Statement of Claim and leading evidence to show that the right that is beingasserted is that of his family by reason of any hereditary interest. In such situation, the actionshould be by the family through their representative(s) and it must be clearly pleaded that it is thecivil right of the family that is being claimed or pursued; and(b) By the Plaintiff asserting his own right to the Chieftaincy Stool, if he could show from thepleadings and evidence, if evidence has been led, the nature of his interest and his entitlement tothe Stool. In such a situation, it would not be enough for him to merely plead that he is a memberof the family. He must go further to plead that he had an interest in the Chieftaincy title and howsuch interest arose.See also Amusa Momoh & Anor v. Jimoh Olotu (1970) 1 All NLR. P.117 at 123; Eleso v. Governmentof Ogun State (1990) 2 NWLR (pt.133) p.420; Adesanoye v. Adewole (2006) 14 NWLR (pt.1000)p.242 and Bamisike v. Osasuyi (2007) 9 NWLR (pt.1042) p.225."Per TSAMMANI, J.C.A. (Pp. 20-23,Paras. F-C) - read in context
3. ACTION - LOCUS STANDI: What the Court considers in determining whether a plaintiff has locusstandi"It is the settled law that, to determine whether or not a Plaintiff has the requisite locus standi toinstitute an action, it is the Writ of Summons or Statement of Claim that should be considered. Inother words, in determining the locus standi of a Plaintiff, the Court would scrutinize theStatement of Claim." Per TSAMMANI, J.C.A. (P. 23, Paras. C-E) - read in context
4. APPEAL - FORMULATION OF ISSUE(S) FOR DETERMINATION: How a respondent who has notcross-appealed should formulate issues for determination"It is the law that a Respondent who has not filed a Respondents' Notice is not at liberty toformulate more issues than that of the Appellant. Of course, he may formulate his own issues solong as they can be rooted on the Grounds of Appeal filed, but such issues should be either anadoption of the issues raised by the Appellant or a reformulation of same with a slant which theRespondent may find suitable. The bottom line is that they should not depart from the substanceof the issues formulated by the Appellant. See Emespo J. Const. Ltd v. Corona S. & Co. (2006) 11NWLR (pt.9912) p.365; Musa Sha (Jnr) & Anor v. Da Ray Kwan & 4 Ors (2000) 8NWLR (pt.670) p.685; A.P.G.A. & Anor v. Umewa & Ors (2011) LPELR - 426 (SC) and Atanda & Orsv. Akanji & Ors (1989) 2 N.S.C.C. p.511 at 537."Per TSAMMANI, J.C.A. (Pp. 6-7, Paras. C-A) - read incontext
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5. APPEAL - FRESH POINT(S) ON APPEAL: Whether a party can raise the defence of statute oflimitation as a fresh issue on appeal"Indeed, it is now settled law, that the issue of an action being statute barred is a substantialquestion of law that may affect the jurisdiction of the Court, and therefore can be raised for thefirst time on appeal with the leave of Court. This is in consonance with the settled law that, wherea party intends to raise a fresh issue on appeal, he has to seek and obtain leave of the appealCourt before the issue can be validly raised and argued. See Olagunju v. P.H.C.N. Plc (supra) atp.125 Paragraphs D - F; Ajala v. Okogbue (2011) 16 NWLR (pt.1272) p.62; Gabriel v. State (1989)(pt.122) p.457; Ukong v. Commissioner, Finance (2006) 19 NWLR (pt.1013) p.187; Dagaci of Derev. Dagaci of Ebwa (2006) 7 NWLR (pt.979) p.382 and M.L.G; Kwara State v. Oyebiyi (2006) 10NWLR (pt.988) p.320. This is based on the premise that, where the question involves substantialpoint of law, and it is apparent that it will not be necessary to open up further evidence whichcould affect the decision of the trial Court, the appeal Court will allow the question to be raisedand argued."Per TSAMMANI, J.C.A. (Pp. 44-45, Paras. B-B) - read in context
6. APPEAL - FRESH POINT(S) ON APPEAL: Whether a party can raise the defence of statute oflimitation as a fresh issue on appeal"As stated earlier, the issue of limitation of action is one of jurisdiction and therefore, where it israised on appeal, it would not be correct to assert, as done by the Respondents, that theDefendant has put up a case different from that presented in the trial Court. This is in view of thelaw that, an issue of jurisdiction can be raised at any stage of the trial, even for the first time onappeal." Per TSAMMANI, J.C.A. (Pp. 45-46, Paras. E-A) - read in context
7. CHIEFTAINCY MATTERS - COMMENCEMENT OF CHIEFTAINCY MATTER: How tocommence/institute a chieftaincy matter"In a Chieftaincy action where the right claimed is that of a Ruling family, the action must beinstituted by the Ruling family in a representative capacity. See Daramola v. A.G; Ondo State(supra); Otapo v. Sunmonu (1987) 2 NWLR (pt. 58) p. 587; Arowolo v. Akapo (2003) 8 NWLR(pt.823) p.451."Per TSAMMANI, J.C.A. (P. 27, Paras. B-C) - read in context
8. LIMITATION LAW - LIMITATION OF ACTION: Purpose of a statute of limitation"Now, the main purpose of limitation of action or limitation statute is to protect a Defendant frominjustice of having to face a stale claim. In such a situation, where a limitation statute applies, aPlaintiff who might otherwise have had a valid cause of action loses the right to enforce the causeof action or claim by judicial process. This is because the period stipulated by the limitationstatute for instituting such action has lapsed. A plea of limitation of statute is therefore a weaponof defence, and not attack. In other words, the limitation statutes, just like equitable doctrines oflaches, are designed to promote justice by preventing surprises by reviving a claim or cause ofaction that has been allowed to lapse. Thus, in the case of Sulgrave Holdings Inc. v. F.G.N. (2012)17 NWLR (pt.1329) p.309 at P.343 Paragraphs E - F, Fabiyi, JSC said:"It should be reiterated that a statute of limitation is a law that bars claims after a specifiedperiod. It is a statute which establishes a time limit for suing in a civil case based on the date theclaim accrued. The purpose of such a statute is to require diligent prosecution of known claimsthereby providing finality and predictability in legal affairs. It is also termed non claim statute. Thepurpose of limitations, like equitable doctrine of laches, in their conclusive effects are designed topromote justice by preventing surprises through the revival of claims that have been allowed toslumber."Per TSAMMANI, J.C.A. (Pp. 39-40, Paras. A-B ) - read in context
9. LIMITATION LAW - LIMITATION OF ACTION: Effect of a statute barred action"A claim that is statute barred has thus become an empty shell and of no utility value to theperson claiming it. A Plaintiff is therefore required to seek prompt remedy for any infringement ofhis rights in a Court of law within the time prescribed by the Law, and if he delays beyond theprescribed statutory period, his right of action or cause of action will become unenforceable. SeeHassan v. Aliyu (2010) 17 NWLR (pt.1223) p.547 at 623 Paragraphs D - H; Olagunju v. P.H.C.N. Plc(2011) 10 NWLR (pt.1254) p.113 at 133 Paragraphs F - H; Rabiu v. Adebajo (2012) 15 NWLR(pt.1322) p.125 and Anukwe v. Eze (2012) 11 NWLR (pt.1310) p.137."Per TSAMMANI, J.C.A. (P. 40,Paras. C-F) - read in context
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10. LIMITATION LAW - PLEA OF LIMITATION LAW: Whether plea of limitation equates with or issynonymous to jurisdiction"I wish to point out that, a defence based on statute of limitation is a point of law touching on thejurisdiction of a Court to adjudicate upon the Plaintiff's Claim before it. In other words, where aDefendant contends that an action is statute barred, he is by so doing raising a point of lawtouching on the jurisdiction of the Court to hear and determine on the matter, because when anaction is found to be statute barred the Court will have no jurisdiction to entertain it no matterhow attractive the case may be. Consequently, where the point raised succeeds, the right of thePlaintiff is extinguished leaving him with an empty and unenforceable cause of action."?Per TSAMMANI, J.C.A. (P. 41, Paras. B-E) - read in context
11. LIMITATION LAW - PLEA OF LIMITATION LAW: Whether the defence of statute of limitationmust be pleaded; reason for pleading same"Though an aspect of jurisdiction, the Civil Procedure Rules applicable to the various High Courtjurisdictions in this country require that a Defendant who intends to rely on or raise the defence oflimitation of statute must first of all specifically plead same. The rationale behind this requirementis that, it is a rule of pleadings that all facts which a Defendant wishes to rely on as his defencemust be pleaded so as to give the Plaintiff notice so as to avoid his being taken by surprise. SeeOrder 15 Rule 7(1) and (2) of the Ogun State High Court (Civil Procedure) Rules, 2008 whichstipulates that:"(15) Rule 7(1). All grounds of defence or reply which makes an action not maintainable or if notraised will take the opposite party by surprise or will raise issues of facts not arising out of thepreceding pleadings shall be specifically pleaded.(2). Where a party raises any ground which makes a transaction void or voidable or such mattersas fraud, Limitation Law, release, payment, performance, facts showing insufficiency in contract orillegality either by any enactment or by common law, he shall specifically plead same." Thisprovision and other provisions in pari materia to it, have received judicial interpretation by theSupreme Court and this Court in several cases, such as, Olagunju v. P.H.C.N. Plc (2011) 10 NWLR(pt.1254) p.113 at 124 Paragraphs F - G; Ketu v. Onikoro (1984) 10 S.C. p.265 at 267 - 268; Lanav. University of Ibadan (1991) 4 NWLR (pt.64) p.245 at 260 and Akuneziri v. Okenwa (2000) 4N.S.C.Q.R p.278. It therefore remains settled that, a party contending that an action is statutebarred must plead the specific Law that bars the action and go further to plead the incidents thatwould establish that the action is indeed statute barred in relation to that particular stature. Seealso Ojiogu v. Ojiogu (2010) 9 NWLR (pt.1198) p.1 and Oyebanji v. Lawanson (2008) 15 NWLR(pt.1109) p.122. Thus, in the case of Chime v. A.G; Federation (2008) All FWLR (pt. 439) p. 550 at563 Paragraphs A - B, it was that:"... it becomes clear that special defence such as Limitation Act or Law must be specifically andexpressly pleaded in the Statement of Defence, otherwise it cannot be considered by the trial orappeal Court. The rules are meant to be followed and their provisions binding on a party who isconducting a proceeding in Court."Per TSAMMANI, J.C.A. (Pp. 41-43, Paras. F-F) - read in context
12. LIMITATION LAW - LIMITATION OF ACTION: What the Court should do in considering whetheran action is statute barred"It is obvious that the issue of whether or not an action is caught by limitation of action or statuteis one that can be determined through the Statement of Claim alone. In that case, the Defendantrelying on it need not call or adduce evidence, if the facts needed to establish the defence can begleaned from or are contained in the case presented by the Plaintiff in the Statement of Claim.See Olagunju v. P.H.C.N. Plc (supra) at p.126 Paragraphs F.Per TSAMMANI, J.C.A. (P. 45, Paras. C-E)- read in context
13. LIMITATION LAW - LIMITATION PERIOD: Limitation period for bringing an action against apublic officer"The Limitation Law is the Public Officers Protection Law of Ogun State, which stipulate in Section2(a) thereof, that the limitation period shall be three months after the cause of action arose or theact complained against occurred. In other words, the action must be instituted within 3 monthsafter the cause of action accrued. See NEPA v. Olagunju (2005) 3 NWLR (pt.913) p.602; IbetoCement Co. Ltd v. A.G; Federation (2008) 1 NWLR (pt.1069) p.470 and Olagunju v. P.H.C.N. (supra)at p.125."Per TSAMMANI, J.C.A. (Pp. 52-53, Paras. F-C) - read in context
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14. PRACTICE AND PROCEDURE - WAIVER OF RIGHT: Whether a right of a public nature can bewaived"On the issue of waiver, the Supreme Court in the above cited case, stated that, the word used inSection 2(a) of the Public Officers Protection Act (which is in pari materia with Section 2(a) of thePublic Officers Protection Law of Ogun State), is "shall" and therefore connotes mandatoriness andleaves no room for discretion. That in the circumstances, a mandatory statutory provision cannotbe waived. In considering the issue, the Supreme cited and relied on its decision in Menakaya v.Menakaya (2001) 16 NWLR (pt.738) p.203 at 263 Paragraphs B - D, where it held that:"When therefore it is argued that a statutory provision has been waived, it has to be consideredwhether the statute confers purely private or individual rights which may be waived or whetherthe statutory provision confers rights of a public nature as a matter of public policy. If it is thelater, the provision of such statute cannot be waived as no one is permitted to contract out of orwaive a rule of public or constitutional policy. See A.G; Bendel State v. A.G. of the Federation(1981) 10 SC.1 at 54; Ogbonna v. A.G. of Imo State (1992) 1 NWLR (pt.220) 647 at 696."It therefore means that the arguments of the Respondent on the issue of waiver go to no issue.Certainly, the protection provided under Section 2(a) of the Public Officers Protection Law is not aprivate right granted to such public officers but is enacted as a matter of public interest or policy.The Appellants cannot therefore be held to have waived the protection provided by Section 2(a) ofthe Law."Per TSAMMANI, J.C.A. (Pp. 50-51, Paras. C-D) - read in context
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15. PRACTICE AND PROCEDURE - SIGNING OF COURT PROCESS(ES): Effect of a court processsigned in the name of a law firm"Now, on the substantive issue, it is a requirement in most High Courts (Civil Procedure) Rules inNigeria, including that of the High Court of Ogun State that, an Originating Process shall beprepared by either the Claimant or his Legal Practitioner. See Order 6 Rule 1 of the Ogun StateHigh Court (Civil Procedure) Rules, 2008. The problem the Courts have had to grapple with havealways been whether a process purported to have been prepared or signed by a LegalPractitioner, was indeed prepared or signed by a Legal Practitioner known to law in Nigeria. Inresolving the issue, the Supreme has laid emphasis on Sections 2(1) and 24 of the LegalPractitioners Act, Cap. 207, Laws of the Federation of Nigeria, 1990. It has been held that by acombined reading of Sections 2(1)and 24 of the Legal Practitioners Act (supra), a person is only entitled to practice law in Nigeria asa Barrister and Solicitor, otherwise known as a Legal Practitioner, if and only if, his name has beenenrolled in the Register of Legal Practitioners in the Supreme Court of Nigeria. Such a person mustnecessarily be a natural person and must be registered on the roll under a given name. It is bythat name that such a person can be identified or recognized as a Legal Practitioner. It thereforemeans that such Legal Practitioner must prepare or sign all Court processes under that name, andno other. However, Legal Practitioners in Nigeria were in the habit of preparing Court processes intheir Firm names; and that was the position when the Supreme Court in the case of Okafor v.Nweke (2007) 10 NWLR (pt.1043) p.521 pronounced on the competence of Court processes signedin the name of a Firm of Legal practitioners. In the Okafor v. Nweke case (supra), in upholding theobjection on the competence of the Motion on Notice, Notice of Cross-Appeal and Applicants' briefin respect of the application, all of which were signed in the name of J.H.C. Okolo, SAN & Co., theSupreme Court cited Sections 2(1) and 24 of the Legal Practitioners Act (supra) to hold that:"The combined effect of the above provisions is that for a person to be qualified to practice as aLegal Practitioner he must have his name in the roll otherwise he cannot engage in any form ofLegal Practice in Nigeria." The significance or impact of that decision is that, it determined that allCourt processes prepared and/or signed by a Legal Practitioner must be so prepared in the nameof such Legal practitioner. A Firm of Legal Practitioners is not the name of a Legal Practitionerenrolled to practice as a Barrister and Solicitor in the Register of Legal Practitioners in theSupreme Court of Nigeria. Consequently, any Court process prepared and/or signed in the name ofa Firm of Legal Practitioners is incompetent, null and void. In the case of F.B.N. Plc v. Maiwada(2013) 5 NWLR (pt. 1348) p. 444, a full panel of the Supreme Court was invited to review anddepart from the decision of Okafor v. Nweke (supra). The Supreme Court, after taking argumentsof counsel and numerous amici curiae invited to address the Court on the issue, refused to departfrom Okafor v. Nweke (supra) and reiterated that the position in that case is good law. Specifically,Fabiyi, JSC who read the lead judgment said:"The provisions of Sections 2(1) and 24 of the Act... remain the law and shall continue to be sountil when same is repealed or amended. For now, I see nothing amiss about the law.The decision in Okafor v. Nweke was based on a substantive law, an Act of the National Assemblyi.e. the Legal Practitioners Act. It is not based on Rules of Court. According to Oguntade, JSC atpage 534 of the judgment in Okafor v. Nweke; "It would have been quite another matter if what isin issue is a mere compliance with Court Rules." Let me say it bluntly that where the provisions ofan Act like the Legal Practitioners Act is at play, as herein, provisions of Rule of Court which aresubject to the law must take the side line." The above cited authorities therefore represent the lawon the issue in this country. Those decisions have been followed and applied by this Court andindeed the Supreme Court in a plethora of cases. For example, see N.D.I.C. v. Lagos State Gov't &Ors (2009) LPELR - 4966 (CA); Unity Bank Plc v. Denclag Limited & Anor (2012) LPELR - 9729 (SC);Amidu Ishola & Ors v. Ibadan North-East Local Gov't & Anor (2013) LPELR - 20477 (CA); HassanGarba v. Musa Lawan Birniwa & Anor (2013) LPELR - 21478 (CA) and Alhaji Tajudeen BabatundeHamzat & Anor v. Alhaji Saliu Ireyemi Sanni & Ors (2015) LPELR - 24302 (SC)."Per TSAMMANI,J.C.A. (Pp. 63-67, Paras. C-B) - read in context
16. PRACTICE AND PROCEDURE - SIGNING OF COURT PROCESS(ES): Whether the issue ofsigning of Court process is an issue of substantive law"Learned Counsel for the 7th Respondent raised the issue of interest of justice. In the case ofF.B.N. v. Maiwada (supra), the Supreme Court pointed out clearly that the issue is one ofcompliance with the provisions of substantive law; the Legal Practitioners Act; and not one ofmere practice and procedure. That in the circumstances, the notion of substantial justice orinterest of justice cannot be relevant. See also Braithwaite v. Skye Bank (2012) 12 S.C. (pt.1) p.13."Per TSAMMANI, J.C.A. (Pp. 68-69, Paras. F-B) - read in context
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17. PRACTICE AND PROCEDURE - SIGNING OF COURT PROCESS(ES): Effect of a court processsigned in the name of a law firm"The Writ of Summons which is the originating process in this case was prepared by A.F.Okunnuga & Co.; a law firm not a person known under the Legal Practitioners Act as a legalpractitioner. The originating process is therefore incompetent. The statement of claim predicatedon such incompetent originating process and the entire proceedings are null and void. See thecase of Okafor v. Nweke (2007) 10 NWLR (Pt.1043) page 521."Per FASANMI, J.C.A. (P. 70, Paras. D-F) - read in context
18. PUBLIC OFFICER - PUBLIC OFFICERS PROTECTION ACT: Application of the Public OfficerProtection Act"There is no doubt that Public Officers Protection Laws are meant to protect public officers fromcivil liability for any wrongdoing that may occasion damage to any citizen, if such action is notinstituted within three months after the cause of action accrued. In the case of Hassan v. Aliyu(supra) at p.621 Paragraphs E, Adekeye, JSC said that:"In effect, the Public Officers Protection Act is designed to protect a public officer who acts in goodfaith and does not apply to acts done in abuse of office and with no semblance of legaljustification. On the purport and scope of Section 2(a) of the Public Officers Protection Act, it iswell established that the Act gives full protection or cover to all public officers or persons engagedin the execution of public duties who at all material times acted within the confines of their publicauthority...."It is obvious therefore that the statute is not meant for the protection of all persons. As the titleimplies, where a person is not a public officer, he is not entitled to claim any protection under theLaw. Accordingly, for any person to claim protection under the Public Officers Protection Act orLaw, he must satisfy the following conditions:(a) That he is a public officer; and(b) That the act done by him was done in pursuance or execution or intended execution of a lawor public duty.Accordingly, where any of the two conditions is not satisfied, such a person is not entitled toprotection under the Public Officers Protection Law or Act, as the case may be. It is thereforeobvious that the Public Officers Protection Law can only be invoked in favour of public officers orpersons. In other words, it is only public officers for whose benefit the Law is made that can claimthe benefit of that protection. That being so, such a person who is sued for an act committed byhim in the execution of a public duty or law, may decide to waive the benefit of the protectionguaranteed to him under the Law or Act. What the Law provides is a defence against civil liabilityor action and therefore it may appear that only the person for whose benefit the law is made, thatcan raise the defence. However, in the case of Alhaji (Dr.) Ado Ibrahim v. Alhaji Maigida U. Lawal &Ors (2015) LPELR - 247 (SC), the Supreme Court, per Ngwuta, JSC said: "Learned Counsel for the1st - 4th Respondents expressed the view that only the public officers (5th and 6th Respondents)for whom the protection offered by the Act is made can raise the issue and a non-public officercannot raise and/or rely on same. With respect to the learned counsel, I think this argument in thisrespect is a fallacy borne out of a skewed construction of the title of the Act, "Public OfficersProtection Act" without reference to the provision therein. See the judgment delivered by thisCourt on 6/3/2015 in SC. 85/2014, Timpre Sylva v. INEC & Ors (unreported as of now). Theexpression in the Section reproduced... "against any person for any act..." demonstrates thefallacy in the contention that the protection under the Act is restricted to the public officer whoseact or neglect gave rise to the suit. In my view, a Defendant sued alone or together with the publicofficer whose act or omission is questioned is entitled to raise and rely on the defence under theAct irrespective of its title. However, a non-public officer raising the defence in a purported statusof a public officer would lose not because he is not entitled to it but because he does not possessthe status in which he raised the defence. See Rufus Alli Momoh v. Afolabi Okewale & Anor (1977)6 S.C. 81 at 92." It therefore means that, a non-public officer who is sued jointly or together with apublic officer whose conduct is questioned, is also entitled to raise or rely on the defence providedby the Public Officers Protection Law." Per TSAMMANI, J.C.A. (Pp. 46-50, Paras. E-B) - read incontext
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HARUNA SIMON TSAMMANI, J.C.A. (Delivering the
Leading Judgment): This appeal is against the judgment
of the Ogun State High Court sitting at Sagamu in the
Sagamu Judicial Division, delivered by O. O. Majekodunmi,
J on the 19th day of January, 2012 in Suit No.
HCS/22/2008.
Briefly, the facts of this case are that, on the 9th day of
April, 2006, Oba O. E. Ogunsowo, the Ewusi of Makun-
Sagamu died. He was from the Inonuwa Ruling House of
the Chieftaincy Ruling Houses. Consequent thereupon, the
3rd Respondent; the Secretary Sagamu Local Government
Council, pursuant to the powers conferred on him by
Section 15(1) of the Chiefs Law Cap.20, Laws of Ogun
State, issued a Public Notice dated the 19/10/2006,
informing the general public of the vacancy in the
Chieftaincy Stool of Ewusi of Makun. The head of the
Muleruwa/Orungba Ruling House whose turn it was to
nominate and select a candidate for appointment as the
Ewusi of Makun, was then enjoined to convene a meeting of
the said Ruling House for that purpose. The meeting was
said to have been convened during which some names,
including that of the 1st Appellant and the 2nd Respondent
were nominated
1
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and sent to the Kingmakers for selection of the person or
candidate for appointment as the Ewusi of Makun. The
Kingmakers, in the exercise of their powers, selected the
1st Appellant and sent his name to the Executive Council of
Ogun State who had the powers to appoint the Ewusi. The
1st Appellant was then appointed and installed as the
Ewusi of Makun.
The Head of the Orungba section of the Muleruwa/Orungba
Ruling family who is now deceased, the 1st and 2nd
Respondents in this appeal were dissatisfied with the
nomination, selection and appointment of the 1st Appellant
as the Ewusi of Makun, and therefore took out a Writ of
Summons which was accompanied by a Statement of Claim,
seeking the trial Court to grant them the following reliefs:
1. A declaration that the nomination of the 1st Defendant as
EWUSI of MAKUN at the meetings of MULERUWA-
ORUNGBA RULING HOUSE held on the 27th October,
2006 and 19th December, 2006 were irregular, null and
void and of no effect.
2. A declaration that the meeting of 5th – 12th Defendants
held on the 11th day of January, 2007 for the purpose of
selecting candidates to the Stool of Ewusi of Makun
wherein the
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1st Defendant was purportedly selected as EWUSI of
MAKUN was irregular, illegal, null and void and of no
effect.
3. A declaration that the appointment of the 1st Defendant
by the 3rd Defendant and the subsequent installation of the
1st Defendant as EWUSI of MAKUN is irregular, illegal,
null and void and of no effect.
4. An order setting aside the nomination, selection,
appointment and installation of the 1st Defendant as the
EWUSI of MAKUN.
5. An Order of perpetual injunction restraining the 1st
Defendant from parading himself or holding himself out as
the EWUSI of MAKUN.
6. An Order restraining the 2nd and 3rd Defendants, their
agents and servants from recognizing and/or dealing with
the 1st Defendant as the EWUSI of MAKUN.
7. An Order directing the 2nd Defendant to begin afresh
the process of nomination, selection and appointment of
candidate(s) for the Stool of EWUSI of MAKUN.
At the trial, the trial Court took evidence from the
witnesses and admitted several exhibits which were
tendered by the respective parties. Thus, in a considered
judgment delivered on the 19/01/2012, the learned trial
Judge gave judgment for the
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Plaintiffs, now 1st and 2nd Respondents, by granting all the
reliefs sought by them. The Appellants on record are
aggrieved by that decision and have now initiated this
appeal.
The Original Notice of Appeal which is at pages 484 – 492
of the Record of Appeal was dated and filed on the
27/2/2012. However, by a Motion on Notice dated and filed
the 27/11/2012, the Appellants sought for and were granted
leave to raise and argue fresh issues of law; and such leave
was granted on the 29/11/2012. The fresh issues are as
contained in Grounds 1 and 2 of the Original Notice of
Appeal filed on the 27/2/2012. Furthermore, on the
10/10/13, this Court granted the Appellants leave to file
Additional Ground of Appeal. The Additional Ground of
Appeal filed on the 01/3/2013 was deemed filed on the
10/10/2013, consisting of only one Ground of Appeal. The
Record of this Court show that the Appellants filed an
Amended Notice of Appeal which was deemed filed on the
27/5/2015. On the date of hearing of this appeal, learned
counsel for the Appellants, Mrs. Titilola Akinlawun, SAN
withdrew the Notice of Appeal filed on the 03/2/2012 and
same was struck out. This appeal was
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therefore heard on the Amended Notice of Appeal filed on
the 4/3/2015 but deemed filed on the 27/5/2015. In
compliance with the Rules of this Court, the Appellant, 1st,
2nd, 6th and 7th Respondents filed Briefs of Arguments.
The 3rd, 4th and 5th Respondents did not file any Brief of
Arguments, thus, on the 27/5/2015, this Court set down this
appeal for hearing without the 3rd, 4th and 5th
Respondents’ Brief of Arguments. The Appellants’ Brief of
Arguments is the Amended Appellants’ Brief of arguments
dated and filed on the 21/10/2013. Therein, six(6) issues
were distilled for determination as follows:
(a) Was the principal claim in the action barred by
Limitation?
(Ground 1).
(b) Did the Claimants have locus standi to prosecute the
action?
(Ground 2).
(c) Was the Kingmakers meeting of 11th January, 2007
validly held and were the Resolutions duly adopted?
(d) Who had the burden of proving that the 1st Appellant
was a member of the Muleruwa-Orungba Ruling House and
was it sufficiently discharged?
(Grounds 6 and 7).
(e) Was there admissible evidence of non-compliance with
the law and has this occasioned
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a miscarriage of justice?
(Grounds 3 and 8).
(f) Was the entire action of the Claimants incompetent and
void ab initio in view of the issuance of the Writ of
Summons by A. F. Okunnuga &Co.
The 1st and 2nd Respondents’ Brief of Arguments settled
by S. O. Kuyoro; Esq is undated but filed on the 22/11/13
and deemed filed on the 27/5/2015. Therein, and contrary
to the Rules distilled seven (7) issues for determination,
which is one more than the issues raised by the Appellants.
It is the law that a Respondent who has not filed a
Respondents’ Notice is not at liberty to formulate more
issues than that of the Appellant. Of course, he may
formulate his own issues so long as they can be rooted on
the Grounds of Appeal filed, but such issues should be
either an adoption of the issues raised by the Appellant or a
reformulation of same with a slant which the Respondent
may find suitable. The bottom line is that they should not
depart from the substance of the issues formulated by the
Appellant. See Emespo J. Const. Ltd v. Corona S. & Co.
(2006) 11 NWLR (pt.9912) p.365; Musa Sha (Jnr) &
Anor v. Da Ray Kwan & 4 Ors (2000) 8
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NWLR (pt.670) p.685; A.P.G.A. & Anor v. Umewa &
Ors (2011) LPELR – 426 (SC) and Atanda & Ors v.
Akanji & Ors (1989) 2 N.S.C.C. p.511 at 537. In that
respect, the 1st and 2nd Respondents having formulated
more issues than that of the Appellant, their issues are
hereby discountenanced.
The 6th Respondent’s Brief of Arguments was dated and
filed on the 22/11/2013 and deemed filed on the 27/5/2015.
At Paragraphs 3.1 of the said brief, five issues were
formulated for determination as follows:
(i) Whether the 1st and 2nd Respondents’ claims against
the Appellants and the 3rd – 7th Respondents is caught by
limitation law and if yes, whether the defence of limitation
is available to the Appellants on appeal having regards to
the state of pleadings.
(ii) Whether the 1st and 2nd Respondents have locus
standi to commence the suit at the High Court.
(iii) Whether the learned trial Judge was correct in treating
the Statement of Defence of the 13th Defendant (now 7th
Respondent) as an admission and a life process.
(iv) Whether the learned trial Judge was correct in granting
all the prayers sought by the 1st
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and 2nd Respondents having regards to the state of
pleadings, evidence and law.
(v) Whether the entire proceedings at the High Court are a
nullity.
I wish to note that learned counsel for the 6th Respondent
did not indicate the Grounds from which those issues are
distilled.
The 7th Respondent also filed an Amended Brief of
Arguments. It is dated and filed on the 23/9/16. Therein, six
(6) issues were formulated for determination, as follows:
1. Whether the principal claims in the suit is (sic) barred by
statute of limitation?
(Ground 1).
2. Whether the 1st and 2nd Respondents had the locus
standi to commence the suit at the lower Court?
(Ground 2).
3. Whether the Kingmakers’ meeting of 11th January, 2007
was validly held and the resolutions reached therein duly
adopted? (Grounds 4 and 5).
4. Whether there was admissible evidence of non-
compliance with the Law and whether same has occasioned
a grave miscarriage of justice?
(Grounds 3 and 8).
5. Whether the 1st and 2nd Respondents sufficiently
discharged the burden of proving that the 1st Appellant
was not a member of the Muleruwa/Orungba Ruling
House?
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(Grounds 6 and 7).
6. Whether the action of the Respondents (Claimants at the
Court below) is incompetent, the Writ of Summons,
Statement of Claimant (sic) having been duly issued and
signed by a Legal Practitioner within the meaning of
Sections 2(1), 23, 24 of the Legal Practitioners Act (LPA),
Cap.11, Laws of the Federation of Nigeria, 2004. (Ground
10).
The Appellants then filed an Appellants’ Amended Joint
Reply Brief of Arguments to the respective Briefs of the 1st
& 2nd, 6th and 7th respondents. It was dated and filed on
the 05/10/2016.
As indicated earlier, I intend to determine this appeal on
the issues formulated for determination by the Appellants.
Considering that issues 1, 2 and 3 have the effect of
terminating this appeal in limine, I intend to resolve same
first. I shall proceed from issue 2, 1 and 6 in that order
before returning to issues 3, 4 and 5 respectively if need
be.
Before I proceed, I must remind myself that the 7th
Respondent had given notice of and argued a Preliminary
Objection at pages (i) – (iii) of the 7th Respondent’s
Amended Brief of Arguments. By the objection, the 7th
Respondent had
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contended that this Appeal is incompetent and should be
struck out on the Grounds that:
(i) Sequel to the Order of this Honourable Court dated
10/10/2013 permitting the Appellant to file Additional
Ground of Appeal contained in the Original Notice of
Appeal, the Appellant failed, refused and neglected to file
an Amended Notice of Appeal incorporating the Additional
Ground of Appeal.
(ii) Grounds of Appeal do not exist independent of Notice of
Appeal.
(iii) The effect of the Order of 10/10/2013 is to render the
Original Notice of Appeal extinct and inoperative.
(iv) This appeal not being initiated by a valid Notice of
Appeal is fundamentally defective and incompetent.
Arguing the Preliminary Objection, learned Counsel for the
7th Respondent submitted that when a valid Notice of
Appeal is amended, as in the instant case, an Amended
Notice of Appeal ought to be filed. That, on the 10/10/13,
the Appellant was granted leave to file an Additional
Ground of Appeal, and that from that 10/10/13, the Original
Notice of Appeal became extinct. The case of Afolabi v.
Mudashiru (2010) 3 NWLR (pt.1118) p.336 was cited
in support. The case of Ravih
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Abdul v. UBN Plc (2011) All FWLR (pt.557) p.765 at
774 – 775 was further cited to contend that, failure of the
Appellant to incorporate the Additional Ground in an
Amended Notice of Appeal has rendered the Appeal
incompetent and therefore liable to be struck out. We were
accordingly urged to strike out this appeal.
Learned Counsel for the Appellants responded to the
Preliminary Objection in Paragraphs 2.1 – 2.17 of the
Appellants’ Amended Joint Reply Brief of arguments.
Therein, learned counsel (silk) for the Appellants contended
that, the Appellants Motion for leave to file Additional
Grounds of Appeal was predicated on Order 6 Rule 4 of the
Court of Appeal Rules, 2011. That, the impact of the said
Order 6 Rule 4 (supra) is that, a Ground(s) of Appeal can
actually exist outside a Notice of Appeal; and that the
Appellant had complied with Order 6 Rule 4 of the Court of
Appeal Rules (supra) so as to be heard on those Grounds.
Furthermore, that in granting the application for leave to
file and argue the Additional Grounds of Appeal, this Court
deemed the Additional Ground of Appeal already filed on
the 7/3/13 as properly filed and served.
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It was thus submitted that the cases of Afolabi v.
Mudashiru (supra) and Ravih Abdul v. UBN Plc
(supra) are distinguishable from the facts of this case. We
were accordingly urged to dismiss the Preliminary
Objection as lacking in merit.
In an effort to resolve the issue raised by the Preliminary
Objection, I have endeavoured to peruse the record of this
Court. In the case file, I find that by a Motion dated and
filed on the 7/3/2013, the Appellants had sought the leave
of this Court to file Additional Grounds of Appeal. The
Additional Grounds of Appeal which had been filed along
with the Motion was deemed filed and served, the same
10/10/2013 the Motion was granted. In granting the
application, this Court also granted the Appellants leave to
amend their Brief of Arguments which had been filed on
the 11/1/2013 so as to incorporate arguments on the
Additional Ground Appeal. When the Motion was granted,
there was no prayer to amend the Original Notice of Appeal
and no order to so amend was made. However, on the
4/3/2015, the Appellants filed a Motion seeking to amend
the Notice of Appeal and same was granted on the
27/5/2015. Consequently, the Amended
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Notice of Appeal which had been filed along with the
Motion on the 4/2/2015 was deemed filed and served on the
27/5/2015. The amendment to the Notice of Appeal,
deemed filed on the 10/10/2013, is Ground 10 in the
Amended Notice of Appeal.
It would be seen therefore that the foundation of the 7th
Respondent’s Preliminary Objection has been dismantled,
as it is apparent that, an Amended Notice of Appeal
incorporating the Additional Ground of Appeal had been
filed on the 4/2/2015 and deemed properly filed and served
on the 27/5/2015. When the Motion was granted to amend,
there is no evidence on the record, that the 7th Respondent
nor any of the Respondents raised any objection. This
objection therefore lacks merit and is hereby dismissed.
I now return to the main appeal. As indicated earlier, I shall
begin with issue two (2). On this issue, learned counsel for
the Appellant contended that the 1st and 2nd Respondents
who presented themselves as initiating the action as
representatives of the Orungba section of the
Muleruwa/Orungba Ruling House, lacked the locus standi
to maintain the action for the entire Muleruwa/Orungba
Ruling House. That the
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right to the Chieftaincy Stool of Ewusi of Makun is vested
in the Muleruwa-Orungba Ruling House, which consists of
two families, to wit: Muleruwa and Orungba; and therefore
only one of the two branches cannot institute the action
since the interest of only one branch is not equivalent to
the interest of the whole Ruling House. The cases of
Ekpere v. Aforije (1972) All N.L.R. p.224 and Oloriode
v. Oyebi (1984) 15 N.S.C.C. p.286 at 294 were then
cited in support.
It was further submitted that, the right to nominate a
candidate or candidates for the Stool of Ewusi of Makun
does not reside with the Orungba branch alone, but jointly
with the Muleruwa branch of the Muleruwa/Orungba
Ruling House as a whole. That in such a circumstance, it is
only the Muleruwa/Orungba Ruling House as a body that
would have the locus to challenge the nomination and
appointment of the 1st Appellant. The case of Adefilu v.
Oyesile (1989) 5 NWLR (pt.122) p.377 was cited in
support, and to further urge us to hold that the 1st and 2nd
Respondents have no locus to institute the action.
In response, learned counsel for the 1st and 2nd
Respondents contended that, to determine the
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locus standi of a Claimant, the Court will look at the Writ
of Summons and Statement of Claim. The case of Agboola
v. Agbodemu (2010) All FWLR (pt.539) at p.1144
Paragraphs B – D per Sankey, JCA was cited in support.
That, a cursory look at the Writ of Summons and Statement
of Claim would show that the 1st and 2nd Respondents
sued for themselves and on behalf of the other members of
Orungba branch of the Muleruwa/Orungba Ruling House as
permitted by Order 4 Rule 2 and 13 Rule 12 of the Ogun
State High Court (Civil Procedure) Rules, 2008, while the
3rd Claimant (now 2nd Respondent) sued in his capacity as
a candidate who contested for the Stool of Ewusi of Makun.
That the 1st Claimant (now deceased) sued in his capacity
as the head of the Orungba branch of the said Ruling family
at that time, and therefore had the right to defend and
protect the interest of that branch of the family. The cases
of Adefulu v. Oyesile (1989) 5 NWLR (pt. 122) p. 377
at 396 Paragraphs E – F; Agboola v. Agbodemu
(supra) cited by learned counsel for the Appellants and
Paragraphs 1, 2, 6, 18, 19, 20, 21, 26 and 27 of the
Statement of Claim were referred to. It was accordingly
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submitted that the Orungba branch of the Ruling House
had the right to sue to prevent a non-member of that Ruling
House from being made King through that branch of the
family. We were urged to resolve the issue against the
Appellants.
The response of learned counsel for the 6th Respondent is
similar to that of the 1st and 2nd Respondents. It was
therefore submitted by learned counsel for the 6th
Respondent that, in Chieftaincy matters, a member or
members in a representative capacity has or have the
locus standi to protect the personal or collective rights of
the ruling house or family. Furthermore, that a contestant,
who is qualified to be nominated, selected and appointed
also has the locus standi to challenge the wrongful choice
of a person to the Chieftaincy. Section 6(6)(b) of the 1999
Constitution of the Federal Republic of Nigeria and the
case of Odeneye v. Efunnuga (1990) 7 NWLR (pt. 164)
p. 618 at 641 were referred to. Learned Counsel then
contended that, learned counsel for the Appellants over
looked the fact that there were two categories of Claimants
in the Court below; with the first category being the 1st
Respondent and the deceased head of
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the Orungba branch of the Muleruwa/Orungba Ruling
House; and the second category being the 2nd Respondent
as a candidate who contested for the Stool in dispute.
Learned Counsel for the 6th Respondent went on to submit
that the 1st Respondent on record and the deceased 1st
Claimant in the Court below had the locus standi to sue
for themselves and as representing the Orungba branch of
the Ruling family being the head and principal member of
that branch of the Ruling family, while the 2nd Respondent
on record, had the locus to sue as a candidate. That, in any
case, even if (but not conceding) the 1st Respondent does
not have the locus to sue, the 2nd Respondent could still
sustain the action. We were then urged to resolve that the
1st and 2nd Respondents have the locus standi to institute
the suit.
Learned Counsel for the 7th Respondent also argued along
the same line with the 1st and 2nd; and 6th Respondents.
He had argued that the issue of the locus standi did not
arise from the pleadings or the decision of the Court below.
Learned Counsel then cited the cases of Rockonoh v.
NITEL (2001) 7 S.C. (pt. 3) p. 154 at 164 and Jatua v.
Ahmed (2003) 1 S.C.
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(pt. 2) p. 118 at 123 to submit that, in the circumstances,
the Appellants can only raise and argue the issue of locus
standi with the leave of this Court first sought and
obtained. Learned Counsel however argued that, the
Claimants in the Court below had the necessary locus
standi to institute the action. He then referred to
Paragraphs 1 and 2 of the Statement of Claim, the case of
Emezi v. Osuagwu (2005) 2 S.C. (pt. 2) p. 128 at 139
and the book titled Obas and Chiefs Law in Nigeria by
Chief (Dr) V. A. Odunaiya (1st Ed) at pp.218 and 221 to
further submit that, in a Chieftaincy dispute or action, the
duty is cast on the Plaintiff to plead and lead evidence to
show that he has the locus standi. That, the Plaintiff need
to do more than relying on his membership of the
Chieftaincy, but must also show that:
(a) He belongs to the Ruling House.
(b) That it is the turn of that Ruling House to produce a
candidate or candidates to fill the vacancy.
(c) There is vacancy on the throne.
(d) He is an eligible candidate to the Stool; and
(e) He had taken part as a candidate for the Stool such as
by taking part in the nomination exercise.
The
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cases of Odeneye v. Efunuga (supra) and Eleso v.
Government of Ogun State & Ors (1990) 2 NWLR
(pt.133) p.420 at 444 were cited in support; and to
further submit that the 1st and 2nd Respondents have
established their locus standi to institute the action at the
Court below.
On the contention of learned counsel for the Appellants
that the Orungba family being just a branch of the
Muleruwa/Orungba Ruling family, the 1st and 2nd
Respondents have no locus to so institute the action,
learned counsel for the 7th Respondent cited the case of
Chief (Sir) Ebere & Ors v. Apostle Anyanwu & Ors
(2006) All FWLR (pt. 315) p. 131 at 150, to submit that,
once members of any community perceive any threat to
their legal rights, each member can sue to protect that
legal right. That what the 1st and 2nd Respondents needed
to show, which they did, is a threat to their legal right. We
were then urged to hold that the 1st and 2nd Respondents
have the locus standi to institute the suit.
Generally in law, the concept of locus standi relates to the
issue of justiciability. The term locus standi therefore
denotes the legal capacity to institute an action and be
heard
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in a Court of law. It also means title to sue, and also the
right of a party to appear and be heard on a question
before any Court or Tribunal. The law is that, to have locus
standi, the Claimant or Plaintiff must show that he has
sufficient legal interest in the subject matter. To establish
that he has sufficient legal interest, the Plaintiff must be
able to show:
(a) Whether he could have been joined as a party, either as
a Plaintiff or a Defendant in the suit; or
(b) Whether he will suffer some injury or hardship arising
from the litigation.
Once the party seeking the redress or remedy is able to
satisfy the Court that he has sufficient legal interest, he
must be heard, because in such a circumstance, he is
entitled to be heard. See Ojukwu v. Ojukwu (2008) 4
NWLR (pt.1078) p.435; Inakoju v. Adeleke (2007) 4
NWLR (pt.1025) p.423; Dr. Tosin Ajayi v. Princes
(Mrs) Olajumoke Adebiyi & Ors (2012) LPELR – 7811
(SC); and Isaac Jitte & Anor v. Dickson Okpulor
(2015) LPELR – 25983 (SC). See also Pam v.
Mohammed (2008) 16 NWLR (pt.1112) p.1.
In Chieftaincy matters, as in the instant case, it is not
enough for the Plaintiff
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to plead that he is a member of the family; but he must
state that he has an interest in the Chieftaincy title and
must also show how his interest in the Chieftaincy Stool
arose. It therefore means that, membership of a Chieftaincy
family is not enough because not all members of
Chieftaincy family are eligible for the Chieftaincy. See
Daniyan v. Iyagin (2002) 7 NWLR (pt. 766) p. 346 at
376; Daramola v. A.G. Ondo State (2000) 7 NWLR (pt.
665) p. 440 at 476 per Onnoghen, JCA (as he then was).
Thus, in the case of Arowolo v. Olowookere (2011) 18
NWLR (pt. 1278) p. 280 at pp.310 – 311 Paragraphs G
– A, Muhammad, JSC stated the law as follows:
“In a legal tussle where the claim of the Plaintiff is on
Chieftaincy matter, the law is well settled that it is not
enough for the Plaintiff to state that he is a member of the
family; he has to state further that he has an interest in the
Chieftaincy title, and furthermore, he should state in his
Statement of Claim how his interest in the Chieftaincy title
arose. See Momoh v. Olotu (1970) 1 All N.L.R. 121 at
127. It is thus, the legal duty of the Plaintiff to show to the
Court, through his pleadings and
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evidence, that he has the standing (locus standi) to
institute the action either for himself or as a representative
of his family, whose civil rights and obligations have been,
or are in danger of being violated or infringed. He also has
to show that he or the family he represents have a
justiciable dispute with the Defendant.”
From the above stated statement of the law as clearly
stated by the Supreme Court, it would be seen that a
Plaintiff in a Chieftaincy dispute or action may disclose his
locus to institute the action in any of two ways stated by
the Supreme Court in the case of Emezi v. Osuagwu
(2005) 12 NWLR (pt.939) p.340 at 359 Paragraphs G –
H. He may do that by:
(a) Showing in his Statement of Claim and leading evidence
to show that the right that is being asserted is that of his
family by reason of any hereditary interest. In such
situation, the action should be by the family through their
representative(s) and it must be clearly pleaded that it is
the civil right of the family that is being claimed or
pursued; and
(b) By the Plaintiff asserting his own right to the
Chieftaincy Stool, if he could show from the pleadings
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and evidence, if evidence has been led, the nature of his
interest and his entitlement to the Stool. In such a
situation, it would not be enough for him to merely plead
that he is a member of the family. He must go further to
plead that he had an interest in the Chieftaincy title and
how such interest arose.
See also Amusa Momoh & Anor v. Jimoh Olotu (1970)
1 All NLR. P.117 at 123; Eleso v. Government of Ogun
State (1990) 2 NWLR (pt.133) p.420; Adesanoye v.
Adewole (2006) 14 NWLR (pt.1000) p.242 and
Bamisike v. Osasuyi (2007) 9 NWLR (pt.1042) p.225.
It is the settled law that, to determine whether or not a
Plaintiff has the requisite locus standi to institute an
action, it is the Writ of Summons or Statement of Claim
that should be considered. In other words, in determining
the locus standi of a Plaintiff, the Court would scrutinize
the Statement of Claim. In the instant case, the Statement
of Claim discloses that, while the 1st Respondent on record
and the deceased 1st Respondent in the Court below sued
“for themselves and on behalf of Orungba branch of
MULERUWA/ORUNGBA Ruling House”, the 2nd
Respondent who was 3rd Plaintiff sued in
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his personal capacity. This is stated in Paragraphs 1 and 2
of the Statement of Claim where it was pleaded that:
1. The 1st and 2nd Plaintiffs are the accredited
representatives of Orungba branch of MULERUWA –
OGUNGBA RULING HOUSE whose turn it is to present
candidate(s) for the Stool of Ewusi of Makun in Sagamu
Local Government Area of Ogun State.
2. The 3rd Plaintiff is one of the qualified candidates to the
Stool of Ewusi of Makun nominated by Muleruwa –
Orungba family for the said Stool.
By the above pleadings therefore, it is clear that the 1st
Respondent sued in a representative capacity together with
the deceased 1st Plaintiff who was head of the Orungba
branch of Muleruwa/Orungba Ruling House. It is also clear
as pleaded in Paragraphs 2 and 16 of the Statement of
Claim that the 2nd Respondent was a candidate and was
duly nominated for the Stool of Ewusi of Makun during the
Muleruwa/Orungba Ruling family meeting. It is therefore
not in doubt that the 2nd Respondent has been able to
establish his locus standi to institute the action. He is not
only an eligible candidate for the Chieftaincy Stool, but was
also validly nominated
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939(
CA)
as one of the candidates to be considered for appointment
together with the 1st Appellant and others. In such a
circumstance, it cannot be validly argued that he has no
interest in the subject matter of this action, which is the
Ewusi of Makun Chieftaincy Stool. It is thus my view that
he has sufficient interest, sufficient to confer on him the
locus standi to institute the action.
As for the deceased 1st Plaintiff and the 1st Respondent on
record, it is not in doubt that they instituted the action as
r e p r e s e n t a t i v e s o f O r u n g b a b r a n c h o f t h e
Muleruwa/Orungba Ruling family, whose turn it was to
produce the Ewusi of Makun. They had the interest of
ensuring that only a bonafide member of that Ruling House
is appointment to the throne of Ewusi of Makun. Certainly,
as contended by them, their family’s interest would be
affected if a person who is not a member of that family is
eventually appointed to occupy the Stool of Ewusi of
Makun.
It should be noted however, that learned counsel for the
Appellant had cited the case of Ekpere v. Aforije (1972)
All N.L.R. p.224 to argue that, the Ruling House consists
of two branches, to wit; Muleruwa and
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6) LP
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939(
CA)
Orungba. That in that respect, the Orungba branch alone
lack the locus standi to institute the action. That, it is only
the whole or entirety of the Muleruwa/Orungba Ruling
House that could institute the action. I have carefully read
the case of Ekpere v. Aforije (supra) cited and relied
upon by learned counsel for the Appellants. I wish to point
out first of all that, the case of Ekpere v. Aforije (supra)
was a land dispute and not a Chieftaincy matter. In that
case, the Plaintiffs had sued “for themselves and on behalf
of the Mosogan Village Community of Jesse Clan”. The
cause of action was that, the Defendants acting for and on
behalf of the Jesse community purported to grant written
consent to assign the residue of certain parcel of land to
the 5th Defendant. One of the Plaintiffs Claims was for:-
“A declaration that the piece or parcel of land…. is the
exclusive landed property of Plaintiffs and not the entire
Jesse Clan Community.”
The Supreme Court in determining the propriety of the
action held that; the individual interests of separate
communities which together form a clan are not necessarily
the interests of
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6) LP
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939(
CA)
the clan as such, and that where the representatives of one
of such communities for a declaration that the clan as such
has no interests in land in dispute, the action is not
properly constituted unless the clan itself other than the
Plaintiff community is made a Defendant through its
representative. In a Chieftaincy action where the right
claimed is that of a Ruling family, the action must be
instituted by the Ruling family in a representative capacity.
See Daramola v. A.G; Ondo State (supra); Otapo v.
Sunmonu (1987) 2 NWLR (pt. 58) p. 587; Arowolo v.
Akapo (2003) 8 NWLR (pt.823) p.451. In the instant
case, the deceased 1st Plaintiff and the 1st Respondent did
not sue as representative of the entire Muleruwa/Orungba
Ruling House but only as representatives of the Orungba
branch of the Ruling family. Incidentally, the Head of the
Muleruwa/Orungba Ruling House who should have the
capacity to institute the action on behalf of the Ruling
family was sued as head of that family which included the
Orungba branch of the family. It means that the Orungba
branch on behalf of which the Plaintiffs instituted the
action is also part of the Defendants in the action. That
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6) LP
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CA)
cannot be so as a person cannot be both a Plaintiff and a
Defendant. I therefore hold that, since it is the
Muleruwa/Orungba Ruling House, and not a part of it, that
had the right to produce a candidate for appointment as
Ewusi of Makun, the Orungba branch of the family alone
could not institute the action, unless they could show that
they had an interest peculiar to it in respect of the subject
mat te r o f the ac t i on , ou t s ide tha t o f en t i re
Muleruwa/Orungba Ruling House.
In the instant case, the 1st Respondent on record and the
deceased 1st Plaintiff, did not plead any special interest of
the Orungba branch of the Muleruwa/Orungba Ruling
House separate from that of the Ruling House as a whole. I
therefore hold that the 1st Respondent and the deceased
1st Plaintiff as representatives only of the Orungba branch
of the Ruling family had no locus standi to institute the
action. I however affirm that the 2nd Respondent as a
candidate for the Chieftaincy Stool, duly nominated for that
purpose, eminently had the locus standi to institute the
action. The action cannot however be struck out due to
misjoinder of the 1st and 2nd Plaintiffs as the 2nd
Respondent, (as
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939(
CA)
3rd Plaintiff) alone could still sustain the action. On the
whole therefore, this issue must be resolved against the
Appellant.
On issue one (1), Learned Senior Counsel for the Appellants
contended that, the principal claim of the 1st and 2nd
Respondents is claim 3, and that by Section 2(a) of the
Public Officers Protection Law, any action against a Public
Officer acting ex-officio must be filed within three (3)
months, otherwise the right of action will stand extinct.
That the Law envisages that:
(i) The action must be commenced against any person for
an act done pursuant to any Law or public duty.
(ii) The suit must be commenced within 3 months next after
the act complained of.
The case of Ekeagu v. Aliri (1991) 3 NWLR (pt.197)
p.258 was cited in support. The case of Ibrahim v.
Judicial Service Committee, Kaduna State (1998) 4
NWLR (pt. 584) p.1 was also cited to further submit that,
the word “any person” is not limited to natural persons but
includes bodies or body of persons corporate or incorporate
as well as statutory bodies or persons, who are sued for
acts done by them in pursuance or execution of any Law or
public duty.
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Learned Counsel (silk) then submitted that, the Executive
Council of Ogun State (4th Respondent), is a person within
the scope of the provisions of Section 2(a) of the Public
Officers Protection Law of Ogun State. That in granting the
approval to the appointment of the 1st Appellant as the
Ewusi of Makun on the 16/2/2007, the 4th Respondent
acted in pursuance of Section 20(1) of the Chiefs Law of
Ogun State, which is a public duty.
Learned Counsel for the Appellant went on to submit that,
the action of the 1st and 2nd Respondents should have
been commenced or filed within 3 months from the
16/2/2007 when the 4th Respondent gave its approval to
the appointment of the 1st Appellant as the Ewusi of
Makun. That, the Writ of Summons and Statement of Claim
show that the action was filed on the 26/2/2008, which is a
period in excess of 12 months from the 16/2/2007 when the
cause of action arose. The cases of Ibrahim v. J.S.C,
Kaduna State (supra) and Egbe v. Yusuf (1992) NWLR
(pt.245) p.1 at 12 Paragraph E were then cited to submit
that, in view of the failure of the 1st and 2nd Respondents
to commence their action against the 4th Respondent until
after the
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6) LP
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CA)
expiration of the three (3) months as stipulated by the
Public Officers Protection Law (supra); their right has been
extinguished. That, if the right of action of the 1st and 2nd
Respondents against the 4th Respondent is extinguished
the approval of appointment and installation of the 1st
Appellant as Ewusi of Makun by the 4th Respondent cannot
be challenged. We were urged to resolve this issue in
favour of the Appellants.
In response, learned counsel for the 1st and 2nd
Respondents began his response by contending that, in law,
parties are bound by their pleadings and therefore, parties
are not allowed to make a case which is at variance with
their pleadings. The cases of Adeleke v. Iyanda (2001) 13
NWLR (pt.729) p.1 and Adeniran v. Alao (2001) 18
NWLR (pt.745) p.361 were cited in support. That, a
cursory look at the Amended Statement of defence would
show that the issue of jurisdiction of the Court based on
Statute of Limitation was never raised. That the issue
cannot therefore be raised for the first time on appeal.
Furthermore, the cases of F.C.D.A. v. Naibi (1990) 3
NWLR (pt.138) 138 at 281 Paragraphs F; Kano v.
Oyelakin (1993) 3 NWLR (pt.282) p.399
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CA)
at 409 Paragraphs D – F and N.I.I.A. v. Ayanfalu
(2007) 2 NWLR (pt.1018) p.246 at 263 Paragraphs D –
G, were also cited to submit that, where a Defendant relies
on a special defence, such special defence must be
specifically pleaded, and that since the Appellants did not
plead the Statute of Limitation same cannot be raised on
appeal.
Learned Counsel for the 1st and 2nd Respondents also
submitted that, the Public Officers Protection Law of Ogun
State is specifically designed for the protection of Public
Officers and that none of the Appellants is a Public Officer.
That, not being Public Officers cannot claim the benefit of
the Law. That, in any case, those who could benefit from
the Law did not raise the defence timeously and having not
raise same timeously, they are deemed to have waived the
protection provided by the Law. We were then urged to
resolve the issue against the Appellants.
On this issue, learned counsel for the 6th Respondent also
submitted that, though the 3rd, 4th and 5th Respondents
are protected from litigation by Section 2(a) of the Public
Officers Protection Law, Cap.106, Laws of Ogun State, for
them to claim benefit
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6) LP
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CA)
of the protection provided by the Law, they were obligated
to specifically plead the defence in their Statement of
Defence. The cases of Adekeye v. Adesina (2011) All
FWLR (pt.571) p.1510 at 1526 and 1529 and Ariolu v.
Ariolu (2011) All FWLR (pt.599) p.1152 and Order 15
Rule 7(1) and (2) of the Ogun State High Court (Civil
Procedure) Rules, 2008 were referred to. Cases such as
S.E.S. Ltd v. Maersk (Nig.) Ltd (2001) 17 NWLR (pt.
743) p. 517; Agric. Dev. Corp. v. Okedi (2004) 11
NWLR (pt. 884) p. 369 at 385; H.S. Eng & Co. Ltd v. S.
A. Yakubu (Nig.) Ltd (2003) 10 NWLR (pt. 829) p.505
at 5234 and Oyebamiji v. Lawanson (2000) 15 NWLR
(pt. 1109) p.122 were also cited to stress that, where a
Defendant relies on a special defence such as Limitation
Law, he must specifically plead the Limitation Law as a
defence.
Learned Counsel for the 6th Respondent also contended
that the defence of limitation is only available to a party
and that where such party refuses to raise it in his
pleadings, that defence is deemed to have been waived.
The cases of Araka v. Ejeagwu (2000) 15 NWLR (pt.
692) p.684 at 718; U.B.R.B.D.A. v. Alka (1988) 2
NWLR (pt. 537) p. 328 at 339 and
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6) LP
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CA)
F.R.I.N. v. Gold (2007) 11 NWLR (pt. 1044) p.1 at 29
were cited in support. That, the principles of waiver is
based on the premise that a person who has the benefit of a
Statute or Law, may himself elect not to take the benefit
due to him under the law. Learned Counsel then submitted
that the 3rd – 5th Respondents who could take the benefit
of the defence of Limitation guaranteed them under the
Public Officers Protection Law of Ogun State having not
raised the defence in the respective pleadings are deemed
to have waived the defence.
It is further submitted by learned counsel for the 6th
respondent that the Public Officers Protection law is
designed to protect public officers who act properly and
legally in the discharge of the duties and not for acts done
in bad faith, illegally, or in pursuance of their selfish
interests. The cases of Nwakwere v. Adewunmi (1996) 1
All N.L.R. p.129 at 134 and Accord Party v. Governor
of Kwara State (2011) All FWLR (pt. 555) p.220 at 281
Paragraphs F – H were cited in support. It was then
submitted that there is sufficient evidence on record
showing that the 3rd Respondent acted recklessly in the
performance of
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CA)
his duties. That, there is evidence on record that the said
3rd Respondent took over as Secretary of the Kingmakers
and made it impossible for the Kingmakers to generate any
minutes of their meeting. That, the 3rd Respondent
forwarded Exhibit “N” to the 4th Respondent without any
resolution by the Kingmakers as to the candidate selected
and to be forwarded to the 4th Respondent. We were then
urged to hold that the 3rd, 4th and 5th Respondents set out
to prosecute their private agenda, and therefore not
entitled to the benefit of the protection under the Public
Officers Protection Law of Ogun State.
Learned Counsel for the 7th Respondent argued along the
same line as the 1st, 2nd and 6th Respondents. He cited
the case of F.G.N. v. Zebra Energy Ltd (2002) FWLR
(pt.92) p.1749 at 1771 Paragraphs F – G, to also submit
that, the defence of Statute of Limitation is a special one,
which must be specifically pleaded. That the defence ought
to have been pleaded as required by Order 15 Rule 7 of the
Ogun State High Court (Civil Procedure) Rules, 2008. That
the Appellants did not specifically plead the issue or
defence under the Public Officers
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6) LP
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939(
CA)
Protection Law of Ogun State. Learned Counsel then noted
that, though the Appellants were granted leave to argue
the point as a fresh issue of law, the leave so granted the
Appellants by this Court does not cure the fundamental
error by the Appellants in not raising the issue at the Court
of trial. The case of Adeosun v. Governor of Ekiti State
(2012) 1 S.C. (pt.1) p.180 at 214 was cited in support.
Relying on the above cited case, learned counsel then
contended that the 1st Appellant did not raise the defence
by his pleadings and evidence as required by Order 15 Rule
7 of the Ogun State High Court (Civil Procedure) Rules,
2008, and that there was no decision of the Court below on
it.
Learned Counsel for the 7th Respondent, like the 6th
Respondent, argued that the 4th Respondent did not carry
out its function in line with the dictates of the law, as to
entitle it to the protection under the Public Officers
Protection Law of Ogun State. He then cited the case of
Offoboche v. Ogoja Local Gov’t (2001) FWLR (pt.68)
p.1051 at 1067 Paragraphs C – F to further submit that,
the Public Officers Protection Law (supra), is designed to
protect the officer
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939(
CA)
complained against who acts in good faith and not one who
abuses his office. We were accordingly urged to resolve this
issue against the Appellants.
Responding on points of law, Learned Senior Advocate for
the Appellants contended that all the authorities including
those cited by the Respondents are agreed that the only
time an issue of this sort can be raised at the Appellate
Court, is where leave of the Court has been obtained. That
even in the case of Agric. Dev. Corp. v. Okedi (supra)
cited by learned counsel for the 6th Respondent, the Court
observed that “no application has been made for leave to
raise it for the first time” before it. That, the above
observation of the Court means that such issues not
expressly raised in the pleadings at the trial Court can be
raised for the first time on appeal where the leave of Court
has been sought and obtained. That in Agboola v. U.B.A.
Plc (supra) cited by the 7th Respondent, the Supreme
Court stated that the fresh issues raised before it was not
done with leave of Court. Learned Senior Advocate then
submitted that, on the 27/11/2012, the Appellant filed an
application to argue fresh issue before
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CA)
the Court, and which application was granted on the
29/11/2012 without any objection from any of the
Respondents. That, having obtained the leave of this Court
to raise and argue the point as a fresh issue on appeal, the
issue has been validly raised and argued.
Learned Senior Advocate for the Appellants also contended
that the case of Adeosun v. Gov. of Ekiti State (supra)
cited by learned counsel for the 7th Respondent is also not
helpful. That the complaint at the Supreme Court in that
case was that the Cross-Appellant set up a completely
different or opposite case on appeal which leave granted
could not cure. That, in the instant case, the issue borders
on jurisdiction which can be raised at any time including
for the first time on appeal. The cases of Elabanjo v.
Dawodu (2006) 15 N.W.L.R. (pt.1001) p.76 and
Ogboru v. S.P.D.C. (Nig) Ltd (2005) 17 NWLR (pt.955)
p.596 were cited in support. It was then contended that
the 1st and 2nd Respondents being aware of the purported
selfish acts of the 3rd Respondent and the subsequent
affirmation by the 4th Respondent, should have known that
they had only three (3) months to challenge the decision of
the 4th
38
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CA)
Respondent. We were then urged to hold that the
Appellants are competent to raised this issue which borders
on the jurisdiction of the Court.
Now, the main purpose of limitation of action or limitation
statute is to protect a Defendant from injustice of having to
face a stale claim. In such a situation, where a limitation
statute applies, a Plaintiff who might otherwise have had a
valid cause of action loses the right to enforce the cause of
action or claim by judicial process. This is because the
period stipulated by the limitation statute for instituting
such action has lapsed. A plea of limitation of statute is
therefore a weapon of defence, and not attack. In other
words, the limitation statutes, just like equitable doctrines
of laches, are designed to promote justice by preventing
surprises by reviving a claim or cause of action that has
been allowed to lapse. Thus, in the case of Sulgrave
Holdings Inc. v. F.G.N. (2012) 17 NWLR (pt.1329)
p.309 at P.343 Paragraphs E – F, Fabiyi, JSC said:
“It should be reiterated that a statute of limitation is a law
that bars claims after a specified period. It is a statute
which establishes a time
39
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CA)
limit for suing in a civil case based on the date the claim
accrued. The purpose of such a statute is to require diligent
prosecution of known claims thereby providing finality and
predictability in legal affairs. It is also termed non claim
statute. The purpose of limitations, like equitable doctrine
of laches, in their conclusive effects are designed to
promote justice by preventing surprises through the revival
of claims that have been allowed to slumber.”
A claim that is statute barred has thus become an empty
shell and of no utility value to the person claiming it. A
Plaintiff is therefore required to seek prompt remedy for
any infringement of his rights in a Court of law within the
time prescribed by the Law, and if he delays beyond the
prescribed statutory period, his right of action or cause of
action will become unenforceable. See Hassan v. Aliyu
(2010) 17 NWLR (pt.1223) p.547 at 623 Paragraphs D
– H; Olagunju v. P.H.C.N. Plc (2011) 10 NWLR
(pt.1254) p.113 at 133 Paragraphs F – H; Rabiu v.
Adebajo (2012) 15 NWLR (pt.1322) p.125 and Anukwe
v. Eze (2012) 11 NWLR (pt.1310) p.137.
Learned Counsel for the Respondents however
40
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CA)
contend that before the Appellants could claim and raise
the defence of limitation of action, they must have
specifically pleaded same by their Statement(s) of Defence.
That in the instant case, such defence was never pleaded
by the Appellants and same cannot be raised at this appeal
stage. I wish to point out that, a defence based on statute of
limitation is a point of law touching on the jurisdiction of a
Court to adjudicate upon the Plaintiff’s Claim before it. In
other words, where a Defendant contends that an action is
statute barred, he is by so doing raising a point of law
touching on the jurisdiction of the Court to hear and
determine on the matter, because when an action is found
to be statute barred the Court will have no jurisdiction to
entertain it no matter how attractive the case may be.
Consequently, where the point raised succeeds, the right of
the Plaintiff is extinguished leaving him with an empty and
unenforceable cause of action.
Though an aspect of jurisdiction, the Civil Procedure Rules
applicable to the various High Court jurisdictions in this
country require that a Defendant who intends to rely on or
raise the defence of
41
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939(
CA)
limitation of statute must first of all specifically plead same.
The rationale behind this requirement is that, it is a rule of
pleadings that all facts which a Defendant wishes to rely on
as his defence must be pleaded so as to give the Plaintiff
notice so as to avoid his being taken by surprise. See Order
15 Rule 7(1) and (2) of the Ogun State High Court (Civil
Procedure) Rules, 2008 which stipulates that:
“(15) Rule 7(1). All grounds of defence or reply which
makes an action not maintainable or if not raised will take
the opposite party by surprise or will raise issues of facts
not arising out of the preceding pleadings shall be
specifically pleaded.
(2). Where a party raises any ground which makes a
transaction void or voidable or such matters as fraud,
Limitation Law, release, payment, performance, facts
showing insufficiency in contract or illegality either by any
enactment or by common law, he shall specifically plead
same.”
This provision and other provisions in pari materia to it,
have received judicial interpretation by the Supreme Court
and this Court in several cases, such as, Olagunju v.
P.H.C.N. Plc (2011) 10 NWLR
42
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6) LP
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CA)
(pt.1254) p.113 at 124 Paragraphs F – G; Ketu v.
Onikoro (1984) 10 S.C. p.265 at 267 – 268; Lana v.
University of Ibadan (1991) 4 NWLR (pt.64) p.245 at
260 and Akuneziri v. Okenwa (2000) 4 N.S.C.Q.R
p.278. It therefore remains settled that, a party contending
that an action is statute barred must plead the specific Law
that bars the action and go further to plead the incidents
that would establish that the action is indeed statute barred
in relation to that particular stature. See also Ojiogu v.
Ojiogu (2010) 9 NWLR (pt.1198) p.1 and Oyebanji v.
Lawanson (2008) 15 NWLR (pt.1109) p.122. Thus, in
the case of Chime v. A.G; Federation (2008) All FWLR
(pt. 439) p. 550 at 563 Paragraphs A – B, it was that:
“… it becomes clear that special defence such as Limitation
Act or Law must be specifically and expressly pleaded in
the Statement of Defence, otherwise it cannot be
considered by the trial or appeal Court. The rules are
meant to be followed and their provisions binding on a
party who is conducting a proceeding in Court.”
In the instant case, there is no doubt that none of the
Defendants in the Court below raised the
43
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CA)
defence of limitation of action in their Statements of
Defence. This fact is indeed conceded by the Appellants.
However, it is the contention of the Appellants that, though
the defence of limitation of action was not specifically
pleaded, on the 29/11/2012, this Court granted leave to the
Appellants to raise and argue same, as a fresh or new issue
on appeal. Indeed, it is now settled law, that the issue of an
action being statute barred is a substantial question of law
that may affect the jurisdiction of the Court, and
therefore can be raised for the first time on appeal with the
leave of Court. This is in consonance with the settled law
that, where a party intends to raise a fresh issue on appeal,
he has to seek and obtain leave of the appeal Court before
the issue can be validly raised and argued. See Olagunju
v. P.H.C.N. Plc (supra) at p.125 Paragraphs D – F;
Ajala v. Okogbue (2011) 16 NWLR (pt.1272) p.62;
Gabriel v. State (1989) (pt.122) p.457; Ukong v.
Commissioner, Finance (2006) 19 NWLR (pt.1013)
p.187; Dagaci of Dere v. Dagaci of Ebwa (2006) 7
NWLR (pt.979) p.382 and M.L.G; Kwara State v.
Oyebiyi (2006) 10 NWLR (pt.988) p.320. This is based
on
44
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CA)
the premise that, where the question involves substantial
point of law, and it is apparent that it will not be necessary
to open up further evidence which could affect the decision
of the trial Court, the appeal Court will allow the question
to be raised and argued.
In the instant case, this Court granted leave to the
Appellants to raise and argue fresh issues on appeal. That
fresh issue turned on the issue of Limitation of action. It is
obvious that the issue of whether or not an action is caught
by limitation of action or statute is one that can be
determined through the Statement of Claim alone. In that
case, the Defendant relying on it need not call or adduce
evidence, if the facts needed to establish the defence can
be gleaned from or are contained in the case presented by
the Plaintiff in the Statement of Claim. See Olagunju v.
P.H.C.N. Plc (supra) at p.126 Paragraphs F.
As stated earlier, the issue of limitation of action is one of
jurisdiction and therefore, where it is raised on appeal, it
would not be correct to assert, as done by the Respondents,
that the Defendant has put up a case different from that
presented in the trial Court. This is in
45
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6) LP
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939(
CA)
view of the law that, an issue of jurisdiction can be raised
at any stage of the trial, even for the first time on appeal.
To that extent, I agree with Learned Senior Advocate for
the Appellants that the Adeosun’s case (supra) relied on by
learned counsel for the 7th Respondent is not applicable to
the facts of this case.
Now, the Statute of Limitation cited and relied on by the
Appellants is the Public Officers Protection Law of Ogun
State. Learned Counsel for the 6th Respondent had
contended that the said Law is meant for the protection of
“public officers” only and that the 3rd, 4th and 5th
Respondents who can be said to qualify as “public officers”
did not raise the defence. That, the defence of limitation
under the Public Officers Protection Law (supra), is meant
to protect “public officers” and that where such person fails
to raise same in his pleadings, it would be deemed that he
has waived the defence. There is no doubt that Public
Officers Protection Laws are meant to protect public
officers from civil liability for any wrongdoing that may
occasion damage to any citizen, if such action is not
instituted
46
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6) LP
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CA)
within three months after the cause of action accrued. In
the case of Hassan v. Aliyu (supra) at p.621 Paragraphs
E, Adekeye, JSC said that:
“In effect, the Public Officers Protection Act is designed to
protect a public officer who acts in good faith and does not
apply to acts done in abuse of office and with no semblance
of legal justification. On the purport and scope of Section
2(a) of the Public Officers Protection Act, it is well
established that the Act gives full protection or cover to all
public officers or persons engaged in the execution of
public duties who at all material times acted within the
confines of their public authority….”
It is obvious therefore that the statute is not meant for the
protection of all persons. As the title implies, where a
person is not a public officer, he is not entitled to claim any
protection under the Law. Accordingly, for any person to
claim protection under the Public Officers Protection Act or
Law, he must satisfy the following conditions:
(a) That he is a public officer; and
(b) That the act done by him was done in pursuance or
execution or intended execution of a law or
47
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public duty.
Accordingly, where any of the two conditions is not
satisfied, such a person is not entitled to protection under
the Public Officers Protection Law or Act, as the case may
be. It is therefore obvious that the Public Officers
Protection Law can only be invoked in favour of public
officers or persons. In other words, it is only public officers
for whose benefit the Law is made that can claim the
benefit of that protection. That being so, such a person who
is sued for an act committed by him in the execution of a
public duty or law, may decide to waive the benefit of the
protection guaranteed to him under the Law or Act. What
the Law provides is a defence against civil liability or action
and therefore it may appear that only the person for whose
benefit the law is made, that can raise the defence.
However, in the case of Alhaji (Dr.) Ado Ibrahim v.
Alhaji Maigida U. Lawal & Ors (2015) LPELR – 247
(SC), the Supreme Court, per Ngwuta, JSC said:
“Learned Counsel for the 1st – 4th Respondents expressed
the view that only the public officers (5th and 6th
Respondents) for whom the protection offered by the Act is
made can
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raise the issue and a non-public officer cannot raise and/or
rely on same. With respect to the learned counsel, I think
this argument in this respect is a fallacy borne out of a
skewed construction of the title of the Act, “Public Officers
Protection Act” without reference to the provision therein.
See the judgment delivered by this Court on 6/3/2015 in
SC. 85/2014, Timpre Sylva v. INEC & Ors (unreported as
of now). The expression in the Section reproduced…
“against any person for any act…” demonstrates the fallacy
in the contention that the protection under the Act is
restricted to the public officer whose act or neglect gave
rise to the suit. In my view, a Defendant sued alone or
together with the public officer whose act or omission is
questioned is entitled to raise and rely on the defence
under the Act irrespective of its title. However, a non-
public officer raising the defence in a purported status of a
public officer would lose not because he is not entitled to it
but because he does not possess the status in which he
raised the defence. See Rufus Alli Momoh v. Afolabi
Okewale & Anor (1977) 6 S.C. 81 at
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6) LP
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CA)
92.”
It therefore means that, a non-public officer who is sued
jointly or together with a public officer whose conduct is
questioned, is also entitled to raise or rely on the defence
provided by the Public Officers Protection Law. In that
respect, it is my view that the Appellants who were sued
together with the 3rd, 4th and 5th Respondents, are
entitled to rely on the defence created under the Law.
On the issue of waiver, the Supreme Court in the above
cited case, stated that, the word used in Section 2(a) of the
Public Officers Protection Act (which is in pari materia
with Section 2(a) of the Public Officers Protection Law of
Ogun State), is “shall” and therefore connotes
mandatoriness and leaves no room for discretion. That in
the circumstances, a mandatory statutory provision cannot
be waived. In considering the issue, the Supreme cited and
relied on its decision in Menakaya v. Menakaya (2001)
16 NWLR (pt.738) p.203 at 263 Paragraphs B – D,
where it held that:
“When therefore it is argued that a statutory provision has
been waived, it has to be considered whether the statute
confers purely private or individual
50
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6) LP
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939(
CA)
rights which may be waived or whether the statutory
provision confers rights of a public nature as a matter of
public policy. If it is the later, the provision of such statute
cannot be waived as no one is permitted to contract out of
or waive a rule of public or constitutional policy. See A.G;
Bendel State v. A.G. of the Federation (1981) 10 SC.1
at 54; Ogbonna v. A.G. of Imo State (1992) 1 NWLR
(pt.220) 647 at 696.”
It therefore means that the arguments of the Respondent
on the issue of waiver go to no issue. Certainly, the
protection provided under Section 2(a) of the Public
Officers Protection Law is not a private right granted to
such public officers but is enacted as a matter of public
interest or policy. The Appellants cannot therefore be held
to have waived the protection provided by Section 2(a) of
the Law.
Now, the 1st, 2nd, 6th and 7th Respondents have also
argued that, the act of the 3rd Respondent, the Secretary
of Sagamu Local Government acted outside of the scope of
his duty as a public officer. That, there is sufficient
evidence on record to show that the 3rd Respondent acted
recklessly in the performance of his duties. It is my
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CA)
view that it is of no use spending valuable time on this
point. Even if it is agreed or accepted that the 3rd
Respondent did some acts that are not in tandem with the
scope of his functions in the nomination, selection and
appointment of the Ewusi of Makun, it should be noted that
the 1st, 2nd, 6th and 7th Respondents have not pointed to
any act to show that the 4th and 5th Respondents who are
also public officers were in pari delicto with him or that
they acted in a frolic of their own outside the scope of their
duties. To that end, this argument will also not avail the
said Respondents, i .e. the 1st, 2nd, 6th and 7th
Respondents. In other words, there is nothing to show that
the 4th and 5th Respondents abused their office or
otherwise acted in bad faith. The burden was on the 1st,
2nd, 6th and 7th Respondents to establish that the 3rd, 4th
and 5th Respondents acted in bad faith, but they failed to
do so. See Hassan v. Aliyu (supra) at p.622.
Now, what is left for this Court is to determine is whether
or not the Plaintiffs instituted the action within the time
stipulated by the Limitation Law. The Limitation Law is the
Public Officers Protection Law of
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6) LP
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CA)
Ogun State, which stipulate in Section 2(a) thereof, that the
limitation period shall be three months after the cause of
action arose or the act complained against occurred. In
other words, the action must be instituted within 3 months
after the cause of action accrued. See NEPA v. Olagunju
(2005) 3 NWLR (pt.913) p.602; Ibeto Cement Co. Ltd
v. A.G; Federation (2008) 1 NWLR (pt.1069) p.470
and Olagunju v. P.H.C.N. (supra) at p.125. To
determine the limitation period, the Court will refer to the
Statement of Claim. In the instant case, it has been pleaded
in Paragraphs 15, 16, 20 and 33(i) that the nomination of
the 1st Appellant as the Ewusi of Makun was done on the
27/10/2006 and 19/12/2006 respectively. The evidence on
record also shows that the 4th Respondent approved the
appointment of the 1st Appellant as the Ewusi of Makun on
the 16/2/2007. The suit, the subject of this appeal was filed
on the 25/2/2008 which is a period of about twelve (12)
months after the appointment of the 1st Appellant as the
Ewusi of Makun was approved by the 4th Respondent. This
is clearly outside the 3 months limitation period prescribed
by Section 2(a) of the Public Officers
53
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6) LP
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CA)
Protection Law of Ogun State. In that respect, there is no
doubt that the action instituted by the 1st and 2nd
Respondents on the 25/2/2008 is statute barred. In that
respect, the Court below lacked the jurisdiction to
adjudicate on the matter that is statute barred. The action
being statute barred is liable to be struck out.
Despite my finding on issue one (1) above, I find it
necessary to consider issue six (6), which is; whether the
action of the Claimants was (is) incompetent and void ab
initio in view of the issuance of the Writ of Summons by A.
F. Okunnuga & Co. On this issue, learned counsel for the
Appellant cited Sections 2(1), 23 and 24 of the Legal
Practitioners Act; and Order 6 Rule 1 of the Ogun State
High Court (Civil Procedure) Rules, 2008, to submit that in
the administration of justice, only a Legal Practitioner
whose name is on the roll of Legal Practitioners kept in the
Supreme Court Registry is entitled to practice as a
Barrister and Solicitor in Nigeria. That in that respect,
Originating Process must be signed either by the Claimant
or a Legal Practitioner. Learned Counsel then submitted
that a business name is not a Legal
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6) LP
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939(
CA)
Practitioner known to law and therefore any Originating
Process signed in the name of a Law Firm is void. That, the
Writ of Summons in this case was neither signed by the
Claimant nor signed by a Legal Practitioner known to law.
That it was signed by A. F. OKUNNUGA & CO. which is not
a Legal Practitioner but a Law Firm. The cases of SLB
Consortium Ltd v. N.N.P.C. (2011) 9 NWLR (pt.1252)
p.317; Okafor v. Nweke (2007) 10 NWLR (pt.1043)
p.521 and Braithwaite v. Skye Bank (2012) 12 S.C.
(pt.1) p.13 were then cited to submit that A. F. Okunnuga
& Co. is not a person entitled to practice Law in Nigeria
and as such cannot prepare, file or sign processes in a
Court of Law.
Learned Senior Advocate of Nigeria for the Appellant also
cited the unreported case No. SC/75/2008, The Nigerian
Army v. Sgt Asanu Samuel & Ors delivered on the 12th
July, 2013 to further submit that the Writ of Summons
prepared by A. F. Okunnuga & Co. is fundamentally
defective, incompetent and therefore incapable of initiating
any competent action. We were accordingly urged to hold
that the entire action of the 1st and 2nd Respondents in the
Court below, is incompetent, null
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CA)
and void.
Responding on this issue, learned counsel for the 1st and
2nd Respondents referred to Orders 1 Rule 1, 3 Rule 2 of
the Ogun State High Court (Civil Procedure) Rules 2008 to
contend that those rules were followed in the institution of
this action. That, it is clear that the writ was signed by A.F.
Okunnuga; Esq a Legal Practitioner as shown in page 2 of
the records and that the Statement of Claim was also
signed by the same A. F. Okunnuga as indicated in page 12
of the records. That what appears at page 3 of the record is
the address for service and does not signify the person who
issued the writ. Furthermore, that what the Court should
look at is the writ as a whole in order to determine whether
it substantially complies with the Rules of the Court.
Learned Counsel for the 1st and 2nd Respondents also
contended that the distinguishing feature between this case
and the cases cited by the Appellants is that, while this
case deals with a bundle of documents that initiated the
proceeding, the document in those cases were single
isolated documents. That, in any case, the Appellants did
not raise the issue promptly or within a reasonable time,
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CA)
but fully took part in the proceedings without complaining.
That by Order 5 Rule 2(1) of the Ogun State High Court
(Civil Procedure) Rules, 2008, it is now too late for the
Appellants to raise the issue.
On his part, learned counsel for the 6th Respondent
contended that the Writ of Summons and Statement of
Claim filed in this suit are competent and regular in law.
That at page 2 of the Record of Appeal, learned counsel
who filed the Writ of Summons signed immediately after
the relief sought and that A.F. Okunnuga & Co. on page 3
of the record is just for the purpose of address. It was
therefore submitted that the case of Okafor v. Nweke
(2007) 10 NWLR (pt.1043) p.521 is not applicable to
this appeal because A. F. Okunnuga, Esq who prepared the
Writ of Summons signed his name as such at the
appropriate place. We were then urged to resolve this issue
in favour of the Respondents.
Learned Counsel for the 7th Respondent contended that
this issue is a fresh issue which was not raised in the Court
below. That though the Appellants sought leave to file
additional ground, they did not seek leave to raise and
argue the issue distilled from the Additional
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Ground of Appeal. The case of Incar Nig. Plc v. Bolex
Enterprises Nig. (2001) FWLR (pt. 58) p.1187 at 1199
Paragraph H; Jov v. Dom (2001) FWLR (pt. 62) p.
2016 at 2034 – 2035 Paragraphs E – A; Onyemaizu v.
Ojiako (2000) FWLR (pt. 2) p. 310 and Jiddun v.
Abuna & Anor (2000) FWLR (pt. 24) p. 1405 at 1421
Paragraph A were cited to submit that, the law is that
where a party seeks to raise a fresh issue on appeal, he
must in addition seek leave to argue the fresh issue
distilled from the Additional Ground of Appeal. That in the
instant case, the Appellants failed to seek leave of this
Court to raise and argue a fresh issue from the Additional
Ground of Appeal. It was then contended that leave to file
Additional Ground of Appeal is not the same as leave to
argue the fresh issue on appeal.
Learned Counsel for the 7th Respondent alternatively
argued that, the case of Okafor v. Nweke (supra) is not
applicable here, as a meticulous examination of the
processes filed in the Court below will reveal that the
Statement of Claim which supersede the Writ of Summons
were issued and signed by A.F. Okunnuga & Co. as seen in
page 2 of the records. That it is
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settled law that the sin, negligence or inadvertence of
counsel should not be visited on the litigant. The case of
Akinpelu v. Adegbore (2008) All FWLR (pt. 429) was
cited in support. The case of Ogundele v. Agiri (2010) All
FWLR (pt. 507) p.1 at 27 – 28 was then cited in urging
us to discountenance with the arguments of the Appellants
in the interest of justice.
Replying on points of law, learned counsel for the
Appellants contended that the part of the decision in Jov v.
Dom (supra) relied on by the 7th Respondent is an obiter
dictum. That in any case, the Supreme Court has since
departed from the position. Cases such as Moses v. State
(2006) 11 NWLR (pt. 992) p. 458 at 503; Aderibigbe v.
Abioye (2009) 10 NWLR (pt. 1150) p. 592; Owners of
M/V Gongola Hope v. S.C. (Nig.) Ltd (2007) 15 NWLR
(pt. 1056) p. 189 and Agbiti v. Nigeria Navy (2009) 10
NWLR (pt. 1236) p. 175 were then cited to submit that,
where the issue rests on the jurisdiction of the Court, an
Appellant does not require leave to raise the issue, as the
issue of jurisdiction can be raised at any stage of the
proceedings and in any manner.
Learned Counsel for the Appellants insisted that the
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Writ was issued by A.F. Okunnuga & Co., a non-legal
practitioner because the name of “A.F. Okunnuga & Co.” is
boldly inscribed on page 3 as the person who issued the
Writ of Summons. That the issue of sin of counsel was duly
addressed by the Supreme Court in Braithwaite v. Skye
Bank (2012) 12 S.L. (pt.1) p.13. Furthermore that the
issue of the Legal Firm of Ajibola & Co signing the brief in
that case was never addressed in the case of Ogundele v.
Agiri (supra) cited by the 7th Respondent, as it was not an
issue raised for determination in that case. We were then
urged to discountenance the arguments of the 1st, 2nd, 6th
and 7th Respondents and to allow the appeal.
Now, learned counsel for the 7th Respondent as a
preliminary issue, has contended that this issue is a fresh
issue which did not arise in the Court below. That though
the Appellants had sought leave of this Court to file
“Additional Ground(s) of Appeal, they did not proceed to
ask for leave to argue an issue out of the Additional Ground
of Appeal. The Appellant is of the view that the issue is one
of jurisdiction which does not require leave of this Court to
raise
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and argue same. I was able to read the authorities cited
and relied upon by learned counsel on both sides. Truly, in
the case of Jov v. Dom (supra) cited by learned counsel
for the 7th Respondent, the Supreme Court observed that a
question of law and jurisdiction may be raised at any time
in the proceedings, even on appeal but that the procedure
for raising the issue must be followed i.e, that even in case
of jurisdiction, leave of Court must be sought and obtained.
In the case of Agbiti v. Nigerian Army (supra) cited by
learned counsel for the Appellant; Adekeye, JSC held
p.207 Paragraph G – 208, Paragraph B as follows:
“An Appellant is allowed to raise the question of
jurisdiction on appeal without the leave of Court whereas
ordinarily a fresh issue can only be raised on appeal with
the leave of Court sought and obtained hence the issue
becomes incompetent and liable to be struck out. I shall
repeat with emphasis that an Appellant does not require
leave to raise the issue of jurisdiction, as it can be raised at
any stage of the proceedings and in any manner. The issue
of jurisdiction or competence when raised must be one
which must be
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capable of being disposed of without the need to call
additional evidence. The issue of jurisdiction being radically
fundamental to adjudication in the Nigerian legal system
must be properly raised before the Court can rightly
entertain the point. Where the question involves a
substantial point of law, substantive or procedural and its
apparent that it will not be necessary to open up further
evidence which would affect the decision, the Court has a
duty to allow the question to be raised and the points taken
so as to prevent an obvious miscarriage of justice.”
My Lord, I.T. Muhammad, JSC expressed similar news in
the case of Aderibigbe v. Ajiboye (supra) at p.615
paragraphs C – G.
It therefore means that where the point of law raised is
substantial or rests on the jurisdiction of the Court to hear
and determine the suit; and there is no need to call or
adduce additional evidence on the issue, leave of the Court
is not required to raise and argue the issue. In the instant
case, the Appellants sought for and were granted leave to
file Additional Ground of Appeal. The Additional Ground of
Appeal is Ground 10 in the Amended Notice of
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Appeal filed on the 4/3/15 and deemed filed on the 27/5/15.
It touches on the competence of the Writ of Summons on
the ground that it was issued by A. F. Okunnuga & Co. This
fact can be easily determined by looking at the Writ of
Summons; therefore, no additional evidence is required to
establish that fact. I therefore hold that the issue was
properly raised and argued in this appeal.
Now, on the substantive issue, it is a requirement in most
High Courts (Civil Procedure) Rules in Nigeria, including
that of the High Court of Ogun State that, an Originating
Process shall be prepared by either the Claimant or his
Legal Practitioner. See Order 6 Rule 1 of the Ogun State
High Court (Civil Procedure) Rules, 2008. The problem the
Courts have had to grapple with have always been whether
a process purported to have been prepared or signed by a
Legal Practitioner, was indeed prepared or signed by a
Legal Practitioner known to law in Nigeria. In resolving the
issue, the Supreme has laid emphasis on Sections 2(1) and
24 of the Legal Practitioners Act, Cap. 207, Laws of the
Federation of Nigeria, 1990. It has been held that by a
combined reading of Sections 2(1)
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and 24 of the Legal Practitioners Act (supra), a person is
only entitled to practice law in Nigeria as a Barrister and
Solicitor, otherwise known as a Legal Practitioner, if and
only if, his name has been enrolled in the Register of Legal
Practitioners in the Supreme Court of Nigeria. Such a
person must necessarily be a natural person and must be
registered on the roll under a given name. It is by that
name that such a person can be identified or recognized as
a Legal Practitioner. It therefore means that such Legal
Practitioner must prepare or sign all Court processes under
that name, and no other. However, Legal Practitioners in
Nigeria were in the habit of preparing Court processes in
their Firm names; and that was the position when the
Supreme Court in the case of Okafor v. Nweke (2007) 10
NWLR (pt.1043) p.521 pronounced on the competence of
Court processes signed in the name of a Firm of Legal
practitioners.
In the Okafor v. Nweke case (supra), in upholding the
objection on the competence of the Motion on Notice,
Notice of Cross-Appeal and Applicants’ brief in respect of
the application, all of which were signed in the name of
J.H.C. Okolo, SAN
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& Co., the Supreme Court cited Sections 2(1) and 24 of the
Legal Practitioners Act (supra) to hold that:
“The combined effect of the above provisions is that for a
person to be qualified to practice as a Legal Practitioner he
must have his name in the roll otherwise he cannot engage
in any form of Legal Practice in Nigeria.”
The significance or impact of that decision is that, it
determined that all Court processes prepared and/or signed
by a Legal Practitioner must be so prepared in the name of
such Legal practitioner. A Firm of Legal Practitioners is not
the name of a Legal Practitioner enrolled to practice as a
Barrister and Solicitor in the Register of Legal Practitioners
in the Supreme Court of Nigeria. Consequently, any Court
process prepared and/or signed in the name of a Firm of
Legal Practitioners is incompetent, null and void.
In the case of F.B.N. Plc v. Maiwada (2013) 5 NWLR
(pt. 1348) p. 444, a full panel of the Supreme Court was
invited to review and depart from the decision of Okafor v.
Nweke (supra). The Supreme Court, after taking
arguments of counsel and numerous amici curiae invited
to address the Court on the
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issue, refused to depart from Okafor v. Nweke (supra)
and reiterated that the position in that case is good law.
Specifically, Fabiyi, JSC who read the lead judgment said:
“The provisions of Sections 2(1) and 24 of the Act… remain
the law and shall continue to be so until when same is
repealed or amended. For now, I see nothing amiss about
the law.
The decision in Okafor v. Nweke was based on a
substantive law, an Act of the National Assembly i.e. the
Legal Practitioners Act. It is not based on Rules of Court.
According to Oguntade, JSC at page 534 of the judgment
in Okafor v. Nweke; “It would have been quite another
matter if what is in issue is a mere compliance with Court
Rules.” Let me say it bluntly that where the provisions of an
Act like the Legal Practitioners Act is at play, as herein,
provisions of Rule of Court which are subject to the law
must take the side line.”
The above cited authorities therefore represent the law on
the issue in this country. Those decisions have been
followed and applied by this Court and indeed the Supreme
Court in a plethora of cases. For example, see N.D.I.C. v.
Lagos State
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CA)
Gov’t & Ors (2009) LPELR – 4966 (CA); Unity Bank
Plc v. Denclag Limited & Anor (2012) LPELR – 9729
(SC); Amidu Ishola & Ors v. Ibadan North-East Local
Gov’t & Anor (2013) LPELR – 20477 (CA); Hassan
Garba v. Musa Lawan Birniwa & Anor (2013) LPELR –
21478 (CA) and Alhaji Tajudeen Babatunde Hamzat &
Anor v. Alhaji Saliu Ireyemi Sanni & Ors (2015)
LPELR – 24302 (SC).
In the instant case, the Writ of Summons, which is the
Originating Process, was issued by A. F. Okunnuga & Co of
No. 9, Abudu Bakare Street, Aiyegbami, Sagamu. It is true
that there is an inscription which may qualify as a signature
immediately after the claims on the Writ of Summons but
before the date of issuance of the Writ. There is however no
evidence that the said signature is that of A. F. Okunnuga;
Esq as contended by the Respondents, or indeed of any
Legal Practitioner. Indeed in the case of Okafor v. Nweke
(supra), Onnoghen, JSC(as he then was) stated that:
“I had earlier stated that the law does not say what should
be in the roll should be signature of the Legal Practitioner
but his
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name.”
The name of A. F. Okunnuga, Esq is not on the Writ as the
maker of the signature found at page 2 of the record.
Furthermore, Order 6 Rule 7 of Ogun State High Court
(Civil Procedure) Rules (supra) States that the Originating
Process shall be “prepared” by the Claimant or his Legal
Practitioner. In the instant case, the Writ of Summons
which is the Originating Process in this case was prepared
by A. F. Okunnuga & Co., a Law Firm, and therefore not a
person known under the Legal Practitioners Act as a Legal
Practitioner. It is therefore obvious that the Originating
Process in this case prepared by A. F. Okunnuga & Co is
incompetent. In that respect, the Statement of Claim
predicated on such incompetent Originating Process and
the entire proceeding of the Court below based on it are a
nullity. In other words, the entire proceedings of the Court
below, including the evidence led on the invalid process
and the judgment thereon were conducted without
jurisdiction. This means that the conditions precedent to
confer jurisdiction on the Court below were not satisfied.
Learned Counsel for the 7th Respondent raised the issue
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of interest of justice. In the case of F.B.N. v. Maiwada
(supra), the Supreme Court pointed out clearly that the
issue is one of compliance with the provisions of
substantive law; the Legal Practitioners Act; and not one of
mere practice and procedure. That in the circumstances,
the notion of substantial justice or interest of justice cannot
be relevant. See also Braithwaite v. Skye Bank (2012)
12 S.C. (pt.1) p. 13.
On the whole therefore, it is apparent that the Writ of
Summons was prepared by A. F. Okunnuga & Co., a Law
Firm. That makes the Writ of Summons and the entire
proceedings of the Court below including the judgment
which is the product of the proceeding, null and void,
having been conducted without jurisdiction. This issue is
therefore resolved in favour of the Appellants. With the
resolution of issues 1 and 6 in favour of the Appellant, the
entire substratum of the case conducted in the Court below
has collapsed. It would therefore be mere academic
exercise to delve into the remaining issues in this appeal.
Having resolved as above, it is my view, which I hold, that
this appeal has merit and should be allowed. It is
accordingly allowed.
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Accordingly, the Writ of Summons filed in the Court below
and upon which the case was conducted in the Court below
is hereby struck out. The entire proceedings of the Court
below and the judgment delivered on the 19th day of
January, 2012, is hereby set aside.
The parties are to bear their costs.
MODUPE FASANMI, J.C.A.: My learned brother Haruna
Simon Tsammani J.C.A. has afforded me a preview of the
draft of the judgment just delivered by him.
The issues raised in the appeal have been adequately dealt
with. I am in complete agreement with his reasoning and
conclusion which I adopt as mine. The Writ of Summons
which is the originating process in this case was prepared
by A.F. Okunnuga & Co.; a law firm not a person known
under the Legal Practitioners Act as a legal practitioner.
The originating process is therefore incompetent. The
statement of claim predicated on such incompetent
originating process and the entire proceedings are null and
void. See the case of Okafor v. Nweke (2007) 10 NWLR
(Pt.1043) page 521.
The appeal is meritorious and it is hereby allowed. I abide
by the consequential orders contained in
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the lead judgment including the order on costs.
CHINWE EUGENIA IYIZOBA, J.C.A.: I had the privilege
of reading in draft the judgment just delivered by my
learned brother, HARUNA SIMON TSAMMANI JCA. I agree
with his reasoning and conclusions. Another case of signing
of Court processes by a law firm. My learned brother has
once again dealt lucidly with the relevant issues in the
appeal. I also allow the appeal. I abide by the consequential
orders in the lead judgment.
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